TABLE OF CONTENTS

 

		Page
INTRODUCTION		1
ARTICLE I DEFINITIONS		2
1.1	Account	2
1.2	Account Balance	2
1.3	Administrative Committee	2
1.4	Affiliate	2
1.5	Annuity Contract	2
1.6	Beneficiary	2
1.7	Benefit Commencement Date	2
1.8	Break-in-Service	2
1.9	Code	3
1.10	Company	3
1.11	Compensation	3
1.12	Defined Benefit Plan	5
1.13	Defined Contribution Plan	5
1.14	Disability	5
1.15	Effective Date	5
1.16	Eligible Employee	5
1.17	Employee	6
1.18	Employer	6
1.19	Employer Contributions	6
1.20	Employment	6
1.21	Employment Commencement Date	6
1.22	Entry Date	6
1.23	ERISA	6
1.24	Highly Compensated Employee	6
1.25	Hour of Service	7
1.26	Investment Fund	8
1.27	Investment Manager	8
1.28	Leased Employee	8
1.29	Leave of Absence	8
1.30	Normal Retirement Age	8
1.31	Participant	8
1.32	Participating Affiliate	8
1.33	Period of Service	8
1.34	Period of Severance	8
1.35	Plan	8
1.36	Plan Year	8
1.37	Qualified Joint and Survivor Annuity	9
1.38	Qualified Pre-Retirement Survivor Annuity	9
1.39	Reduction in Force	9
1.40	Severance from Service Date	9

 

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1.41	Spousal Consent	9
1.42	Spouse	9
1.43	Surviving Spouse	9
1.44	Termination of Employment	9
1.45	Trust	10
1.46	Trust Agreement	10
1.47	Trustee	10
1.48	Valuation Date	10
1.49	Vesting Service	10
1.50	Year of Service	10
ARTICLE II		11
2.1	Admission as a Participant	11
2.2	Rehired Employees	11
2.3	Termination of Participation	12
ARTICLE III CONTRIBUTIONS		13
3.1	Employer Contributions	13
3.2	Participant Contributions	13
3.3	Timing of Contributions	13
3.4	Forfeitures	14
3.5	Limitation on Allocations	14
3.6	[Reserved]	16
3.7	Return of Employer Contributions Under Special Circumstances	16
3.8	Contributions Conditioned on Deductibility	17
ARTICLE IV ACCOUNTS, INVESTMENTS AND ALLOCATIONS		18
4.1	Establishment of Participant Accounts	18
4.2	Investment of Funds	18
4.3	Allocation of Earnings to Accounts	18
4.4	Allocation Report	18
4.5	Allocation Corrections	18
ARTICLE V VESTING AND TOP-HEAVY PROVISIONS		19
5.1	Determination of Vesting	19
5.2	Rules for Crediting Vesting Service	19
5.3	Rules for Crediting; Service Upon Termination of Employment	20
5.4	Top-Heavy Provisions	21
ARTICLE VI AMOUNT AND PAYMENT OF BENEFITS TO PARTICIPANTS,		25
6.1	Termination of Employment	25
6.2	Age 70-1/2 Distributions	26
6.3	No In-Service Withdrawals or Loans	26
6.4	Minimum Required Distributions	26
ARTICLE VII FORMS OF PAYMENT OF ACCOUNTS		31
7.1	Methods of Distribution	31

 

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7.2	Election of Optional Forms	31
7.3	Direct Rollovers	33
ARTICLE VIII DEATH BENEFITS		34
8.1	Payment of Account Balances	34
8.2	Beneficiary	34
8.3	Required Commencement	35
ARTICLE IX FIDUCIARIES		36
9.1	Named Fiduciaries	36
9.2	Employment of Advisers	36
9.3	Multiple Fiduciary Capacities	36
9.4	Payment of Expenses	36
9.5	Indemnification	36
ARTICLE X TRUSTEE AND TRUST FUND		38
10.1	Establishment of Trust	38
10.2	Powers and Duties of the Trustee	38
10.3	Exclusive Benefit	38
10.4	Delegation of Responsibility	38
ARTICLE XI PLAN ADMINISTRATION		39
11.1	The Administrative Committee	39
11.2	Administrative Committee Powers and Duties	39
11.3	Claims Procedure	40
11.4	Delegation of Responsibility	42
ARTICLE XII MANAGEMENT, CONTROL AND INVESTMENT OF PLAN ASSETS		43
12.1	Investment Funds	43
12.2	Valuation of Accounts	43
12.3	Investment in Insurance Contract	43
12.4	The Investment Manager	43
12.5	Compensation	44
ARTICLE XIII PLAN AMENDMENT OR TERMINATION		45
13.1	Plan Amendment	45
13.2	Limitations of Plan Amendment	45
13.3	Right of the Company to Terminate Plan	45
13.4	Effect of Partial or Complete Termination	46
ARTICLE XIV MISCELLANEOUS PROVISIONS		47
14.1	Plan Not a Contract of Employment	47
14.2	Source of Benefits	47
14.3	Benefits Not Assignable	47
14.4	Domestic Relations Orders	47
14.5	Benefits Payable to Minors, Incompetents and Others	47
14.6	Merger or Transfer of Assets	48

 

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14.7	Participation in the Plan by an Affiliate	48
14.8	Action by the Company or a Participating Affiliate	48
14.9	Provision of Information	48
14.10	Notice of Address	49
14.11	Controlling Law	49
14.12	Military Service	49
14.13	Conditional Adoption	49
14.14	Word Usage and Article and Section References	49
14.15	Effect of Mistake	49

 

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INTRODUCTION

 

Effective as of January 1, 1989, Laporte Inc. established The Laporte Inc. Money Purchase Pension Plan (the “Plan”). The Plan was amended from time to time for administrative reasons, to reflect changes in the Laporte Inc. corporate structure, and to comply with changes in relevant law.

 

The Plan was amended and restated effective as of January 1, 1997 (except where otherwise indicated), to comply with the Uruguay Round Agreements Act (“GATT”), the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), the Small Business Job Protection Act of 1996 (“SBJPA”), the Taxpayer Relief Act of 1997 (“TRA ‘97”), the Internal Revenue Service Restructuring and Reform Act of 1998 (“RRA ‘98”) and the Community Renewal Tax Relief Act of 2000 (“CRA”) (collectively known as “GUST”), and other changes in applicable law. Effective as of March 1, 2001, the Plan name was changed to The Rockwood Specialties Inc. Money Pension Plan to reflect the acquisition of Laporte Inc. by Rockwood Specialties Inc. (the “Company”). This Plan, was amended and restated effective as of January 1, 1997 (except where otherwise indicated) to reflect certain provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”), and is intended as good faith compliance with the requirements of EGTRRA and is to be construed in accordance with EGTRRA and any guidance issued thereunder. The Plan is hereby amended and restated effective as of January 1, 2008 to incorporate all effective prior amendments since the Plan’s last amendment and restatement, and to reflect applicable legislative changes, including changes under the Pension Protection Act of 2006, changes under EGTRRA, and the final regulations under Code Section 415.

 

The Company intends that this Plan and related Trust qualify under all applicable provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and each of the terms of this Plan and Trust shall be so interpreted.

 

The benefits provided under the Plan to any participant who terminates Employment, retires or dies while employed by the Company or any Affiliate thereof shall be determined in accordance with the provisions of the Plan as in effect on the date of such Termination of Employment, unless such person is thereafter reemployed and again becomes a Participant in the Plan.

 

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ARTICLE I

 

DEFINITIONS

 

Each of the following terms shall have the meaning set forth in this Article I for purposes of this Plan:

 

1.1                                  Account   shall mean the separate account established and maintained for each Participant pursuant to Section 4.1.

 

1.2                                  Account Balance   shall mean the value of a Participant’s Account determined as of the applicable Valuation Date.

 

1.3                                  Administrative Committee   shall mean the committee appointed pursuant to, and having the responsibilities specified in, Article XI of the Plan.

 

1.4                                  Affiliate   shall mean any corporation or unincorporated trade or business (other than the Company) while it is: (a) a member of a controlled group of corporations (within the meaning of Code Section 414(b)) of which the Company is a member; (b) a trade or business under “common control” (within the meaning of Code Section 414(c)) with the Company; (c) a member of an “affiliated service group” (within the meaning of Code Section 414(m)) which includes the Company; or (d) any other entity required to be aggregated with the Company under Code Section 414(o).

 

Notwithstanding the foregoing, for purposes of applying Code Section 414 (b) and (c) to Code Section 415, the phrase “more than 50 percent” shall be substituted for the phrase “at least 80 percent” each place it appears in Code Section 1563(a)(1).

 

1.5                                  Annuity Contract   shall mean an individual or group annuity contract issued by an insurance company providing periodic benefits, whether fixed, variable or both, the benefits or value of which a Participant or Beneficiary cannot transfer, sell, assign, discount, or pledge as collateral for a loan or as security for the performance of an obligation, or for any other purpose, to any person other than the issuer thereof. The terms of any Annuity Contract distributed by the Plan to a Participant or Beneficiary shall comply with the terms of this Plan.

 

1.6                                  Beneficiary   shall mean the person or persons entitled to receive any payment of benefits from the Plan upon a Participant’s death, as determined in accordance with Section 8.2.

 

1.7                                  Benefit Commencement Date   shall mean the first day of the first period for which an annuity benefit is payable to the Participant under the Plan or, if a Participant’s benefit is not payable in the form of an annuity, the first day on which all events have occurred that entitle the Participant to receive his or her benefit.

 

1.8                                  Break-in-Service   shall mean a one-year period of severance determined on the basis of a 12-consecutive-month period beginning on the severance from service date and ending on the first anniversary of such date, provided that the Employee during such 12-consecutive-month period does not perform an hour of service (within the meaning of Section 2530.200b-2(a)(1) of the U.S. Department of Labor Regulations) for the Employer; provided, however, (a) if an

 

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Employee severs from service as a result of quit, discharge or retirement and then returns to service within 12 months, the period of severance shall be deemed a period of service, and (b) if an Employee is absent from service for any reason other than quit, discharge, retirement or death and during the absence a quit, discharge or retirement occurs, the period of time between the severance from service date (i.e., the date of quit, discharge or retirement) and the first anniversary of the date on which the employee was first absent shall be taken in account, if the employee returns to service on or before such first anniversary date.

 

Solely for purposes of determining whether a Break-in-Service has occurred, an Employee who is absent from work for any period by reason of the (a) pregnancy of the Employee (b) the birth of a child of the Employee, (c) the placement of a child with the Employee in connection with the adoption of such child by such Employee, or (d) caring for such child for a period beginning immediately following such birth or placement, shall be credited with a sufficient Period of Service to prevent a Break-in-Service; provided, however, the Employee shall have a Severance from Service Date which is the second anniversary of the first day of such absence if the Employee is absent from service beyond the first anniversary of the first day of such absence. The period between the first and second anniversaries of the first day of absence from work shall not be deemed a period of service nor a period of severance.

 

An Employee who is reemployed and is subject to reemployment under the Uniformed Services Reemployment Rights Act of 1994 (“USERRA”) shall not be treated as having incurred a Break in Service by reason of the individual’s period of qualified military service as defined in USERRA.

 

For purposes of this Section 1.8, a “severance from service” shall occur on the earlier of (a) the date on which an Employee quits, retires, is discharged or dies, or (ii) the first anniversary of the first date of a period in which an Employee remains absent from service (with or without pay) with the Employer for any reason other than quit, retirement, discharge or death, such as vacation, holiday, sickness, disability, leave of absence or layoff.

 

1.9                                  Code   shall mean the Internal Revenue Code of 1986, as now in effect or as amended from time to time. A reference to a specific provision of the Code shall include such provision, any successor provision, and any applicable regulations pertaining thereto.

 

1.10                            Company   shall mean Rockwood Specialties Inc. or any successor legal entity.

 

1.11                            Compensation   shall mean all remuneration for services rendered paid by the Employer to an Employee, including, without limitation, bonuses, overtime and commissions, but excluding amounts paid or reimbursed by the Employer for moving expenses incurred by an Employee to the extent that at the time of payment it is reasonable to believe such amounts are deductible by the Employee under Code Section 217, the value of any non-qualified stock option granted to a Highly Compensated Employee by the Employer, amounts paid to a Highly Compensated Employee to enable such Employee to pay taxes on certain items of compensation received from the Employer, and items which be excluded from the definition of “compensation” within the meaning of Treas. Reg. Section 1.415-2(d)(3).  Compensation includes compensation which is not currently includible in the Participant’s gross income by reason of the application of Code Section 125, Code Section 402(e)(3) or Code Section 402(h)(1)(B). Effective as of January 1,

 

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2001, Compensation shall also include amounts includible in the Employee’s gross income by reason of the application of Code Section 132(f).

 

Notwithstanding the foregoing, the Compensation taken into account for an Employee for any Plan Year shall not exceed $150,000, as adjusted pursuant to Code Section 401(a)(17) (the “Code Section 401(a)(17) limitation”). For the 2001 Plan Year, the Code Section 401(a)(17) limitation is $170,000. Effective for Plan Years beginning after December 31, 2001, Compensation taken into account for an Employee for a Plan Year shall not exceed $200,000, as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the Code.

 

Effective for January 1, 2008, Limitation Compensation shall also include Post-Severance Compensation.  “Post-Severance Compensation” means, for Limitation Years that begin on or after January 1, 2008, the following amount(s) that would have been included in the definition of Limitation Compensation if the amounts were paid prior to the Employee’s Severance from Service Date from employment with the Employer, provided such amount(s) are paid to the Employee by the later of 2½ months after the Employee’s Severance from Service Date from employment with the Employer or the end of the Limitation Year that includes the Severance from Service Date from employment with the Employer:

 

(i)            The payment is regular compensation for services during the Employee’s regular working hours, or compensation for services outside the Employee’s regular working hours (such as overtime or shift differential), commissions, bonuses, or other similar payments; and

 

(ii)           The payment would have been paid to the Employee prior to a Severance from Service Date from employment if the Employee had continued in employment with the Employer.

 

Post-Severance Compensation shall also include:

 

(i)            Payment for unused accrued bona fide sick, vacation, or other leave, but only if the Employee would have been able to use the leave if employment had continued; or

 

(ii)           Received by an Employee pursuant to a nonqualified unfunded deferred compensation plan, but only if the payment would have been paid to the Employee at the same time if the Employee had continued in employment with the Employer and only to that the payment is includible in the Employee’s gross income.

 

Any other payment that is not described shall not be considered Post-Severance Compensation if paid after the Severance from Service Date from employment with the Employer, even if paid within the time period described above. Accordingly, Post-Severance Compensation shall not include severance pay, or parachute payments within the meaning of Code Section 280G(b)(2), if they are paid after the Severance from Service Date from employment with the Employer, and shall not include post-severance payments under a non-qualified unfunded deferred compensation plan unless the payments would have been paid at that time without regard to the severance from employment.

 

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1.12          Defined Benefit Plan   shall mean any plan of the type defined in Code Section 414(j) maintained by the Company or an Affiliate.

 

1.13          Defined Contribution Plan   shall mean any plan of the type defined in Code Section 414(i) maintained by the Company or an Affiliate.

 

1.14          Disability   shall mean a Participant’s total and permanent inability to meet the requirements of the Participant’s customary employment in a satisfactory manner by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; provided, however, that such disability:

 

(a)            was not contracted, suffered, or incurred while the Participant was engaged in, or did not result from his or her having engaged in, a criminal enterprise; or

 

(b)            was not sustained while the Participant was employed by anyone other than the Company or an Affiliate. A Participant shall not be considered to have a Disability unless he or she furnishes proof of the existence of such Disability to the Administrative Committee in the form and manner, and at such time, as the Administrative Committee may request.

 

1.15          Effective Date   shall mean January 1, 2008.

 

1.16          Eligible Employee   shall mean all Employees of the Employer other than: (a) Employees included in a unit of employees covered by a collective bargaining agreement between the Employer and an employee representative (not including any organization more than half of whose members are owners, officers or executives of the Employer) in the negotiation of which retirement benefits were the subject of good faith bargaining, unless such bargaining agreement specifically provides for participation in the Plan; (b) Leased Employees and other individuals providing services to the Employer pursuant to an agreement between the Employer and a third party, even if they are not “leased employees” under Code Section 414(n); (c) “seconded employees” who participate in any non-United States pension plan sponsored by the Company or any Affiliate; (d) individuals providing services pursuant to contracts designating them as independent contractors or consultants, or individuals designated by the Employer as independent contractors or consultants; and (e) any other individual who is compensated, directly or indirectly, by the Employer and with respect to whom such compensation is not treated by the Employer at the time of payment as being subject to statutorily required payroll tax withholding, such as withholding of federal and/or state income tax and/or withholding of the Employee’s share of Social Security tax, provided that statutorily required backup withholding shall not be considered to be payroll tax withholding. The foregoing exclusions from the definition of “Eligible Employee” shall apply notwithstanding any contrary determination of employee status by any court or governmental agency including, but not limited to, the Internal Revenue Service or the Department of Labor.

 

Effective July 31, 2004, an employee of the Sachtleben Company shall become an Eligible Employee under the Plan in accordance with this Section 1.16 and shall be eligible to participate in the Plan in accordance with Section 2.1.

 

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Effective January 1, 2005, an employee of Oakite Products, Inc. shall become an Eligible Employee under the Plan in accordance with this Section 1.16 of the Plan and shall be eligible to participate in the Plan in accordance with Section 2.1.

 

Effective January 1, 2007, an employee of Chemetall Foote Corp. and an employee of CeramTec North America Innovative Ceramic Engineering Corporation shall become an Eligible Employee under the Plan in accordance with Section 1.16 of the Plan and shall be eligible to participate in the Plan in accordance with Section 2.1.

 

1.17          Employee   shall mean any person in an employee-employer relationship with the Company or an Affiliate and shall include Leased Employees. Notwithstanding the foregoing, if such Leased Employees do not constitute more than 20% of the nonhighly compensated work force, within the meaning of Code Section 414(n)(5)(C)(ii), of the Company and its Affiliates, the term “Employee” shall not include those Leased Employees covered by a plan described in Code Section 414(n)(5).

 

1.18          Employer   shall mean the Company and each Participating Affiliate in the Plan pursuant to Section 14.7.

 

1.19          Employer Contributions   shall mean any contribution to the Plan made by the Employer and allocated to a Participant’s Account in accordance with Section 3.1.

 

1.20          Employment   shall mean services performed for the Company or an Affiliate.

 

1.21          Employment Commencement Date   shall mean the date on which an Employee first performs an Hour of Service.

 

1.22          Entry Date   shall mean the first day of every calendar month.

 

1.23          ERISA   shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a specific provision of ERISA shall include such provision, any successor provision and any applicable regulation pertaining thereto.

 

1.24          Highly Compensated Employee   shall mean, with respect to any Plan Year, an Employee who performs services for the Company or any Affiliate during the Plan Year, and:

 

(a)            was a 5% owner (as defined in Code Section 414(q)(2)) during the Plan Year or the preceding Plan Year; or

 

(b)            had compensation (as defined in Code Section 415(c)(3)) in excess of $80,000, as adjusted in accordance with Code Section 415(d), for the preceding Plan Year and was in the top-paid group of employees for such preceding Plan Year. The top-paid group of employees is the group consisting of the top 20% of employees when ranked on the basis of compensation.

 

A former Employee shall be treated as a Highly Compensated Employee if such Employee was a Highly Compensated Employee when he or she separated from service or at any time after attaining age 55.

 

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The determination of who is a Highly Compensated Employee shall be made in accordance with Code Section 414(q).

 

1.25          Hour of Service   shall mean service credited in accordance with the elapsed time method under Treas. Reg §1.410(a)-7.  Accordingly, for purposes of the Employee’s rights with respect to eligibility to participate, vesting and benefit accrual, the Plan shall credit the period of time which elapses while the Employee is employed (i.e., while the employment relationship exists) with the Employer, regardless of the actual number of hours he or she completes during such period. An Employee’s service shall be taken into account for purposes of eligibility to participate and vesting as of the date he or she first performs an hour of service within the meaning of Treas. Reg. §2530.200b-2(a)(1) for the Employer. Service shall be taken into account for the period of time from the date the Employee first performs such an hour of service until the date he or she severs from service with the Employer.

 

The date an Employee severs from service shall be the earlier of the date the Employee quits, is discharged, retires or dies, or the first anniversary of the date the employee is absent from service for any other reason (e.g., disability, vacation, leave of absence, layoff, etc.). If an Employee is granted a leave of absence (and if no intervening event occurs), the Severance from Service Date shall occur one year after the date the Employee was first absent on leave, and this one year of absence shall be taken into account as service for the Employee. A quit, discharge, retirement or death within the year after the beginning of an absence for any other reason shall result in an immediate severance from service.

 

For purposes of eligibility to participate and vesting, an Employee who has severed from service by reason of a quit, discharge or retirement may be entitled to have a period of time of 12 months or less taken into account by the Employer if the Employee returns to service within a certain period of time and performs an hour of service within the meaning of Treas. Reg. §2530.200b-2(a)(1). In general, the period of time during which the Employee must return to service shall begin on the date the Employee severs from service as a result of a quit, discharge or retirement and ends on the first anniversary of such date. However, if the Employee is absent for any other reason (e.g., layoff) and then quits, is discharged or retires, the period of time during which the Employee may return and receive credit shall begin on the Severance from Service Date and end one year after the first day of absence (e.g., first day of layoff). A severance from service (e.g., a quit), or an absence (e.g., layoff) followed by a severance from service, shall not result in a period of time of more than one year being required to be taken into account after an Employee severs from service or is absent from service.

 

For purposes of benefit accrual, an Employee shall be entitled to have his or her service taken into account from the date he or she begins to participate in the Plan until the Severance from Service Date. Periods of severance under any circumstances are not required to be taken into account.

 

Prior to January 1, 2002, an Hour of Service was determined under the general method of crediting service for an Employee under Treas. Reg. §2530.200b-2 (i.e., actual counting of hours of service during the applicable 12-consecutive-month computation period), and/or the equivalencies set forth in Treas. Reg. §2530.200b-3. Accordingly, an Employee received a year’s credit (in units of years of service or years of participation) for a computation period during

 

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which the Employee was credited with a specified number of hours of service. An Employee’s rights with respect to eligibility to participate, vesting and benefit accrual was determined by totaling the number of years’ credit to which an Employee was entitled.

 

1.26          Investment Fund   shall mean an investment fund, if any, in which the Trust may be invested pursuant to Section 12.1.

 

1.27          Investment Manager   shall mean any person appointed pursuant to Section 12.4 having the power to direct the investment of assets in accordance with that Section.

 

1.28          Leased Employee   shall mean, pursuant to Code Section 414(n), any person who is not a common law employee of the Company or an Affiliate and who provides services to the Company or an Affiliate if

 

(a)            Such services are provided pursuant to an agreement between the Company or the Affiliate and any other person (called a “leasing company”);

 

(b)            Such person has performed such services for the Company or the Affiliate on a substantially full-time basis for a period of at least one year; and

 

(c)            Such services are performed under primary direction or control by the Company or the Affiliate.

 

1.29          Leave of Absence   shall mean a leave granted by the Employer or an Affiliate in accordance with its standard personnel policies applied in a nondiscriminatory manner to all Employees similarly situated. Leave of Absence shall also include an unpaid leave under the Family and Medical Leave Act of 1993.

 

1.30          Normal Retirement Age   shall mean age 65.

 

1.31          Participant   shall mean an Employee who has commenced, but not terminated, participation in the Plan as provided in Article II.

 

1.32          Participating Affiliate   shall mean any Affiliate which has duly adopted the Plan with the consent of the Company and has not withdrawn therefrom.

 

1.33          Period of Service   shall mean a period beginning on an Employee’s Employment Commencement Date and ending on the Employee’s Severance from Service Date.

 

1.34          Period of Severance   shall mean a period beginning on an Employee’s Severance from Service Date and ending on the date the Employee earns an Hour of Service.

 

1.35          Plan   shall mean The Rockwood Specialties Inc. Money Purchase Pension Plan and any amendments thereto.

 

1.36          Plan Year   shall mean the calendar year.

 

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1.37          Qualified Joint and Survivor Annuity   shall mean an Annuity Contract purchased from an insurance company with a Participant’s distribution amount which is payable for the life of the Participant with a survivor annuity continuing after the Participant’s death to the Participant’s Surviving Spouse for the Surviving Spouse’s life in an amount which is equal to 50% of the amount of the annuity payable to the Participant.

 

1.38          Qualified Pre-Retirement Survivor Annuity   shall mean an Annuity Contract purchased from an insurance company with a Participant’s vested Account Balance providing level monthly benefits for the lifetime of the Participant’s Surviving Spouse.

 

1.39          Reduction in Force   shall mean the reduction of an Employer’s workforce due to a voluntary or involuntary Termination of Employment where the Participant is eligible to receive severance pay and/or severance benefits under an employment termination program or severance plan, program or arrangement offered by an Employer to at least 5 Participants within a period not exceeding 6 months.

 

1.40          Severance from Service Date   shall mean the earlier of (a) the date the Employee quits, retires, is discharged, or dies, or (b) the first anniversary of the first date of a period in which an Employee is absent for any other reason; provided , however, that an Employee shall not experience a Severance from Service Date while the Employee is on lay-off or Leave of Absence if the Employee returns to Employment immediately following the end of the lay-off or Leave of Absence. If the Employee does not return to Employment immediately following the end of the lay-off or Leave of Absence, such Employee shall be deemed to have had a Severance from Service Date as of his first day of absence due to lay-off or Leave of Absence.

 

1.41          Spousal Consent   shall mean the written consent of a Participant’s Surviving Spouse to an election or designation by the Participant under the Plan. Such consent shall acknowledge the effect of the Participant’s election or designation, shall specify the alternate Beneficiary or form of benefit (if not a general consent), as applicable, and shall be witnessed by either a representative of the Administrative Committee or a notary public Spousal Consent shall not be necessary if the Participant establishes to the satisfaction of the Administrative Committee that he or she has no Spouse, his or her Spouse cannot be located or such other circumstances exist as the Administrative Committee may, in accordance with applicable regulations, deem appropriate to waive the requirement of Spousal Consent. Spousal Consent, once given, may be revoked only with the consent of the Participant. Spousal Consent shall be valid and binding only with respect to the Spouse who gave the consent.

 

1.42          Spouse   shall mean the person legally married to a Participant.

 

1.43          Surviving Spouse   shall mean the Spouse of a Participant on the earlier of

 

(a)            the date of the Participant’s death; or

 

(b)            the Participant’s Benefit Commencement Date.

 

1.44          Termination of Employment   shall mean the voluntary or involuntary severance of Employment.

 

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1.45          Trust   shall mean the trust established under the Plan in which Plan assets are held.

 

1.46          Trust Agreement   shall mean the agreement between the Company and the Trustee with respect to the Trust.

 

1.47          Trustee   shall mean the person appointed as trustee pursuant to Article X, and any successor trustee.

 

1.48          Valuation Date   shall mean each business day or such other dates as may be specified by the Administrative Committee.

 

1.49          Vesting Service   shall mean the service credited to a Participant under Section 5.2 for purposes of determining the Participant’s vested percentage in his or her Account.

 

1.50          Year of Service   shall mean, in determining service to be taken into account for purposes of eligibility to participate, vesting and benefit accrual, each Period of Service unit which is 12-consecutive-months.  For purposes of eligibility to participate and vesting, the Period of Service shall run from the Employment Commencement Date (or re-Employment Commencement Date, as applicable) until the Severance from Service Date. For purposes of benefit accrual, a Period of Service shall run from the date that a Participant commences participation under the Plan until his or her Severance from Service Date. An Employee shall be credited with the period of time which runs during any absence from service (other than for reason of a quit, retirement, discharge or death) which is 12 months or less. Prior to January 1, 2002, an Hour of Service was determined under the general method of crediting service for an Employee under Treas. Reg. §2530.200b-2 (i.e., actual counting of hours of service during the applicable 12-consecutive-month computation period), and/or the equivalencies set forth in Treas. Reg. §2530.200b-3.

 

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ARTICLE II

 

PARTICIPATION

 

2.1            Admission as a Participant

 

2.1.1         Each Eligible Employee who was a Participant in the Plan immediately prior to the Effective Date shall be a Participant in the Plan as of the Effective Date.

 

2.1.2         (a) each Eligible Employee not eligible to become a Participant under Section 2.1.1 above, shall become a Participant in the Plan on the Entry Date coinciding with or next following such Eligible Employee’s completion of a Period of Service of at least one month, provided he or she is an Eligible Employee on such date.  This paragraph shall be interpreted in accordance with the elapsed time method set forth in Treas. Reg. §1.410(a)-7.

 

(b)            Effective July 31, 2004, an Eligible Employee who is an employee of the Sachtleben Company shall be credited with his or her prior service with the Sachtleben Company for eligibility purposes under the Plan.

 

(c)            Effective January 1, 2005, an Eligible Employee who is an employee of Oakite Products, Inc. shall be credited with his or her prior service with Oakite Products, Inc. for eligibility purposes under the Plan.

 

(d)            Effective January 1, 2007, an Eligible Employee who is an employee of Chemetall Foote Corp. and CeramTec North America Innovative Ceramic Engineering Corporation, shall be credited with his or her prior service with said companies for eligibility purposes under the Plan.

 

2.1.3         Notwithstanding Section 2.1.2 above, the Employer may, in its discretion, provide an earlier Entry Date or grant past service credit for eligibility purposes to individuals who become Employees through an acquisition of assets or an entity by the Company or Affiliate or through a merger or consolidation of an entity with or into the Company or an Affiliate or any other similar transaction; provided, however, that any such provision shall be subject to the nondiscrimination requirements of Code Section 401(a)(4).

 

2.1.4         An Eligible Employee who has attained his or her Normal Retirement Age and who continues as an Eligible Employee shall continue to be eligible to actively participate in the Plan until his or her actual retirement.  Participation shall terminate as provided in Section 2.3.

 

2.2            Rehired Employees

 

2.2.1         An Employee who has a Termination of Employment before earning a vested interest in his or her Account Balance and who again becomes an Employee shall lose credit for his or her Periods of Service prior to such Termination of Employment if his or her Period of Severance equals or exceeds the greater of five years or his or her Periods of Service prior to such Termination of Employment. This paragraph shall be interpreted in accordance with the elapsed time method set forth in Treas. Reg. §1.410(a)-7.

 

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2.2.2         If a Participant who has a Termination of Employment again becomes an Eligible Employee and his or her prior Years of Service (or Periods of Service) are not disregarded under Section 2.2.1, then he or she shall again become a Participant in the Plan as of the first date on which he or she again becomes an Eligible Employee.

 

2.2.3         A former Employee or Participant who has a Termination of Employment and whose prior Years of Service (or Periods of Service) are disregarded under Section 2.2.1 shall be treated as a new Employee.

 

2.2.4         A former Employee who has a Termination of Employment and subsequently performs an Hour of Service within 12 months of his or her Severance from Service Date, such Employee’s Period of Severance shall instead be included as part of his or her Period of Service for purposes of participation and vesting. This Section 2.2.4 shall be interpreted in accordance with the service spanning rules of the elapsed time method, as set forth in Treas. Reg. §4.10(a)-7.

 

2.3            Termination of Participation

 

An individual shall cease to be a Participant on the earliest of

 

(a)            payment to him or her or on his or her behalf of all vested benefits due to him or her under the Plan at a time when he or she is no longer eligible for any future contributions;

 

(b)            his or her Termination of Employment when he or she has no vested interest in his or her Account; or

 

(c)            his or her death.

 

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ARTICLE III

 

CONTRIBUTIONS

 

3.1            Employer Contributions

 

3.1.1         Subject to the limitations of Sections 3.5 and 3.6, for each Plan Year, an Employer shall make an Employer Contribution (in an amount determined under Section 3.1.2) on behalf of each of Participant who was employed by it during the Plan Year and who:

 

(a)            is employed in “eligible employment” (as defined below) on the last day of the Plan Year and is credited with a Period of Service of at least 6 months during such Plan Year;

 

(b)            is on a Leave of Absence on the last day of the Plan Year, provided the Participant was employed in “eligible employment” immediately prior to such Leave of Absence;

 

(c)            died or became Disabled during the Plan Year at a time when he or she was employed in “eligible employment;” or

 

(d)            terminated Employment during the Plan Year on or after attainment of Normal Retirement Age at a time when he or she was employed in “eligible employment;”

 

(e)            effective as of January 1, 2007, is employed in “eligible employment” (as defined below) on the last day of the Plan Year and is credited with a Period of Service of at least one month during such Plan Year.

 

For purposes of this Section 3.1.1, “eligible employment” shall mean employment as an Eligible Employee or employment with an Affiliate that is not an Employer in a position under which the Employee would be an Eligible Employee if the Affiliate were an Employer.

 

3.1.2         The amount of the Employer Contribution made on behalf of any Participant who is eligible to receive an allocation shall be 3% of such Participant’s Compensation received from the Employer for that portion of the Plan Year during which he or she was a Participant.

 

3.2            Participant Contributions

 

No Participant contributions shall be required or permitted under the Plan.

 

3.3            Timing of Contributions

 

The Employer shall transfer Employer Contributions to the Trustee no later than the last day prescribed by law for the filing of the Employer’s federal income tax return (including extensions thereof) for the taxable year of the Employer which includes the last day of the Plan Year for which such contributions were made.

 

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3.4            Forfeitures

 

Any forfeitures arising under the Plan shall be applied to reduce Employer Contributions.

 

3.5            Limitation on Allocations

 

3.5.1         As used in this Section 3.5 and in Section 3.6, each of the following terms shall have the meaning for that term set forth in this Section 3.5.1:

 

(a)            Annual Additions means, for each Participant, the sum of the following amounts credited to the Participant’s Account for the Limitation Year under this Plan or another Defined Contribution Plan maintained by an Employer:

 

(i)             Employer or Affiliate contributions;

 

(ii)            Employee contributions;

 

(iii)           forfeitures;

 

(iv)           amounts described in Code Sections 415(1)(1) and 419A(d)(2); and

 

(v)            allocations under a simplified employee pension.

 

Amounts attributable to rollover contributions or trust to trust transfers shall not be Annual Additions.

 

(b)            Defined Benefit Fraction means, for any Participant, the fraction (determined as of the last day of the Limitation Year) which shall have a numerator equal to the Projected Annual Benefit of the Participant under all Defined Benefit Plans and a denominator equal to the lesser of:

 

(i)             1.25 multiplied by the dollar limitation in effect under Code Section 415(b)(1)(A) for such Limitation Year; or

 

(ii)            1.4 multiplied by 100% of the Participant’s average Limitation Compensation for his or her high three years.

 

(c)            Defined Contribution Dollar Limitation means $30,000, as adjusted pursuant to Code Section 415(d). Effective for Limitation Years beginning after December 31, 2001, Defined Contribution Dollar Limitation means $40,000, as adjusted for increases in the cost-of-living under Section 415(d) of the Code.

 

(d)            Defined Contribution Fraction means, for any Participant, the fraction (determined as of the last day of the Limitation Year) which shall have a numerator equal to the sum of the Participant’s Annual Additions and a denominator equal to the sum of the lesser of the following amounts determined for such Limitation Year and for each prior Limitation Year for which the Participant was credited with a Year of Service:

 

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(i)             1.25 multiplied by the dollar limitation in effect under Code Section 415(c)(1)(A) for such Limitation Year.

 

(ii)            35% of the Participant’s Limitation Compensation for such Limitation Year.

 

(e)            Excess Amount means the excess of the Participant’s Annual Additions for the Limitation Year involved over the Maximum Permissible Amount for that Limitation Year.

 

(f)             Limitation Compensation means an Employee’s compensation as determined pursuant to Code Section 415(c)(3). Limitation Compensation shall be subject to the adjusted dollar limitation under Code Section 401(a)(17). Effective for Plan Years beginning after December 31, 2001, Limitation Compensation for a Participant for a Plan Year shall not exceed $200,000, as adjusted.

 

(g)            Limitation Year means each 12-consecutive month period ending on the same last day as the Plan Year.

 

(h)            Maximum Permissible Amount means, for a Limitation Year and with respect to any Participant, the lesser of (i) the Defined Contribution Dollar Limitation, or (ii) 25% of the Participant’s Limitation Compensation for the Limitation Year (or 100% of the Participant’s Limitation Compensation for the Limitation Year, effective for Limitation Years beginning after December 31, 2001); provided, however, that the percentage of Limitation Compensation limit shall not apply to (A) any contribution for medical benefits (within the meaning of Code Section 419A(d)(2)) after Termination of Employment which is otherwise treated as an Annual Addition, or (B) an amount otherwise treated as an Annual Addition under Code Section 415(1)(1).

 

(i)             Projected Annual Benefit means the Participant’s annual benefit under a Defined Benefit Plan payable in the form of a straight life annuity computed on the assumptions that the Participant will remain employed until Normal Retirement Age (or his or her current age, if later) and that his or her Limitation Compensation will remain at its current level until that time.

 

3.5.2         The amount of Annual Additions which may be credited to the Participant’s Accounts for any Limitation Year shall not exceed the Maximum Permissible Amount. If the Employer contribution that would otherwise be made or allocated to the Participant’s Account would cause the Annual Additions on behalf of the Participant for the Limitation Year to exceed the Maximum Permissible Amount with respect to that Participant for the Limitation Year, the amount to be contributed or allocated will be reduced so that the Annual Additions on behalf of the Participant for the Limitation Year will equal such Maximum Permissible Amount.

 

(a)            Prior to determining the Participant’s actual Limitation Compensation for a Limitation Year, the Administrative Committee may determine the Maximum Permissible Amount for the Participant for the Limitation Year on the basis of a reasonable estimation of the Participant’s Limitation Compensation for that Limitation Year. Such estimated Limitation Compensation shall be uniformly determined for all Participants similarly situated.

 

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(b)                                  As soon as is administratively feasible after the end of a Limitation Year, the Maximum Permissible Amount for the Limitation Year will be determined on the basis of the Participant’s actual Limitation Compensation for the Limitation Year.

 

(c)                                   If a Participant is credited with an Annual Addition under any other Defined Contribution Plan maintained by the Company or an Affiliate, before any Annual Addition is reduced under this Plan, Annual Additions to such other Defined Contribution Plan shall be reduced to bring all such Plans into conformity with Code Section 415(c).

 

(d)                                  If, as a result of the allocation of forfeitures, a reasonable error in estimating a Participant’s annual Limitation Compensation, a reasonable error in determining the amount of elective deferrals that may be made with respect to any Participant under the limits of Code Section 415, or under other limited facts and circumstances that the Commissioner of Internal Revenue finds justify the availability of the rules set forth in this Section 3.5.2(d), the Annual Additions under the Plan for a particular Participant would cause the limitations of Code Section 415 to be exceeded, then -

 

(i)             The Excess Amount in the Participant’s Account will be used to reduce Employer Contributions for such Participant in the next Limitation Year, and each succeeding Limitation Year if necessary.

 

(ii)            If, after the application of subparagraph (i), an Excess Amount still exists and the Participant is not covered by the Plan at the end of a Limitation Year, the Excess Amount will be held unallocated in a suspense account and applied to reduce Employer Contributions for all remaining Participants in the next Limitation Year, and each succeeding Limitation Year if necessary.

 

If a suspense account is in existence at any time during a particular Limitation Year, all amounts in the suspense account must be allocated and reallocated to Participants’ Accounts before any Employer contributions may be made to the Plan for that Limitation Year.

 

3.6                                  [ Reserved ]

 

3.7                                  Return of Employer Contributions Under Special Circumstances

 

Notwithstanding any provision of this Plan to the contrary, upon timely written demand by an Employer to the Trustee:

 

(a)            Any contribution made by the Employer under a mistake of fact shall be returned to the Employer by the Trustee within one year after the payment of the contribution.

 

(b)            Any contribution made by the Employer shall be returned to the Employer within one year after a current deduction for the contribution under Code Section 404 is disallowed by the Internal Revenue Service, but only to the extent disallowed.

 

(c)            Any contribution made by the Employer shall be returned to the Employer by the Trustee within one year after notification from the Internal Revenue Service following a timely application for determination as to initial qualification that the Plan is not a qualified plan.

 

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Contributions returned to the Employer under (a) or (b) above shall be net of any investment losses but shall not include any earnings thereon.

 

3.8                                  Contributions Conditioned on Deductibility

 

All contributions made under the Plan are made on the condition that they are currently deductible under Code Section 404; provided, however, that no contributions shall be returned to the Employer except as provided in Section 3.7.

 

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ARTICLE IV

 

ACCOUNTS, INVESTMENTS AND ALLOCATIONS

 

4.1                                  Establishment of Participant Accounts

 

The Administrative Committee shall establish and maintain an Account in the name of each Participant. The Administrative Committee shall credit or cause to be credited all Employer Contributions allocable to the Participant, and any earnings, losses and expenses attributable thereto, to the Participant’s Account.

 

The maintenance of separate Accounts under this Section 4.1 is for accounting purposes only, and a physical segregation of assets of the Trust to each separate Account shall not be required. Any distribution to a Participant or Beneficiary shall be charged to the Participant’s Account in accordance with procedures established by the Administrative Committee.

 

4.2                                  Investment of Funds

 

If Investment Funds are established pursuant to Section 12.1, then the contributions and Account Balance of a Participant or the Account Balance of a Beneficiary of a deceased Participant shall be invested among the Investment Funds as directed by the Participant or Beneficiary in accordance with and subject to Section 12.1.2. Investment directions by a Participant or Beneficiary may be made or changed on each business day once a calendar month, subject to such procedures as may be established by the Administrative Committee (including, but not limited to, requirements for prior notice and investments in minimum increments). In the event that a Participant for any reason fails to provide proper initial investment directions, contributions allocated to such Participant shall be entirely invested in an Investment Fu