Employees' Profit-Sharing Plan [Restatement 1995] (2002)Full Document 

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                               OMG AMERICAS, INC.
                         EMPLOYEES' PROFIT-SHARING PLAN
                  (formerly known as OMG/Mooney Chemicals, Inc.
                         Employees' Profit-Sharing Plan
                    and prior thereto Mooney Chemicals, Inc.
                              Profit-Sharing Plan)
                          (January 1, 1995 Restatement)

                                TABLE OF CONTENTS

Section                                                                                      Page
-------                                                                                      ----

ARTICLE I                                                                                       2
               1.1  DEFINITION                                                                  2
               1.2  PRONOUNS                                                                    12

ARTICLE II                                                                                      13
               2.1  CREDITING OF HOURS OF SERVICE                                               13
               2.2  DETERMINATION OF NON-DUTY HOURS OF SERVICE                                  14
               2.3  ALLOCATION OF HOURS OF SERVICE TO PLAN YEARS                                15

ARTICLE III                                                                                     16
               3.1  PARTICIPATION                                                               16
               3.2  NEW PARTICIPANTS                                                            16
               3.3  YEARS OF SERVICE                                                            16
               3.4  CHANGES IN EMPLOYMENT STATUS; TRANSFERS OF EMPLOYMENT                       17
               3.5  REEMPLOYMENT OF A PARTICIPANT                                               17

ARTICLE IV                                                                                      18
               4.1  COMPANY CONTRIBUTIONS                                                       18
               4.2  CASH OPTION ELECTION AND TAX DEFERRED CONTRIBUTIONS.                        18
               4.3  PARTICIPANT CONTRIBUTIONS                                                   18
               4.4  CHANGES IN PARTICIPANT CONTRIBUTIONS                                        19
               4.5  EXCESS TAX DEFERRED CONTRIBUTIONS                                           19
               4.6  ALLOCATION OF COMPANY CONTRIBUTIONS                                         19
               4.7  ROLLOVER CONTRIBUTIONS                                                      20
               4.8  TRANSFERRED CONTRIBUTIONS                                                   20
               4.9  DELIVERY OF CONTRIBUTIONS                                                   21
               4.10 CREDITING OF CONTRIBUTIONS                                                  21

ARTICLE V                                                                                       22
               5.2  CONTRIBUTION LIMITATION DEFINITIONS                                         22
               5.3  ADJUSTMENT OF ADP AND ACP TESTS                                             24
               5.4  MULTIPLE USE TEST                                                           26
               5.5  ADJUSTMENT FOR INVESTMENT GAIN OR LOSS                                      26




ARTICLE VI                                                                                      28
               6.1  DEPOSIT OF CONTRIBUTIONS                                                    28
               6.2  INVESTMENT CHANGE OF FUTURE CONTRIBUTIONS                                   28
               6.3  ELECTION TO TRANSFER INVESTED PAST CONTRIBUTIONS                            29

ARTICLE VII                                                                                     30
               7.1  ESTABLISHMENT AND MAINTENANCE OF FUNDS                                      30
               7.2  INCOME ON FUNDS                                                             30
               7.3  ACCOUNTS AND SUBACCOUNTS                                                    30
               7.4  INVESTMENT ELECTIONS                                                        30
               7.5  INVESTMENT RESPONSIBILITY                                                   31
               7.7  ACCOUNT BALANCES                                                            32

ARTICLE VIII                                                                                    33
               8.1  VALUATION OF PARTICIPANT'S INTEREST                                         33
               8.2  FINALITY OF TRUSTEE'S DETERMINATION                                         34
               8.3  NOTIFICATION                                                                34

ARTICLE IX                                                                                      35
               9.1  APPLICATION AND APPROVAL OF LOANS                                           35
               9.2  TERMS AND CONDITIONS OF A LOAN                                              35
               9.3  REPAYMENT OF LOAN                                                           36

ARTICLE X                                                                                       37
               10.1  TERMINATION OF PARTICIPATION                                               37
               10.2  VESTING                                                                    37
               10.3  ELECTION OF FORMER VESTING SCHEDULE                                        38
               10.4  DISTRIBUTION                                                               38
               10.5  FORM OF DISTRIBUTION                                                       39
               10.6  RESTRICTION ON ALIENATION                                                  39
               10.7  REEMPLOYMENT OF FORMER PARTICIPANT                                         40
               10.8  DISPOSITION OF FORFEITED BALANCES                                          40
               10.9  BUY BACK OF FORFEITED AMOUNTS                                              41
               10.10 DISTRIBUTION TO OTHER QUALIFIED PLANS                                      42
               10.11 FACILITY OF PAYMENT                                                        42
               10.12 MANDATORY DISTRIBUTIONS                                                    43
               10.13 ELIGIBLE ROLLOVER DISTRIBUTIONS                                            45

ARTICLE XI                                                                                      46
               11.1  DESIGNATION OF BENEFICIARY                                                 46
               11.2  BENEFICIARY IN THE ABSENCE OF DESIGNATED BENEFICIARY                       46


               11.3 SPOUSAL CONSENT TO BENEFICIARY DESIGNATION                                  46

ARTICLE XII                                                                                     47
               12.1 AUTHORITY OF THE COMPANY                                                    47
               12.2 ACTIONS OF THE COMPANY                                                      47
               12.3 CLAIMS REVIEW PROCEDURE                                                     48
               12.4 INDEMNIFICATION                                                             49
               12.5 QUALIFIED DOMESTIC RELATIONS ORDERS                                         49
               12.6 VOTING OF OMG STOCK                                                         49

ARTICLE XIII                                                                                    51
               13.1 AMENDMENT                                                                   51
               13.2 LIMITATION OF AMENDMENT                                                     51
               13.3 TERMINATION                                                                 51
               13.4 WITHDRAWAL OF AN EMPLOYER                                                   52
               13.5 EFFECT OF PLAN TERMINATION                                                  52
               13.6 CORPORATE REORGANIZATION                                                    52

ARTICLE XIV                                                                                     53

ARTICLE XV                                                                                      57
               15.1 EXTENSION OF PLAN TO SUBSIDIARIES. Any Related Corporation
                    which at the time is not an Employer may, with the consent
                    of the Board of Directors of the Company, adopt the Plan and
                    become an Employer hereunder by causing an appropriate
                    written instrument evidencing such adoption to be executed
                    pursuant to the authority of its Board of Directors and to
                    be filed with the Company.                                                  57
               15.3 BENEFITS                                                                    57
               15.4 NO GUARANTEES                                                               57
               15.5 PRECEDENT                                                                   57
               15.6 DUTY TO FURNISH INFORMATION                                                 57
               15.7 MERGER, CONSOLIDATION OR TRANSFER OF PLAN ASSETS                            57
               15.8 INTERNAL REVENUE SERVICE DETERMINATION                                      58
               15.9 GOVERNING LAW                                                               58

APPENDIX A                                                                                      1

APPENDIX B                                                                                      1


                               OMG AMERICAS, INC.
                         EMPLOYEES' PROFIT-SHARING PLAN
                  (formerly known as OMG/Mooney Chemicals, Inc.
                         Employees' Profit-Sharing Plan
                    and prior thereto Mooney Chemicals, Inc.
                              Profit-Sharing Plan)
                          (January 1, 1995 Restatement)

               WHEREAS, Mooney Chemicals, Inc. (hereinafter referred to as the
"Company") established the Mooney Chemicals, Inc. Employees' Profit-Sharing Plan
(hereinafter referred to as the "Plan"), effective as of December 31, 1950, for
the benefit of certain of its employees; and
               WHEREAS, the Plan was restated as of January 1, 1989, to comply
with the provisions of the Tax Reform Act of 1986 and subsequent applicable
legislation and received a favorable determination letter from the Internal
Revenue Service with respect to its continued qualification; and
               WHEREAS, the name of the Company was changed on January 26, 1996;
               and WHEREAS, the Company desires to make certain revisions to the
               NOW, THEREFORE, effective as of January 1, 1995, except as
specifically provided, the Plan is renamed and is hereby amended and restated as
hereinafter set forth.


                                    ARTICLE I


               1.1 DEFINITIONS. The following words and phrases as used herein
shall have the meanings hereinafter set forth, unless a different meaning is
plainly required by the context:
                     (1) The term "ACCOUNT" shall mean any of the accounts
               established and maintained in accordance with the provisions of
               Section 7.3 which reflects the interest of a Participant in the
               Funds, including, but not limited, to a Company Contribution
               Account, a Cash Option Account, a Thrift Account, and a Rollover

                     (2) The term "BENEFICIARY" shall mean the person or persons
               who, in accordance with the provisions of Article XI, shall be
               entitled to receive distribution hereunder in the event a
               Participant or former Participant dies before his interest shall
               have been distributed to him in full.

                     (3) The term "BREAK IN SERVICE" shall mean any Plan Year
               during which an Employee completes not more than 500 Hours of
               Service; provided, however, that for purposes of Section 3.3(b)
               no Employee shall incur a Break in Service solely by reason of an
               absence due to (i) the birth of a child of the Employee, (ii) the
               pregnancy of the Employee, (iii) the placement of a child with
               the Employee on account of the adoption of such child by such
               Employee, or (iv) the caring for a child of an Employee for a
               period beginning following the birth or placement of such child,
               with respect to the Plan Year in which such absence begins, if
               the Employee otherwise would have incurred a Break in Service or,
               in any other case, in the immediately following Plan Year.

                     (4) The term "CASH OPTION ACCOUNT" shall mean the Account
               of a Participant which reflects his interest in the Funds
               attributable to Tax Deferred Contributions and which is
               established pursuant to the provisions of Sections 4.2, 6.1, and

                     (5) The term "CODE" shall mean the Internal Revenue Code of
               1986, as amended from time to time. Reference to a section of the
               Code shall include such section and any comparable section or
               sections of any future legislation that amends, supplements, or
               supersedes such section.

                     (6) The term "COMPANY" shall mean Mooney Chemicals, Inc.,
               which as of January 26, 1996 became known as OMG Americas, Inc.,
               its corporate successors, and the surviving corporation resulting
               from any merger, consolidation, or reorganization of Mooney
               Chemicals, Inc. with or into any other corporation or


                     (7) The term "COMPANY CONTRIBUTIONS" shall mean the
               discretionary contributions made by the Employers under the Plan
               in accordance with the provisions of Section 4.1. Company
               Contributions shall be allocated and deposited to the Company
               Contributions Accounts of Participants pursuant to the provisions
               of Sections 4.6 and 6.1.

                     (8) The term "COMPANY CONTRIBUTION ACCOUNT" shall mean the
               Account of a Participant which reflects his interest in the Funds
               attributable to Company Contributions and forfeitures, if any,
               and which is established pursuant to the provisions of Sections
               4.1, 6.1, and 7.3.

                     (9) The term "COMPENSATION" shall mean the total wages
               which are paid to an Employee during a Plan Year by an Employer
               for his services as an Employee while he is a Participant, but
               excluding any portion of a Company Contribution which is subject
               to the cash option election described in Section 4.2 and which a
               Participant elects to receive in cash, any amounts received under
               the Company's dependent scholarship program, and all non-cash
               remuneration; provided, however, that for Plan Years beginning on
               or after January 1, 1994, the annual Compensation of a
               Participant taken into account under the Plan shall not exceed
               the OBRA `93 annual compensation limit of $150,000, as adjusted
               for increases in the cost of living in accordance with the
               provisions of Section 401(a)(17)(B) of the Code. The cost of
               living in effect for a calendar year applies to any period, not
               exceeding 12 months, over which Compensation is determined (a
               "determination period") beginning in such calendar year. If a
               determination period consists of fewer than 12 months, the OBRA
               `93 annual compensation limit 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.
               Compensation of a Participant's "family members" (as defined in
               paragraph (18) shall be treated as Compensation of the
               Participant in accordance with Section 414(q)(6) of the Code as
               modified by Section 401(a)(17) of the Code. If as a result of the
               application of such rules the adjusted Section 401(a)(17)
               limitation is exceeded, then the limitation shall be prorated in
               proportion to each such individual's compensation as determined
               under such paragraph prior to the application of such limitation.

                     (10)  The term "ELIGIBLE RETIREMENT PLAN" shall mean:

                           (a)    an individual retirement account described in
                                  Section 408(a) of the Code;

                           (b)    an individual retirement annuity described in
                                  Section 408(b) of the Code;


                           (c)    a trust maintained pursuant to a plan that
                                  meets the requirements of Section 401(a) of
                                  the Code; and

                           (d)    an annuity plan described in Section 403(a) of
                                  the Code.

               In the case of an Eligible Rollover Distribution to a beneficiary
               who is the Participant's surviving spouse, an Eligible Retirement
               Plan is only an individual retirement account or individual
               retirement annuity described in (a) or (b) above.

                     (11) The term "ELIGIBLE ROLLOVER DISTRIBUTION" shall mean
               all or any portion of a Plan distribution made to a Participant
               or a Beneficiary who is a deceased Participant's surviving spouse
               or an alternate payee under a qualified domestic relations order;
               provided that such alternate payee is a Participant's spouse or
               former spouse; and provided further that such distribution is not
               (i) one of a series of substantially equal periodic payments made
               at least annually for a specified period of ten or more years or

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