Exhibit 10.2(k)
CYTEC EXECUTIVE SUPPLEMENTAL
EMPLOYEES’ RETIREMENT PLAN
(As amended and restated effective
January 1, 2009)
Effective as of January 1,
1994, Cytec Industries Inc. (the “Company”) established
the Cytec Executive Supplemental Employees’ Retirement Plan
(the “Plan”). The Plan is intended to constitute an
unfunded pension plan maintained primarily for a select group of
management or highly compensated employees which is exempt from
Parts 2, 3, and 4 of Title I of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”). The Plan is
not a qualified plan under the Internal Revenue Code of 1986, as
amended (the “Code”), and benefits are paid by or on
behalf of the Company.
The Plan replaced the American
Cyanamid Company and Subsidiaries Supplemental Employees’
Retirement Plan (the “Cyanamid SERP”) for those
employees of the Company who were covered by the Cyanamid SERP on
December 31, 1993. Pursuant to the Transfer and Distribution
Agreement dated December 17, 1993 between American Cyanamid
Company and Cytec Industries Inc., the Plan assumed the liabilities
attributable to employees of the Company covered by the Cyanamid
SERP on December 31, 1993 who became employees of the Company
on January 1, 1994.
Employees hired by an Employer on
and after April 1, 2007 shall not be eligible to participate
in the Plan.
The Plan is amended and restated
effective January 1, 2009. The Plan, as amended and restated,
is intended to comply with Section 409A of the Code, the
regulations thereunder and related guidance issued by the Internal
Revenue Service (“IRS”).
ARTICLE I
Definitions
1.1 “
Actuarial Equivalent ” means an amount or benefit of
equal value based on a 6 1 / 2 % interest rate and the 1971
TPF&C Forecast Mortality Table (or, at the discretion of the
Pension Administration Committee, the most recent version of such
table) with employee ages set back one year and beneficiary ages
set back five years.
1.2 “ Board of
Directors ” means the Board of Directors of the
Company.
1.3 “ Cause ”
means (a) the willful and continued failure by a Participant
substantially to perform the Participant’s duties with an
Employer (other than any such failure resulting from the
Participant’s incapacity due to physical or mental illness)
after a demand for substantial performance is delivered to the
Participant by an Employer which specifically identifies the manner
in which an
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Employer believes that the Participant has not
substantially performed such Participant’s duties, or
(b) the willful engaging by the Participant in conduct
demonstrably injurious to an Employer. For purposes of this
definition, no act, or failure to act, on the part of the
Participant shall be considered willful unless done, or omitted to
be done, by the Participant without reasonable belief that the
Participant’s action or omission was in the best interests of
an Employer and was lawful.
1.3 “ Change in Control
” shall be deemed to have occurred upon the date on which one
of the following events occurs:
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(a)
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Any one person,
or more than one person acting as a group, acquires ownership of
stock of the Company that, together with stock held by such person
or group, constitutes more than 50% of either the total fair market
value or total voting power of the stock of the Company;
or
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(b)
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Any one person,
or more than one person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most
recent acquisition by such person or persons) ownership of stock of
the Company possessing 35% or more of the total voting power of the
Company; or
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(c)
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A majority of
participants of the Board is replaced during any 12-month period by
directors whose appointment or election is not recommended by a
majority of the participants of the Board prior to the date of the
appointment or election; or
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(d)
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Any one person,
or more than one person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most
recent acquisition by such person or persons) assets from the
Company that have a total gross fair market value equal to or more
than 60% of the total gross fair market value of all of the assets
of the Company immediately prior to such acquisition.
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1.4 “ Code ”
means the Internal Revenue Code of 1986, as amended.
1.5 “ Company ”
means Cytec Industries Inc.
1.6 “ Compensation
Committee ” means the Compensation and Management
Development Committee of the Board of Directors.
1.7 “ Compensation
” means base compensation as defined in the Employees’
Retirement Plan plus actual cash bonuses paid to a Participant
pursuant to the IC Plan up to 1/3 of base compensation, except to
the extent Section 3.1 of the Plan requires use of Target ICP,
without consideration of the limit on compensation under
Section 401(a)(17) of the Code, and including all compensation
which would have otherwise been paid but for the fact that receipt
is deferred to a subsequent year; provided, however, that deferred
compensation paid in a subsequent year shall not again be included
as Compensation for purposes of computing benefits hereunder and;
provided
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further that for purposes of determining
Compensation for the year of a Participant’s termination of
employment, for the year that the Participant commences Plan
Benefits on account of Total and Permanent Disability, and for any
projected Years of Service, reference to a Participant’s
“salary or wages” (in Section 1.14 of the
Employees’ Retirement Plan) at September 1 or at the
“prior September 1” shall be deemed to refer,
instead, to a Participant’s final salary rate immediately
prior to termination of employment.
1.8 “ Cyanamid Excess
Plan ” means the American Cyanamid Company and
Subsidiaries ERISA Excess Retirement Plan as in effect on
December 31, 1993.
1.9 “ Cyanamid SERP
” means the American Cyanamid Company and Subsidiaries
Supplemental Employees Retirement Plan as in effect on
December 31, 1993.
1.10 “ Eligible
Employee ” means any person elected as an Officer prior
to April 1, 2007 and any other key person who was employed by
an Employer who was elected as a Participant prior to April 1,
2007.
1.11 “ Employees’
Retirement Plan ” means the Cytec Salaried and
Nonbargaining Employees’ Retirement Plan, as amended from
time to time.
1.12 “ Employer ”
means the Company, D Aircraft Products, Inc., Cytec Engineered
Materials Inc., any successor thereto, and any of the
Company’s subsidiaries which adopts the Plan with the consent
of the Board of Directors.
1.13 “ Excess Plan
” means the Cytec Excess Retirement Benefit Plan.
1.14 “ Executive
Committee ” means the Executive Committee of the Company
as provided for in the resolutions adopted by the Board of
Directors or any committee which succeeds the responsibilities of
the Executive Committee.
1.15 “ Good Reason
” shall mean:
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(a)
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A change in
assignment resulting in the assignment to a Participant of
substantially reduced responsibilities compared with those assigned
to the Participant prior to such change, or any change in the
Participant’s status, authority or position which represents
a demotion (actual or de facto ) from the
Participant’s status, authority or position immediately prior
to such change, except in connection with the termination of
Participant’s employment because of death or Retirement, by
the Company for Total and Permanent Disability or Cause, or by the
Participant other than for a Good Reason enumerated in any of the
following subsections of this Section 1.15 of the
Plan;
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(b)
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The assignment
to a Participant of duties inconsistent with the
Participant’s responsibilities prior to such assignment,
unless such new duties are consistent with a position of equal or
greater status, authority, and position;
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(c)
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A reduction in
the base salary of a Participant as the same may be increased from
time to time;
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(d)
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A failure to
continue the IC Plan (or a plan providing substantially similar
benefits) as the same may be modified from time to time but in a
form not less favorable than as of the date of adoption of this
Plan, or a failure to continue a Participant as a participant in
the IC Plan on a basis consistent with the basis on which the IC
Plan is administered as of such date;
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(e)
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A failure to
pay a Participant any portion of the Participant’s current or
deferred compensation within seven (7) days of the date such
compensation is due;
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(f)
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The relocation
of the principal executive offices of the Company to a location
more than 50 miles from the location of the present executive
offices or outside of New Jersey, or requiring a Participant to be
based anywhere other than the principal executive offices (or, if a
Participant is not based at such executive offices, requiring such
Participant to be based at another location not within 50 miles of
such location) except for required travel on business to an extent
substantially consistent with the Participant’s duties and
responsibilities, or in the event of consent to any such relocation
of the base location of a Participant the failure to pay (or
provide reimbursement for) all expenses of such Participant
incurred relating to a change of principal residence in accordance
with the applicable personnel policies of the Company in effect as
of the date of adoption of this Plan;
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(g)
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The failure to
continue in effect any benefit or compensation plan (including but
not limited to the Retirement Plan, the Long-Term Disability Plan,
the IC Plan, stock option and performance stock/cash features of
the 1993 Stock Award and Incentive Plan (or of any subsequent
and/or substitute plan)), the Employees Savings and Profit Sharing
Plan (including the Supplemental Savings and Profit Sharing Plan),
pension plan (including but not limited to, the Supplemental,
Executive Supplemental, and Excess Retirement Plans), life
insurance plan, health and accident plan, disability or vacation
plan in which a Participant is participating, or the taking of any
action which would adversely affect participation (including the
Participant’s eligibility to participate, the amount of the
Participant’s benefits, and the level of the
Participant’s participation relative to other participants)
in or materially reduce benefits under any of such plans, or the
failure to fund any “rabbi trust” created for the
payment of any of the foregoing benefits, when, and to the extent,
required by the terms of any such trust, unless such action is
required pursuant to law or unless substantially similar benefits
are continued in the aggregate under other plans, programs or
arrangements;
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(h)
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The failure to
obtain the assumption of or an agreement to carry out the terms of
this Plan by any successor; or
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(i)
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Any purported
termination of a Participant’s employment which is not
effected pursuant to a Notice of Termination as defined in the
Cytec Industries Inc. Executive Income Continuity Plan.
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1.16 “ Grandfathered
Participant ” means an Eligible Employee included on the
Grandfathered Participant Schedule adopted by the Compensation
Committee who (a) had an accrued benefit under the Cyanamid
SERP on December 31, 1993, or (b) the Compensation
Committee elects to grandfather status and grants an accrued
benefit under this Plan equal to the benefit the Eligible Employee
would have had under the Cyanamid SERP on December 31, 1993 if
the Eligible Employee had been a participant of the Cyanamid SERP
on such date.
1.17 “ IC Plan ”
means the existing system of annual cash bonuses payable to Company
employees pursuant to which annual target bonuses are established
based upon job levels and payments of bonuses as a percentage of
such targets are made based upon Company, business group and
individual performance.
1.18 “ Normal Retirement
Date ” means the Normal Retirement Date as defined in the
Employees’ Retirement Plan.
1.19 “ Officer ”
means those individuals elected as officers of the Company by its
Board of Directors including the Chairman, any Vice Chairman,
President, and any Vice President, Treasurer and Controller and
also including any President of any Business Unit designated as an
Officer of the Company by the Board of Directors but not including
Assistant Officers.
1.20 “ Participant
” means an Eligible Employee who becomes a Participant in the
Plan pursuant to Article II.
1.21 “ Past Service
Plan ” means the Cytec Past Service Retirement
Plan.
1.22 “ Pension
Administration Committee ” means the Pension
Administration Committee created by the Board of Directors, and any
successor thereto.
1.23 “ Pension Plan
Benefit ” means the aggregate annual retirement benefit
payable to or on account of a Participant from the Retirement
Plans.
1.24 “ Plan ”
means this Cytec Executive Supplemental Employees’ Retirement
Plan, as set forth herein, as amended from time to time.
1.25 “ Plan Benefit
” means the amount of a Participant’s annual retirement
benefit computed in accordance with the terms of this
Plan.
1.26 “ Plan Year
” means each twelve (12) consecutive month period
commencing each January 1 and ending on the following
December 31.
1.27 “ Retirement Plans
” means the Past Service Plan and the Employees’
Retirement Plan.
1.28 “ Separation from
Service ” occurs on the date that the Participant dies,
retires, or otherwise has a termination of employment with an
Employer (within the meaning of Treasury Regulation
Section 1.409A-1).
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1.29 “ SERP ”
means the Cytec Supplemental Employees’ Retirement
Plan.
1.30 “ Target ICP
” shall mean target incentive compensation under the IC Plan
applicable to the job level of such Participant, irrespective of
the amount, if any, of such compensation actually received by the
Participant, utilizing target incentive compensation as of the date
the Participant retires (in lieu of the prior September 1
rate) for purposes of determining compensation for the year of a
Participant’s termination of employment, for the year a
Participant commences Plan Benefits on account of Total and
Permanent Disability, and for any projected Years of
Service.
1.31 “ Total and Permanent
Disability ” means that a Participant is unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not les than 12 months.
1.32 “ Years of Service
” means Years of Service as defined under the
Employees’ Retirement Plan, which includes Years of Service
credited for purposes of the Past Service Plan.
1.33 For purposes of this Plan,
unless the context requires otherwise, the masculine includes the
feminine, the singular the plural, and vice-versa. Any reference to
“Section” or “Article” shall mean the
indicated section or article of this Plan unless otherwise
specified.
ARTICLE II
Participation
2.1 Election
An Eligible Employee will become a
Participant in the Plan effective as of the date the Compensation
Committee approves the election of the Eligible Employee to
participate in the Plan. A Grandfathered Participant will become a
Participant effective as of the date the Compensation Committee
approves the Eligible Employee’s election to Grandfathered
Participant status; provided , however , a
Grandfathered Participant will not accrue any benefits under this
Plan in excess of those set forth on the Grandfathered Participant
Schedule. If the Compensation Committee approves the election of a
Grandfathered Participant to participate in the Plan as a full
Participant, the Grandfathered Participant shall cease to be a
Grandfathered Participant and shall not be entitled to the benefit
set forth on the Grandfathered Participant Schedule, but shall
instead accrue benefits in accordance with the formula set forth in
Section 3.1 of the Plan for Participant who are not
Grandfathered Participants.
An employee who is hired by an
Employer on or after April 1, 2007, shall not become a
Participant in the Plan. With respect to an employee who is rehired
by an Employer on or after April 1, 2007, and was previously a
Participant in the Plan, such Participant’s service with, and
Compensation from, an Employer on or after April 1, 2007 shall
not be taken into account for purpose of determining the Plan
Benefit under Section 3.1 of the Plan.
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2.2 Change in
Control
Upon the occurrence of a Change in
Control, each Officer who is an Eligible Employee shall become,
automatically, a full Participant.
2.3 Continuance of
Participation
After an individual becomes a
Participant of this Plan, the Participant’s membership shall
continue until death, the termination of employment by the
Participant other than by retirement hereunder, the termination by
the Company of the Participant’s employment for Cause, or the
date the Participant’s Employe
