OMNOVA SOLUTIONS RETIREMENT SAVINGS PLAN

Exhibit 4.10

OMNOVA SOLUTIONS

RETIREMENT SAVINGS PLAN

Amended and Restated Effective as of January 1, 2002

2008

TABLE OF CONTENTS

 

 

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TABLE OF CONTENTS

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TABLE OF CONTENTS

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TABLE OF CONTENTS

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OMNOVA SOLUTIONS

RETIREMENT SAVINGS PLAN

INTRODUCTION

This Plan was originally adopted by OMNOVA Solutions Inc. effective as of December 1, 2000 for the benefit of eligible Employees and their families. Between October 1, 1999 and November 30, 2000, this Plan comprised part of the GenCorp/OMNOVA Solutions Joint Retirement Savings Plan, a multiple employer plan as described in Section 413(c) of the Internal Revenue Code of 1986, as amended. On December 1, 2000, Members’ account balances in the GenCorp/OMNOVA Solutions Joint Retirement Savings Plan, and corresponding assets, were spun-off as this separate Plan.

OMNOVA Solutions Inc., an Ohio corporation, hereby amends and restates in its entirety the OMNOVA Solutions Retirement Savings Plan, generally effective as of January 1, 2002, unless otherwise stated herein. Special effective dates are included in the Plan with respect to a number of provisions as necessary to conform to amendments to the Code and regulations thereunder enacted by the Economic Growth and Tax Relief Reconciliation Act of 2001 (by incorporation of the previously adopted “good faith” amendments herein) and subsequent legislative and regulatory changes in the tax qualification requirements identified in the 2006 Cumulative List of Changes in Plan Requirements provided in Internal Revenue Service Notice 2007-3, including the final regulations under Code Sections 401(k) and (m), as published and effective December 29, 2004. The Plan has been routinely amended on a timely basis to comply with all applicable laws and required statutory changes.

The Company intends that the Plan be qualified under Code Section 401(a), with a cash or deferred arrangement qualified under Code Section 401(k) and a trust exempt from taxation under Code Section 501(a). The provisions of this amended and restated Plan shall apply solely to an Employee whose employment with an Employer terminates on or after the Effective Date. An Employee whose employment with an Employer terminates prior to the Effective Date shall be entitled to a benefit, if any, as determined under the provisions of the Plan in effect on the date his employment terminated.

 

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ARTICLE I

DEFINITIONS

Each word and phrase defined in this Article I shall have the following meaning whenever such word or phrase is capitalized and used herein unless a different meaning is clearly required by the context of this agreement.

Section 1.01 Account . The separate bookkeeping account and records that the Committee or the Trustee shall maintain for a Member pursuant to Section 9.13 of this Plan which reflect the amount and value of a Member’s interest in the Trust Fund and each Investment Fund associated with Employee Contributions, Rollover Contributions, Employer Contributions, distributions and investment earnings and results.

Section 1.02 Administrative Committee . The committee designated in Section 9.02A of the Plan.

Section 1.03 After-Tax Account . The portion of a Member’s Account credited with After-Tax Contributions under Section 3.02B. of the Plan, and adjustments relating thereto.

Section 1.04 After-Tax Contribution . The contribution a Member may elect to make to the Trust Fund from his Compensation after the deduction of taxes, as per Section 3.02B of the Plan.

Section 1.05 Basic Contribution . The Employee Contribution by or for a Member for a Plan Year which is not in excess of six percent of the Member’s Compensation for the Plan Year.

Section 1.06 Before-Tax Account . The portion of a Member’s Account credited with Before-Tax Contributions under Section 3.02A. of the Plan, and adjustments relating thereto.

Section 1.07 Before-Tax Contribution . An Employer contribution to the Trust Fund that is allocated to a Member’s Account pursuant to a Salary Reduction Agreement under Section 3.02A. of the Plan.

Section 1.08 Beneficiary . A person, including any individual, legal representative, estate or other entity, designated by a Member pursuant to Section 5.07 of the Plan who is or may otherwise become entitled to a benefit under the Plan. A Beneficiary who becomes entitled to a benefit under the Plan shall remain a Beneficiary under the Plan until the Trustee has fully distributed his benefit to him. A Beneficiary’s right to (and the Plan Administrator’s, the Committee’s, or a Trustee’s duty to provide to the Beneficiary) information or data concerning the Plan shall not arise until he first becomes entitled to receive a benefit under the Plan.

Section 1.09 Benefits Management Committee . The committee designated in Section 9.02B. of the Plan.

Section 1.10 Catch-Up Account . The portion of a Member’s Account credited with Catch-Up Contributions under Section 3.02C. of the Plan, and adjustments relating thereto.

 

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Section 1.11 Code . The Internal Revenue Code of 1986, as it may be amended from time to time.

Section 1.12 Company . OMNOVA Solutions Inc., an Ohio corporation.

Section 1.13 Company Share . A share of the voting common stock of the Company.

Section 1.14 Compensation .

 

A.

The sum of the following amounts paid to a Member by an Employer during a Plan Year:

 

(i)

Wages;

 

(ii)

Salary;

 

(iii)

Overtime pay;

 

(iv)

Year-end payments or bonuses paid to executives pursuant to the OMNOVA Solutions Inc. executive incentive compensation program (excluding payments which were previously deferred);

 

(v)

Sales bonuses or commissions;

 

(vi)

Technology Achievement Awards, Trade Secret Awards, New Patent Awards, and new patent application awards;

 

(vii)

Awards under the Cash Recognition Program;

 

(viii)

Shift differentials;

 

(ix)

Group incentive and gainsharing payments;

 

(x)

Sick pay;

 

(xi)

Vacation pay;

 

(xii)

Short-term disability benefits paid pursuant to the Employer’s Short-Term Disability Plan;

 

(xiii)

Sign-On Payments; and To the extent not included in the amounts above, any amount which is earned but payment of which is deferred by election of a Member or otherwise pursuant to a Salary Reduction Agreement.

Compensation also includes “ Elective Contributions ” made by an Employer on a Member’s behalf. Elective Contributions are amounts excludible from a Member’s gross income under Code Section 402(e)(3) (relating to a Code Section 401(k) arrangement), Code Section 402(h) (relating to a Simplified Employee Pension), Code Section 125 (relating to a cafeteria plan), Code Section 403(b) (relating to a tax-sheltered annuity), Code Section 132(f)(4) (relating to a qualified transportation fringe benefit plan) and “deemed compensation” under Code Section 125 pursuant to Revenue Ruling 2002-27. For Plan Years beginning on and after January 1, 2002, amounts referenced under Code Section 125 include any amounts not available to a Member in cash in lieu of group health coverage because the

 

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Member is unable to certify that he has other health coverage. An amount will be treated as an amount under Code Section 125 only if the Employer does not request or collect information regarding the Member’s other health coverage as part of the enrollment process for the health plan.

Any reference in this Plan to Compensation is a reference to the definition in this Section 1.14, unless the Plan reference specifies a modification to this definition. The Committee will take into account only Compensation actually paid for the relevant period.

 

B.

Compensation Limit . In addition to other applicable limitations set forth in the Plan, and notwithstanding any other provisions of the Plan to the contrary, the annual Compensation of each Member taken into account under the Plan shall not exceed the “ Compensation Limitation ” under Code Section 401(a)(17) in effect for the applicable Determination Period as defined herein. Effective January 1, 2002, the Compensation Limitation is $200,000, ($230,000 in 2008) and is subject to cost of living adjustments in future years in accordance with Code Section 401(a)(17)(B) and applicable statutory changes. Any such cost of living adjustment or statutory change in effect for a calendar year applies to any period, not exceeding 12 months, over which Compensation is determined (the “ Determination Period ”) beginning in such calendar year. If a Determination Period consists of fewer than 12 months, the Compensation Limitation will be multiplied by a fraction, the numerator of which is the number of months in the Determination Period, and the denominator of which is 12. Any reference in this Plan to the limitation under Code Section 401(a)(17) shall mean the Compensation Limitation set forth in this provision.

 

C.

Compensation – Special Rules . For purposes of determining whether the Plan discriminates in favor of Highly Compensated Employees, the Employer may elect to use an alternate nondiscriminatory definition of Compensation, in accordance with the requirements of Code Section 414(s) and the Treasury Regulations promulgated thereunder. In determining Compensation (for purposes of determining whether the Plan discriminates in favor of Highly Compensated Employees), the Employer may elect to include as Compensation all Elective Contributions made by the Employer on behalf of Employees. The Employer’s election to include Elective Contributions must be consistent and uniform with respect to Employees and all plans of the Employer for any particular Plan Year. The Employer may make this election to include Elective Contributions for nondiscrimination testing purposes, irrespective of whether subsection A. above includes Elective Contributions in the general definition of Compensation applicable to the Plan.

In addition, effective January 1, 2007, with respect to a nonresident alien who is not an Eligible Employee, Compensation described in this Section 1.14 shall not be treated as Compensation to the extent the Compensation is excludable from gross income and is not effectively connected with the conduct of a trade or

 

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business within the United States. For purposes of this paragraph, nonresident alien has the same meaning as in Code Section 7701(b)(1)(B).

Section 1.15 Controlled Group . The Company and any and all (a) corporations (50% or more of whose voting stock is owned or controlled by the Company, directly or indirectly) and (b) unincorporated trades and businesses owned or controlled by the Company, directly or indirectly, and the employees of which, together with employees of the Company, are required to be treated as employees of a single employer under Code Section 414, including regulations prescribed by the Secretary of the Treasury thereunder.

Section 1.16 Controlled Group Member . Each corporation (as defined in Code Section 414(b)), trade or business (whether or not incorporated) which is under common control (as defined in Code Section 414(c)), or an affiliated service group (as defined in Code Sections 414(m) and (o)). If the Employer is a member of the Controlled Group, the term “Employer” includes the Controlled Group Members for purposes of crediting Hours of Service, applying the coverage test of Code Section 410(b), determining Breaks in Service applying the limitations described in Schedule II, applying the Top Heavy rules and the minimum benefit requirements of Article XI, the definitions of Employee, Highly Compensated Employee, Compensation, Leased Employee, and Hour of Service contained in this Article I, and for any other purpose as required by the Code or by the Plan. However, only an Employer described in Section 1.24 of the Plan may contribute to the Plan, and only an Employee employed by an Employer described in Section 1.24 of the Plan is eligible to participate in this Plan.

Section 1.17 Director . Each and every person who serves as a director of the Company.

Section 1.18 Disability . The inability of a Member to perform the duties assigned to him by an Employer for an extended period of time due to a mental or physical condition. The determination of a Member’s Disability shall be made by the Company after receiving competent medical advice by a physician satisfactory to the Company and independent of a determination of Disability under any other employee benefit plan maintained by any Controlled Group Member.

Section 1.19 Distribution Request . The process prescribed by the Company for use by a Member to obtain a distribution of all or part of the Plan Shares credited to his Account.

Section 1.20 Effective Date . January 1, 2002, the date on which the provisions of this amended and restated Plan become effective, except as otherwise provided herein. The original effective date of the Plan is December 1, 2000.

Section 1.21 Eligible Employee . Any Employee who is in a category of Employees designated as Eligible Employees on Schedule A, attached hereto and made a part hereof, and not excluded under Section 2.02 of the Plan. An Eligible Employee may become a Member in the Plan pursuant to the requirements of Article II.

Section 1.22 Employee . Any person who, on or after the Effective Date, is employed by any Controlled Group Member including: (a) an Employee who is in Layoff Status; (b) a Leased Employee, but only for purposes of the requirements of Code Section 414(n)(3); and (c) individuals who are treated as Employees of an Employer pursuant to regulations under Code Section 414(o). The term “Employee” does not include any individual providing services to an

 

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Employer as a consultant and any individual who is not engaged by the Employer to perform services as an Employee. An individual excluded from participation by reason of independent contractor or Leased Employee status, if determined by the Company or in accordance with law or a determination of a court or governmental agency to be a common law employee, shall be recharacterized as an Employee under the Plan as of the date of such determination, unless an earlier date is necessary to preserve the tax-qualified status of the Plan. Notwithstanding such general recharacterization, such person shall not be considered an Eligible Employee for purposes of Plan participation, except and to the extent necessary to preserve the tax-qualified status of the Plan.

Section 1.23 Employee Contribution . Each and all of a Member’s After-Tax Contributions and the Employer contributions allocated to the Member’s Account as Before-Tax Contributions. For purposes of this Plan, an Employee Contribution made “for” a Member refers to the allocation by the Trustee of Employer contributions to the Member’s Account as Before-Tax Contributions, rather than to the payment of such Employer contributions to the Trust Fund.

Section 1.24 Employer . Any Controlled Group Member which adopts the Plan with the Company’s consent. Whenever the terms of this Plan authorize the Employer or the Company to take any action, such action shall be considered properly authorized if taken by the Board, the Chairman of the Board, any committee of the Board, or by the Committee for the Plan in accordance with its procedures under Article X hereof.

Section 1.25 Enrollment . The process prescribed by the Company for use in connection with enrollment of Members in the Plan.

Section 1.26 Enrollment Change . The use of the Enrollment process by a Member to request (a) a change in his rate of contributions in accordance with Section 3.04 of the Plan; (b) suspension of his contributions in accordance with Section 3.04 of the Plan; (c) a change in his election of investment options in accordance with Section 7.05 of the Plan; or (d) a transfer between Investment Funds in accordance with Section 7.05 of the Plan.

Section 1.27 ERISA . The Employee Retirement Income Security Act of 1974, as amended, or as it may be amended from time to time.

Section 1.28 GenCorp Stock Fund . One of the Investment Funds, the assets of which shall consist primarily of shares of common stock of GenCorp Inc. and short term investments.

Section 1.29 Highly Compensated Employee . Any Employee who:

 

A.

At any time during the current Plan Year or the preceding Plan Year was a five percent owner of the Employer or a Controlled Group Member as defined in Code Section 416(i); or

 

B.

For the preceding Plan Year received more than $85,000 in annual Compensation from the Employer or a Controlled Group Member (or such higher amount as adjusted pursuant to Code Section 414(q)(1)).

 

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Highly Compensated Employees include highly compensated former Employees. A former Employee will be treated as a Highly Compensated Employee if such Employee separated from service (or was deemed to have separated) prior to the current or preceding Plan Year, performs no service during such Plan Year, and was a Highly Compensated Employee for either the separation year or any Plan Year ending on or after the Employee’s 55 ^th birthday, in accordance with the rules for determining Highly Compensated Employee status in effect for that determination year and in accordance with applicable Treasury Regulations and IRS Notice 97-45.

For purposes of this Section, “Compensation” means Compensation as defined in Section 1.14 above; and Controlled Group Members shall be treated as a single employer with the Employer. The determination of who is highly compensated shall be made in accordance with Code Section 414(q) and applicable Treasury Regulations promulgated thereunder.

Section 1.30 Investment Fund . Each and every fund described in Section 7.05 of the Plan.

Section 1.31 Investment Manager . A person or organization who is appointed under Section 9.02B.(i) of the Plan by the Benefits Management Committee to direct the investment of all or part of the Trust Fund, and who is either (a) registered in good standing as an Investment Adviser under the Investment Advisers Act of 1940, (b) a bank, as defined in that Act, or (c) an insurance company qualified to perform investment management services under the laws of more than one state of the United States, and who has acknowledged in writing that he is a fiduciary with respect to the Plan.

Section 1.32 Layoff Status . The status of an Employee during the period of time when he is laid off and ceases active work due to curtailment or reduction in force and ends upon his return to work or, if earlier, one year from the date of layoff.

Section 1.33 Leased Employee . Any person (other than an Employee of an Employer) who, pursuant to an agreement between the Employer and any other person (“ Leasing Organization ”), has performed services for the Employer (or for the Employer and related persons determined in accordance with Code Section 414(n)(6)) on a substantially full time basis for a period of at least one year, which services are performed under the primary direction or control of the Employer. Contributions or benefits provided to a Leased Employee by the Leasing Organization that are attributable to services performed for the Employer shall be treated as provided by the Employer. If applicable, Compensation under Section 1.14 of the Plan includes compensation from the Leasing Organization which is attributable to services performed for the Employer.

A Leased Employee shall not be considered an Employee of the Employer if (a) such employee is covered by a money purchase pension plan providing: (i) a nonintegrated employer contribution rate of at least ten percent of compensation, as defined in Code Section 415(c)(3), but including amounts contributed pursuant to a salary reduction agreement that are excludible from the employee’s gross income under Code Sections 125, 132(f)(4), 402(e)(3), 402(h) or 403(b), (ii) immediate participation, and (iii) full and immediate vesting; and (b) leased employees do not constitute more than 20% of the Employer’s non-highly compensated workforce.

 

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Section 1.34 Matching Account . The portion of a Member’s Account credited with Matching Contributions pursuant to Sections 3.05 and 3.06 of the Plan, and adjustments relating thereto.

Section 1.35 Matching Contribution . The Employer contributions which are pursuant to Section 3.05 of the Plan and allocated to the OMNOVA Stock Fund for the benefit of Members pursuant to Section 3.06 of the Plan.

Section 1.36 Member . A person (a) who is eligible to participate in the Plan under Article II and is making Employee Contributions to the Plan, or (b) who is no longer making Employee Contributions to the Plan but still has Plan Shares credited to his Account in the Trust Fund. An individual who becomes a Member shall remain a Member under the Plan until the Trustee has fully distributed the vested amount in his Account to him.

Section 1.37 Non-Highly Compensated Employee . Any Eligible Employee who is not a Highly Compensated Employee.

Section 1.38 OMNOVA Stock Fund . One of the Investment Funds, the assets of which shall consist primarily of Company Shares.

Section 1.39 Plan . The plan designated as the OMNOVA Solutions Retirement Savings Plan as set forth herein or in any amendments hereto.

Section 1.40 Plan Share . Each and every share or unit of value credited to a Member’s Account under the Plan, representing his proportionate interest in each Investment Fund and the Trust Fund.

Section 1.41 Plan Year . The calendar year commencing on January 1 and ending on December 31.

Section 1.42 Required Beginning Date . For purposes of Article V, for any Member who is not a Five-percent Owner (as defined in Code Section 416(i)), the Required Beginning Date is the April 1 of the calendar year following the later of the calendar year in which the Member attains age 70  ¹ / 2 , or the calendar year in which the Member retires. For any Member who is at least a Five-percent Owner (as defined in Code Section 416(i)), the Required Beginning Date is the April 1 immediately following the calendar year in which the Member attains age 70  ¹ / 2 , regardless of whether the Member has retired.

Section 1.43 Rollover Account . The portion of a Member’s Account credited with Rollover Contributions under Section 3.10 of the Plan, and adjustments relating thereto.

Section 1.44 Rollover Contribution . The contribution which a Member may elect to make to the Trust Fund pursuant to Section 3.10 of the Plan.

Section 1.45 Salary Reduction Agreement . An arrangement pursuant to which a Member may elect to decrease, or to forego an increase in, the amount of his Compensation which his Employer otherwise would have paid to him in cash, and have an equal amount (a) applied to obtain additional benefits under a cafeteria benefits plan (as defined in Code Section l25)

 

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maintained by his Employer, (b) allocated to his Account under a qualified cash or deferred arrangement (as defined in Code Section 40l(k)) maintained by his Employer, including this Plan or (c) applied to obtain transportation benefits as provided under Code Section 132(f)(4).

Section 1.46 Service And Break In Service Definitions .

 

A.

Approved Leave of Absence . A period during which an Employee is on a leave of absence approved by a Controlled Group Member and is not otherwise included in Continuous Service shall, if the Administrative Committee so determines, be so included under rules established by the Administrative Committee uniformly applicable to all Employees similarly situated.

 

B.

Break in Service . The period following a Severance from Employment Date extending until the Employee again completes an Hour of Service.

 

C.

Continuous Service . One or more periods of time beginning on an Employment Commencement Date of an Employee and ending on the first subsequent Severance from Employment Date of the same Employee. Nonconsecutive periods of Continuous Service shall be aggregated and 365 days of service shall equal a whole year of service (computed to the nearest one-twelfth thereof).

 

D.

Employment Commencement Date . The day upon which an Employee first performs an Hour of Service and commences a period of Continuous Service.

 

E.

Hour of Service . An hour for which an Employee is paid or entitled to payment by a Controlled Group Member for the performance of duties.

Hours of Service will be credited for employment with other Controlled Group Members of which the Employer is a member. Hours of Service will also be credited for any individual considered an Employee for purposes of this Plan under Code Section 414(n) and the regulations thereunder.

 

F.

Severance from Employment Date . The day on which an Employee ceases to be in the employ of a Controlled Group Member because he quits, is discharged, retires, dies, or otherwise terminates employment under Company policy.

 

G.

Special Rules . Section 1.46F. above notwithstanding, the special rules set forth below will apply in determining Continuous Service and Severance from Employment Dates for the following Employees:

 

(i)

Military Service . If an Employee is absent from the service of a Controlled Group Member because of service in the armed forces of the United States and is returned to the service of a Controlled Group Member within the period during which reemployment rights are extended by law, such period of absence shall be included in his Continuous Service as required under Code Section 414(u).

 

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(ii)

Pregnancy . If an Employee is absent from the service of a Controlled Group Member due to the Employee’s pregnancy, birth or adoption of a child by the Employee, or caring for his newborn or newly adopted child and returns to the employment of the Controlled Group Member by the second anniversary of the period of such absence, the period of such absence ending on the first anniversary of the birth or adoption of the child will be included in the Employee’s Continuous Service, and the period of such absence ending after the first but before the second such anniversary will be deemed as neither Continuous Service nor a Break in Service.

Section 1.47 Supplemental Contribution . Any Employee Contribution by or for a Member for a Plan Year that is in excess of six percent of the Member’s Compensation for the Plan Year.

Section 1.48 Supplemental Make-Up Contribution . A contribution which a Member may elect to make to the Trust Fund pursuant to Section 3.02D. of the Plan to make-up Supplemental Contributions that he could have made but did not make in a prior period of time. Effective January 1, 2002, the Plan will no longer accept Supplemental Make-Up Contributions from a Member.

Section 1.49 Transfer Account . That portion of a Member’s Account credited with Transfer Contributions under Section 3.10 of the Plan, and adjustments relating thereto.

Section 1.50 Treasury Regulations . Regulations promulgated under the Internal Revenue Code by the Secretary of the Treasury.

Section 1.51 Trust Agreement . The agreement or agreements executed by the Company and the Trustee which establishes a Trust Fund for investment, reinvestment, administration and distribution of contributions made under the Plan, and the earnings thereon, as amended from time to time.

Section 1.52 Trust Fund . All property and assets of every kind held or acquired by the Trustee under the Trust Agreement. The Trustee may hold the Trust Fund as part of a master trust comprising assets of various qualified plans maintained by the Company or any Employer.

Section 1.53 Trustee . The person appointed by the Benefits Management Committee and who has entered into the Trust Agreement as Trustee and any person who is appointed as successor and becomes a party to the Trust Agreement.

Section 1.54 Valuation Date . Each day on which the New York Stock Exchange is open for trading.

Section 1.55 Terms Defined Elsewhere .

 

 

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ARTICLE II

ELIGIBILITY AND PARTICIPATION

Section 2.01 ELIGIBILITY .

 

A.

In General . Each Employee who is in one of the categories of Eligible Employees now or hereafter set forth in Schedule A of the Plan and is not excluded under Section 2.02 of the Plan shall be eligible to become a Member in the Plan. Each Eligible Employee who was a Member in the Plan on the day before the Effective Date of this restated Plan shall continue as a Member in this Plan as restated.

 

B.

Membership . As soon as administratively practicable, the Company shall notify each Eligible Employee of his eligibility to participate in the Plan and shall explain the rights, privileges and duties of a Member in the Plan. Each Eligible Employee may enroll as a Member in the Plan by properly completing the enrollment procedures established at the time by the Company, or by following such other reasonable procedures as the Company may implement. Each Eligible Employee may commence participation in the Plan as of the first day of the first payroll period commencing after such Enrollment. Effective January 1, 2005, each non-union Eligible Employee hired on or after January 1, 2005 shall be enrolled automatically as a Member in the Plan. The Company may establish rules and procedures governing the time and manner in which enrollments shall be processed.

Section 2.02 EXCLUSION FROM PARTICIPATION .

 

A.

Ineligible Employees . No Employee can become an Eligible Employee, and no Member may continue to make or have made for him any Employee Contributions, if (i) he is not or ceases to be in a category of Eligible Employees set forth in Schedule A of the Plan; (ii) he is employed in a collective bargaining unit and represented by a recognized collective bargaining agent, unless (A) he is covered by a collective bargaining agreement expressly providing for participation in the Plan, (B) such agent has not had the opportunity to bargain in respect of such participation, or (C) his Employer has a good faith bargaining obligation to continue such participation during any period of good faith bargaining with such agent; (iii) he is a nonresident alien who receives no earned income (within the meaning of Code Section 9ll(d)(2)) from an Employer which constitutes income from sources within the United States (within the meaning of Code Section 86l(a)(3)); (iv) he is considered to be an Employee solely because he is a Leased Employee, or he is performing services for an Employer pursuant to an agreement between the Employer and a Leasing Organization but he is not a Leased Employee; (v) he is an individual treated as an Employee of an Employer pursuant to regulations under Code Section 4l4(o); (vi) he is employed by a Controlled Group Member or an organizational unit thereof that has not been designated hereunder as an Employer; or (vii) he is then on an Approved Leave of Absence, in Layoff Status or in the full-time service of the armed forces of the United States (subject to the provisions of Code Section 414(u)).

 

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B.

Exclusion After Participation . A Member who becomes ineligible to participate under Section 2.02A. of the Plan but remains in the employ of a Controlled Group Member will not be eligible to make or have made for him any Employee Contributions or Rollover Contributions during or in respect of any such period of ineligibility.

 

C.

Lapse of Exclusion . A Member who becomes ineligible to participate under Section 2.02A. of the Plan but remains in the employ of a Controlled Group Member will become eligible to participate in the Plan on the first day after he no longer is described in Section 2.02A. of the Plan and may resume making or having made for him any Employee Contributions as of the first day of a subsequent payroll period by completing Enrollment as provided in Section 2.01B. above.

Section 2.03 TERMINATION OF EMPLOYMENT . A Member may continue to be a Member (but may not make Rollover Contributions or make or have made for him any Employee Contributions) after his Severance from Employment Date until all Plan Shares credited to his Account have been distributed pursuant to the Plan.

Section 2.04 PARTICIPATION UPON RE-EMPLOYMENT . An Eligible Employee who was a Member shall again become a Member on the date he is re-employed by the Employer.

Section 2.05 TRANSFERS BETWEEN EMPLOYERS . For eligibility purposes, a Member who transfers employment from one Employer to another Employer shall continue to be eligible to participate in the Plan if the Member has previously met the requirements of Section 2.01 above. In accordance with the Plan and the Code, an Employee who is an Eligible Employee shall continue to be an Eligible Employee following a transfer between Employers as if the Eligible Employee had performed all service during the Plan Year for the Employer to which the Eligible Employee is transferred.

Section 2.06 TRANSFERS BETWEEN CLASSES OF EMPLOYEES . For purposes of eligibility, in the case of an Employee who transfers from a class of Employees whose employment status is ineligible for participation in the Plan (e.g., collectively bargained employees who are ineligible to participate) to an eligible class of employment, such Employee shall become an Eligible Employee immediately eligible to participate in the Plan. In the case of an Eligible Employee who transfers to an ineligible employment status, such Employee shall cease to be an Eligible Employee under this Plan but shall remain a Member under the Plan until such time as participation is terminated.

 

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ARTICLE III

CONTRIBUTIONS

Section 3.01 INDIVIDUAL ACCOUNTS . An Account shall be established for each Member having an amount to his credit in the Trust Fund. Each Account shall be divided into separate subaccounts for “After-Tax Contributions,” “Before-Tax Contributions,” “Catch-up Contributions” (effective January 1, 2003), “Matching Contributions,” “Supplemental Contributions,” and “Supplemental Make-up Contributions” (prior to January 1, 2002) as defined below and any other types of contributions, as identified herein. If a Member has made a “Rollover Contribution” or “Transfer Contribution,” as defined below, or if the Employer elects to make “Qualified Non-elective Contributions” or “Qualified Matching Contributions,” as defined below, separate subaccounts shall be established for such contributions. Allocations shall be made to the Accounts of the Members in accordance with the provisions of Section 9.13 of the Plan. The Committee may direct the Trustee to maintain a temporary segregated investment Account in the name of a Member to prevent a distortion of income, gain, or loss allocations under Section 9.13 of the Plan. The Committee shall ensure that records are maintained for all Account allocations and related recordkeeping activities.

Section 3.02 MEMBER CONTRIBUTIONS .

 

A.

Before-Tax Contributions . For any Plan Year, each Member may elect to defer to his Account an amount of his Compensation for such Plan Year, which amount shall be a whole percentage of not less than one percent but not more than the lesser of $11,000 in 2002 ($15,500 in 2008, or such larger dollar amount as the Commissioner of the Internal Revenue may prescribe in accordance with Code Section 402(g)(5)) or 50% of his Compensation for such Plan Year. A Member’s Compensation for a Plan Year shall be reduced by the amount of the deferral affirmatively elected by the Member for such Plan Year. Such amount shall be known as the Member’s Before-Tax Contribution. Aggregate Employee Contributions by or for a Member for a Plan Year up to an amount equal to six percent of the Member’s Compensation for the Plan Year shall be considered Basic Contributions. Effective January 1, 2005, each new non-union Member hired on or after January 1, 2005, shall be deemed to have elected to have a Before-Tax Contribution allocated to his Account in the amount of six percent of his Compensation. If a Member does not wish to participate in the Plan, such Member may affirmatively waive such automatic election. Effective January 1, 2008, Compensation for purposes of this Section 3.02 shall have the meaning set forth in Section II.07C. of the Plan, and Before-Tax Contributions may not be made from any element of Compensation that does not meet the requirements set forth in Schedule II.07C.

 

B.

After-Tax Contributions . For any Plan Year, each Member may elect to contribute an amount of his Compensation subject to income tax and otherwise payable, which amount shall be a whole percentage, rounded to the nearest dollar, of not less than one percent but not more than 50% of Compensation. Such amount shall be known as the Member’s After-Tax Contribution.

 

15

C.

Catch-Up Contributions . Effective January 1, 2003, each Member who has or will attain at least age 50 by the end of such Plan Year and who has elected to make Before-Tax Contributions at the maximum level available under the Plan or the Code, as applicable, may defer an additional amount of his Compensation for such Plan Year, which amount shall not exceed $2,000 in 2002 ($5,000 in 2008, or such larger dollar amount as prescribed in Code Section 414(v)). Such amount shall be known as the Member’s “ Catch-Up Contribution .” Such Catch-Up Contributions shall not be taken into account for purposes of Code Sections 402(g) and 415. The Plan shall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Code Sections 401(k)(3), 401(k)(11), 401(k)(12), 410(b) or 416, as applicable, by reason of the making of such Catch-Up Contributions. Matching Contributions may be contributed with respect to any Catch-up Contributions elected or deemed to have been made by a Member, in the sole discretion of the Company.

 

D.

Supplemental Make-up Contributions . Subject to Sections 2.02B. and 3.04 of the Plan, a Member who has not contributed the maximum amount of Supplemental Contributions which he was entitled to contribute under the Plan during any period of his employment thereafter may make Supplemental Make-up Contributions, by a single-sum cash payment, in an amount equal to the difference between the actual amount of Supplemental Contributions that he previously made and the maximum amount of Supplemental Contributions that he could have made during the relevant period or periods, subject to the following three limitations:

 

(i)

First, no amount may be contributed which would cause his Account to exceed applicable limitations on Annual Additions for any year as defined in Schedule II or any other limitation under Schedule II.

 

(ii)

Second, no Supplemental Make-up Contribution may be made on a before-tax basis pursuant to a Salary Reduction Agreement or otherwise.

 

(iii)

Third, after making a Supplemental Make-up Contribution for any period, a Member thereafter can make no Supplemental Make-up Contribution for the same or any prior period.

Effective January 1, 2002, a Member may no longer make and the Plan will not accept Supplemental Make-Up Contributions.

 

E.

Retirement Incentive Payment Contributions . Effective June 1, 2007 and notwithstanding Section 2.03 of the Plan, eligible Employees of the United Steelworkers, AFL-CIO-CLC, Local 748 in Columbus, Mississippi who have been accepted for participation in the Retirement Incentive Program may elect to defer the entire amount of the Retirement Incentive Payment in a single, lump sum contribution to the Plan. Such contribution of the Retirement Incentive Payment shall not be eligible for any Employer Matching Contributions under the Plan.

 

F.

Make Up Of Member Contributions Upon Return From Qualified Military Service . Under the terms of the Uniformed Services Employment and Reemployment

 

16

Rights Act of 1994 (“ USERRA ”), as amended by the Veterans Benefits Improvement Act of 2004, the Plan shall permit a Member upon return to employment following qualified military service, to make up Employee Contributions for the period of the qualified military service and receive an allocation of any corresponding Matching Contribution. The Member may make additional Employee Contributions during the Member’s contribution make-up period. Such Member’s contribution make-up period, which begins on his date of reemployment, shall be equal to three times the period of his military service, up to a maximum of five years. Matching Contributions are based on the additional Employee Contributions at the level that would have been required during the period of qualified military service.

Section 3.03 AGGREGATE LIMIT ON BEFORE-TAX CONTRIBUTIONS AND AFTER-TAX CONTRIBUTIONS . In addition to the other limitations described in this Article III, the total amount of Before-Tax Contributions and After-Tax Contributions shall not exceed 50% of Compensation. If a Member has elected to make Before-Tax Contributions and such contributions cease due to the Code Section 402(g) limit, any amount in excess of that limit, taking into account only Compensation up to the Code Section 401(a)(17) limit, will be treated as an After-Tax Contribution.

Section 3.04 CHANGES AND SUSPENSIONS OF CONTRIBUTIONS . A Member may change the rate of After-Tax Contributions, Before-Tax Contributions and/or Catch-Up Contributions to his Account at any time during each Plan Year, effective for the first payroll period for which it is administratively feasible to change the rate of such Member’s After-Tax Contributions, Before-Tax Contributions and/or Catch-Up Contributions, by communicating such rate change in accordance with uniform rules and procedures established by the Company regarding the timing and manner of making such elections. In addition, a Member may at any time elect to suspend all contributions to his Account by giving advance notice in any manner specified by the Company in accordance with its uniform rules and procedures. An election to recommence contributions shall be effective for the first payroll period in which it is administratively feasible to begin deferral withholdings. All suspensions and recommencements of After-Tax Contributions, Before-Tax Contributions and/or Catch-Up Contributions shall be made in the manner and at the times specified in uniform rules and procedures established by the Company, which rules and procedures may be changed from time to time.

Section 3.05 MATCHING AND QUALIFIED MATCHING CONTRIBUTIONS .

 

A.

In General . For each Plan Year, the Employer may contribute to each eligible Member’s Account a Matching Contribution in an amount determined by the Employer from time to time in its discretion. The amount or rate of the Matching Contribution shall be announced to Members and other Eligible Employees, and suspended or changed on a prospective basis only. The Employer shall not make a Matching Contribution to the Trust for any Member to the extent that the contribution would exceed the Member’s Maximum Permissible Amount as described in Schedule II.

 

17

Notwithstanding the foregoing, subject to the provisions of the Plan and applicable law, amounts will be allocated as Matching Contributions to the Accounts of each Member who makes or for whom are made Basic Contributions as set forth below:

 

(i)

Salaried Members : Effective January 1, 2003, Matching Contributions, if any, shall be made in the Employer’s discretion. Prior to January 1, 2003, Matching Contributions were an amount equal to the sum of (1) l00% of the first three percent of Compensation contributed or deferred by each Member and (2) 50% of the next three percent of Compensation contributed or deferred by each Member.

 

(ii)

Members of International Chemical Workers’ Union Local 419 (Mogadore, Ohio) : An amount equal to 25% of the first six percent of Compensation contributed or deferred by each Member.

 

(iii)

Members of Local 1876, Union of Needletrades, Industrial and Textile Employees, AFL-CIO-CLC (Calhoun, GA): An amount equal to 50% of the first six percent of Compensation contributed or deferred by each Member.

 

(iv)

Members of Local 748, United Steelworkers of America (Columbus, MS) : Effective January 1, 2002, no Matching Contribution. Effective September 1, 2007, an amount equal to 10% of the first six percent of Compensation contributed or deferred by each Member hired on or after May 15, 2007.

 

(v)

Members of Local 470, International Union of Operating Engineers, AFL-CIO (Chester, SC) and effective October 26, 2006 through June 30, 2007, Employees formerly represented by the International Union of Operating Engineers, AFL-CIO and any other similarly-situated employees who, but for the decertification of the bargaining unit, would have been represented by the IUOE, Local 470 : An amount equal to 50% of the first six percent of Compensation contributed or deferred by each Member. Effective July 1, 2007, employees of this group shall receive Matching Contributions applicable to nonunion hourly Members.

 

(vi)

Members of Local 22, United Steel Workers (Jeannette, PA) : Effective April 1, 2006, an amount equal to 50% of the first six percent of Compensation contributed or deferred by each Member.

 

(vii)

Nonunion Hourly Members : An amount equal to the sum of (1) 100% of the first three percent of Compensation contributed or deferred by each Member and (2) 50% of the next three percent of Compensation contributed or deferred by each Member.

 

B.

Qualified Matching Contributions . If the Employer so elects, the Employer may also make Matching Contributions to the Plan which are “ Qualified Matching Contributions .” Qualified Matching Contributions shall mean Matching Contributions that are at all times nonforfeitable and subject to the distribution requirements of Code Section 401(k) when made to the Plan. Additional contributions subject to these rules may be made by the Employer, or some or all of

 

18

the existing Matching Contributions can be designated as fully vested and subject to the distribution restrictions, in order to satisfy these rules.

 

C.

Limitation on Transfer . A Member may not transfer from the OMNOVA Stock Fund any Matching Contributions made for his benefit and credited to his Account. Effective January 1, 2005, a Member who has attained age 55 may transfer from the OMNOVA Stock Fund any Matching Contributions into any available Investment Fund under the Plan. Effective October 1, 2005, all Members may transfer from the OMNOVA Stock Fund any Matching Contributions into any available Investment Fund, regardless of the Member’s age.

 

D.

Safe Harbor Matching Contributions . Effective for Plan Years beginning prior to January 1, 2003, the Employer may provide “ Safe Harbor Matching Contributions ” to salaried and nonunion hourly Members sufficient to meet the “safe harbor” requirements of Code Section 401(k)(12). In providing Safe Harbor Matching Contributions, the Employer also intends to comply with Code Section 401(m)(11) and shall observe the limitations and requirements set forth in applicable Treasury Regulations and in Internal Revenue Service Notices 98-52 and 2000-3 to the extent required by law to meet the safe harbor requirements under the Code.

 

(i)

Safe Harbor Matching Contribution Formula . On behalf of each eligible Member, the Employer shall contribute for the Plan Year a non-discretionary Safe Harbor Matching Contribution equal to (1) 100% of the Member’s Before-Tax Contributions and Catch-up Contributions, if any, up to the first three percent of Compensation for the Plan Year, plus (2) 50% of the Member’s Before-Tax Contributions and Catch-up Contributions, if any, in excess of three percent up to a maximum of six percent of the Member’s Compensation.

 

(ii)

Limitations and Effects . Safe Harbor Matching Contributions shall be subject to the following requirements and shall have the following effects:

 

1.

Universal Availability . The Employer shall make the Safe Harbor Matching Contribution to all of its eligible Members who make Before-Tax Contributions for the Plan Year.

 

2.

Vesting and Distribution . Safe Harbor Matching Contributions shall be 100% vested at all times and are subject to the same distribution limitations set forth in Section 5.15 of the Plan.

 

(iii)

Nondiscrimination Testing . If the conditions of this Section 3.05D. are met for a Plan Year, the Plan will be deemed to have met the Actual Deferral Percentage test and the Actual Contribution Percentage test set forth in Schedule II of the Plan. Notwithstanding the foregoing, if a portion of the Members do not receive a Safe Harbor Matching Contribution due to the failure to meet minimum age and service conditions, then with respect to that group, pursuant to the disaggregation rules of Code Section

 

19

410(b)(4)(B), the Plan must continue to meet the nondiscrimination testing rules set forth in Schedule II of the Plan.

 

(iv)

Notice Requirements . In making Safe Harbor Matching Contributions, the Employer shall comply with all safe harbor notice requirements. Specifically, a least 30 days, but not more than 90 days, before the beginning of the Plan Year, the Employer will provide each eligible Member a comprehensive notice of the Member’s rights and obligations under the Plan, in compliance with the notice requirements set forth in Treasury Regulations Section 1.401(k)-3(d) and Internal Revenue Service Notices 98-52 and 2000-3 and any additional guidance that may be set forth by the Internal Revenue Service in the future. Each new eligible Employee hired thereafter during the Plan Year shall receive the notice upon becoming eligible to participate hereunder.

Section 3.06 MATCHING CONTRIBUTION ALLOCATIONS . Only Members who have made Basic Contributions during the Plan Year shall be eligible to share in the allocation of the Matching Contribution as set forth in Section 3.05 of the Plan. In all cases, the allocation of Matching Contributions or Qualified Matching Contributions shall be based on the amount or rate established in advance for such contributions relative to the Basic Contributions being matched.

Matching Contributions shall become nonforfeitable in accordance with Section 4.01 of the Plan. In any event, Matching Contributions shall be fully vested and nonforfeitable upon the complete or partial termination of the Plan, or upon the complete discontinuance of Employer contributions.

All contributions allocated as Matching Contributions shall be directed to the OMNOVA Stock Fund as soon as practicable after allocation by the Trustee. Allocations of amounts as Matching Contributions shall be made by crediting the Member’s Account with the number of Plan Shares in the OMNOVA Stock Fund determined by dividing the amount of Matching Contributions credited to this Account by the Plan Share value for the OMNOVA Stock Fund as of the date such Matching Contributions are allocated to the OMNOVA Stock Fund. Any Employer contributions pursuant to this Article III that are not immediately allocable shall be invested separately pursuant to Section 7.07 and such amounts, adjusted for any gains, losses, income and deductions, shall be applied to reduce Employer contributions otherwise required under the Plan.

Section 3.07 NON-ELECTIVE EMPLOYER CONTRIBUTIONS . Effective April 1, 2005 through March 31, 2006, each eligible Member of Local 22, United Steel Workers (Jeannette, PA) shall receive a Non-elective Employer Contribution in an amount equal to one and one-half percent of the Member’s weekly pay, regardless of whether such Member makes Employee Contributions to the Plan. In the event the Member makes Employee Contributions to the Plan, no Employer Matching Contributions will be made except as provided in Section 3.05A.(vi) above.

Effective September 1, 2007, each Eligible Employee of Local 748, United Steel Workers (Columbus, MS) shall receive a Non-elective Employer Contribution in an amount equal to one percent of the Member’s Compensation, regardless of whether such Member makes Employee

 

20

Contributions to the Plan. In the event the Member makes Employee Contributions to the Plan, no Employer Matching Contributions will be made except as provided in Section 3.05(iv) above.

Effective September 1, 2007, each Eligible Employee of Local 1876, Union of Needletrades, Industrial and Textile Employees, AFL-CIO-CLC (Calhoun, GA), participating in the Plan shall receive a lump sum Non-elective Employer Contribution in the amount of $1,000.00. Such contribution shall be contributed to the Plan during the month of September, 2007. In addition, effective September 1, 2008, each Eligible Employee of Local 1876 participating in the Plan shall receive a lump sum Non-elective Employer Contribution in the amount of $1,000.00, such contribution to be contributed to the Plan during the month of September, 2008.

Section 3.08 QUALIFIED NON-ELECTIVE CONTRIBUTIONS . If it so elects, the Employer may make Qualified Non-elective Contributions under the Plan on behalf of all Members or all Members who are Non-highly Compensated Employees in order to satisfy either the Actual Deferral Percentage test or the Actual Contribution Percentage test. For purposes of this Article III, “ Qualified Non-elective Contributions ” shall mean contributions (other than Matching Contributions or Qualified Matching Contributions) made by the Employer and allocated to Members’ Accounts that the Members may not elect to receive in cash until distributed from the Plan; that are nonforfeitable when made; and that are distributable only in accordance with the distribution provisions that are applicable to Before-Tax Contributions, Catch-Up Contributions and Qualified Matching Contributions. Qualified Non-elective Contributions shall be allocated to Members’ Accounts in the same proportion that each Member’s Compensation for the Plan Year for which the Employer makes the contribution bears to the total Compensation of all Members for the Plan Year (or of all Non-highly Compensated Members, as applicable).

Section 3.09 TIME AND FORM OF PAYMENT OF EMPLOYER CONTRIBUTIONS . The Employer may pay its contribution for each Plan Year in one or more installments of cash without interest. The Employer must make its contribution which Members have elected to defer under Section 3.02A. of the Plan as soon as such amounts may reasonably be segregated from the Employer’s general assets, but in no event later than 15 business days after the end of the calendar month in which such amounts were withheld from the Member’s Compensation, or such later time as may be permitted by regulations under ERISA and Code Section 401(k). The Employer must make the balance, if any, of its contribution to the Trustee within the time prescribed (including extensions) for filing its tax return for the taxable year for which it claims a deduction for its contribution, in accordance with Code Section 404(a)(6). Amounts contributed by an Employer that are not immediately allocable to a Member’s Account as Before-Tax Contributions shall be invested separately pursuant to Section 7.07 and such amounts, adjusted for any gains, losses, income and deductions, shall be applied to reduce Employer contributions otherwise required under the Plan.

With regard to Matching Contributions, Employer contributions made under this Article III shall be paid to the Trustee each pay period for which the corresponding Basic Contributions are withheld or allocated provided sufficient contributions have been paid or delivered to the Trustee to fund allocations as they are credited pursuant to Section 3.06. Although contributions allocable as Matching Contributions may be made earlier than this time in a given Plan Year, such

 

21

contributions shall be transmitted to the Trustee no later than 30 days after the end of the calendar month in which ends the pay period for which the corresponding Basic Contributions are withheld or allocated. All Matching Contributions made under this Article III shall be deemed to have been made in the same Plan Year as the Basic Contributions corresponding thereto.

Each Member’s Employer will pay to the Trust Fund an amount at least equal to the aggregate amount required to be allocated to each of its Members as Matching Contributions for a pay period pursuant to Section 3.06 (less an amount equal to the interests of each Member in its employ in any Matching Contributions permitted or required to be forfeited during the same pay period hereunder or any applicable law). Additionally, all contributions allocable as Matching Contributions shall be made in cash, except that in lieu of cash, the Company may deliver that number of Company Shares having an aggregate market value equal to that part of any Employer contributions allocable as Matching Contributions not paid in cash. For this purpose, the value of a Company Share delivered or allocated in respect of a payroll period shall be the average of the high and low trading prices reported in the New York Stock Exchange Composite Transactions section of the Wall Street Journal (A) for the payroll disbursement date of the payroll period if such date falls on (i) a Friday, (ii) the 15th day of a month or (iii) the last day of a month, and (B) if the payroll disbursement date of the payroll period falls on any other day, for the Friday immediately following such date . If, for any reason, no trading of Company Shares on the New York Stock Exchange occurs on a payroll disbursement date (or, as applicable, a Friday immediately following such date), trading prices on the last preceding trading day shall be used for purposes of the preceding sentence.

Section 3.10 ROLLOVER AND TRANSFER CONTRIBUTIONS . The Trustee is authorized to accept on behalf of an Employee, and hold as part of the Trust Fund, assets from another plan qualified under Code Sections 401(a) or 403(a) provided that such transfer satisfies any procedures or other requirements established by the Committee. The Trustee shall also accept and hold as part of the Trust Fund assets transferred from any other plan qualified under Code Sections 401(a) or 403(a) in connection with a merger or consolidation of such plan with or into the Plan pursuant to Section 13.06 hereof and as may be approved by the Committee. In addition, the Trustee shall also accept “rollover” amounts contributed directly by or on behalf of an Employee in accordance with procedures and rules established by the Committee in respect of a distribution made to or on behalf of such Employee from another plan qualified under Code Sections 401(a) or 403(a) pursuant to Section 13.06 hereof. All amounts so transferred to the Trust Fund shall be held in segregated subaccounts and shall be referred to as “ Transfer Contributions ” if such amounts are subject to the special distribution rules for a qualified joint and survivor annuity described in Code Section 411(a)(11) and as “ Rollover Contributions ” if not subject to such rules.

Rollover Contributions must conform to rules and procedures established by the Committee, including rules designed to assure the Committee that the funds so transferred qualify as a Rollover Contribution under the Code. An Employee, prior to satisfying the Plan’s eligibility conditions, may make a Rollover Contribution to the Trust to the same extent and in the same manner as a Member. If an Employee makes a Rollover Contribution to the Trust prior to satisfying the Plan’s eligibility conditions, the Committee and Trustee must treat the Employee as a Member for all purposes of the Plan, except that the Employee is not a Member for purposes of making After-Tax Contributions, Before-Tax Contributions or Catch-up Contributions or sharing

 

22

in Employer contributions or Member forfeitures under the Plan until he actually becomes a Member in the Plan. If the Employee has a Severance from Employment prior to becoming a Member, the Trustee will distribute his Rollover Account to him.

Section 3.11 RETURN OF CONTRIBUTIONS . All contributions to the Plan are conditioned upon their deductibility under the Code. The Trustee, upon written request from the Employer, shall return to the Employer the amount of the Employer’s contribution made by the Employer by mistake of fact or the amount of the Employer’s contribution disallowed as a deduction under Code Section 404. The Trustee shall not return any portion of the Employer’s contribution under this provision more than one year after;

 

A.

The Employer made the contribution by mistake of fact; or

 

B.

The disallowance of the contribution as a deduction, and then, only to the extent of the disallowance.

The Trustee shall not increase the amount of the Employer contribution returnable under this Section 3.11 for any earnings attributable to the contribution, but the Trustee shall decrease the Employer contribution returnable for any losses attributable to it. The Trustee may require the Employer to furnish it whatever evidence the Trustee deems necessary to enable the Trustee to confirm the amount the Employer has requested be returned is properly returnable under ERISA.

Section 3.12 FURTHER REDUCTIONS OF CONTRIBUTIONS . In addition to the reductions and recharacterizations provided for under Schedule II, in any Plan Year in which the Committee deems it necessary to do so to meet the requirements of the Code and the Treasury Regulations thereunder, the Committee may further reduce the amount of Before-Tax Contributions that may be made to a Member’s Account, or refund such amounts previously contributed.

 

23

ARTICLE IV

TERMINATION OF SERVICE; MEMBER VESTING

Section 4.01 VESTING . A Member’s interest in his Account shall be vested as follows:

 

A.

Employee Contributions – 100%

 

B.

Matching Contributions – 100% (except as may be forfeited as required under an Appendix or applicable provision of law).

Section 4.02 REPAYMENT OF CONTRIBUTIONS .

 

A.

Repayment . If a Member receives a distribution of Plan Shares credited to his Account upon or after the termination of his employment pursuant to Section 5.02 of the Plan and he thereafter becomes an Eligible Employee, he may repay and restore to the Trust Fund, in a single-sum cash payment and on an after-tax basis, all or part of the value of his Basic Contributions and Supplemental Contributions that were so distributed to him; provided that he makes such payment before expiration of a period of five consecutive years after either (i) his subsequent Employment Commencement Date, or if earlier, (ii) the date of such distribution; provided that the amount of such payment may not exceed any limitation under any Appendix hereto or applicable provision of law. No Employer will make any Matching Contributions in respect of any Basic Contributions which an Eligible Employee elects to restore under this Section 4.02A.

 

B.

Time and Amount of Restoration . Each payment pursuant to this Section 4.02 will be transmitted to the Trustee as soon as practical, but within 30 days after the month in which such payment is received by the Member’s Employer, and will be allocated to the Member’s Account at the time and in the manner specified in Section 3.09 of the Plan for Basic Contributions and Supplemental Contributions and to one or more Investment Funds selected by the Member in his current Enrollment. Additionally, such payment will be treated as Basic After-Tax Contributions and allocated to Plan Years, beginning with the most recent Plan Year from which the distribution was made pursuant to Section 5.02 of the Plan.

 

24

ARTICLE V

TIME AND METHOD OF PAYMENT OF BENEFITS

Section 5.01 MEMBER DISTRIBUTIONS .

 

A.

Election . Following the end of the 180-day period following his Enrollment pursuant to Section 2.2 but subject to Section 5.01C. below, a Member may elect to have distributed to him the value of all or any part of the Plan Shares which are attributable to his Employee Contributions, Rollover Contributions, Matching Contributions and earnings and credited to his Account by completing a Distribution Request. Additionally, a Member may elect a distribution only once in any period of six consecutive months, and all distributions from his Account will be in the order specified in Section 5.01B. below and subject to all other applicable limitations hereunder.

 

B.

Order of Distribution . The Member must designate in his Distribution Request the amount to be distributed from his Account and any Investment Fund and the distribution will be made in accordance with the order and limitations specified below:

 

(i)

First, the value of Plan Shares attributable to After-Tax Contributions made prior to 1987.

 

(ii)

Next, the value of Plan Shares attributable to the Member’s After-Tax Contributions made after 1986.

 

(iii)

Next, the value of Plan Shares attributable to Matching Contributions made for his benefit and which may be distributed to him under Section 5.01C. below, beginning with the earliest Plan Year in which such Matching Contributions were made.

 

(iv)

Next, the value of Plan Shares attributable to the Member’s Rollover Contributions.

 

C.

Exceptions . Section 5.01A. notwithstanding,

 

(i)

A Member who is covered by a collective bargaining agreement may not elect a distribution of any Plan Shares attributable to Matching Contributions prior to the last day of the Plan Year which is two full Plan Years after the Plan Year for which the Matching Contributions were made for his benefit.

 

(ii)

A Member who is not covered by a collective bargaining agreement who received an allocation of Matching Contributions prior to January 1, 2002 may not elect a distribution of any Plan Shares attributable to such Matching Contributions prior to the last day of the Plan Year which is two full Plan Years after the Plan Year for which the Matching Contributions were made for his benefit.

 

(iii)

A Member who is not covered by a collective bargaining agreement who receives an allocation of Matching Contributions on or after January 1,

 

25

2002 and prior to January 1, 2003 that complies with the safe harbor requirements of Code Sections 401(k)(12) and 401(m)(11) may not elect to receive a distribution of any Plan Shares attributable to such Matching Contributions while actively employed by the Company except upon or after attaining age 59  1 / 2 as provided below.

 

(iv)

A Member who is at least 59  1 / 2 years old may elect a distribution of the value of all or any part of the Plan Shares attributable to his Before-Tax Contributions and credited to his Account prior to and in addition to any distribution of his After-Tax Contributions, Matching Contributions, Rollover Contributions and earnings credited to his Account pursuant to Section 5.01A. and 5.01B. above.

 

(v)

A distribution elected by a Member who is not subject to a collective bargaining agreement and is at least 59  1 / 2 years old may also include a distribution of the value of all or any part of the Matching Contributions made on or after January 1, 2002 that comply with the safe harbor requirements of Code Sections 401(k)(12) and 401(m)(11) and credited to his Account.

Section 5.02 DISTRIBUTION UPON SEVERANCE FROM EMPLOYMENT . Upon a Member’s Severance from Employment, a Member may elect as of any Valuation Date occurring after his Severance from Employment date, a distribution of the value of Plan Shares credited to his Account by completing a Distribution Request. The following rules shall apply to any such distribution:

 

A.

If the Member’s Account balance on the date the distribution commences is less than $1,000 ($5,000 prior to March 28, 2005), the Trustee shall pay such Account balance in the form of a single, lump sum distribution as soon as administratively practicable after the Member’s Severance from Employment.

 

B.

If the Member’s Account balance on the date the distribution commences is less than $5,000, such distribution shall be deferred until the Member consents to the distribution or as provided in Section 5.03 of the Plan.

Effective for distributions after January 1, 2002 and before March 28, 2005, for purposes of determining whether the aggregate value of all Plan Shares credited in a Member’s Account does not exceed $1,000 ($5,000 prior to March 28, 2005), the value of the Member’s Rollover Contributions will be excluded.

Section 5.03 OTHER RULES GOVERNING THE TIME OF PAYMENT OF BENEFITS .

 

A.

Minimum Distribution Requirements . Unless the Member elects otherwise in writing, the Member’s nonforfeitable Account balance shall be distributed not later than 90 days after the later of the following events occurs:

 

(i)

The date the Member attains age 65; or

 

26

(ii)

The tenth anniversary of the date on which he first enrolled and commenced participation in the Plan; or

 

(iii)

The date on which his service (employment) with a Controlled Group Member terminates.

In no event shall the distribution commence nor shall the Member elect to have distribution commence, later than the Required Beginning Date. Furthermore, once distributions have begun to a Five-percent Owner, they must continue to be distributed, even if the Member ceases to be a Five-percent Owner in a subsequent year.

 

B.

In no event shall the payment commence later than the time prescribed by this Article V. The Committee shall make its determinations under this Article V in a nondiscriminatory, consistent and uniform manner. The Member (and, if applicable, the Member’s spouse) shall be provided with the appropriate form to consent to the distribution direction, if required.

Section 5.04 FORM OF PAYMENT . Each distribution pursuant to this Article V shall be made in a single-sum cash payment, except that distributions from the OMNOVA Stock Fund will be in the form of whole Company Shares plus cash for any fractional Company Share unless the Member elects to receive the cash value thereof, and shall be made as soon as practicable after all information necessary to process the distribution is received, and the amount shall be equal to value of Plan Shares as of the earliest practicable Valuation Date.

Section 5.05 REQUIRED MINIMUM DISTRIBUTIONS .

 

A.

Effective Dates . The provisions of this Section 5.05 will apply for purposes of determining the required minimum distributions for calendar years beginning on or after January 1, 2003.

 

B.

Definitions . For purposes of this Section 5.05, the following definitions shall apply:

 

(i)

“ Designated Beneficiary ” is the individual who is designated as the Beneficiary under Section 1.08 of the Plan and is the Designated Beneficiary under Code Section 401(a)(9) and Section 1.401(a)(9)-1, Q&A-4 of the Treasury Regulations.

 

(ii)

“ Distribution Calendar Year ” is a calendar year for which a minimum distribution is required. For distributions beginning before the Member’s death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Member’s Required Beginning Date. For distributions beginning after the Member’s death, the first Distribution Calendar Year is the calendar year in which the distributions are required to begin. The required minimum distribution for the Member’s first Distribution Calendar Year will be made on or before the Member’s Required Beginning Date. The required minimum distribution for other Distribution Calendar Years, including the required

 

27

minimum distribution for the Distribution Calendar Year in which the Member’s Required Beginning Date occurs, will be made on or before December 31 of that Distribution Calendar Year.

 

(iii)

“ Life Expectancy ” is a beneficiary’s life expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)-9 of the Treasury Regulations.

 

(iv)

“ RMD Account Balance ” is the Account balance as of the last Valuation Date in the calendar year immediately preceding the Distribution Calendar Year (the “ Valuation Calendar Year ”) increased by the amount of any contributions made and allocated or forfeitures allocated to the Account balance as of dates in the Valuation Calendar Year after the Valuation Date and decreased by distributions made in the Valuation Calendar Year after the Valuation Date. The Account balance for the Valuation Calendar Year includes any amounts rolled over or transferred to the Plan either in the Valuation Calendar Year or in the Distribution Calendar Year if distributed or transferred in the Valuation Calendar Year.

 

C.

Time and Manner of Distribution .

 

(i)

Required Beginning Date . The Member’s entire interest will be distributed, or begin to be distributed, to the Member no later than the Member’s Required Beginning Date.

 

(ii)

Death of Member Before Distributions Begin . If the Member dies before distributions begin, the Member’s entire interest will be distributed, or begin to be distributed, no later than as follows:

 

1.

If the Member’s surviving spouse is the Member’s sole Designated Beneficiary, then, except as provided herein, distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Member died, or by December 31 of the calendar year in which the Member would have attained age 70  1 / 2 , if later.

 

2.

If the Member’s surviving spouse is not the Member’s sole Designated Beneficiary, then, except as provided herein, distributions to the Designated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Member died.

 

3.

If there is no Designated Beneficiary as of September 30 of the year following the year of the Member’s death, the Member’s entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Member’s death.

 

4.

If the Member’s surviving spouse is the Member’s sole Designated Beneficiary and the surviving spouse dies after the Member but before distributions to the surviving Spouse begin, this subsection

 

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C.(ii) other than sub-paragraph 1., will apply as if the surviving spouse were the Member.

For purposes of this Section 5.05C. and Sections 5.05G. and H. of the Plan, unless subsection 4. above applies, distributions are considered to begin on the Member’s Required Beginning Date. If subsection 4. applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under subsection 1. If distributions under an annuity purchased from an insurance company irrevocably commence to the Member before the Member’s Required Beginning Date (or to the Member’s surviving spouse before the date distributions are required to begin to the surviving spouse under subsection 1.), the date distributions are considered to begin is the date distributions actually commence.

 

D.

Forms of Distribution . Unless the Member’s interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the Required Beginning Date, as of the first Distribution Calendar Year distributions will be made in accordance with Sections 5.05E., 5.05F., 5.05G. and 5.05H. of the Plan. If the Member’s interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with Code Section 401(a)(9) and the Treasury Regulations.

 

E.

Amount of Required Minimum Distributions for Each Distribution Calendar Year . During the Member’s lifetime, the minimum amount that will be distributed for each Distribution Calendar Year is the lesser of:

 

(i)

The quotient obtained by dividing the RMD Account Balance by the distribution period in the Uniform Lifetime Table set forth in Treasury Regulations Section 1.401(a)(9)-9, using the Member’s age as of the Member’s birthday in the Distribution Calendar Year; or

 

(ii)

If the Member’s sole Designated Beneficiary for the Distribution Calendar Year is the Member’s spouse, the quotient obtained by dividing the RMD Account Balance by the number in the Joint and Last Survivor Table set forth in Treasury Regulations Section 1.401(a)(9)-9, using the Member’s and the spouse’s attained ages as of the Member’s and spouse’s birthdays in the Distribution Calendar Year.

 

F.

Lifetime Required Minimum Distributions Continue Through Year of Member’s Death . Required minimum distributions will be determined under this subsection F. beginning with the first Distribution Calendar Year and up to and including the Distribution Calendar Year that includes the Member’s date of death.

 

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G.

Death On or After Date Distributions Begin .

 

(i)

Member Survived by Designated Beneficiary . If the Member dies on or after the date distributions begin and there is a Designated Beneficiary, the minimum amount that will be distributed for each Distribution Calendar Year after the year of the Member’s death is the quotient obtained by dividing the RMD Account Balance by the longer of the remaining Life Expectancy of the Member or the remaining Life Expectancy of the Member’s Designated Beneficiary, determined as follows:

 

1.

The Member’s remaining Life Expectancy is calculated using the age of the Member in the year of death, reduced by one for each subsequent year.

 

2.

If the Member’s surviving spouse is the Member’s sole Designated Beneficiary, the remaining Life Expectancy of the surviving spouse is calculated for each Distribution Calendar Year after the year of the Member’s death using the surviving spouse’s age as of the spouse’s birthday in that year. For Distribution Calendar Years after the year of the surviving spouse’s death, the remaining Life Expectancy of the surviving spouse is calculated using the age of the surviving spouse as of the spouse’s birthday in the calendar year of the spouse’s death, reduced by one for each subsequent calendar year.

 

3.

If the Member’s surviving spouse is not the Member’s sole Designated Beneficiary, the Designated Beneficiary’s remaining Life Expectancy is calculated using the age of the Beneficiary in the year following the year of the Member’s death, reduced by one for each subsequent year.

 

(ii)

No Designated Beneficiary . If the Member dies on or after the date distributions begin and there is no Designated Beneficiary as of September 30 of the year after the year of the Member’s death, the minimum amount that will be distributed for each Distribution Calendar Year after the year of the Member’s death is the quotient obtained by dividing the RMD Account Balance by the Member’s remaining Life Expectancy calculated using the age of the Member in the year of death, reduced by one for each subsequent year.

 

H.

Death Before Date Distributions Begin .

 

(i)

Member Survived by Designated Beneficiary . Except as provided herein, if the Member dies before the date distributions begin and there is a Designated Beneficiary, the minimum amount that will be distributed for each Distribution Calendar Year after the year of the Member’s death is the quotient obtained by dividing the Member’s Account Balance by the remaining Life Expectancy of the Member’s Designated Beneficiary, determined as provided in subsection G.

 

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(ii)

No Designated Beneficiary . If the Member dies before the date distributions begin and there is no Designated Beneficiary as of September 30 of the year following the year of the Member’s death, distribution of the Member’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Member’s death.

 

(iii)

Death of Surviving Spouse Before Distributions to Surviving Spouse are Required to Begin . If the Member dies before the date distributions begin, the Member’s surviving spouse is the Member’s sole Designated Beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse under Section 5.05C.(ii) of the Plan, this Section will apply as if the surviving spouse were the Member.

 

I.

General Rules .

 

(i)

Precedence . The requirements of this Section 5.05 will supersede any contrary provisions of the Plan.

 

(ii)

Requirements of Treasury Regulations Incorporated . All distributions required under this Section 5.05 will be determined and made in accordance with the Treasury Regulations under Code Section 401(a)(9).

 

(iii)

TEFRA Section 242(b)(2) Elections . Notwithstanding the other provisions of this Section 5.05, distributions may be made under a designation made before January 1, 1984, in accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (“TEFRA”) and the provisions of the Plan that relate to TEFRA Section 242(b)(2).

 

(iv)

If a Member’s benefit is to be distributed over (1) a period not extending beyond the life expectancy of the Member or the joint life and last survivor expectancy of the Member and the Member’s Beneficiary, or (2) a period not extending beyond the life expectancy of the Beneficiary, the amount required to be distributed for each calendar year, beginning with distributions for the first Distribution Calendar Year, must at least equal the quotient obtained by dividing the Member’s Account balance as of the last Valuation Date preceding the Distribution Calendar Year by the applicable life expectancy.

 

(v)

The amount to be distributed each year, beginning with distributions for the first Distribution Calendar Year, shall not be less than the quotient obtained by dividing the Member’s Account balance as of the last Valuation Date preceding the Distribution Calendar Year by the lesser of (1) the applicable life expectancy, or (2) if the Member’s spouse is not the Beneficiary, the applicable divisor determined from the table set forth in Q&A-4 of Section 1.401(a)(9)-2 of proposed Treasury Regulations. Distributions after the death of the Member shall be distributed using the applicable life expectancy in subsection G above as the relevant divisor without regard to Proposed Regulations Section 1.401(a)(9)-2.

 

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(vi)

The minimum distribution required for the Member’s first Distribution Calendar Year must be made on or before the Member’s Required Beginning Date. The minimum distribution for other calendar years, including the minimum distribution for the Distribution Calendar Year in which the Member’s Required Beginning Date occurs, must be made on or before December 31 of that Distribution Calendar Year.

 

(vii)

The Committee may compute the minimum distribution for a calendar year subsequent to the first calendar year for which the Plan requires a minimum distribution by redetermining the applicable life expectancy. However, the Committee may not redetermine the joint life and last survivor expectancy of the Member and a nonspouse Beneficiary in a manner that takes into account any adjustment to a life expectancy other than the Member’s life expectancy. The Committee shall use the life expectancy multiples under Treasury Regulations Section 1.72-9 for purposes of applying this Section.

Section 5.06 PRIOR MANDATORY DISTRIBUTION RULES . Notwithstanding Section 5.05 above, for required minimum distributions prior to January 1, 2003, the following rules shall apply:

 

A.

For a Member who attains age 70  1 / 2 the value of all Plan Shares credited to a Member’s Account will be distributed to him as provided in Section 5.04 on or before April l of the calendar year following the later of (i) the calendar year in which he attains age 70  1 / 2 or (ii) the calendar year in which his employment with a Controlled Group Member terminates.

 

B.

At the Member’s election, the distribution of benefits upon the date specified in subsection A. above may be made in substantially equal annual, or more frequent, cash installments over a period certain which does not extend beyond the life expectancy or joint life expectancies of the Member and his Beneficiary, in accordance with this subsection B:

 

(i)

If the Member dies prior to the commencement of distributions from his Account, the life expectancy of the Member’s Beneficiary.

 

(ii)

The amount to be distributed for each calendar year for which a minimum distribution is required shall be at least an amount equal to the quotient obtained by dividing the Member’s interest in his Account by the life expectancy of the Member or Beneficiary or the joint life and last survivor expectancy of the Member and his Beneficiary, whichever is applicable. The amount to be distributed for each calendar year shall not be less than an amount equal to the quotient obtained by dividing the Member’s interest in his Account by the lesser of (1) the applicable life expectancy, or (2) if a Member’s Beneficiary is not his spouse, the applicable divisor determined under Section 1.401(a)(9)-2, Q&A 4 of the Proposed Treasury Regulations, or any successor regulations of similar import. Distributions after the death of the Member will be made using the applicable life expectancy under (i) above, without regard to Section 1.401(a)(9)-2 of such regulations. For

 

32

purposes of this Section 5.06B. life expectancy and joint life and last survivor expectancy shall be computed by use of the expected return multiples in Table V and VI of Section 1.72-9 of the Treasury Regulations.

 

(iii)

For purposes of this Section 5.06B. the life expectancy of a Member or a Beneficiary who is the Member’s surviving spouse shall be recalculated annually unless the Member or the Member’s spouse irrevocably elects otherwise prior to the time distributions are required to begin. If not recalculated in accordance with the foregoing, life expectancy shall be calculated using the attained age of the Member or Beneficiary, whichever is applicable, as of such individual’s birth date in the first year for which a minimum distribution is required reduced by one for each elapsed calendar year since the date life expectancy was first calculated.

 

(iv)

If the Member dies after distribution of his benefits has begun, distributions to the Member’s Beneficiary shall be made at least as rapidly as under the method of distribution being used as of the date of the Member’s death.

 

(v)

A Member’s interest in his Account for purposes of this Section 5.06B. shall be determined as of the last valuation date in the calendar year immediately preceding the calendar year for which a minimum distribution is required, increased by the amount of any contributions allocated to, and decreased by any distributions from, such Account after the valuation date. Any distribution for the first year for which a minimum distribution is required made after the close of such year shall be treated as if made prior to the close of such year.

 

(vi)

With respect to distributions under the Plan made in calendar years beginning on or after January 1, 2002 and before January 1, 2003, the Plan will apply the minimum distribution requirements of Code Section 401(a)(9) in accordance with the regulations under Code Section 401(a)(9) that were proposed in January 1, 2001, notwithstanding any provision of the Plan to the contrary.

Section 5.07 DESIGNATION OF BENEFICIARY . A Member may, from time to time, designate in writing a Beneficiary or Beneficiaries, contingently or successively, to whom the Trustee shall pay his Account in the event of his death. A Member’s Beneficiary designation shall not be valid unless the Member’s spouse consents (in accordance with the requirements of Code Section 417) to the Beneficiary designation. A Member’s Beneficiary designation does not require spousal consent if the Member’s spouse is the Member’s designated Beneficiary. The Committee shall prescribe the form for the written designation of Beneficiary and, upon the Member’s filing the form with the Committee, the Member shall effectively revoke all designations filed prior to that date by the same Member.

Section 5.08 FAILURE OF BENEFICIARY DESIGNATION . If a Member fails to name a Beneficiary in accordance with Section 5.07 of the Plan, or if the Beneficiary named by a Member predeceases him, then the Trustee shall pay the Member’s Account to (A) the Member’s surviving spouse, if living, and if not, (B) his then living children in equal shares, or if none are living, (C) his living parents in equal shares, or if neither is living, (D) to the Member’s estate.

 

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If the Beneficiary survives the Member but dies before complete distribution of the Member’s Account, the remaining portion of the Member’s Account shall be paid in a lump sum to any contingent Beneficiaries named by the Member or, if there are none, to the legal representative of the estate of such deceased Beneficiary. The Company or the Plan Administrator shall direct the Trustee as to the method and to whom the Trustee shall make payment under this Section.

Section 5.09 FORM AND TIME OF DISTRIBUTION TO BENEFICIARY . Each distribution pursuant to Section 5.07 and 5.08 above will be made in a single-sum cash payment and/or Company Shares in the same manner as provided for Members in Sections 5.02 and 5.04 of the Plan and will be made as soon as practicable after all necessary documentation is received. Plan Shares in the Member’s Account will be valued as of the earliest practicable Valuation Date.

Section 5.10 SPECIAL RULES FOR TRANSFER ACCOUNTS . Notwithstanding any provision of this Article V to the contrary, with respect to any Member who has one or more Transfer Accounts consisting in whole or in part of Transfer Contributions which, by operation of relevant law and regulation (including, but not limited to, ERISA and the Code), must be distributed or made available under the same terms and conditions under which amounts held thereunder were previously held (prior to their becoming Transfer Contributions) to the extent that such terms and conditions must be preserved in order to comply with Code Section 411(d)(6), the Plan shall, upon the written request of the Member (in the case of optional forms of benefit), distribute or make available such Transfer Contributions at such times and in such manner as may be so required.

Section 5.11 DISTRIBUTIONS UNDER DOMESTIC RELATIONS ORDERS . Nothing contained in this Plan shall prevent the Trustee from complying with the provisions of a qualified domestic relations order (as defined in Code Section 414(p)). This Plan specifically permits distribution to an alternate payee under a qualified domestic relations order at any time, irrespective of whether the Member has attained his earliest retirement age (as defined under Code Section 414(p)) under the Plan. A distribution to an alternate payee prior to the Member’s attainment of the earliest retirement age is available only if the order specifies distribution at that time or permits an agreement between the Plan and the alternate payee to authorize such an earlier distrib