<PAGE>
As filed with the Securities and Exchange Commission on
July 3, 1996
Registration No. 33
- - ____________
FORM S-8
SECURITIES AND EXCHANGE COMMISSION
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
OM GROUP, INC.
(exact name of registrant as specified in its charter)
Delaware
52-1736882
(State or other jurisdiction of (I.R.S.,
Employer
incorporation or organization) Identification
Number)
3800 Terminal Tower
Cleveland, Ohio
44113-2204
(Address of principal executive offices) (Zip
code)
OMG AMERICAS, INC.
Employees' Profit-Sharing Plan
(Full title of the plan)
Michael J. Scott
Secretary
3800 Terminal Tower
Cleveland, Ohio 44113-2204
(Name and address of agent for service)
(216)781-0083
(Telephone number, including area code, of agent for
service)
Calculation of Registration Fee
- -----------------------------------------------------------------
- -----------
| Title of | Amount | Proposed | Maximum |
Amount of |
| Securities | to be | Maximum | Aggregate |
Registration|
| to be | Registered |Offering Price | Offering |
Fee (2) |
| Registered | | Per Share (1) | Price (1) |
|
- -----------------------------------------------------------------
- -----------|
| Common Stock | 250,000 | $38 3/4 | $9,687,500.00 |
$3,340.00 |
|$.01 par value | | | |
|
- -----------------------------------------------------------------
- -----------
(1) Based on the average high and low prices of securities of
the same class
on the NASDAQ Stock Market on June 28, 1996.
(2) Computed in accordance with Rule 457(h) under the Securities
Act of 1933.
-1-
<PAGE>
Part II Information Required In The Registration Statement
Item 3 Incorporation of Documents by Reference
OM Group, Inc. (the "Company") incorporates by
reference into
this registration statement the following documents:
a) The Company's Annual Report on Form 10-K for the
year ended
December 31, 1995.
b) The Company's Quarterly Report on Form 10-Q for
the period
ended March 31, 1996.
c) The description of the Company's Common Stock,
$.01 par value,
contained in the Company's Form S-1 Registration
Statement
(Registration No. 33-60444) which became
effective on October
12, 1993 (the "Form S-1 Registration Statement").
d) OMG Americas, Inc. Profit Sharing Plan on Form
11-K for the
year ended December 31, 1995.
All documents subsequently filed by the Company
pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act
of 1934 (the "Exchange Act"), prior to the filing of
a post-
effective amendment that indicates all securities
offered have
been sold, or that deregisters all securities then
remaining
unsold, shall be deemed to be incorporated by
reference in this
registration statement and to be part hereof from
the date of
filing of such documents.
Item 4 Description of Securities
Not applicable.
Item 5 Interests of Named Experts and Counsel
Not applicable.
-2-
<PAGE>
Item 6 Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the
State of
Delaware ("Delaware Law") empowers a Delaware
corporation to
indemnify any persons who are, or are threatened to
be made,
parties to any threatened, pending or completed
legal action, suit
or proceeding, whether civil, criminal,
administrative or
investigative (other than an action by or in the
right of such
corporation), by reason of the fact that such person
is or was an
officer or director of such corporation, or is or
was serving at
the request of such corporation as a director,
officer, employee
or agent of another corporation or enterprise. The
indemnity may
include expenses (including attorney fees),
judgments, fines and
amounts paid in settlement actually and reasonably
incurred by
such person in connection with such action, suit or
proceeding,
provided that such officer or director acted in good
faith and in
a manner he reasonably believed to be in or not
opposed to the
corporation's best interests and, for criminal
proceedings, had no
reasonable cause to believe his conduct was illegal.
A Delaware
corporation may indemnify officers and directors in
an action by
or in the right of the corporation under the same
conditions,
except that no indemnification is permitted without
judicial
approval if the officer or director is adjudged to
be liable to
the corporation in the performance of his duty.
Where an officer
or director is successful on the merits or otherwise
in the
defense of any action referred to above, the
corporation must
indemnify him against expenses that such officer or
director
actually and reasonably incurred.
In accordance with Delaware Law, Article Eighth of
the Company's
Restated Certificate of Incorporation contains a
provision
limiting the personal liability of the Company's
directors for
violations of their fiduciary duty. Such provision
states that no
director of the Company will be personally liable to
the Company
or its stockholders for monetary damages for breach
of fiduciary
duty as director except for liability (i) for any
breach of the
director's duty of loyalty to the Company or its
stockholders,
(ii) for acts or omissions not in good faith or that
involve
intentional misconduct or knowing violation of law,
(iii) for a
violation of Section 174 of the Delaware Law or (iv)
for a
transaction from which the director derived an
improper personal
benefit.
Article Seventh of the Company's Restated
Certificate of
Incorporation and Article VII of the Company's
By-Laws provide for
indemnification of the Company's officers and
directors to the
fullest extent permitted by applicable law.
The Company maintains insurance policies that insure
the Company's
directors and officers against certain liabilities
which might be
incurred by reason of their positions as directors
and officers.
Item 7 Exemption from Registration Claimed
Not applicable.
-3-
<PAGE>
Item 8 Exhibits
(4)(a) Amended and Restated Certificate of
Incorporation of the
Company (reference is made to Exhibit (3.1)
of the
Company's Form S-1 Registration Statement,
which exhibit
is incorporated herein by reference).
(4)(b) Credit Agreement dated as of July 6, 1995
between the
Company as Borrower and National City Bank
as Agent for
certain Banks and the associated guarantee
of Mooney
Chemicals, Inc. (reference is made to
Exhibit (4.2) of the
Company's Form 10-K, which Exhibit is
incorporated herein
by reference).
(4)(c) Note Purchase Agreement dated as of August
30, 1995
between the Company and The Mutual Life
Insurance Company
of New York, Nationwide Life Insurance
Company and
Great-West Life and Annuity Insurance
Company,
respectively, and the associated guaranty of
Mooney Chemicals, Inc. (reference is made to
Exhibit
(10.40) of the Company's Form 10-K, which
Exhibit is
incorporated herein by reference).
(5) Opinion of Squire, Sanders & Dempsey as to
the legality of
the securities registered.
(15) Letter from Ernst & Young LLP regarding
unaudited interim
financial information.
(23)(a) Consent of Ernst & Young LLP.
(23)(b) Consent of Squire, Sanders & Dempsey
(contained as opinion
filed as Exhibit (5)).
(24) Powers of Attorney.
(99) OMG Americas, Inc. Employees' Profit-Sharing
Plan (the
"Plan").
Item 9 Undertakings
(a) The Company hereby undertakes:
(1) To file, during any period in which offers
and sales are
being made, a post-effective amendment to
this
registration statement to include any
material
information with respect to the plan of
distribution not
previously disclosed in this registration
statement or
any material change to such information in
this
registration statement;
-4-
<PAGE>
(2) That, for the purpose of determining any
liability under
the Securities Act of 1933 (the "Act"),
each such
post-effective amendment shall be deemed
to be a new
registration statement relating to the
securities
offered therein, and the offering of such
securities at
that time shall be deemed to be the
initial bona fide
offering thereof; and
(3) To remove from registration by means of a
post effective
amendment any of the securities being
registered that
remain unsold at the termination of the
offering.
(b) The Company hereby undertakes that, for
purposes of
determining any liability under the Act, each
filing of its
annual report pursuant to section 13(a) or
section 15(d) of
the Exchange Act that is incorporated by
reference in this
registration statement shall be deemed to be a
new
registration statement relating to the
securities offered
therein, and the offering of such securities
at that time
shall be deemed to be the initial bona fide
offering
thereof.
(c) Insofar as indemnification for liabilities
arising under the
Act may be permitted to directors, officers
and controlling
persons of the Company, the Company has been
advised that in
the opinion of the Securities and Exchange
Commission such
indemnification is against public policy as
expressed in the
Act and is, therefore, unenforceable. In the
event that a
claim for indemnification against such
liabilities (other
than the payment by the Company of expenses
incurred or paid
by a director, officer or controlling person
of the Company
in the successful defense of any action, suit
or proceeding)
is asserted by such director, officer or
controlling person
in connection with the securities being
registered, the
Company will, unless in the opinion of its
counsel the
matter has been settled by controlling
precedent, submit to
a court of appropriate jurisdiction the
question whether
such indemnification by it is against public
policy as
expressed in the Act and will be governed by
the final
adjudication of such issue.
(d) The Company hereby undertakes that it had
submitted the Plan
and any amendment thereto to the Internal
Revenue Service
("IRS") in a timely manner and has made all
changes required
by the IRS in order to qualify the Plan.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant
certifies that it has reasonable grounds to believe that it
meets all of the
requirements for filing Form S-8 and has duly caused this
registration
statement to be signed on its behalf by the undersigned,
thereunto duly
authorized, in the City of Cleveland, State of Ohio, on the
third day of
July, 1996.
OM GROUP, INC.
/ s / James P. Mooney
----------------------------
James P. Mooney
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration
statement has been signed by the following persons in the
capacities and on
the dates indicated.
Signature Title
Date
- --------- -----
- -----
/ s / James P. Mooney Chairman of the Board, Chief Executive
July 3, 1996
- ---------------------- Officer and Director
James P. Mooney
/ s / James M. Materna Chief Financial Officer
July 3, 1996
- ----------------------
James M. Materna
/ s / Eugene Bak Director
July 3, 1996
- ----------------------
Eugene Bak
/ s / Lee R. Brodeur Director
July 3, 1996
- -----------------------
Lee R. Brodeur
/ s / William M. LeSuer Director
July 3, 1996
- -----------------------
William M. LeSuer
/ s / Thomas R. Miklich Director
July 3, 1996
- -----------------------
Thomas R. Miklich
/ s / John E. Mooney Director
July 3, 1996
- ------------------------
John E. Mooney
/ s / Markku Toivanen Director
July 3, 1996
- -------------------------
Markku Toivanen
-6-
<PAGE>
Exhibit Index
Page in
Registration
Statement
- ------------
(4)(a)* Amendment and Restated Certificate of Incorporation
of the Company.
(4)(b)* Amended and Restated By-Laws of the Company.
(4)(c)* Form of Common Stock Certificate.
(4)(d)* Credit Agreement dated as of December 17, 1991 among
the Company as Borrower and National City Bank as Agent
for certain Banks and the associated guarantee of
Mooney Chemicals, Inc.
(4)(e)* Note Purchase Agreement dated as of August 30, 1995
between the Company and The Mutual Life Insurance
Company of New York, Nationwide Life Insurance Company
and Great-West Life and Annuity Insurance Company,
respectively, and the associated guaranty of Mooney
Chemicals, Inc.
(5) Opinion of Squire, Sanders & Dempsey as to the
legality 8
of the securities registered.
(15) Letter from Ernst & Young LLP regarding unaudited
9
interim financial information.
(23)(a) Consent of Ernst & Young LLP.
10
(23)(b) Consent of Squire, Sanders & Dempsey (contained in
Exhibit 5).
(24) Powers of Attorney.
11
(99) OMG Americas, Inc. Employees' Profit-Sharing Plan.
* Incorporated herein by reference; see Item 8
-7-
<PAGE>
Exhibit (5)
July 3, 1996
OM Group, Inc.
3800 Terminal Tower
Cleveland, Ohio 44113-2204
Re: Registration Statement on Form S-8
Gentlemen:
Reference is made to your Registration Statement on Form S-8
filed with
Securities and Exchange Commission on July 3, 1996 with respect
to 250,000
shares of common stock, $.01 par value ("Common Stock"), of OM
Group, Inc. to
be offered pursuant to OMG Americas, Inc. Employees'
Profit-Sharing Plan (the
"Plan"). We are familiar with the Plan, and we have examined
such documents
and certificates and considered such matters of law as we deemed
necessary for
the purpose of this opinion.
Based upon the foregoing, we are of the opinion that the Common
Stock to be
offered pursuant to the Plan, when issued in accordance with the
provisions of
the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the
Registration Statement.
Respectfully
submitted,
/ s / Squire,
Sanders & Dempsey
- --------------------------------
-8-
<PAGE>
Exhibit (15)
Acknowledgment of Independent
Accountants
Stockholders and Board of Directors
OM Group, Inc.
We are aware of the incorporation by reference in the
Registration statement
(Form S-8) pertaining to the OMG Americas, Inc. Employees'
Profit-Sharing Plan
for the registration of 250,000 shares of its common stock of
our report dated
May 9, 1996, relating to the unaudited condensed consolidated
interim
financial statements of OM Group, Inc. which is included in its
Form 10-Q for
the quarter ended March 31, 1996.
Pursuant to Rule 436(c) under the Securities Act of 1933 our
report is not
part of the registration statement prepared or certified by
accountants within
the meaning of Section 7 or 11 of the Securities Act of 1933.
/ s /
Ernst & Young LLP
- ------------------------
Cleveland, Ohio
June 28, 1996
-9-
<PAGE>
Exhibit (23)(a) - Consent of Ernst & Young LLP
We consent to the incorporation by reference in the Registration
Statement
(Form S-8) pertaining to the OMG Americas, Inc. Employees'
Profit Sharing Plan
for the registration of 250,000 shares of common stock of our
reports (a)
dated January 30, 1996, with respect to the consolidated
financial statements
of OM Group, Inc. included in its Annual Report (Form 10-K) and
(b) dated May
23, 1996, with respect to the financial statements of the OMG
Americas, Inc.
Employees' Profit Sharing Plan included in the Plan's Annual
Report (Form
11-K), both for the year ended December 31, 1995, filed with the
Securities
and Exchange Commission.
/ s /
Ernst & Young, LLP
------------------------
Cleveland, Ohio
June 28, 1996
-10-
<PAGE>
Exhibit (24)
OMG Americas, Inc.
Employees' Profit-Sharing Plan
Registration Statement
Power of Attorney and Directors
The undersigned, a director or officer of the OM Group, Inc., a
Delaware
corporation (the "Company"), which anticipates filing with the
Securities and
Exchange Commission (the "Commission") under the provisions of
the Securities
Act of 1933 (the "Act") a Registration Statement on Form S-8
(together with
any and all subsequent amendments, including post-effective
amendments, the
"Registration Statement") for purposes of registering 250,000
shares of Common
Stock with $.01 par value of the Company, to be offered pursuant
to the OMG
Americas, Inc. Employees' Profit Sharing Plan, does hereby
constitute and
appoint James P. Mooney, James M. Materna or Michael J. Scott
and any one of
them with full power of substitution and resubstitution, as
attorney or
attorneys to execute and file on behalf of the undersigned, in
his capacity as
a director or officer of the Company, the Registration Statement
and any and
all applications or other documents to be filed with the
Commission pertaining
to the Registration Statement or registration contemplated
thereby, with full
power and authority to do and perform any and all acts and
things whatsoever
required or necessary to be done in the premises, as fully as to
all intents
and purposes as he could do if personally present, hereby
ratifying and
approving the acts of said attorneys and any of them in any such
substitution.
Executed at Naples, Florida, this 6th day of February, 1996.
/s/ James P.
Mooney
- ----------------------
/s/ Eugene
Bak
- ----------------------
/s/ Lee R.
Brodeur
- ----------------------
/s/ William
M. LeSuer
- ----------------------
/s/ Thomas
R. Miklich
- ----------------------
/s/ John E.
Mooney
- ----------------------
/s/ Markku
Toivanen
- ----------------------
-11-
<PAGE>
Exhibit (99)
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)
<PAGE>
TABLE OF CONTENTS
Section
- -------
ARTICLE I
DEFINITIONS
1.1 Definition
1.2 Pronouns
ARTICLE II
HOURS OF SERVICE
2.1 Crediting of Hours of Service
2.2 Determination of Non-Duty Hours of Service
2.3 Allocation of Hours of Service to Plan Years
ARTICLE III
EMPLOYEE PARTICIPATION AND VESTING SERVICE
3.1 Participation
3.2 New Participants
3.3 Years of Service
3.4 Changes in Employment Status; Transfers of Employment
3.5 Reemployment of a Participant
ARTICLE IV
CONTRIBUTIONS
4.1 Company Contributions
4.2. Cash Option Election and Tax Deferred Contributions.
4.3 Participant Contributions
4.4 Changes in Participant Contributions
4.5 Excess Tax Deferred Contributions
4.6 Allocation of Company Contributions
4.7 Rollover Contributions
4.8 Transferred Contributions
4.9 Delivery of Contributions
4.10 Crediting of Contributions
ARTICLE V
LIMITATION ON CONTRIBUTIONS
5.1 Limitation on Tax Deferred Contributions and Participant
Contributions
5.2 Contribution Limitation Definitions
5.3 Adjustment of ADP and ACP Tests
5.4 Multiple Use Test
5.5 Adjustment for Investment Gain or Loss
5.6 Limitations on Company Contributions and Tax Deferred
Contributions
ARTICLE VI
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
6.1 Deposit of Contributions
6.2 Investment Change of Future Contributions
6.3 Election to Transfer Invested Past Contributions
6.4 Election to Transfer Rollover Contributions and Transferred
Contributions
ARTICLE VII
MAINTENANCE OF FUNDS AND INVESTMENT OF CONTRIBUTIONS
7.1 Establishment and Maintenance of Funds
7.2 Income on Funds
7.3 Accounts and Subaccounts
7.4 Investment Elections
7.5 Investment Responsibility
7.6 Voting of OMG Stock
7.7 Account Balance
ARTICLE VIII
VALUATIONS
8.1 Valuation of Participant's Interest
8.2 Finality of Trustee's Determination
8.3 Notification
ARTICLE IX
LOANS
9.1 Application and Approval of Loans
9.2 Terms and Conditions of a Loan
9.3 Repayment of Loan
ARTICLE X
TERMINATION OF PARTICIPATION AND DISTRIBUTION
10.1 Termination of Participation
10.2 Vesting
10.3 Election of Former Vesting Schedule
10.4 Distribution
10.5 Form of Distribution
10.6 Restriction on Alienation
10.7 Reemployment of Former Participant
10.8 Disposition of Forfeited Balances
10.9 Buy Back of Forfeited Amounts
10.10 Distribution to Other Qualified Plans
10.11 Facility of Payment
10.12 Mandatory Distributions
10.13 Eligible Rollover Distributions
ARTICLE XI
BENEFICIARIES
11.1 Designation of Beneficiary
11.2 Beneficiary in the Absence of Designated Beneficiary
11.3 Spousal Consent to Beneficiary Designation
ARTICLE XII
ADMINISTRATION
12.1 Authority of the Company
12.2 Actions of the Company
12.3 Claims Review Procedure
12.4 Indemnification
12.5 Qualified Domestic Relations Orders
12.6 Voting of OMG Stock
ARTICLE XIII
AMENDMENT AND TERMINATION
13.1 Amendment
13.2 Limitation of Amendment
13.3 Termination
13.4 Withdrawal of an Employer
13.5 Effect of Plan Termination
13.6 Corporate Reorganization
ARTICLE XIV
OMG ESOP
14.1 Purpose
14.2 Suspense Fund
14.3 Exempt Loans
14.4 Limitation on Allocations of Contributions
14.5 Allocations of Contributions from the OMG ESOP
14.6 Dividends on OMG Stock
14.7 Restrictions on OMG Stock
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 Extension of Plan to Subsidiaries
15.2 No Commitment as to Employment
15.3 Benefits
15.4 No Guarantees
15.5 Precedent
15.6 Duty to Furnish Information
15.7 Merger, Consolidation or Transfer of Plan Assets
15.8 Internal Revenue Service Determination
15.9 Governing Law
APPENDIX A - Limitations on Contributions
APPENDIX B - Top-Heavy Provisions
<PAGE>
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
Plan;
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.
1
<PAGE>
ARTICLE I
DEFINITIONS
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 Account.
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 7.3
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 corporations.
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 for the life of
such
Participant or Beneficiary or the joint lives of the
Participant and a
designated beneficiary, (ii) a distribution to the
extent such
distribution is required under Section 401(a)(9) of the
Code; or (iii)
the portion of any distribution which is not includable
in gross
income (determined without regard to any exclusion of
net unrealized
appreciation with respect to employer securities).
12) The term "Employee" shall mean any common law
employee who is
employed by an Employer; provided, however, that such
term shall not
include any person who renders service to an Employer
solely as a
director or as an independent contractor, any person who
is covered by
a collective bargaining agreement unless such agreement
specifically
provides for coverage by the Plan, any person employed
in the
Technical Services Department of the Company, and any
person who is a
nonresident alien and who receives no earned income
within the meaning
of Section 911(b) of the Code from an Employer which
constitutes
income from sources within the United States as defined
in Section
861(a)(3) of the Code.
13) The term "Employer" shall mean the Company or
any Related
Corporation which adopts the Plan as herein provided so
long as the
Related Corporation has not withdrawn from the Plan.
14) The term "Employment Commencement Date" shall
mean the first
date on which an Employee completes an Hour of Service.
15) The term "ERISA" shall mean the Employee
Retirement Income
Security Act of 1974, as amended from time to time.
Reference to a
section of ERISA shall include such section and any
comparable section
or sections of any future legislation that amends,
supplements, or
supersedes such section.
16) The term "Exempt Loan" shall mean a loan or
other extension
of credit used by the Trustee with the approval and
direction of the
Company, subject to the provisions of the Trust
Agreement, to finance
the acquisition of OMG Stock which meets the following
requirements:
(a) It must be primarily for the benefit of
Participants and
their Beneficiaries;
(b) It must be used to acquire OMG Stock,
repay the Exempt
Loan, or repay a prior Exempt Loan;
(c) It must bear a reasonable rate of interest;
(d) It must be for a specific term and not
payable at the
demand of any person, except in the event
of default;
(e) It may be secured by a pledge of OMG Stock
acquired with
its proceeds or the proceeds of a prior
Exempt Loan
which is being refinanced and repaid with
proceeds of
the current Exempt Loan. No other assets
of the OMG
ESOP may be pledged as collateral for an
Exempt Loan and
no lender shall have recourse against any
other assets
of the OMG ESOP. No person entitled to
payment under
the Exempt Loan shall have any recourse
against any
assets of the ESOP other than:
(1) the collateral;
(2) the contributions made under the OMG
ESOP to meet
its obligations under the Exempt
Loan; and
(3) earnings on such collateral and the
investment
of such contributions.
In the event of default, the value of OMG
ESOP assets
transferred in satisfaction of the loan
must not exceed
the amount of default. Moreover, in the
event the
lender is a party in interest under ERISA,
the Exempt
Loan must provide for the transfer of OMG
ESOP assets
upon default only and only to the extent
of the failure
of the OMG ESOP to meet the Exempt Loan
payment
schedule.
f) It must provide for the release of OMG
Stock from
encumbrance either under the principal and
interest
method of Treas. Reg.
Section 54.4975-7(b)(8)(i) or
the principal only method under Treas.
Reg. Section
54.49757(b)(8)(ii).
17) The term "Fund" shall mean any of the funds
established and
maintained for the investment of Plan assets in
accordance with the
provisions of Article VII.
18) The term "Highly-Compensated Employee" shall
mean any Employee
of an Employer for a Plan Year who is a "highly
compensated employee"
within the meaning of Section 414(q) of the Code who
during such Plan
Year or during the immediately preceding Plan Year:
(a) received compensation (as defined in Appendix A
of the Plan
without regard to Sections 125, 402(e)(3), and
402(h)(1)(B) of
the Code) in excess of $75,000 (such dollar
limitation shall
be adjusted automatically in accordance with the
maximum
amount permitted under Section 414(q) of the
Code); or
(b) received compensation (as defined in Appendix A
of the Plan
without regard to Sections 125, 402(e)(3), and
402(h)(1)(B) of
the Code) in excess of $50,000 (such dollar
limitation shall
be adjusted automatically in accordance with the
maximum
amount permitted under Section 414(q) of the
Code) and was in
the Top-Paid Group; or
(c) was at any time an officer of an Employer or a
Related
Corporation and received compensation in excess
of 50 percent
of the amount in effect under Section
415(b)(1)(A) of the
Code, except as otherwise hereinafter provided;
or
(d) owned directly or indirectly 5% or more of an
Employer (so
that he is a "5% owner" as defined in Section
416(i)(1) of the
Code);
provided, however, if an Employee was not a "Highly
Compensated
Employee" during the immediately preceding Plan Year, he
shall not be
a Highly Compensated Employee pursuant to subparagraph
(a), (b) or (c)
unless he is one of the 100 Employees with the highest
compensation
(as defined in Appendix A of the Plan without regard to
Sections 125,
402(e)(3), and 402(h)(1)(B) of the Code, and in the case
of Tax
Deferred Contributions made pursuant to a salary
reduction agreement,
without regard to Section 403(b) of the Code) for such
Plan Year. For
purposes of subparagraph (c) above, the number of
employees who shall
be counted as officers shall be limited as follows:
Total Number of Employees of Maximum Number of
Officers
the Affiliated Group to be Counted
30 or less 3
30 - 500 10% of total number
of
Employees' (fractions
to be
rounded to next
highest
whole number)
Over 500 50
If the number of officers for any Plan Year exceeds the
maximum number
that may be counted, the officers shall be ranked in
order of
compensation (as defined in Appendix A of the Plan
without regard to
Sections 125, 402(e)(3), and 402(h)(1)(B) of the Code,
and in the case
of Tax Deferred Contributions made pursuant to a salary
reduction
agreement, without regard to Section 403(b) of the Code)
for the Plan
Year, and only the maximum number with the highest such
compensation
shall be counted as officers. If for any Plan Year no
Employer has an
officer with compensation greater than the compensation
specified in
subparagraph (c) above, the highest-paid officer among
the Employers
shall nevertheless be treated as a Highly Compensated
Employee. If
during any Plan Year an Employee is a "family member" of
a
Highly-Compensated Employee described above in
subparagraph (d) or of
a Highly-Compensated Employee in the group consisting of
the ten
Highly-Compensated Employees paid the greatest
compensation during the
Plan Year, then such "family member" shall not be
considered to be a
separate Employee and the compensation paid to such
"family member"
and any applicable Employer contribution under the Plan
paid to or on
behalf of such "family member" shall be treated as if it
were paid to
(or on behalf of) the related Highly Compensated
Employee. As used
herein, the term "family member" means with respect to
any Employee,
the Employee's spouse, grandparent (and spouse), great
grandparent
(and spouse), child (and spouse), grandchild (and
spouse), great
grandchild (and spouse) and any other lineal ascendants
or descendants
and their spouses and for purposes of applying the
limitation
of Section 401(a)(17) to paragraph (9) of this Section
1.1 shall mean
the spouse of any Employee and any lineal descendant
thereof who has
not attained age 19 before the close of the Plan Year.
In addition, a
former Employee shall be considered a Highly Compensated
Employee if
he was a Highly-Compensated Employee at the time his
employment
terminated or at any time after attaining age 55.
Notwithstanding the
foregoing provisions of this paragraph (18), the sole
purpose of this
paragraph is to define and apply the term
Highly-Compensated Employee
strictly (and only) to the extent necessary to satisfy
the minimum
requirements of Section 414(q) of the Code relating to
"highly
compensated employees." This paragraph (18) shall be
interpreted,
applied and, if and to the extent necessary, deemed
modified without
formal amendments of language, so as to satisfy solely
the minimum
requirements of Section 414(q) of the Code.
19) The term "Hour of Service" shall mean an hour
which is
determined and credited to an Employee in accordance
with the
provisions of Article II.
20) The term "Leased Worker" shall be a person
(other than a
person who is an employee without regard to this
paragraph (20))
engaged in performing services for a Related Corporation
(the
"recipient") pursuant to an agreement between the
recipient and any
other person ("Leasing Organization") who meets the
following
requirements:
(a) he has performed services for one or more
recipients (or for
any other "related persons" determined in
accordance with
Section 414(n)(6) of the Code) on a
substantially full-time
basis for a period of at least one year,
(b) such services are of a type historically
performed in the
business field of the recipient, in the United
States, by
employees, and
(c) he is not participating in a "safe harbor plan"
of the
Leasing Organization. (For this purpose a
"safe harbor plan"
is a plan which satisfies the requirements of
Section
414(n)(5) of the Code, which is a money
purchase pension plan
with a non-integrated employer contribution
rate of at least
10% of compensation (as defined in Code Section
415(c)(3),
without regard to Code Sections 125, 402(e)(3),
402(h)(1)(B))
and which provides for immediate participation
and full and
immediate vesting; provided, however, that this
sentence
shall be applicable only if Leased Workers do
not constitute
more than 20% of the recipient's nonhighly
compensated
workforce, as determined in accordance with
Section
414(n)(5)(C)(ii) of the Code.
A person who is a Leased Worker during any taxable year
beginning
after December 31, 1983 shall be considered an employee
of the
Company or a Related Corporation during such period
(solely for the
purpose of determining length of service for
eligibility and vesting
purposes, and shall also be considered to have been an
employee for
any earlier period in which he was a Leased Worker) but
shall not be
a Participant and shall not otherwise be eligible to
become covered
by the Plan during any period in which he is a Leased
Worker.
Notwithstanding the foregoing, the sole purpose of this
paragraph
(20) is to define and apply the term "Leased Worker"
strictly (and
only) to the extent necessary to satisfy the minimum
requirements of
Section 414(n) of the Code relating to "leased
employees". This
paragraph (20) shall be interpreted, applied and, if
and to the
extent necessary, deemed modified without formal
amendment of
language, so as to satisfy solely the minimum
requirements of Section
414(n) of the Code.
21) The term "OMG ESOP" shall mean the stock bonus
portion of
the Plan which constitutes an employee stock ownership
plan as
defined in Section 4975(e)(7) of the Code and a stock
bonus plan
qualified under Section 401(a) of the Code.
22) The term "OMG Stock" shall mean common shares
of OM Group,
Inc.
23) The term "OMG Stock Fund" shall mean the Fund
which is
invested primarily in OMG Stock and which is
established and
maintained pursuant to the provisions of Section 7.1.
24) The term "Participant" shall mean an Employee
who
participates in the Plan in accordance with the
provisions of Article
III.
25) The term "Participant Contribution" shall mean
any after-tax
contribution made to the Plan by a Participant in
accordance with the
provisions of Section 4.3. Participant Contributions
shall be
deposited to the Thrift Account of such Participant in
accordance
with the provisions of Section 6.1.
26) The term "Plan" shall mean the OMG Americas,
Inc. Employees'
Profit-Sharing Plan which prior to January 1, 1995 was
known as the
Mooney Chemicals, Inc. Employees' Profit Sharing Plan
and which on
and after January 1, 1995, but prior to January 26,
1996, was known
as OMG/Mooney Chemicals, Inc. Employees' Profit Sharing
Plan as
herein set forth with all amendments, modifications,
and supplements
hereafter made.
27) The term "Plan Administrator" shall mean the
Company, which
is the administrator for purposes of the Code.
28) The term "Plan Year" shall mean each 12-month
period
beginning each January 1 and terminating each
subsequent December
31.
29) The term "Related Corporation" shall mean any
corporation
which is a member of a controlled group of corporations
of which an
Employer is a member as determined under Section 414(b)
of the Code;
each trade or business (whether or not incorporated)
with which the
Company is under common control as determined under
Section 414(c) of
the Code; each organization that is a member of an
affiliated service
group within the meaning of Section 414(m) of the Code
of which the
Company is a member; and any other entity required to
be aggregated
with the Company pursuant to Section 414(o) of the Code.
30) The term "Rollover Account" shall mean the
Account of a
Participant which reflects his interest in the Funds
attributable to
Rollover Contributions and which is established
pursuant to the
provisions of Sections 4.7 and 7.3.
31) The term "Rollover Contribution" shall mean the
contributions of a Participant which meet the
provisions of Section
4.7. Rollover Contributions shall be deposited to the
Rollover
Account of such Participant in accordance with the
provisions of
Section 6.1.
32) The term "Settlement Date" shall mean the date
on which a
Participant ceases to be a Participant pursuant to the
provisions of
Section 10.1.
33) The term "Suspense Fund" shall mean the
subfund for the OMG
ESOP containing OMG Stock which was acquired by the
Trustee with the
proceeds of an Exempt Loan under the provisions of
Section 14.3 and
which has not been released and allocated to the
Accounts of
Participants.
34) The term "Tax Deferred Contributions" shall
mean the cash or
deferred arrangement portion of the Company
Contributions made by an
Employer on behalf of a Participant in accordance with
the provisions
of Section 4.2 and a duly executed and filed Cash
Option election.
Tax Deferred Contributions shall be deposited to the
Cash Option
Account of such Participant in accordance with the
provisions of
Section 6.1.
35) The term "Thrift Account" shall mean the
Account of a
Participant which reflects his interest in the Funds
attributable to
Participant Contributions and which is established
pursuant to the
provisions of Sections 4.3 and 7.3.
36) The term "Top Paid Group" shall mean the group
of employees
of the Company and its Related Corporation during a
Plan Year which
consists of the top 20 percent of the employees during
such Plan Year
when ranked on the basis of compensation (as defined in
Section
A.2(c) of Appendix A) paid during such Plan Year. The
number of
employees to be counted in the top 20 percent for the
Plan Year shall
be determined by multiplying the "net number" of
employees by 20
percent. The "net number" of employees is the total
number of
employees in the Plan Year reduced by the aggregate
number of
employees in the following categories:
(a) employees who have less than six months of
Vesting Service;
(b) employees who normally work less than 17-1/2
hours per week;
(c) employees who normally work during not more
than six months
during any year;
(d) employees who have not attained age 21;
(e) employees who are included in a unit of
employees covered by
a collective bargaining agreement between a
Related
Corporation and a union (except to the extent
otherwise
provided in applicable regulations); and
(f) employees who are non-resident aliens and who
receive no
earned income (within the meaning of Section
911(d)(2) of
the Code) from a Related Corporation which
constitutes
income from sources within the United States
(within the
meaning of Section 861(a)(3) of the Code).
37) The term "Transferred Contributions" shall
mean the
contributions transferred to the Plan on behalf of a
Participant in
accordance with the provisions of Section 4.8.
Transferred
Contributions shall be deposited to the Rollover
Account of such
Participant in accordance with the provisions of
Section 6.1.
38) The term "Trust" shall mean the trust
maintained in
conjunction with the Plan and pursuant to a certain
trust agreement
entered into with the Trustee.
39) The term "Trustee" shall mean National City
Bank, or any
successor trustee which at the time is designated,
qualified, and
acting hereunder.
40) The term "Valuation Date" shall mean the last
day of each
calendar quarter or such other date as may be
designated as a
Valuation Date by the Company.
41) The term "Years of Service" shall mean the
years of service
with which a Participant is credited in accordance with
the
provisions of Section 3.3 for the purpose of
determining his interest
in his Company Contributions Account pursuant to the
provisions of
Section 10.2.
1.2 Pronouns. The masculine pronoun wherever used
herein shall
include the feminine in any case so requiring.
<PAGE>
ARTICLE II
HOURS OF SERVICE
2.1 Crediting of Hours of Service. An Employee shall
be credited
with an Hour of Service under the Plan for:
(a) each hour for which he is paid, or entitled to
payment, for
the performance of duties for an Employer or a Related
Corporation;
provided, however, that hours paid for at a premium
rate shall be
treated as straight-time hours; and provided further,
that if a
record of hours of employment is not available, the
Employee shall be
deemed to have worked 45 hours for each week of
employment in which
he performed an Hour of Service, regardless of whether
the Employee
has actually worked fewer hours;
(b) each hour for which he is paid, or entitled to
payment, by
an Employer or a Related Corporation on account of a
period of time
during which no duties are performed (irrespective of
whether he
remains an Employee) due to vacation, holiday, illness,
incapacity
(including disability), lay-off, jury duty, military
duty, or leave
of absence, up to a maximum of eight hours per day and
40 hours per
week; provided, however, that no more than 501 hours of
service shall
be credited to an Employee on account of any single
continuous period
during which he performs no duties (whether or not such
period occurs
in a single Plan Year); provided further, that no hours
of service
shall be credited for payment which is made or due
under a program
maintained solely for the purpose of complying with
applicable
Workers' Compensation, unemployment compensation, or
disability
insurance laws; and provided further, that no hours of
service shall
be credited to an Employee for payment which is made or
due solely as
reimbursement for medical or medically-related expenses
incurred by
him;
(c) each hour for which back pay, irrespective of
mitigation of
damages, is either awarded or agreed to by an Employer
or a Related
Corporation; provided, however, that the crediting of
hours of
service for back pay awarded, or agreed to, with
respect to a period
of employment or absence from employment described in
any other
paragraph of this Section 2.1 shall be subject to the
limitations set
forth therein and, if applicable, in Section 2.2; and
(d) each hour for which he would have been
scheduled to work for
an Employer or a Related Corporation during the period
of time that
he is absent from work because of service with the
armed forces of
the United States, but only if he returns to work
within the period
during which he retains reemployment rights pursuant to
federal law,
up to a maximum of eight hours per day and 40 hours per
week;
provided, however, that Hours of Service credited under
this
paragraph (d), when added to hours of service credited
under
paragraph (b), if any, by reason of such absence, shall
not exceed a
total of 1,000 Hours of Service for any one Plan Year.
Notwithstanding anything to the contrary contained in this
Section 2.1, no
more than one Hour of Service shall be credited to an Employee
for any one
hour of his employment or absence from employment.
2.2 Determination of Non-Duty Hours of Service. In
the case of a
payment which is made or due from an Employer or a Related
Corporation on
account of a period during which an Employee performs no duties,
and which
results in the crediting of hours of service under paragraph (b)
of Section
2.1, or in the case of an award or agreement for back pay, to
the extent that
such award or agreement is made with respect to a period
described in such
paragraph (b), the number of Hours of Service to be credited
shall be
determined as follows:
(a) In the case of a payment made or due which is
calculated on
the basis of units of time, such as hours, days, weeks,
or months,
the number of Hours of Service to be credited shall be
the number of
regularly scheduled working hours included in the units
of time on
the basis of which the payment is calculated.
(b) In the case of a payment made or due which is
not
calculated on the basis of units of time, the number of
Hours of
Service to be credited shall be equal to the amount of
the payment
divided by the Employee's most recent hourly rate of
compensation
immediately prior to the period to which the payment
related.
(c) Notwithstanding the provisions of paragraphs
(a) and (b),
no Employee shall be credited on account of a period
during which
no duties are performed with a number of Hours of
Service which
is greater than the number of regularly scheduled
working hours
during such period.
(d) If an Employee is without a regular work
schedule, the
number of "regularly scheduled working hours" shall
mean the average
number of hours worked by Employees in the same job
classification
during the period to which the payment relates, or if
there are no
other Employees in the same job classification, the
average number of
hours worked by the Employee during an equivalent,
representative
period.
For the purpose of crediting Hours of Service under paragraph
(b) of Section
2.1, a payment shall be deemed to be made by or due from the
Employer (i)
regardless of whether such payment is made by or due from an
Employer or a
Related Corporation directly, or indirectly through (among
others) a trust
fund or insurer to which the Employer contributes or pays
premiums, and (ii)
regardless of whether contributions made or due to such trust
fund, insurer,
or other entity are for the benefit of particular persons or are
on behalf of
a group of persons in the aggregate.
2.3 Allocation of Hours of Service to Plan Years.
Hours of Service
credited under Section 2.1 shall be allocated to the appropriate
Plan Year in
the following manner:
(a) Hours of Service described in paragraph (a) of
Section 2.1
shall be allocated to the Plan Year or Years in which
the duties are
performed.
(b) Hours of Service described in paragraph (b) of
Section 2.1
shall be allocated as follows:
(i) Hours of Service credited to an Employee
on account
of a payment which is calculated on the
basis of units
of time, such as hours, days, weeks, or
months, shall
be allocated to the Plan Year or Years in
which the
period during which no duties are
performed occurs,
beginning with the first unit of time to
which the
payment relates; and
(ii) Hours of Service credited to an Employee
on account of
a payment which is not calculated on the
basis of units
of time shall be allocated to the Plan
Year in which
the period during which no duties are
performed occurs,
or if such period extends beyond a Plan
Year, such
Hours of Service shall be allocated
equally between the
first two such Plan Years.
(c) Hours of Service described in paragraph (c) of
Section 2.1
shall be allocated to the Plan Year or Years
to which the
award or agreement for back pay pertains,
rather than to
the Plan Year in which the award, agreement,
or payment is
made.
(d) Hours of Service described in paragraph (d) of
Section 2.1
shall be allocated to the Plan Year or Years
during which
such absence occurred.
<PAGE>
ARTICLE III
EMPLOYEE PARTICIPATION AND VESTING SERVICE
3.1 Participation. Each Employee who is a
Participant on January
1, 1995, shall continue to be a Participant in the Plan. Each
other Employee
who does not waive participation in the Plan shall become a
Participant as of
the 31st day after he completes an Hour of Service.
3.2 New Participants. Upon becoming a Participant
hereunder, an
Employee shall be entitled to benefits under the Plan and shall
be bound by
all provisions of the Plan. Each such Employee may file with the
Company a
written election on a form and in a manner prescribed by the
Company
containing the following information:
(a) His authorization for his Employer to deduct
Participant
Contributions from his Compensation pursuant to the
provisions of
Section 4.3; and
(b) His election as to the investment of his
Company
Contributions, Tax Deferred Contributions, and
Participant
Contributions pursuant to the provisions of Articles VI
and VII.
3.3 Years of Service. For the purposes of the Plan,
Years of
Service shall be determined in accordance with the following
provisions:
(a) An Employee shall be credited with a Year of
Service for
each Plan Year in which he completes at least 1,000
Hours of Service.
(b) In the case of an Employee who has a Break in
Service:
(i) if an Employee did not have a
nonforfeitable right to
any portion of his Separate Account attributable
to Company
Contributions before his Break in Service
commenced, Years of
Service with an Employer or a Related Corporation
prior to the
Break in Service shall be disregarded for purposes
hereof if the
number of consecutive one year Breaks in Service
is greater than
five or is at least equal to the aggregate number
of Years of
Service with which the Employee had been credited
prior to such
Break in Service (such aggregate number of Years
of Service
shall not include any Years of Service not
required to be taken
into account due to previous Breaks in Service);
and
(ii) if an Employee's Years of Service are not
excluded
under (i) above or if the Employee had a
nonforfeitable right to
any portion of his Account attributable to Company
Contributions
before his Break in Service commenced, his Years
of Service
before the Break in Service commenced shall be
reinstated upon
his again completing an Hour of Service as an
Employee.
3.4 Changes in Employment Status; Transfers of
Employment. If a
Participant ceases to be an Employee but continues in the
employment of an
Employer or a Related Corporation in some other capacity, he
shall
nevertheless continue his participation in the Plan as an
inactive Participant
until his participation is otherwise terminated in accordance
with the
provisions of the Plan; provided, however, that such Participant
shall share
in Company Contributions for any Plan Year of such participation
only on the
basis of his Compensation as an Eligible Employee during such
Plan Year.
Moreover, if a person is transferred directly from employment
(a) with an
Employer in a capacity other than as an Employee, or (b) with a
Related
Corporation to employment with an Employer as an Employee, his
Hours of
Service with the Employer or such Related Corporation shall be
included in
determining his Years of Service under Section 3.3.
3.5 Reemployment of a Participant. If a retired or
former
Participant is reemployed by an Employer or a Related
Corporation after he
incurs a Settlement Date and if his Years of Service are
reinstated pursuant
to the provisions of Section 3.3, he shall again become a
Participant on the
date he is reemployed by an Employer; provided, however, that if
he is not
reemployed as an Employee, he shall again become a Participant
on the first
day thereafter on which he does become an Employee. If a former
Participant
who incurs a Settlement Date under Section 10.1 is thereafter
reemployed as an
Employee and if his Years of Service are not reinstated pursuant
to the
provisions of Section 3.3, he shall become a Participant as of
the first day
of the calendar month after he meets the eligibility
requirements set forth in
Section 3.1.
<PAGE>
ARTICLE IV
CONTRIBUTIONS
4.1 Company Contributions. The Employers may make a
Company
Contribution in cash or in kind, including OMG Stock, for each
Plan Year which
shall be an amount determined by the Board of Directors of each
Employer, in
its discretion, by written action specifying the amount and the
Plan Year for which it is being made. Subject to the provisions
of Sections
5.6 and 15.7, such Company Contribution shall be deemed to be
made as of the
last day of the Plan Year for which it is made and shall be
allocated pursuant
to Section 4.6.
4.2. Cash Option Election and Tax Deferred
Contributions. Except as
otherwise provided in Article V, a Participant who has a portion
of a Company
Contribution allocated to him pursuant to clause (a) of Section
4.6, may elect
annually to receive 50 percent of such allocation in cash. Such
election shall
be known as the Cash Option Election and shall be made in such
form, time and
manner as specified by the Company. In the event a Participant
does not make
such election, the amount that could have been paid to him shall
be referred
to as Tax Deferred Contributions and credited to his Cash Option
Account.
Notwithstanding the foregoing, in no event shall the Tax Deferred
Contributions of a Participant under the Plan and all other
elective deferrals
made pursuant to Section 402(g) of the Code under all other
qualified plans
maintained by the Company and Related Corporations during a
calendar year
exceed $7,000 (or such higher dollar limit as shall be in effect
for calendar
year in accordance with the adjustment factor prescribed under
Section
402(g)(5) and 415(d) of the Code).
4.3 Participant Contributions. Commencing with the
date as of
which an Eligible Employee becomes a Participant, such
Participant may elect
to make Participant Contributions by payroll deduction, or by
direct payment
in the form, time and manner specified by the Company, in an
amount which does
not exceed ten percent of his Compensation. Any payroll
deduction with
respect to Participant Contributions shall be made from a
Participant's
Compensation by his Employer in accordance with the terms of a
Compensation
deduction authorization completed and filed in such form, time,
and manner as
specified by the Company.
4.4 Changes in Participant Contributions. Any
Participant may
elect to change the percentage of his Compensation which he
contributes to the
Plan as Participant Contributions or suspend his Participant
Contributions.
Such election shall be made in such form, time, and manner as
specified by the
Company and shall be subject to the limitations set forth in
Section 4.3.
Participant Contributions shall be made on behalf of such
Participant by his
Employer, pursuant to the amended Compensation deduction
authorization filed
in accordance with the foregoing provisions of this Section 4.4,
until
otherwise altered or terminated in accordance with the Plan.
4.5 Excess Tax Deferred Contributions. In the event
a Participant
who had Tax Deferred Contributions made on his behalf for a
taxable year files
with the Company, within the time limit prescribed by the
Company after the
end of such year, a written statement that he has elective
deferrals within
the meaning of Section 402(g) of the Code for the taxable year
in excess of
the dollar limitation on elective deferrals in effect for such
taxable year,
and specifying the amount of such excess the Participant claims
as allocable
to this Plan, the amount of such excess, adjusted for income or
loss
attributable to such excess elective deferrals, shall be
distributed to the
Participant by April 15 of the year following the year of the
excess elective
deferral.
4.6 Allocation of Company Contributions. Any Company
Contribution
made by an Employer pursuant to Section 4.1 shall be allocated
among
Participants of such Employer who are Participants as of the
last day of the
Plan Year for which such Company Contribution is contributed and
who have
completed at least 1,000 Hours of Service during such Plan Year
and to all
Participants who terminated employment at or after attainment of
age 65,
became permanently and totally disabled, or died during such
Plan Year. Such
allocation shall be (a) made in the ratio which the Compensation
of each such
Participant for such Plan Year bears to the aggregate
Compensation of all such
designated Participants of such Employer for such preceding Plan
Year, minus
(b) the amount, if any, that the Participant elected to receive
in cash
pursuant to the Cash Option Election under Section 4.2.
4.7 Rollover Contributions. In accordance with
procedures
established by the Company, a participant who has rollover
contributions
described in Section 402(a)(5), Section 403(a)(4), Section
403(b)(8), or
Section 408(d)(3)(A) of the Code, may elect to make a Rollover
Contribution to
the Plan by delivering, or causing to be delivered, to the
Trustee the assets
in cash which constitute such Rollover Contribution at such time
or times and
in such manner as shall be specified by the Company. Upon
receipt by the
Trustee, such assets shall be deposited in the Fund or Funds
selected by the
Participant in accordance with an investment election filed with
the Company
by such Participant. Such election shall specify a combination
in five
percent increments which, in the aggregate, equals 100 percent.
The
investment option so selected by a Participant shall remain in
effect until he
elects to change such election in accordance with Section 6.4 or
receives
distribution of his Accounts pursuant to Section 10.4. As of
the date of
receipt of such property by the Trustee, a Rollover Account
shall be
established in the name of the Participant who has made a
Rollover
Contribution as provided in this Section 4.7 and shall be
credited with such
assets on such date. A Rollover Contribution by a Participant
pursuant
to this Section 4.7 shall not be deemed to be a contribution of
such
Participant for any purpose of the Plan and shall be fully
vested in the Employee
at all times.
4.8 Transferred Contributions. In accordance with
procedures
established by the Company, any Participant who was previously a
participant
in a plan qualified under Section 401 of the Code (any such plan
being
hereinafter referred to as a transferor plan) may request the
Company to
arrange for the transfer to the Trustee of Transferred
Contributions, which
are funds held by the funding agent of such transferor plan
representing the
Participant's vested account balance thereunder; provided,
however, that such
transfer shall be made in such manner and at such time as shall
be specified
by the Company; and provided further, that no such transfer
shall be permitted
from a transferor plan on behalf of a Participant who was at any
time a five
percent owner of the employer maintaining such transferor plan
or from a
transferor plan which is subject to the joint and survivor
annuity
requirements under Section 401(a)(11) of the Code; and provided
further, that
any Transferred Contributions which were subject to restrictions
on withdrawal
pursuant to Section 401(k) of the Code under the transferor plan
shall
continue to be subject to such restrictions upon transfer to the
Trustee. The
Trustee shall deposit all Transferred Contributions received by
it in the
Trust, and shall credit the respective Rollover Account of the
Participant on
whose behalf such funds were transferred in accordance with the
provisions of
Section 4.7 applicable to Rollover Contributions. The portion
of the Rollover
Account of a Participant attributable to Transferred
Contributions shall be
fully vested in the Participant at all times.
4.9 Delivery of Contributions. Each Employer shall
cause to be
delivered to the Trustee all Company Contributions, Tax Deferred
Contributions, Participant Contributions, Rollover
Contributions, and
Transferred Contributions made in accordance with the provisions
of this
Article IV as soon as reasonably practicable; provided, however,
that Company
Contributions and Tax Deferred Contributions for any Plan Year
shall be paid
to the Trustee within the period of time established by the Code
in order that
such contributions shall be deductible by the Employers in
computing federal
income taxes for such Plan Year. 4.10 Crediting of
Contributions. Subject to
the provisions of Appendix A, the Accounts of each Participant
shall be
credited with his Tax Deferred Contributions, Company
Contributions,
Participant Contributions, Rollover Contributions and Transferred
Contributions for such Plan Year allocated to him under this
Article IV.
<PAGE>
ARTICLE V
LIMITATION ON CONTRIBUTIONS
5.1 Limitation on Tax Deferred Contributions and
Participant
Contributions. Notwithstanding any other provision of the Plan
to the
contrary, the Company shall take such action as it deems
appropriate to limit
the amount of Tax Deferred Contributions and Participant
Contributions under
the Plan made on behalf of each Highly Compensated Employee for
each Plan Year
to the extent necessary to insure that the actual deferral
percentage
requirement and average contribution percentage requirement
under Sections
401(k) and 401(m) of the Code, respectively, are not exceeded.
The
limitations set forth in this Article V shall be interpreted,
applied, and to
the extent necessary, deemed modified without formal amendment
thereto so as to
satisfy solely the minimum requirements of Sections 401(k) and
401(m) of the Code.
5.2 Contribution Limitation Definitions. For purposes
of this
Article V, the following terms are defined as follows:
(a) The term "ACP Test" shall mean the test set
forth in
Section 401(m)(2)(A) of the Code which limits
the ACP of
the HCE Group.
(b) The term "ADP Test" shall mean the test set
forth in
Section 401(k)(3) of the Code which limits
the ADP of the
HCE Group.
(c) The term "Average Contribution Percentage" or
"ACP" shall
mean the Average Percentage calculated for
the HCE Group
and the NHCE Group using the Contributions
allocated to the
Participant as of a date within the Plan Year.
(d) The term "Average Deferral Percentage" or
"ADP" shall mean
the Average Percentage calculated for the HCE
Group and the
NHCE Group using Deferrals allocated to the
Participant as
of a date within the Plan Year.
(e) The term "Average Percentage" shall mean the
average of the
calculated percentages for each Participant
within the
specified group. The calculated percentage
refers to either
the Deferrals or Contributions made on the
Participant's
behalf for the Plan Year divided by his or
her Compensation
for such year.
(f) The term "Contributions" shall mean
Participant
Contributions. In addition, Contributions
may include Tax
Deferred Contributions, but only to the
extent that (1)
they are not utilized for purposes of the ADP
Test, and (2)
they are necessary to meet the ACP Test.
(g) The term "Contribution Dollar Limit" shall
mean the annual
limit placed on each Participant's Tax
Deferred
Contributions, which shall be $7,000 per
calendar year (as
indexed for cost of living adjustments,
pursuant to
Sections 402(g)(5) and 415(d) of the Code.
(h) The term "Deferrals" shall mean Tax Deferred
Contributions
but shall exclude, Tax Deferred Contributions
made on
behalf of an NHCE in excess of the
Contribution Dollar
Limit.
(i) The term "HCE" shall mean a Highly
Compensated Employee.
(j) The term "NHCE" shall mean a Participant who
is not a
Highly Compensated Employee.
(k) The term "Family Member" shall mean a
Participant who is at
any time during the determination year, a
spouse, lineal
ascendant or descendant of (1) an active or
former
Participant who at any time during the
determination year
is a 5% Owner (within the meaning of the Code
Section
414(q)(3)), or (2) an HCE who is among the
ten Employees
with the highest Compensation for such year.
(l) The term "HCE Group" and "NHCE Group" shall
mean, with
respect to the Company and its Related
Corporations, the
respective group of HCEs and NHCEs who are
eligible to have
amounts contributed to the Plan on their
behalf for the
Plan Year, including Employees who would be
eligible but
for their election not to participate or to
contribute, but
subject to the following:
(1) If the Related Plans are subject to
the ADP or
the ACP Test, and are considered as
one plan for
purposes of Sections 401(a)(4) or
410(b) of the
Code, all such plans shall be
aggregated and
treated as one plan for purposes of
meeting the
ADP Test and the ACP Test, provided
that plans
may only be aggregated if they have
the same Plan
Year.
(2) If a HCE has any Family Members,
the Deferrals,
Contributions and Compensation of
such HCE and
his or her Family Members shall be
combined and
treated as those of a single HCE.
In addition,
such amounts for all other Family
Members shall
be removed from the NHCE Group
Average Percentage
calculation and be combined with
the Average
Percentage calculation of the HCE
Group if the
calculated percentages used in
calculating the
ADP and ACP for the HCE Group would
increase, or
not be used in the ADP Test or the
ACP Test.
(3) If a HCE is covered by more than
one cash or
deferred arrangement under the
Related Plans, all
such plans (other than plans that
are not
required to be aggregated under
Treas. Reg.
Section 1.401(k) 1(g)(1)(ii)(B))
shall be
aggregated and treated as one plan
for purposes
of calculating the separate
percentage for such
HCE which is used in the
determination of the
Average Percentage.
(m) The term "Related Plan" shall mean (a) with
respect to
Section 415 of the Code, any other defined
contribution
plan or a defined benefit plan (as defined
in Section
415(k) of the Code) maintained by a Related
Corporation,
and (b) with respect to Section 401(k) and
401(m) of the
Code, any plan or plans maintained by a
Related
Corporation which is treated with the Plan
as a single
plan for purposes of Section 401(a)(4) or
410(b) of the
Code (other than Section 410(b)(2)(A)).
5.3 Adjustment of ADP and ACP Tests. If the ADP or
ACP Tests under
Section 401(k) and Section 401(m) of the Code, respectively, are
not met, the
Company shall determine a maximum percentage to be used in place
of
the calculated percentage for each HCE that would reduce the ADP
and/or ACP of
the HCE Group by a sufficient amount to meet the ADP and ACP
Tests. For any
HCE Group who has a Family Member, the reduction amount shall be
prorated
among Family Members as provided in Sections 401(k) and (m) of
the Code.
(1) ADP Correction. Deferrals shall be refunded
(including
amounts previously refunded because they
exceeded the
Contribution Dollar Limit) to the Participant
by the end of
the next Plan Year in an amount equal to the
actual
Deferral minus the product of the maximum
percentage for
that HCE and the HCE's Compensation. If Tax
Deferred
Contributions are distributed more than 2-1/2
months after
the end of the Plan Year, an excise tax equal
to ten
percent of such excess Tax Deferred
Contributions will be
imposed on the Company. Excess Tax Deferred
Contributions
shall be treated as Annual Additions for
purposes of
Appendix A.
(2) ACP Correction. Contribution amounts in
excess of the
maximum percentage of an HCE's Compensation
shall, by the
end of the next Plan Year, be refunded to the
Participant.
(3) Investment Fund Sources. Once the amount of
excess
Deferrals and/or Contributions is determined
by type of
Contribution, amounts shall then be taken by
type of
investment in direct proportion to the market
value of the
Participant's interest in each Fund as of the
Valuation
Date as of which the correction is processed.
(4) Family Member Correction. To the extent any
reduction is
necessary with respect to an HCE and his or
her Family
Members that have been combined and treated
for testing
purposes as a single Employee, the excess
Contributions
from the ADP Test and/or ACP Test shall be
prorated among
each such Participant in direct proportion to
his or her
Deferrals or Contributions included in each
test.
The Company shall determine the maximum percentage for each HCE
whose
calculated percentage is the highest at any one time by reducing
his
calculated percentage in the following manner until the ADP Test
and/or the
ACP Test are satisfied:
(a) The calculated percentage for each HCE under
a Related Plan
shall be reduced to the extent permitted
under such Related
Plan.
(b) If more reduction is needed, the calculated
percentage of
each HCE whose calculated percentage is the
greatest shall
be reduced by 1/100th of one percentage point.
(c) If more reduction is needed, the calculated
percentage of
each HCE whose calculated percentage is the
greatest
(including the calculated percentage of any
HCE whose
calculated percentage was adjusted under
subparagraph (b)
above shall be reduced by 1/100th of one
percentage point.
(d) If more reduction is needed, the procedures
of subparagraph
(c) shall be repeated.
5.4 Multiple Use Test. If the sum of the ADP and ACP
for the HCE
Group exceeds the aggregate limit under Treas. Reg. Section
1.401(m)-2(b)(3)
and the ADP for the HCE Group is more than 125 percent of the
ADP for the NHCE
Group and the ACP for the HCE Group is more than 125 percent of
the ACP of the
NHCE Group, the ADP and ACP for the HCE Group must also comply
with the
requirements of Section 401(m)(9) of the Code, which require
that the sum of
these two percentages (as determined after any corrections
needed to meet the
ADP Test or ACP Test have been made) must not exceed the greater
of:
(a) the sum of
(1) the larger of the ADP or ACP for the
NHCE Group times
1.25; and
(2) the smaller of the ADP or ACP for the
NHCE Group,
times two if the NHCE Average
Percentage is less than
two percent, or plus two percent if it
is two percent
or more; or
(b) the sum of
(1) the lesser of the ADP or ACP for the
NHCE Group
times 1.25; and
(2) the greater of the ADP or ACP for the
NHCE Group,
times two if the NHCE Average
Percentage is less
than two percent, or plus two percent
if it is two
percent or more.
If the multiple use limit is exceeded, the Company shall
determine a maximum
percentage to be used in place of the calculated percentage for
each HCE that
would reduce either or both the ADP or ACP for the HCE Group by
a sufficient
amount to meet the multiple use limit. Any excess shall be
treated in the
same manner that excess Contributions are treated.
5.5 Adjustment for Investment Gain or Loss. The net
investment gain
or loss associated with the excess Deferral or Contribution
amount shall be
distributed or forfeited in the same manner as the excess
amount. Such gain
or loss is calculated as follows:
E x ( G / (AB-G)) x (1 + (10% x M))
where:
E = the total excess Deferrals or Contributions,
G = the net gain or loss for the Plan Year from all of
a HCE's
affected Accounts,
AB =the total value of a HCE's affected Accounts,
determined as of
the end of the Plan Year being corrected,
M = the number of full months from the Plan Year end to
the date
excess amounts are paid, plus one for the month
during which
payment is to be made if payment will occur after
the 15th day of
the month.
5.6 Limitations on Company Contributions and Tax
Deferred
Contributions. The sum of Company Contributions and Tax Deferred
Contributions for any Plan Year in no event shall exceed (i) the
maximum
amount which will constitute an allowable deduction for such
year to the
Employers under Section 404 of the Code, (ii) the maximum amount
which may be
contributed by the Employers under Section 415 of the Code, or
(iii) the
maximum amount which may be contributed pursuant to any
regulation, ruling, or
order issued pursuant to law.
<PAGE>
ARTICLE VI
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
6.1 Deposit of Contributions. All Company
Contributions credited
and allocated to a Participant shall be deposited by the Trustee
in the
Company Contribution Account of the Participant. All Tax
Deferred
Contributions of a Participant shall be deposited in the Cash
Option Account
of the Participant. All Participant Contributions of a
Participant shall be
deposited in the Thrift Account of the Participant. All Rollover
Contributions, and Transferred Contributions of a Participant
shall be
deposited in the Rollover Account of the Participant. Moreover,
such
contributions shall be invested by the Trustee among the Funds
pursuant to the
provisions of this Article VI and Section 7.1.
6.2 Investment Change of Future Contributions. Each
Participant may
elect to change the manner in which contributions allocated to
his Thrift
Account as well as contributions allocated to his Company
Contribution Account
and Cash Option Account are to be invested. Any such change in
the investment
elections of a Participant with respect to his Company
Contributions and Tax
Deferred Contributions, shall specify a combination, in five
percent
increments, with respect to his combined Company Contribution
and Cash Option
Accounts among the Funds, which, in the aggregate equals 100
percent. Any
such change in the investment election of a Participant with
respect to his
Participant Contributions shall specify a combination, in five
percent
increments, with respect to the investment of his Thrift Account
among the
Funds which, in the aggregate, equals 100 percent. Such
elections shall be
made in the manner specified by the Company and be subject to
any procedures
regarding the Funds that the Company may adopt. The investment
options so
elected by a Participant shall remain in effect until he files
another
election change with respect to future contributions in
accordance with the
provisions of the Plan. Any such election which directs a change
in an
investment election heretofore in effect shall become effective
as of the
first day of a calendar year quarter and shall be in writing,
filed with the
Company in the form, time and manner specified by the Company.
Amounts
credited to the Accounts of such Participant as of any date
prior to the date
on which such change is to become effective shall not be
affected by any such
change.
6.3 Election to Transfer Invested Past Contributions.
Subject to
any procedures adopted by the Company, a Participant (i) may
elect to have the
balance of his Thrift Account transferred from the Fund or Funds
in which it
is invested to one or more of the other Funds, in five percent
increments
which in the aggregate equal 100 percent, and (ii) may elect to
have the
balance of his Company Contributions and Cash Option Accounts
transferred from
the Fund or Funds in which it is invested to one or more of the
other Funds,
in five percent increments which in the aggregate equal 100
percent. Any such
election shall be effective only as of the first day of a
calendar year
quarter and shall be made in writing delivered to the Company in
such form,
time, and manner as the Company shall prescribe and shall be
subject to any
procedures regarding the Funds that the Company may adopt. Upon
receipt of
such election, the Company shall cause the Trustee to transfer
such amount as
of the effective date of the election of the Participant from
the Fund or
Funds in which it is invested to the Fund or Funds elected and
designated by
the Participant.
6.4 Election to Transfer Rollover Contributions and
Transferred
Contributions. Subject to any procedures adopted by the
Company, a
Participant may elect to have the balance of his Rollover
Account transferred
from the Fund or Funds in which it is invested and invested in
one or more of
the other Funds in five percent increments, which, in the
aggregate, equal 100
percent. Any such election shall be effective only as of the
first day of a
calendar year quarter and shall be made in writing delivered to
the Company in
such form, time, and manner as the Company shall prescribe.
Upon receipt of
such election, the Company shall cause the Trustee to transfer
such amount as
of the effective date of the election by the Participant, from
the Fund or
Funds in which it is invested to the Fund or Funds elected and
designated by
the Participant.
<PAGE>
ARTICLE VII
MAINTENANCE OF FUNDS AND INVESTMENT OF CONTRIBUTIONS
7.1 Establishment and Maintenance of Funds. The
Company shall
cause at least three Funds to be established and maintained at
all times.
With the exception of the OMG Stock Fund, each such Fund will be
diversified
and have different risk and return characteristics from the
other Funds. The
OMG Stock Fund and any Fund which invests in investments with
restrictions
regarding Funds to which investment transfers may be made or to
which a
minimum investment period is applicable shall not be considered
as one of such
requisite three Funds.
7.2 Income on Funds. Unless specifically provided
otherwise, any
dividends, interest, distributions, or other income received in
respect of a
Fund shall be reinvested in the Fund with respect to which such
income was
received by it.
7.3 Accounts and Subaccounts. Accounts and
subaccounts shall be
established in the name of each Participant. Such Accounts and
subaccounts
shall be dependent upon the Funds in which contributions are
invested on his
behalf under the Plan and upon the type of contributions so
invested on his
behalf, and shall be maintained and administered for each
Participant in
accordance with the provisions of the Plan.
7.4 Investment Elections. Each Participant, upon
becoming a
Participant under the Plan in accordance with the provisions of
Section 3.1,
shall make an investment election directing the manner in which
his Company
Contributions, Tax Deferred Contributions and Participant
Contributions, shall
be invested in the Funds. The investment election of a
Participant shall
specify a combination, in five percent increments, which in the
aggregate
equals 100 percent, indicating in which Funds his Company
Contributions and
Tax Deferred Contributions shall be invested and a combination,
in five
percent increments, which in aggregate equals 100 percent,
indicating in which
Funds his Participant Contributions shall be invested. The
investment option
so elected by a Participant shall remain in effect until he
changes his
investment election pursuant to Section 6.3 or receives
distribution of his
Account pursuant to Section 10.4. As of the first day of a
calendar year
quarter, a Participant may change his investment election with
respect to
future contributions and/or past contributions by filing the
appropriate form
with the Company in the form, manner, and time prescribed by the
Company.
7.5 Investment Responsibility. The Plan is intended
to constitute
a plan described in Section 404(c) of ERISA and DOL Regs.
Section 2550.404c-1
and insofar as the Plan complies with said Section 404(c), Plan
fiduciaries
shall be relieved of liability for any losses which are the
direct result of
investment instructions given by Participants and Beneficiaries.
Notwithstanding the foregoing, to the extent that Section 404(c)
of ERISA is
not applicable, Participants shall be named fiduciaries with
respect to the
investment of their Separate Accounts.
7.6 Voting of OMG Stock. Each Participant who has
shares of OMG
Stock allocated to his Accounts shall be a named fiduciary with
respect to the
voting of such OMG Stock and shall have the following powers and
responsibilities:
(a) Prior to each annual or special meeting of
the shareholders
of the Company, the Company shall cause to be sent to
each
Participant, and Beneficiary who has OMG Stock
allocated to his
Accounts under the OMG Stock Fund or credited to him
under the Plan a
copy of the proxy solicitation material therefor,
together with a
form requesting confidential voting instructions, with
respect to the
voting of such OMG Stock as well as the voting of OMG
Stock for which
the Trustee does not receive instructions. Each such
Participant and
Beneficiary shall instruct the Trustee to vote the
number of such
uninstructed shares of OMG Stock equal to the
proportion that the
number of the shares of OMG Stock allocated to his
Accounts bears to
the total number of shares of OMG Stock in the OMG
Stock Fund for
which instructions are received. Upon receipt of such a
Participant's or Beneficiary's instructions, the
Trustee shall then
vote in person, or by proxy, such OMG Stock as so
instructed.
(b) The Company shall cause the Trustee to
furnish to each
Participant and Beneficiary who has OMG Stock credited
to his
Accounts under the OMG Stock Fund or credited to him
under the Plan
notice of any tender or exchange offer for, or a
request or
invitation for tenders or exchanges of, OMG Stock made
to the
Trustee. The Trustee shall request from each such
Participant and
Beneficiary instructions as to the tendering or
exchanging of OMG
Stock allocated to his Accounts or credited to him as
well as the
tendering or exchanging of OMG Stock for which the
Trustee does not
receive instructions. Each such Participant, and
Beneficiary shall
instruct the Trustee with respect to the tendering or
exchanging of
the number of such uninstructed shares of OMG Stock
equal to the
proportion that the number of the shares of OMG Stock
allocated to
his Accounts bears to the total number of shares of OMG
Stock in the
OMG Stock Fund for which instructions are received. The
Trustee shall
provide such Participants and Beneficiaries with a
reasonable period
of time in which they may consider any such tender or
exchange offer
for, or request or invitation for tenders or exchanges
of, OMG Stock
made to the Trustee. Within the time specified by the
Trustee, the
Trustee shall tender or exchange such OMG Stock as to
which the
Trustee has received instructions to tender or exchange
from
Participants and Beneficiaries.
(c) Instructions received from Participants and
Beneficiaries by
the Trustee regarding the voting, tendering, or
exchanging of OMG
Stock shall be held in strictest confidence and shall
not be divulged
to any other person, including officers or employees of
the Company,
except as otherwise required by law, regulation or
lawful process.
7.7 Account Balances. For all purposes of the Plan,
the balance of
each Account and subaccount of a Participant as of any date
shall be the
balance of each such Account and subaccount after all credits
and charges
thereto, for and as of such date, have been made as provided in
the Plan.
<PAGE>
ARTICLE VIII
VALUATIONS
8.1 Valuation of Participant's Interest. As of each
Valuation
Date hereunder, the Company shall adjust each Account of each
Participant to
reflect any increase or decrease in net worth of the Funds
hereunder since the
immediately preceding Valuation Date, based on the valuation of
each Fund by
the Trustee and determined in the following manner:
(a) The Trustee shall value all of the assets of
each of the
Funds at fair market value.
(b) The Trustee shall then, on the basis of such
valuation,
and after making appropriate adjustments for the
amount of all
contributions made with respect to the quarter in
which such
Valuation Date occurs, for any distributions and
withdrawals to or
from the respective Funds since the immediately
preceding Valuation
Date and prior to such date and for any transfers from
or to the
respective Funds since the immediately preceding
Valuation Date and
prior to such date, ascertain the net increase or
decrease in net
worth of the respective Funds which is attributable to
net earnings
and all profits and losses, realized and unrealized,
since the
immediately preceding Valuation Date.
(c) The Trustee shall then allocate the net
increase or
decrease in the net worth of the respective Funds as
thus determined
among all Participants, inactive Participants, and
Beneficiaries who
have an interest in the respective Funds, separately
with respect to
each of such Funds, in the ratio that the balance of
each subaccount
maintained under such Fund on the day immediately
preceding such
Valuation Date bears to the aggregate of the balances
of all such
accounts on the day immediately preceding such
Valuation Date, and
shall credit or charge, as the case may be, each such
subaccount
with the amount of its allocated share.
(d) The Trustee shall then credit to the
appropriate Accounts
and subaccounts of each Participant with his
Participant
Contributions, Rollover Contributions, and Transferred
Contributions
for the Plan Year quarter in which such Valuation Date
occurs.
(e) Then, if the Valuation Date is the last day
of the Plan
Year, the Trustee shall then credit to the appropriate
Accounts and
subaccounts of each Participant, his portion of the
Company
Contributions, Tax Deferred Contributions and
forfeitures for the
Plan Year, which are allocated to such Participant as
of such
Valuation Date pursuant to such Sections 4.6 and 10.8.
8.2 Finality of Trustee's Determination. The Trustee
shall have
exclusive responsibility for determining the value of the assets
of the Funds
hereunder. The determination thereof by the Trustee shall be
conclusive upon
the Employers, the Company, and all Participants and
Beneficiaries hereunder.
8.3 Notification. At least annually the Company
shall notify each
Participant of the balance of his Accounts as of the last day of
such Plan
Year.
<PAGE>
ARTICLE IX
LOANS
9.1 Application and Approval of Loans. Upon the
written
application of a Participant in such form as the Company may
specify, the
Company may direct the Trustee to make a loan to such
Participant. The
application and the resulting loan must meet the terms and
conditions set
forth in Section 9.2 as well as any procedures, specifications
or requirements
established by the Company.
9.2 Terms and Conditions of a Loan. Any loan made
on or after
January 1, 1995, to a Participant pursuant to the provisions of
this Article
IX, must comply with the following terms and conditions:
(a) The interest rate shall be reasonable and
determined in
accordance with the provisions of 29 CFR Section
2550.408b-1.
(b) The term shall be no greater than five years.
(c) The principal of any loan shall be at least
$1,000.00.
(d) A loan shall not be made that exceeds the
lesser of $50,000
(reduced by the amount, if any, of his highest
outstanding loan
balance in the immediately preceding 12 months) or 50
percent of
the vested balance of the Participant's Accounts
determined as of
the Valuation Date coincident with or immediately
preceding the date
the loan application is received by the Company,
reduced by any
distributions or withdrawals from such Accounts
occurring since such
Valuation Date.
(e) A loan shall be made from a Participant's
Accounts
attributable to Tax Deferred Contributions, Participant
Contributions, Rollover Contributions, Transferred
Contributions,
and Company Contributions in the manner specified by
the Company.
(f) The entire unpaid principal and interest may
be declared
due and payable in full, at the option of the Company,
if the
Participant is in default for more than 30 days under
any of the
terms of the loan.
(g) Such other terms and conditions, including
assessment of
costs, as the Company may prescribe and that are not
inconsistent
with the terms of the Plan.
(h) Loans shall be made available to all
Participants on a
reasonably equivalent basis.
(i) Loans shall not be made available to Highly
Compensated
Employees in an amount greater than the amount made
available to
other Employees.
(j) In the event of default, foreclosure on the
note and
attachment of security shall not occur until a
distributable event
occurs in the Plan.
(k) Loans shall be repaid not less frequently
than
quarterannually. Loans made prior to January 1, 1995
shall be made
in accordance with the terms of the Plan in effect at
such time.
9.3 Repayment of Loan. Any loan made on or after
January 1, 1995,
shall be repaid, with interest, in accordance with its terms.
The Trustee
shall credit each payment of principal and interest to the
Accounts of the
Participant and allocate such repayment among the Accounts from
which the loan
was made and in accordance with the Participant's most recently
filed
investment election. Any loan made prior to January 1, 1995,
shall be repaid,
with interest in accordance with the terms of the Plan in effect
at such time.
<PAGE>
ARTICLE X
TERMINATION OF PARTICIPATION AND DISTRIBUTION
10.1 Termination of Participation. Each Participant
shall cease to
be an active Participant hereunder upon his Settlement Date
which shall be the
first of the dates to occur hereinafter set forth:
(a) the date such Participant's employment with
an Employer or
a Related Corporation is terminated due to normal
retirement at or
after attainment of age 65 which is normal retirement
age under the
Plan;
(b) the date such Participant's employment with
an Employer or
a Related Corporation is terminated because of physical
or mental
disability preventing his continuing in the service of
such Employer
or Related Corporation, as determined by the Company
upon the basis
of a written certificate of a physician selected by it;
(c) the date such Participant's employment with
an Employer or
a Related Corporation is terminated because of the
death of such
Participant; or
(d) the date such Participant's employment with
an Employer or
a Related Corporation is terminated under any other
circumstances.
Notwithstanding any other provision of the Plan to the contrary,
a
participant's right to receive distribution of the balance of
each of his
Accounts as of his Settlement Date, in accordance with the
provisions of this
Article X, shall be fully vested and nonforfeitable upon
attainment of age 65.
10.2 Vesting. A Participant whose employment
terminates in
accordance with paragraph (a), (b) or (c) of Section 10.1 shall
be fully
vested in the balance of each of his Accounts. A Participant
whose employment
terminates in accordance with paragraph (d) of Section 10.1
prior to
attainment of age 65 shall be 100% vested in the balance of his
Cash Option
Account, Thrift Account and Rollover Account and shall be vested
in the
balance of his Company Contribution Account in accordance with
the schedule
applicable to him set forth below:
Years of Service Vested Percentage
---------------------- -----------------
Less than one 0%
One but less than two 10%
Two but less than three 20%
Three but less than four 30%
Four but less than five 40%
Five or more 100%
Any unvested portion of such Accounts shall be governed by the
provisions of
Section 10.8. Notwithstanding any other provision of the Plan to
the contrary,
the portion of the Company Contribution for the 1995 Plan Year
which is
allocated to the Company Contribution Account of each
Participant who is not a
Highly Compensated Employee and which is equal to .5% of such
Participant's
Compensation shall be 100% vested in such Participant.
10.3 Election of Former Vesting Schedule. In the
event the Company
adopts an amendment to the Plan that directly or indirectly
affects the
computation of a Participant's nonforfeitable interest in his
Account
attributable to Company Contributions, any Participant with
three or more
Years of Service shall have a right to have his nonforfeitable
interest in
such accounts continue to be determined under the vesting
schedule in effect
prior to such amendment rather than under the new vesting
schedule, unless the
nonforfeitable interest of such Participant in such accounts
under the Plan,
as amended, at any time is not less than such interest
determined without
regard to such amendment. A Participant shall exercise such
right by giving
written notice of his exercise thereof to the Company within 60
days after the
latest of (i) the date he received notice of such amendment from
the Company,
(ii) the effective date of the amendment, or (iii) the date the
amendment is
adopted. Notwithstanding the foregoing provisions of this
Section 10.3, the
vested interest of each Participant on the effective date of
such amendment
shall not be less than his vested interest under the Plan as in
effect
immediately prior to the effective date thereof.
10.4 Distribution. Except as otherwise set forth
below with respect
to certain Accounts, the Company shall direct the Trustee to
make distribution
to or for the benefit of a Participant, who incurs a Settlement
Date pursuant
to the provisions of Section 10.1, from his interest under the
Plan which, on
any date, shall be equal to the balance of his Accounts as of
such date. Such
distribution shall be made in a single lump-sum payment or
installments
payment payable to such Participant at such time and manner as
set forth in
procedures adopted by the Company. Subject to the provisions of
Section
10.12, distribution hereunder shall be made or commenced as soon
as reasonably
practicable after such Participant's Settlement Date, but unless
otherwise
elected by the Participant, in no event later than 60 days after
the latest of
the close of the Plan Year in which:
(i) such Participant attains age 65,
(ii) the tenth anniversary of the ear in which
such
Participant commenced participation in the
Plan occurs, or
(iii)such Participant incurs a Settlement Date.
In the event such Participant fails to consent to a
distribution, such failure
shall be deemed to be an election to defer the payment of any
benefits
sufficient to satisfy this Section 10.4 and payment of his
benefit shall not
occur until the earlier of the receipt of his application for
distribution or
his Mandatory Distribution Date. Notwithstanding the foregoing,
if at the time
benefits are distributable under the preceding sentence, the
balance credited
to a Participant's Accounts exceed $3,500, benefits shall be
paid only if the
Participant consents in writing to such distribution not more
than 90 days
before commencement of distribution.
10.5 Form of Distribution. All distributions under
the provisions
of this Article X made to a Participant or to a Beneficiary
shall be made in
cash unless the Participant or Beneficiary elects to receive any
interest of
his Accounts invested in the OMG Stock Fund in OMG Stock.
10.6 Restriction on Alienation. Except as provided in
Sections
401(a)(13)(B) and 414 (p) of the Code relating to qualified
domestic relations
orders, no benefit under the Plan at any time shall be subject
in any manner
to anticipation, alienation, assignment (either at law or in
equity),
encumbrance, garnishment, levy, execution, or other legal or
equitable
process. No person shall have power in any manner to anticipate,
transfer,
assign (either at law or in equity), alienate, or subject to
attachment,
garnishment, levy, execution, or other legal or equitable
process, or in any
way encumber his benefits under the Plan, or any part thereof,
and any attempt
to do so shall be void.
10.7 Reemployment of Former Participant. If a former
Participant is
reemployed by an Employer, he shall be treated as a new Employee
for all
purposes of the Plan, subject to the provisions hereof relating
to the
reinstatement of Years of Service.
10.8 Disposition of Forfeited Balances. Whenever a
distribution is
made with respect to a former Participant of his vested interest
in his
Company Contribution Account in accordance with the provisions
of Sections
10.2 and 10.5, that portion of the balance of his Company
Contribution Account
which is not distributed to him shall be governed by the
following provisions.
(a) The unvested portion of such a Participant's
Company
Contribution Account shall be forfeited at
the earlier of
the following:
(i) the date on which the Participant's
entire vested
interest in his Accounts is distributed
in a single
sum or is considered distributed under
paragraph (c)
below; or
(ii) the end of the fifth consecutive Break
in Service.
(b) Forfeitures shall be allocated as of the last
day of the
Plan Year in which the forfeiture occurs to
the Company
Contribution Accounts of Participants who
were Participants
on the last day of the prior Plan Year and
who are eligible
to receive an allocation of Company
Contributions for such
Plan Year. Such allocation shall be made in
the same
proportion as each such Participant's
Compensation for such
Plan Year bears to the aggregate Compensation
of all such
Participants for such Plan Year.
(c) A zero invested balance of a Participant
shall be treated
as though it were distributed immediately
when employment
terminates.
(d) If a Participant is reemployed prior to five
consecutive
Breaks in Service but after a forfeiture
under paragraph
(a) above because of an imputed or full
distribution, the
forfeited amount, unadjusted for interim
gains or losses,
shall be subject to restoration under
paragraphs (f) and
(g). No restoration shall occur, if
reemployment occurs
after five consecutive Breaks in Service or
repayment does
not occur under paragraph (g).
(e) If a Participant who is not 100% vested in
his Company
Contribution Account, receives a distribution
of the vested
portion of his Company Contribution Account
prior to
incurring five consecutive Breaks in Service
with the
exception of distributions under paragraph
(a)(i) or (c)
above, the vested portion of his Company
Contribution
Account at any time prior to five consecutive
Breaks in
Service shall not be less than an amount (X)
determined in
the following manner: X = P(AB + D) D. For
purposes
hereof, P is the vested percentage at the
relevant time; AB
is the balance of the Company Contribution
Account at the
relevant time; and D is the amount of
distributions.
(f) An amount subject to restoration under
paragraph (d) shall
be credited to the Participant's Company
Contribution
Account upon reemployment and shall be made
from the assets
of a special contribution of the Company
which shall not
constitute an "annual addition" within the
meaning of
Section 415 of the Code.
(g) A reemployed Participant who is rehired under
the
conditions set forth in paragraph (d) may
repay the full
amount previously distributed from his
partially vested
Company Contribution Account as follows:
(1) Repayment shall be made in a single sum.
(2) Repayment may only be made while the
Participant
remains employed and may not be made
later than five
years after reemployment.
(3) Repayment cannot be made in whole or in
part by
rollover from another plan or individual
retirement
account.
10.9 Buy Back of Forfeited Amounts. A Participant who
incurs a
forfeiture pursuant to the provisions of Section 10.2 and 10.8
shall have such
forfeited amounts recredited to his Accounts upon his subsequent
resumption of
employment covered under the Plan, without adjustment for
interim gains or
losses experienced by the Fund or Funds, provided that he repays
to the Plan
the full amount of any distribution attributable to Company
Contributions that
he received as a result of his prior Settlement Date, and
provided further,
that such repayment occurs no later than the earlier of the
fifth anniversary
of the end of the Plan Year in which his Break in Service
occurred or the
earliest other date permitted by legislation, ruling, or
regulation. Funds
required in any Plan Year to recredit the Accounts of a
reemployed Participant
with the amounts of prior forfeitures in accordance with the
preceding
sentence shall be made by way of a special Plan contribution by
the Employers.
In the event of any such repayment and subsequent recrediting of
a prior
forfeiture, the portion of such amount replacing Company
Contributions shall
be credited to the Accounts of the Participant currently
applicable to the
Company Contributions of such Participant.
10.10 Distribution to Other Qualified Plans. In the
event a former
Participant whose interest in the Plan has not been fully
distributed becomes
an active participant in a plan qualified under Section 401(a)
of the Code
(including a self-employed retirement plan which is exempt from
tax under
Section 501(a) of the Code, an annuity plan described in Section
403(a) of the
Code, or a qualified bond purchase plan described in Section
405(a) of the
Code), the Company may direct the Trustee to transfer the amount
of such
former Participant's interest in the Plan to any such plan
provided that the
plan to receive such transfer authorizes acceptance of such
transfer, that
assets transferred shall be held in a separate account, and that
the assets
transferred shall not be subject to any forfeiture provisions.
10.11 Facility of Payment. In the event that it shall be
found that
any individual to whom an amount is payable hereunder is
incapable of
attending to his financial affairs because of any mental or
physical
condition, including the infirmities of advanced age, such
amount (unless
prior claim therefor shall have been made by a duly qualified
guardian or
other legal representative) may, in the discretion of the
Company, be paid to
another person for the use or benefit of the individual found
incapable of
attending to his financial affairs or in satisfaction of legal
obligations
incurred by or on behalf of such individual. The Trustee shall
make such
payment only upon receipt of written instructions to such effect
from the
Company. Any such payment shall be charged to the Accounts from
which any such
payment would otherwise have been paid to the individual found
incapable of
attending to his financial affairs and shall be a complete
discharge of any
liability therefore.
10.12 Mandatory Distributions. Notwithstanding any
other provision
of this Article X, in the event the vested aggregate balance of a
Participant's Accounts which are distributable to him do not
exceed $3,500,
such balance shall be distributed to him in a single sum as soon
as
practicable after the Settlement Date. If, however, the vested
aggregate
balance of a Participant's Accounts exceeds, or at the time of
any prior
distribution exceeded, $3,500, no distribution of such balance
shall be made
to him, unless such Participant consents in writing to such
distribution;
provided, however, that, in no event shall the distribution of
the interest of
a Participant commence later than such a Participant's Mandatory
Distribution
Date or shall the interest of a Participant be distributed later
than his
Mandatory Distribution Date and shall be determined and made in
accordance
with the proposed regulations under Section 401(a)(9) of the
Code, including
the minimum distribution incidental benefit requirements of
Section
1.401(a)(9)-2 of the proposed regulations. Accordingly, the
Mandatory
Distribution Date of a Participant shall be as follows:
(i) The Mandatory Distribution Date of any
Participant who
attains age 70-1/2 on or after January 1, 1988, shall
be April 1,
1990, or the first day of April following the calendar
year in which
such Participant attains age 70-1/2, whichever is later.
(ii) The Mandatory Distribution Date of any
Participant who has
attained age 70-1/2 before January 1, 1988, shall be
the first day of
April of the calendar year following the calendar year
in which the
later of such Participant's termination of employment
or attainment
of age 70-1/2 occurs.
In the event that the interest of any Participant in his
Accounts is to be
distributed in other than a single lump sum payment, the
following minimum
distribution rules shall become applicable on his Mandatory
Distribution Date:
(1) A Required Minimum Distribution for each
calendar year
beginning with distributions for the first distribution
calendar year
shall be made in the following manner:
(i) For calendar years prior to 1989, the
quotient
obtained by dividing the Mandatory Distribution
Value of such
a Participant's Accounts by the applicable life
expectancy,
and if such Participant's spouse is not the
Beneficiary, the
method of distribution selected must assure that
at least 50
percent of the present value of the amount
available for
distribution is paid within the life expectancy
of such
Participant.
(ii) For 1989 and subsequent calendar years,
the quotient
obtained by dividing the Mandatory Distribution
Value of such
a Participant's Accounts by the lesser of (1)
the applicable
life expectancy or (2) if such Participant'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
the proposed
regulations under the Code. Distributions after
the death of
such Participant shall be distributed using the
applicable
life expectancy referred to in clause (ii)(1),
above as the
relevant divisor without regard to clause
(ii)(2).
(2) The Required Minimum Distribution for such a
Participant's first distribution calendar year must be
made on or
before such Participant's Mandatory Distribution Date.
The Required
Minimum Distribution for other calendar years,
including the Required
Minimum Distribution for the calendar year in which his
Mandatory
Distribution Date occurs, must be made on or before
December 31 of
such calendar year.
(3) If such a Participant dies on or after his
Mandatory
Distribution Date, the remaining portion of his
Accounts must
continue to be distributed at least as rapidly as under
the method of
distribution in effect at his death. If however, such a
Participant
dies before his Mandatory Distribution Date,
distribution of his
Accounts must be completed by December 31 of the
calendar year
containing the fifth anniversary of the death of such
Participant.
For purposes of this Section 10.12, the words and
phrases hereinafter
set forth shall have the following meanings:
(1) Applicable Life Expectancy. The life
expectancy (or
joint and last survivor expectancy) calculated
using the
attained age of the Participant (or
Beneficiary) as of his
birthday in the applicable calendar year
reduced by one for
each calendar year which has elapsed since the
date life
expectancy was first calculated.
(2) Distribution Calendar Year; First
Distribution
Calendar Year. A distribution calendar year is
a calendar
year for which a minimum distribution is
required. For
distributions beginning before the death of the
Participant,
the first distribution calendar year is the
calendar year
immediately preceding the calendar year which
contains his
Mandatory Distribution Date. For distributions
beginning
after the death of the Participant, the first
distribution
calendar year is the calendar year in which
distributions are
required to begin.
(3) Life Expectancy. Life expectancy and
joint and last
survivor expectancy shall be computed by use of
the expected
return multiples in Tables V and VI of Treas.
Reg. Section
1.72-9 and shall be recalculated annually with
respect to a
Participant after the first distribution
calendar year.
(4) Mandatory Distribution Values of
Accounts.
(i) The balance of the Accounts of a
Participant
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 or
forfeitures allocated to the
Account balances 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.
(ii) For purposes of subparagraph
(i), above, if
any portion of the minimum distribution
for the first
distribution calendar year is made in the
second
distribution calendar year on or before
the Mandatory
Distribution Date, the amount of such
minimum
distribution made in the second
distribution calendar
year shall be treated as if it had been
made in the
immediately preceding distribution
calendar year.
10.13 Eligible Rollover Distributions. Each
Participant and
Beneficiary who receives an Eligible Rollover Distribution may
elect in the
time and in a manner prescribed by the Company to receive all or
any portion
of such Eligible Rollover Distribution for transfer to an
Eligible Retirement
Plan; provided, however, that only one such transfer may be made
with respect
to a Eligible Rollover Distribution to an Eligible Retirement
Plan.
Notwithstanding the foregoing, the Participant may elect, after
receiving the
notice required under Section 402(f) of the Code, to receive
such Eligible
Rollover Distribution prior to the expiration of the 30-day
period beginning
on the date such Participant is issued such notice; provided
that the
Participant or beneficiary is permitted to consider his decision
for at least
30 days and is advised of such right in writing.
<PAGE>
ARTICLE XI
BENEFICIARIES
11.1 Designation of Beneficiary. In the event of the
death of a
Participant or former Participant prior to distribution in full
of his
interest under the Plan, the spouse, if any, of such Participant
or former
Participant shall be his Beneficiary and receive distribution of
his remaining
interest; provided, however, that a Participant may designate a
person or
persons other than his spouse as his Beneficiary if the
requirements of
Section 11.3 are met.
11.2 Beneficiary in the Absence of Designated
Beneficiary. If a
Participant or former Participant who dies does not have a
surviving spouse
and if no Beneficiary has been designated pursuant to the
provisions of
Section 11.1, or if no Beneficiary survives such Participant or
former
Participant, then the Beneficiary shall be the estate of such
Participant or
former Participant. If any Beneficiary designated pursuant to
Section 11.1
dies after becoming entitled to receive distribution hereunder
and before such
distributions are made in full, and if no other person or
persons have been
designated to receive the balance of such distributions upon the
happening of
such contingency, the estate of such deceased Beneficiary shall
become the
Beneficiary as to such balance.
11.3 Spousal Consent to Beneficiary Designation. In
the event a
Participant or former Participant is married, any Beneficiary
designation,
other than a designation of his spouse as Beneficiary, shall be
effective only
if his spouse consents in writing thereto and such consent
acknowledges the
effect of such action and is witnessed by a notary public or a
Plan
representative, unless a Plan representative finds that such
consent cannot be
obtained because the spouse cannot be located or because of other
circumstances set forth in Section 401(a)(11) of the Code and
regulations
issued thereunder.
<PAGE>
ARTICLE XII
ADMINISTRATION
12.1 Authority of the Company. The Company shall have
the authority
and the power to perform the functions conferred upon it herein,
subject to
the limitations hereinafter set forth. The Company shall have
the sole right
to interpret and construe the Plan, to determine any disputes
arising
thereunder, subject to the provisions of Section 12.3, and to
take all
necessary actions it may deem necessary or advisable to correct
any
administrative error. The decisions of the Company shall be
upon all affected
parties. In exercising such powers and authorities, the Company
shall at all
times exercise good faith, apply standards of uniform
application, and refrain
from arbitrary action. The Company may employ such attorneys,
agents, and
accountants as it may deem necessary or advisable to assist it
in carrying out
its duties hereunder. The Company and the Trustee are hereby
designated as
"named fiduciaries" of the Plan as such term is defined in
Section 402(a)(2)
of ERISA. The Company, by action of its Board of Directors, may
designate a
person other than itself to carry out any of such powers,
authorities or
responsibilities.
12.2 Actions of the Company. Any act authorized,
permitted, or
required to be taken by the Company under the Plan, which has
not been
delegated in accordance with Section 12.1, may be taken by a
majority of the
members of the Board of Directors of the Company, either by vote
at a meeting,
or in writing without a meeting. All notices, advices,
directions,
certifications, approvals, and instructions required or
authorized to be given
by the Company under the Plan shall be in writing and signed by
either (i) a
majority of the members of the Board of Directors of the
Company, or by such
member or members as may be designated by an instrument in
writing, signed by
all the members thereof, as having authority to execute such
documents on its
behalf, or (ii) a person who becomes authorized to act for the
Company in
accordance with the provisions of Section 12.1. Subject to the
provisions of
Section 12.3, any action taken by the Company which is
authorized, permitted,
or required under the Plan shall be final and binding upon the
Company and the
Trustee, all persons who have or who claim an interest under the
Plan, and all
third parties dealing with the Company or the Trustee.
12.3 Claims Review Procedure. Whenever the Company
decides for
whatever reason to deny, whether in whole or in part, a claim
for benefits
filed by any person (hereinafter referred to as the "Claimant"),
the Plan
Administrator shall transmit to the Claimant a written notice of
the Company's
decision, which shall be written in a manner calculated to be
understood by
the Claimant and contain a statement of the specific reasons for
the denial of
the claim and a statement advising the Claimant that, within 60
days of the
date on which he receives such notice, he may obtain review of
the decision of
the Company in accordance with the procedures hereinafter set
forth. Within
such 60-day period, the Claimant or his authorized
representative may request
that the claim denial be reviewed by filing with the Plan
Administrator a
written request therefor, which request shall contain the
following
information:
(a) the date on which the Claimant's request was
filed with the
Plan Administrator; provided, however, that the date on
which the
Claimant's request for review was in fact filed with the
Plan
Administrator shall control in the event that the date
of the actual
filing is later than the date stated by the Claimant
pursuant to this
paragraph (a);
(b) the specific portions of the denial of his
claim which the
Claimant requests the Plan Administrator to review;
(c) a statement by the Claimant setting forth the
basis upon
which he believes the Plan Administrator should reverse
the Trustee's
previous denial of his claim for benefits and accept
his claim as
made; and
(d) any written material (offered as exhibits)
which the
Claimant desires the Plan Administrator to examine in its
consideration of his position as stated pursuant to
paragraph (c).
Within 60 days of the date determined pursuant to paragraph (a)
of this
Section 12.3, the Plan Administrator shall conduct a full and
fair review of
the Company's decision denying the Claimant's claim for
benefits. Within 60
days of the date of such hearing, the Plan Administrator shall
render its
written decision on review, written in a manner calculated to be
understood by
the Claimant, specifying the reasons and Plan provisions upon
which its
decision was based.
12.4 Indemnification. In addition to whatever rights of
indemnification the members of the Board of Directors of the
Company, or any
other person or persons to whom any power, authority, or
responsibility of the
Company is delegated pursuant to Section 12.1, may be entitled
under the
articles of incorporation, regulations, or by-laws of the
Company, under any
provision of law, or under any other agreement, the Company
shall satisfy any
liability actually and reasonably incurred by any such person or
persons,
including expenses, attorneys' fees, judgments, fines, and
amounts paid in
settlement, in connection with any threatened, pending, or
completed action,
suit, or proceeding which is related to the exercise or failure
to exercise by
such person or persons of any of the powers, authority,
responsibilities, or
discretion provided under the Plan, or reasonably believed by
such person or
persons to be provided hereunder, and any action taken by such
person or
persons in connection therewith.
12.5 Qualified Domestic Relations Orders. The Company
shall establish
reasonable procedures to determine the status of domestic
relations orders and
to administer distributions under domestic relations orders
which are deemed
to be qualified orders. Such procedures shall be in writing and
shall comply
with the provisions of Section 414(p) of the Code and
regulations issued
thereunder.
12.6 Voting of OMG Stock. Each Participant or
Beneficiary who has
shares of OMG Stock allocated to an Account maintained with
respect to a Fund
invested primarily in OMG Stock, shall be a named fiduciary with
respect to
the voting of such OMG Stock and shall have the following powers
and
responsibilities:
(a) Prior to each meeting of the shareholders of
the Company,
the Company shall cause to be sent to each such
Participant and
Beneficiary who has OMG Stock allocated to such an
Account a copy of
the proxy solicitation material therefor, together with
a form
requesting voting instructions, with respect to the
voting of such OMG
Stock as well as the voting of OMG Stock for which the
Trustee does
not receive instructions. Each such Participant and/or
Beneficiary
shall instruct the Trustee to vote the number of such
uninstructed
shares of OMG Stock equal to the proportion that the
number of shares
of OMG Stock allocated to his Account bears to the total
number of
shares of OMG Stock for which instructions are received.
Upon receipt
of such a Participant's or Beneficiary's instructions,
the Trustee
shall then vote in person, or by proxy, such shares of
OMG Stock as so
instructed. Such instructions shall be held in strictest
confidence.
(b) The Company shall cause the Trustee to furnish
to each such
Participant and Beneficiary who has OMG Stock allocated
to his Account
notice of any tender or exchange offer for, or a request
or invitation
for tenders or exchanges of, OMG Stock made to the
Trustee. The
Trustee shall request from each such Participant and
Beneficiary
instructions as to the tendering or exchanging of OMG
Stock allocated
to his Account and the tendering or exchanging of OMG
Stock for which
the Trustee does not receive instructions. Each such
Participant
shall instruct the Trustee with respect to the tendering
or exchanging
of the number of such uninstructed shares of OMG Stock
equal to the
proportion that the number of the shares of OMG Stock
allocated to his
Account bears to the total number of shares of OMG Stock
for which
instructions are received. The Trustee shall provide
such Participant
and Beneficiaries with a reasonable period of time in
which they may
consider any such tender or exchange offer for, or
request or
invitation for tenders or exchanges of, OMG Stock made
to the Trustee.
Within the time specified by the Trustee, the Trustee
shall tender or
exchange such OMG Stock as to which the Trustee has
received
instructions to tender or exchange from Participants and
Beneficiaries. Such instructions shall be held in
strictest
confidence.
<PAGE>
ARTICLE XIII
AMENDMENT AND TERMINATION
13.1 Amendment. Subject to the provisions of
Section 13.2, the
Company may at any time and from time to time, amend the Plan by
resolution or
written action of its Board of Directors or by action of a
committee to which
such authority has been delegated by the Board of Directors.
Any such
amendment of the Plan shall be in writing and signed by
individuals authorized
by the Board of Directors or its delegates.
13.2 Limitation of Amendment. The Company shall make
no amendment to
the Plan which shall result in the forfeiture or reduction of
the interest of
any Participant or person claiming under or through any one or
more of them
pursuant to the Plan; provided, however, that nothing herein
contained shall
restrict the right to amend the provisions hereof relating to the
administration of the Plan and Trust. Moreover, no amendment
shall be made
hereunder which shall permit any part of the Trust property to
revert to any
Employer or be used for or be diverted to purposes other than
the exclusive
benefit of Participants and persons claiming under or through
them pursuant to
the Plan.
13.3 Termination. The Company reserves the right, by
action of its
Board of Directors, to terminate the Plan as to all Employers at
any time,
which termination shall become effective upon notice in writing
to the Trustee
(the effective date of such termination being hereinafter
referred to as the
"termination date"). The Plan shall terminate automatically if
there shall be
a complete discontinuance of contributions hereunder by all
Employers. In the
event of the termination of the Plan, written notice thereof
shall be given to
all Participants and Beneficiaries having an interest under the
Plan, and to
the Trustee. Upon any such termination of the Plan, the Trustee
and the
Company shall take the following actions for the benefit of
Participants, and
Beneficiaries:
(a) As of the termination date, the Trustee shall
value the
Funds hereunder and the Company shall adjust all
accounts in the
manner provided in Section 8.1. The termination date
shall become a
Valuation Date for purposes of Article VIII. In
determining the net
worth of the Funds hereunder, the Trustee shall include
as a
liability such amounts as in its judgment shall be
necessary to pay
all expenses in connection with the termination of the
Trust and the
liquidation and distribution of the Trust property, as
well as other
expenses, whether or not accrued, and shall include as
an asset all
accrued income.
(b) The Trustee, upon instructions from the
Company, shall then
segregate and, subject to applicable provisions of the
Code relating
to the distribution of Tax Deferred Contributions,
distribute an
amount equal to the entire interest of each Participant
in the Funds
to or for the benefit of each Participant or
Beneficiary in
accordance with the provisions of Section 10.4.
Notwithstanding anything to the contrary contained in the Plan,
upon any such
Plan termination, the interest of each Participant and
Beneficiary
shall become fully vested and nonforfeitable; and, if there is a
partial termination of the Plan, the interest of each
Participant and
Beneficiary who is affected by such partial termination shall
become fully
vested and nonforfeitable.
13.4 Withdrawal of an Employer. An Employer other
than the Company
may, by action of its Board of Directors, withdraw from the
Plan, such
withdrawal to be effective upon notice in writing to the Company
(the
effective date of such withdrawal being hereinafter referred to
as the
"withdrawal date"), and shall thereupon cease to be an Employer
for all
purposes of the Plan. An Employer shall be deemed automatically
to withdraw
from the Plan in the event of its complete discontinuance of
contributions, or
(subject to Section 13.5) in the event it ceases to be a
Subsidiary.
13.5 Effect of Plan Termination. Notwithstanding any
other
provision of the Plan to the contrary, any termination of the
Plan shall
terminate the liability of an Employer to make further Employer
Contributions
hereunder.
13.6 Corporate Reorganization. The merger,
consolidation, or
liquidation of the Company or any Employer with or into the
Company or any
other Employer shall not constitute a termination of the Plan as
to the
Company or such Employer.
<PAGE>
ARTICLE XIV
OMG ESOP
14.1 Purpose. The OMG ESOP, which is incorporated as
part of the
Plan, is intended to be an employee stock ownership plan under
Section
4975(e)(7) of the Code and Section 407(a)(6) of the ERISA. The
purposes of the
OMG ESOP are to invest primarily in qualifying employer
securities as defined
in Section 409(l) of the Code, to enable Participants to share
in the growth
and prosperity of the Company and to provide such Participants
with an
additional opportunity to accumulate capital for their future
economic
security.
14.2 Suspense Fund. The Trustee shall establish a
subfund, herein
referred to as the Suspense Fund, to hold and administer any OMG
Stock which
could be pledged as collateral for any Exempt Loan made to the
Trustee for
purposes of the OMG ESOP. In the event more than one class of
OMG Stock is
held in the Suspense Fund, any release thereof shall be made on
a pro-rata
basis as shall allocations thereof to the Separate Accounts of
Participants.
14.3 Exempt Loans. The Trustee may finance or
refinance the
acquisition of OMG Stock for purposes of the OMG ESOP through
Exempt Loans. An
installment obligation incurred in connection with the purchase
of OMG Stock
shall constitute an Exempt Loan and shall be for a specific
term, bear a
reasonable rate of interest, and shall not be payable on demand
except in the
event of default. An Exempt Loan may be secured by a collateral
pledge of the
shares of OMG Stock so acquired. Any such pledged OMG Stock
shall be placed
in the Suspense Fund. No other Plan assets may be pledged as
collateral for a
Loan, and no lender shall have recourse against the Plan other
than the OMG
Stock subject to pledge. All Exempt Loans which are made or
guaranteed by a
disqualified person must satisfy all requirements applicable to
exempt loans
set forth in Treas. Reg. Section 54.49757(b)(8) and Department
of Labor Reg.
Section 2550.408b-3. Any pledge of OMG Stock must provide for
the release of
shares so pledged on a pro rata basis as the Exempt Loan is
repaid by the
Trustee and such shares of OMG Stock are allocated to Separate
Accounts of
Participants as provided in the Plan. Repayments of principal
and interest on
any Exempt Loan shall be made by the Trustee from the
contributions designated
to be invested in OMG Stock Fund to enable the Trustee to repay
such Exempt
Loan, from earnings attributable to such contributions, and from
any cash
dividends received by the Trustee on OMG Stock held in the
Suspense Fund.
14.4 Limitation on Allocations of Contributions.
Notwithstanding any
other provision of the Plan to the contrary, OMG Stock held in
the Suspense
Fund shall be allocated to the Accounts of Participants only as
payments of
principal and interest on an Exempt Loan are made by the
Trustee. OMG Stock
which is released from the Suspense Fund shall be allocated to
the Account and
subaccounts thereunder of each eligible Participant as needed to
provide
Company Contributions pursuant to Section 4.1 as well as Tax
Deferred
Contributions pursuant to Section 4.2, Participant Contributions
pursuant to
Section 4.3, Rollover Contributions pursuant to Section 4.7, and
Transferred
Contributions pursuant to Section 4.8, which have been
designated to invest in
the OMG Stock Fund. The number of shares of OMG Stock to be
released from the
Suspense Fund for allocation a Participant's Account shall be
calculated in
accordance with Treas. Reg. Section 54.4975-7(b)(8). Principal
and interest
payable under an Exempt Loan shall be satisfied out of (i)
Company
Contributions (other than contributions of OMG Stock) that are
made hereunder
for purposes of being applied by the Trustee to satisfy its
obligations under
the Exempt Loan; (ii) earnings attributable to the investment of
such
contributions; and (iii) earnings attributable to OMG Stock
purchased with the
proceeds of the Exempt Loan; provided, however, that the
payments made under
the Exempt Loan by the Trustee during any Plan Year shall not
exceed an amount
equal to the sum of such contributions and earnings received
during the Plan
Year and prior Plan Years minus payments made under the Exempt
Loan in such
Plan Years. Contributions and earnings that may be used by the
Trustee to make
payments under the Exempt Loan shall be accounted for separately
in the books
and records of the Trustee until the Exempt Loan is repaid in
full.
Notwithstanding any provision contained herein to the contrary,
all Company
contributions (except contributions of OMG Stock) made hereunder
and Tax
Deferred Contributions, Participant Contributions, Rollover
Contributions and
Transferred Contributions designated to be invested in the OMG
Stock Fund
during the term of an Exempt Loan shall be deemed to be made for
purposes of
being used by the Trustee to satisfy its obligations under the
Exempt Loan.
Furthermore, all payments made by the Trustee under the Exempt
Loan shall be
first charged against Company Contributions available for making
such
payments, then to Tax Deferred Contributions, then Participant
Contributions,
then Rollover Contributions and then Transferred Contributions.
Earnings that
may be used to make payments under the Exempt Loan shall be
deemed to have
been used for that purpose only to the extent that payments made
under the
Exempt Loan during any Plan Year are in excess of the total
contributions
available to the Trustee for making payments under the Exempt
Loan.
Contributions which are not utilized by the Trustee to pay
principal and
interest of an Exempt Loan shall be allocated to the Accounts of
eligible
Participants and invested in the OMG Stock Fund.
14.5 Allocations of Contributions from the OMG ESOP.
Contributions
allocated and credited to each Participant's Accounts in the
form of OMG Stock
that is released from the Suspense Fund shall be allocated to
such
Participant's Accounts by multiplying the number of shares of
OMG Stock so
released for any month by a fraction the numerator of which is
the
Participant's share of contributions to be invested in the OMG
Stock Fund and
the denominator for such month and the denominator of which is
the aggregate
of all Participants' contributions to be invested in the OMG
Stock Fund. In
the event the amount of contributions to be invested in the OMG
Stock Fund for
any month exceeds the amount distributable to released shares,
such excess
contributions shall be used to purchase OMG Stock in the market.
Such OMG
Stock shall then be allocated to Participants' Accounts by
multiplying the
number of shares of OMG Stock so purchased for any month by a
fraction the
numerator of which is the Participant's contributions allocated
to his
Accounts to be invested in the OMG Stock Fund for such month and
the
denominator of which is the aggregate of all Participants'
contributions to
be invested in the OMG Stock Fund for such month. In the event
the dividends
on OMG Stock held in Participants' Accounts are used to make
payments of
principal and/or interest on an Exempt Loan pursuant to the
provisions of
Section 14.3, OMG Stock released from the Suspense Fund as a
result thereof
shall be allocated to such Participants' Accounts in such a
manner that the
aggregate fair market value of the OMG Stock so allocated is not
less than the
amount of the dividends that would have otherwise been allocated
to such
Accounts.
14.6 Dividends on OMG Stock. Except as specified in
the Trust
Agreement, cash dividends received with respect to the shares of
OMG Stock
acquired with the proceeds of an Exempt Loan and held in the
Suspense Fund
shall be applied to the payment of principal and/or interest on
any
outstanding Exempt Loan and any other dividends received with
respect to any
other shares of OMG Stock held in the OMG ESOP shall be applied,
invested, or
distributed in accordance with the directions of the Company,
including the
payment thereof to Participants either currently or in periodic
payments.
14.7 Restrictions on OMG Stock. No OMG Stock shall be
subject to a
put, call, or other option, or any buy-sell arrangement while
held by and when
distributed from the OMG ESOP, whether or not such plan is an
employee stock
ownership plan at such time.
<PAGE>
ARTICLE XV
MISCELLANEOUS PROVISIONS
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.
15.2 No Commitment as to Employment. Nothing herein
contained shall
be construed as a commitment or agreement upon the part of any
Employee
hereunder to continue his employment with an Employer, and
nothing herein
contained shall be construed as a commitment on the part of any
Employer to
continue the employment or rate of compensation of any Employee
hereunder for
any period.
15.3 Benefits. Nothing in the Plan shall be construed
to confer any
right or claim upon any person other than the parties hereto,
Participants and
Beneficiaries.
15.4 No Guarantees. Neither any Employer, including
the Company,
nor the Trustee guarantees the Trust from loss or depreciation,
nor the
payment of any amount which may become due to any person
hereunder.
15.5 Precedent. Except as otherwise specifically
provided, no action
taken in accordance with the terms of the Plan, by an Employer
or the Company
shall be construed or relied upon as a precedent for similar
action under
similar circumstances.
15.6 Duty to Furnish Information. Each of the
Employers, the
Company, or the Trustee shall furnish to any of the others any
documents,
reports, returns, statements, or other information that any
other reasonably
deems necessary to perform its duties imposed hereunder or
otherwise imposed
by law.
15.7 Merger, Consolidation or Transfer of Plan Assets.
The Plan
shall not be merged or consolidated with any other plan, nor
shall any of its
assets or liabilities be transferred to another plan, unless,
immediately
after such merger, consolidation, or transfer of assets or
liabilities, each
Participant in the Plan would receive a benefit under the Plan
which is at
least equal to the benefit he would have received immediately
prior to such
merger, consolidation, or transfer of assets or liabilities
(assuming in each
instance that the Plan had then terminated).
15.8 Internal Revenue Service Determination.
Notwithstanding any
other provision of the Plan to the contrary, each contribution
of the Employer
made to the Trust Fund is conditioned upon the requirement that
the amount of
the contribution shall be deductible under Section 404 of the
Code. In the
event that any contribution, or portion thereof, is disallowed
such
contribution or portion shall be returned by the Trustee to the
Employer, if
demand therefor is made by the Employer within one year of the
date of such
disallowance.
15.9 Governing Law. The Plan shall be construed and
interpreted in
accordance with the laws of the State of Ohio.
* * *
Executed at Cleveland, Ohio, this 6th day
of May, 1996.
OMG AMERICAS, INC.
(formerly known as
Mooney Chemicals, Inc.
By: / s / Thomas E.
Fleming
- ----------------------------------
Title: President
<PAGE>
APPENDIX A
LIMITATIONS ON CONTRIBUTIONS
A.1 Compliance with TRA '86. The provisions set forth
in this
Appendix A are intended solely to comply with the requirements
of Section 415
of the Code, as amended by the Tax Reform Act of 1986, and shall
be
interpreted, applied, and if and to the extent necessary, deemed
modified
without further formal language so as to satisfy solely the
minimum
requirements of said Section, subject, however, to the
provisions of Section
1106(i)(3) of the Tax Reform Act of 1986. For such purpose, the
limitations
of Section 415 of the Code, as amended by the Tax Reform Act of
1986, are
hereby incorporated by reference and made part hereof as though
fully set
forth herein, but shall be applied only to particular Plan
benefits in
accordance with the provisions of this Appendix A to the extent
such
provisions are not consistent with said Section.
A.2 Section 415 Definitions. For purpose of this
Appendix A the
following terms shall have the meaning hereinafter set forth.
(a) The term "Related Corporation" shall mean the
definition of
Related Corporation contained in Article I of the Plan,
as modified
by Section 415(h) of the Code.
(b) The term "Annual Additions" shall mean the
sum for any
Limitation Year of the following amounts:
(i) Contributions to the Plan made by an
Employer for such
Limitation Year;
(ii) For Limitation Years prior to January 1,
1987, the
lesser of (A) the amount of such Participant's
contributions,
but only to the extent that the sum of such
Contributions
exceeds six percent of his Compensation paid for
such Limitation
Year, or (B) one-half of the Participant's
contributions, if
any; and for Limitation Years on and after January
1, 1987,
all contributions made by a Participant to the
Plan for such
Limitation Year;
(iii)The amount, if any, of Employer
contributions and
forfeitures which are credited to the Participant
under any
other defined contribution plan (whether or not
terminated)
maintained by an Employer or a Related Corporation
concurrently
with the Plan;
(iv) Reallocated forfeitures;
(v) Contributions to an individual medical
account as
defined in Section 415(l)(2) of the Code which is
part of a
pension or annuity plan maintained by the Employer.
(vi) Any amount derived from contributions
paid after
December 31, 1985, in taxable years ending after
such date,
which are attributable to post-retirement medical
benefits
allocated to a separate account of a key employee
(as defined in
Appendix B of the Plan) under a welfare benefit
fund (as defined
in Section 419(e) of the Code) maintained by an
Employer or a
Related Corporation.
(c) The term "Compensation" shall mean a
Participant's wages,
salaries, and other amounts received for personal
services actually
rendered in the course of employment with an Employer
or a Related
Corporation, excluding, however, (i) contributions made
by an
Employer or a Related Corporation to a plan of deferred
compensation
to the extent that, before the application of the
limitations of
Section 415 of the Code to such plan, the contributions
are not
includable in the gross income of the Participant for
the taxable
year in which contributed, (ii) contributions made by
an Employer or
a Related Corporation on his behalf to a simplified
employee pension
plan described in Section 408(k) of the Code, (iii) any
distributions
from a plan of deferred compensation (other than
amounts received
pursuant to an unfunded nonqualified plan in the year
such amounts
are includable in the gross income of the Participant),
(iv) amounts
received from the exercise of a non-qualified stock
option or when
restricted stock or other property held by the
Participant becomes
freely transferable or is no longer subject to
substantial risk of
forfeiture, (v) amounts received from the sale,
exchange, or other
disposition of stock acquired under a qualified stock
option, and
(vi) any other amounts that receive special tax
benefits, such as
premiums for group term life insurance (but only to the
extent that
the premiums are not includable in gross income of the
Participant).
(d) The term "Limitation Year" shall mean the
12-month period
commencing each January 1 and ending each subsequent
December 31 or
such other 12-month period elected by the Employer
pursuant to
regulations under Section 415 of the Code.
A.3 Maximum Annual Additions. For each Limitation
Year, the Annual
Additions with respect to a Participant shall not exceed the
lesser of (i)
$30,000 (except such amount shall be adjusted in accordance with
regulations
prescribed by the Secretary of the Treasury for increases in the
cost of
living), or (ii) 25 percent of such Participant's Compensation
paid for such
Limitation Year. If a short Limitation Year is created because
of an
amendment changing the Limitation Year to a different 12-month
consecutive
period, such Annual Additions shall not exceed $30,000
multiplied by a
fraction, the numerator of which is the number of months in the
short
Limitation year, and the denominator of which is 12.
A.4 Elimination of Excess Contributions. If the
Annual Additions
to the accounts of a Participant in any Limitation Year would
exceed the
limitation contained in this Appendix A absent such limitation,
the excess
shall be eliminated as follows:
(a) The Participant Contributions credited to the
Separate
Accounts of such a Participant for such Limitation Year
shall be
reduced and returned to the Participant;
(b) Next, Tax Deferred Contributions credited to
the Separate
Accounts of such Participant for such Limitation Year
shall be
returned to the Participant unless the Participant has
elected to
have them transferred and deposited under a deferred
compensation
program or an excess benefit plan maintained by the
Company; and
(c) The Company Contributions credited to the
Separate Accounts
of such Participant for such Limitation Year shall be
reduced and
returned to the Employers. In each case specified
above, the amount
to be reduced, returned, or transferred shall be that
amount as is
necessary to permit the maximum amount of the Annual
Additions to the
Participant's Accounts for such year to be made under
the Plan
without violating the restrictions of Section 415 of
the Code.
Notwithstanding the foregoing, in the event that the
limitations with
respect to Annual Additions prescribed hereunder are
exceeded with
respect to any Participant and such excess arises as a
consequence of
the allocations of forfeitures or a reasonable error in
estimating
the Participant's annual Compensation, the portion of
such excess
attributable to Company Contributions shall be held in
a suspense
account and, if such Participant remains a Participant,
shall be used
to reduce Company Contributions for such Participant
for the
succeeding calendar years, and, if such Participant
ceases
participating in the Plan, shall be used to reduce
Company
Contributions for all other Participants in the
calendar year in
which he ceases to be a Participant and succeeding
calendar years, as
necessary.
A.5 Defined Benefit Plan Coverage. If any Participant
in the Plan
also shall be covered by a qualified defined benefit plan
(whether or not
terminated) maintained by an Employer or by a Related
Corporation concurrently
with the Plan, the sum of the defined benefit plan fraction with
respect to
such Participant and the defined contribution plan fraction with
respect to
such Participant for any Limitation Year ending on or before
December 31,
1982, shall not exceed 1.4, and for any Limitation Year after
December 31,
1982, shall not exceed 1.0. For purposes of this Section A.5,
defined benefit
plan fraction and defined contribution plan fraction shall mean
the following:
(i) Defined benefit plan fraction shall mean a
fraction, the
numerator of which is the projected annual
benefit of such
Participant under all such plans (determined
as of the
close of such Limitation Year) and the
denominator of which
is the lesser of (i) the product of 1.25 (1.0
prior to
1983) multiplied by the dollar limitation in
effect under
Section 415(b)(1)(A) of the Code for such
year or (ii) the
product of 1.4 (1.0 prior to 1983) multiplied
by the amount
which may be taken into account under Section
415(b)(1)(B)
of the Code with respect to such Participant
for such year;
provided, however, that (A) if a Participant
was a
participant prior to January 1, 1983, and on
December 31,
1982, his accrued benefit exceeded the
maximum defined
benefit dollar limitation on January 1, 1983,
or (B) if a
Participant was a participant prior to
January 1, 1987, and
his accrued benefit on December 31, 1986
exceed the maximum
defined benefit dollar limitation on January
1, 1987, then
such limitation with respect to such
Participant shall be
equal to the greater of his accrued benefits
as of December
31, 1982 or December 31, 1986, as the case
may be.
(ii) Defined contribution plan fraction shall mean
a fraction,
the numerator of which is the sum of the
aggregate Annual
Additions of the Participant under the Plan
and any other
defined contribution plan as of the close of
the Limitation
Year and the denominator of which is the sum
of the lesser
of the following amounts determined for such
year and each
prior year of service with an Employer or a
Related
Corporation: (i) the product of 1.25 (1.0
prior to 1983)
multiplied by the dollar limitation in effect
under Section
415(c)(1)(A) of the Code for such year,
determined without
regard to Section 415(c)(6) of the Code, or
(ii) the
product of 1.4 (1.0 prior to 1983) multiplied
by the amount
which may be taken into account under Section
415(c)(1)(B)
of the Code with respect to such Participant
for such year;
provided, however, that the denominator may
be determined
under any transitional rules for years ending
prior to
January 1, 1983, prescribed by the Code
(including the
special transitional rule set forth in
Section 415(e)(6) of
the Code, if the Plan Administrator so
elects).
In the event the special limitation contained in this Section
A.5 is exceeded,
the benefits otherwise payable to the Participant under any such
qualified
defined benefit plan shall be reduced to the extent necessary to
meet such
limitation.
A.6 Aggregation of Defined Contribution Plans. In the
event that a
Participant is covered by any other qualified defined
contribution plan
(whether or not terminated) maintained by an Employer or a
Related Corporation
concurrently with the Plan, then the total Annual Additions to
the
Participant's accounts under all such plans shall not exceed the
limitation
set forth in Section A.3. For purposes of this Section A.6,
Annual Additions
under the Plan shall be deemed to have been made or provided
after Annual
Additions to all other defined contribution plans subject to the
limitations
set forth in Section A.3; thus contributions under the Plan
shall be affected
by the limitations before contributions under all other defined
contribution
plans are affected.
<PAGE>
APPENDIX B
TOP-HEAVY PROVISIONS
B.1 Applicability. Notwithstanding any other provision
to the
contrary, in the event the Plan is deemed to be a top-heavy plan
for any Plan
year, the provisions contained in this Appendix B with respect
to Company
Contributions shall be applicable with respect to such Plan
Year. In the
event that the Plan is determined to be a top-heavy plan and
upon a subsequent
determination date is determined to no longer be a top-heavy
plan, the Company
Contribution provisions in effect immediately preceding the Plan
Year in which
the Plan was determined to be a top-heavy plan shall again
become applicable
as of such subsequent determination date.
B.2 Top-Heavy Definitions. For purposes of this
Appendix B, the
following definitions shall apply:
(a) The term "determination date" with
respect to any Plan
Year shall mean the last day of the preceding Plan
Year (or, in
the case of the first Plan Year of the Plan, the
last day of the
first Plan Year). Distributions made and the
present value of
accrued benefits are determined as of the
determination date.
The present value of an accrued benefit under a
defined
contribution plan as of a determination date shall
be the sum of
(i) the account balance as of the most recent
valuation date
occurring within a 12-month period ending on the
determination
date, and (ii) an adjustment for contributions due
as the
determination date. The present value of an
accrued benefit
under a defined benefit plan as of a determination
date shall be
determined as of the most recent valuation date
which is within
the 12 month period ending on the determination
date. In the
case of an aggregation group, the present value of
the
accrued benefits is determined separately for each
plan as of
each plan's determination date and then aggregated
by adding for
such plans which fall within the same calendar
year.
(b) The term "key employee" shall mean any
Participant or
former Participant who is a key employee pursuant
to the
provisions of Section 416(i)(1) of the Code and
any Beneficiary
of such Participant or former Participant.
(c) The term "non-key employee" shall mean
any Participant
who is not a key employee.
(d) The term "permissive aggregation group"
shall mean
those plans not included in an Employer's required
aggregation
group in conjunction with any other plan or plans
of such
Employer, so long as the entire group of plans
would continue to
meet the requirements of Sections 401(a)(4) and
410 of the Code.
(e) The term "required aggregation group"
shall include (i)
all plans of an Employer in which a key employee
is a
participant or has participated at any time during
the
determination period (regardless of whether the
Plan has
terminated) and (ii) all other plans of an
Employer which enable
a plan described in clause (i) hereof to meet the
requirements
of Sections 401(a)(4) or 410 of the Code.
(f) The term "super top-heavy group" with
respect to a
particular Plan Year shall mean a required or
permissive
aggregation group that, as of the determination
date, would
qualify as a top-heavy group under the definition
in paragraph
(h) of this Section B.2 with "90 percent"
substituted for "60
percent" each place where "60 percent" appears in
such
definition.
(g) The term "super top-heavy plan" with
respect to a
particular Plan Year shall mean a plan that, as of
the
determination date, would qualify as a top heavy
plan under the
definition in paragraph (i) of this Section B.2
with "90
percent" substituted for "60 percent" each place
where "60
percent" appears in such definition. A plan is
also a "super
top-heavy plan" if it is part of a super top-heavy
group.
(h) The term "top-heavy group" with respect
to a particular
Plan Year shall mean a required or a permissive
aggregation
group if the sum, as of the determination date, of
the present
value of the cumulative accrued benefits for key
employees under
all defined benefit plans included in such group
and the
aggregate of the account balances of key employees
under all
defined contribution plans included in such group
exceeds 60
percent of a similar sum determined for all
employees covered by
the plans included in such group.
(i) The term "top-heavy plan" for any Plan
Year beginning after December 31, 1983 shall mean
a plan with respect to which
any of the following conditions exists:
(i) If the top heavy ratio for the plan
exceeds 60%
and the plan is not part of any
required
aggregation group or permissive
aggregation group
of plans,
(ii) If a plan is a part of a required
(but not a
permissive) aggregation group of
plans and the top
heavy ratio or the required
aggregation group of
plans exceeds 60%, or
(iii)If the plan is a part of a required
aggregation
group of plans and part of a
permissive
aggregation group of plans, and the
top heavy
ratio for the permissive aggregation
group exceeds
60%.
Notwithstanding the foregoing provisions of
this paragraph,
however, a plan shall be deemed not to be a top
heavy plan if
it is part of a required or permissive
aggregation group that
is not a top heavy group.
(j) The term "compensation" shall mean a
Participant's
total wages and salary for services rendered to
the Employers
less amounts realized from the exercise or
disposition of stock
options paid by the Employers during a calendar
year to the
extent it would be taken into account for Form
W-2 purposes;
provided, however, that such compensation shall
not exceed the
dollar limitation set forth in Section 1.1(5) of
the Plan to
comply with Section 401(a)(17) of the Code.
(k) The term "valuation date" shall mean the
most recent
Valuation Date within a twelve month period
ending on the
determination date.
(l) The term "top-heavy ratio" shall mean
as follows:
(i) If the Employer maintains one or
more defined
contribution plans (including any simplified
employee
pension plan) and the Employer has not
maintained any
defined benefit plan which during the 5-year
period ending
on the determination date(s) has or has had
accrued
benefits, the top-heavy ratio for the Plan
alone or for
the required or permissive aggregation
group, as
appropriate, is a fraction, the numerator of
which is the
sum of the account balances of all key
employees as of the
determination date(s) including any part of
any account
balance distributed in the 5 year period
ending on the
determination date(s)), and the denominator
of which is
the sum of all account balances (including
any part of any
account balance distributed in the 5 year
period ending on
the determination date(s)), both computed in
accordance
with Section 416 of the Code. Both the
numerator and
denominator of the top-heavy ratio are
adjusted to reflect
any contribution not actually made as of the
determination
date, but which is required to be taken into
account on
that date under Section 416 of the Code.
(ii) If the Employer maintains one
or more
defined contribution plans (including any
simplified
employee pension plans) and the Employer
maintains or has
maintained one or more defined benefit plans
which during
the 5-year period ending on the
determination date(s) has
or has had any accrued benefits, the
top-heavy ratio for
any required or permissive aggregation group
as
appropriate is a fraction, the numerator of
which is the
sum of account balances under the aggregated
defined
contribution plan or plans for all key
employees,
determined in accordance with subparagraph
(i) above, and
the present value of accrued benefits under
the aggregated
defined benefit plan or plans for all key
employees as of
the determination date(s), and the
denominator of which
is the sum of the account balances under the
aggregated
defined contribution plan or plans for all
participants,
determined in accordance with subparagraph
(i) above and
the present value of the accrued benefits
under the
defined benefit plan or plans for all
participants as of
the determination date(s), all determined in
accordance
with Section 416 of the Code. The accrued
benefits under
a defined benefit plan is both the numerator
and
denominator of the top-heavy ratio are
adjusted for any
distribution of an accrued benefit made in
the five-year
period ending on the determination date.
(iii) For purposes of subparagraphs
(i) and (ii)
above, the value of account balances and the
present value
of accrued benefits will be determined as of
the most
recent valuation date that falls within or
ends with the
12-month period ending on the determination
date, except
as provided in Section 416 of the Code for
the first and
second plan years of a defined benefit plan.
The account
balances and accrued benefits of a
participant (1) who is
not a key employee but who was a key
employee in a prior
year, or (2) who has not performed services
for the
Employer maintaining the Plan at any time
during the
5-year period ending on the determination
date will be
disregarded. The calculation of the top
heavy ratio, and
the extent to which distributions, rollovers
and transfers
are taken into account will be made in
accordance with
Section 416 of the Code. Deductible employee
contributions
shall not be taken into account for purposes
of computing
the top-heavy ratio. When aggregating plans
the value of
account balances and accrued benefits will
be calculated
with reference to the determination date(s)
that fall
within the same calendar year.
B.3 Minimum Employer Contribution. In the event the
Plan is
determined to be a top-heavy plan with respect to any Plan Year,
the Company
Contributions allocated with respect to such Plan Year to the
Accounts of each
non-key employee who is a Participant and who is not separated
from service
with an Employer as of the end of such Plan Year, regardless of
whether such
non-key employee has completed less than 1,000 Hours of Service
or fails to
make either mandatory employee contributions or elective
contributions, shall
be no less than the lesser of (a) three percent of his
compensation or (b) the
largest percentage of compensation that is allocated for such
Plan Year to the
Accounts attributable to Company Contributions of any key
employee, except
that, in the event the Plan is part of a required aggregation
group, and the
Plan enables a defined benefit plan included in such group to
meet the
requirements of Section 401(a)(4) or 410 of the Code, the
minimum allocation
of Company Contributions to the Accounts of each non-key
employee shall be
three percent of the compensation of such non-key employees.
Any minimum
allocation of Company Contributions of a Participant required by
this Section
B.3 shall be made without regard to any social security
contribution made by
the Employer on behalf of the Participant and without regard to
whether or not
a non-key employee withdraws Tax Deferred Contributions.
Notwithstanding the
minimum top heavy allocation requirements of this Section B.3,
in the event
that the Plan is a top-heavy plan, each non-key employee
hereunder who is also
covered under a top-heavy defined benefit plan maintained by an
Employer shall
receive the top-heavy benefits provided for under such defined
benefit plan in
lieu of the minimum top heavy allocation under the Plan.
B.4 Top-Heavy Vesting Schedule. A Participant shall
be entitled to
the vested interest in his Accounts attributable to Company
Contributions
calculated in accordance with the provisions of Articles III and
IV (or, if
greater, in accordance with the provisions of Section B.3 above)
determined in
accordance with the following schedule:
Years of Service Vested Percentage
------------------ -----------------
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
If the Plan becomes Top-Heavy and subsequently ceases to be
such, the vesting
schedule set for the above shall continue to apply in
determining the rights
to benefits of any Participant who had at least five Years of
Service as of
December 31 in the last Plan Year in which the Plan was Top
Heavy. For other
Participants, such schedule shall apply only to that portion of
their Accounts
that became vested under the vesting schedule set forth above as
of such
December 31.
B.5 Adjustments to Section 415 Limitations.
Notwithstanding the
provisions of Section A.5, in the event that the Plan is a
top-heavy plan and
an Employer maintains a defined benefit plan covering some or
all of the
employees that are covered by the Plan, Section 415(e)(2)(B) and
415(e)(3)(B)
of the Code shall be applied to the Plan by substituting "1.0"
for "1.25" and
Section 415(e)(6)(B)(i) of the Code shall be applied to the Plan
by
substituting "$41,500" for $51,875", except that such
substitutions shall not
be applied to the Plan if (a) the Plan is not a super top-heavy
plan and (b) a
Company Contribution for such Plan Year for each non-key
employee who is a
Participant is not less than four percent of such non-key
employee's
compensation.
B.6 Compensation Taken Into Account. The annual
compensation of any
Participant to be taken into account under the Plan during any
Plan Year in
which the Plan is determined to be a top-heavy plan shall not
exceed $150,000
(or such adjusted amount determined by the Secretary of the
Treasury.
