Exhibit 10.2(m)
CYTEC SUPPLEMENTAL SAVINGS
PLAN
(as amended and restated
effective January 1, 2009)
Effective as of November 1,
1994, Cytec Industries Inc. (the “ Company ”)
established the Cytec Supplemental Savings and Profit Sharing Plan.
The Cytec Supplemental Savings and Profit Sharing Plan was restated
in its entirety effective July 22, 2003, to incorporate
amendments made since the last restatement and to permit Eligible
Employees to choose the Cytec Stock Fund as a hypothetical
investment option.
The Cytec Supplemental Savings and
Profit Sharing Plan is amended and restated effective
January 1, 2009 and renamed the Cytec Supplemental Savings
Plan (the “ Plan ”). The Plan, as amended and
restated, is intended to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
the regulations thereunder and related guidance issued by the
Internal Revenue Service (“ IRS ”).
The Plan is intended to constitute
an unfunded pension plan that is maintained primarily for a select
group of management or highly compensated employees and 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
purpose of the Plan is to provide each Section 401(a)(17)
Eligible Employee and each Section 401(a)(17) Participant with
the opportunity to defer a portion of their annual Earnings and to
receive employer matching contribution, profit sharing contribution
and Transition Credits, and to provide Tax Limited Participants
with employer contribution amounts that such Tax Limited
Participants would otherwise lose under the Savings Plan as a
result of the limit on tax Limited Code Sections. The Plan is not a
qualified plan under the Code and benefits are paid by or on behalf
of the Company.
Notwithstanding anything in the Plan
to the contrary, with respect to Grandfathered Amounts, the
provisions of the Cytec Supplemental Savings and Profit Sharing
Plan, as amended July 22, 2003, and attached hereto as
Appendix B, shall apply as to the timing and form of payment, and
non-scheduled in-service distributions.
ARTICLE I
Definitions
1.1 “Account Balance”
means the sum of the Participant’s salary deferrals, matching
contributions, profit sharing contributions, Transition Credits,
employer contributions, and earnings credited thereon in accordance
with the terms of the Plan.
1.2 “Administrator”
means the Vice President of Human Resources of the Company, or any
other person or committee selected from time to time by the Board
of Directors.
1.3 “Board of Directors”
means the Board of Directors of the Company.
1.4 “Change in Control”
means:
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(a)
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For
Grandfathered Amounts, “Change in Control” means a
change in control of the Company which will be deemed to have
occurred if:
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(i)
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Any
“person,” as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than (1) the Company,
(2) any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or (3) any corporation
owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of Stock),
is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the combined
voting power of the Company’s then outstanding voting
securities; or
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(ii)
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During any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (i), (iii), or
(iv) of this Section 1.4(a)) whose election by the Board
or nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds (
2
/
3 ) of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously
so approved, cease for any reason to constitute at least a majority
thereof; or
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(iii)
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The
stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (1) a
merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving or parent entity) 50% or
more of the combined voting power of the voting securities of the
Company or such surviving or parent entity outstanding immediately
after such merger or consolidation, or (2) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no “person”
(as hereinabove defined) acquired 50% or more of the combined
voting power of the Company’s then outstanding securities;
or
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(iv)
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The
stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company’s assets
(or any transaction having a similar effect).
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2
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(b)
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For
non-Grandfathered Amounts, a Change of Control shall be deemed to
occur on the date upon which one of the following events
occurs:
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(i)
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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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(ii)
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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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(iii)
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A majority of
the directors of the Board is replaced during any 12-month period
by directors whose appointment or election is not recommended by a
majority of the directors of the Board prior to the date of the
appointment or election; or
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(iv)
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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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1.5 “Code” means the
Internal Revenue Code of 1986, as amended from time to
time.
1.6 “Company” means
Cytec Industries Inc.
1.7 “Earnings” means
earnings as defined in the Savings Plan without consideration of
the limit on earnings under Section 401(a)(17) of the Code and
without excluding any contributions to this Plan or any other
deferred compensation plan.
1.8 “Eligible Employee”
means a Section 401(a)(17) Eligible Employee or a Tax Limited
Eligible Employee.
1.9 “Employees’
Retirement Plan” means the Cytec Salaried and Nonbargaining
Employees’ Retirement Plan, as amended from time to
time.
1.10 “Employer” means
any of the Company, D’ Aircraft Products, Inc., Cytec
Engineered Materials Inc., Cytec Olean Inc., any successors
thereto, and any of the Company’s subsidiaries which adopts
the Plan with the consent of the Board of Directors.
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1.11 “Grandfathered
Amount” means that portion of a Participant’s Account
Balance that is vested as of December 31, 2004 (adjusted for
hypothetical gains and losses after such date).
1.12 “Participant” means
a Section 401(a)(17) Participant or a Tax Limited Eligible
Participant.
1.13 “Period of Service”
means a Period of Service as defined under the Savings
Plan.
1.14 “Plan” means this
Cytec Supplemental Savings Plan, as set forth herein, as amended
from time to time.
1.15 “Plan Year” means
each twelve (12) consecutive month period commencing each
January 1 and ending on the following
December 31.
1.16 “Savings Plan”
means the Cytec Employees’ Savings Plan, as amended from time
to time.
1.17 “Section 401(a)(17)
Eligible Employee” means any person employed by the Employer
whose annual rate of base pay on any December 1 plus target
bonus for the following year is equal to or greater than the limit
on earnings under Section 401(a)(17) of the Code. The
determination of whether an individual first becomes a
Section 401(a)(17) Eligible Employee during the calendar year
shall be based on the individual’s annual rate of base pay
for the remainder of the calendar year.
1.18 “Section 401(a)(17)
Participant” means a person who became a Participant pursuant
to Section 2.1(a).
1.19 “Separation from
Service” occurs on the date that the Participant dies,
retires, or otherwise has a termination of employment with the
Employer (within the meaning of Treasury Regulation
Section 1.409A-1).
1.20 “Tax Limited Code
Sections” shall mean Code sections 401(a)(17) or 415 to the
extent that such Code sections limit the benefits that may be
provided to certain Participants under the Savings Plan.
1.21 “Tax Limited Eligible
Employee” means any person employed by the Employer who is
not a Section 401(a)(17) Eligible Employee and whose
contributions or Earnings (as defined in the Savings Plan) in any
given Plan Year exceed one or more of the dollar limits under the
Tax Limited Code Sections for such Plan Year.
1.22 “Tax Limited
Participant” means a Tax Limited Eligible Employee who
becomes a Participant pursuant to Section 2.1(b).
1.22 “Totally and Permanently
Disabled” 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 less than 12 months.
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1.23 “Transition
Credits” shall have the same meaning as such term has under
the Savings Plan.
1.24 “Valuation Date”
means each day on which the New York Stock Exchange is open for the
trading of securities.
1.25 “Unforeseeable
Emergency” means Unforeseeable Emergency as defined in
Article IX of the Plan.
1.26 For purposes of the Plan,
unless the context requires otherwise, the singular includes the
plural, and vice-versa. Any reference to a “Section” or
“Article” shall mean the indicated section or article
of the Plan unless otherwise specified.
ARTICLE II
Participation
2.1 Election.
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(a)
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A
Section 401(a)(17) Eligible Employee shall become a
Participant effective as of the date a profit sharing contribution
is credited to the Section 401(a)(17) Eligible
Employee’s account pursuant to Article IV or the
Section 401(a)(17) Eligible Employee elects to defer a portion
of Earnings to the Plan pursuant to Article III, provided that the
employee has been designated as a Section 401(a)(17) Eligible
Employee by the Administrator.
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(b)
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A Tax Limited
Eligible Employee shall become a Participant effective as of the
date an employer contribution is credited to the Tax Limited
Eligible Employee’s account pursuant to Article IV, provided
that the employee has been designated as a Tax Limited Eligible
Employee by the Administrator.
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2.2 Continuance of
Participation. After an Eligible Employee becomes a Participant
of the Plan, the Eligible Employee shall continue to be an active
Participant in the Plan until the first to occur of the following:
(i) such Participant’s death, (ii) termination of
such Participant’s employment, (iii) such
Participant’s Employer ceases to be a member of the
controlled group of corporations which includes the Company, or
(iv) the Administrator determines that such Participant is no
longer eligible to participate in the Plan. Notwithstanding the
foregoing, termination of active participation in the Plan shall
not affect the Eligible Employee’s right to be credited with
any matching, profit sharing contributions and Transition Credits
to be made with respect to any period of employment while an
Eligible Employee under the Plan.
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ARTICLE III
Savings Deferrals
3.1 Deferral Election. With
respect to Plan Years beginning after December 31, 2008, prior
to the commencement of each Plan Year, a Section 401(a)(17)
Participant may elect to defer up to (a) an amount equal to
(25 minus X)% of Earnings (excluding bonus that is earned during
such Plan Year); and (b) an amount equal to 25% of the
Participant’s bonus that is earned during such Plan Year.
Such deferral limits shall be applied on a per payroll basis. The
term “X” shall equal 100 times the amount obtained by
dividing (i) the applicable dollar limit under
Section 402(g) of the Code for such Plan Year, by
(ii) the applicable dollar limit under Section 401(a)(17)
of the Code for such Plan Year, rounded up to the next whole
number.
A Section 401(a)(17) Eligible
Employee may submit an initial deferral election with respect to
the Plan to the Administrator within thirty (30) days of the
date that such Eligible Employee became an Eligible Employee. A
Section 401(a)(17) Participant may not modify a deferral
election during the Plan Year. If a Participant takes a hardship
withdrawal from the Savings Plan which subjects the
Section 401(a)(17) Participant to the requirement that
elective deferrals to all plans maintained by the Employer be
discontinued, the Section 401(a)(17) Participant’s
deferral election will be treated as revoked under the Plan for the
entire Plan Years that include the applicable six-month suspension
period.
3.2 Matching Contribution.
Each Section 401(a)(17) Participant shall receive a matching
contribution under this Plan equal to the amount of the matching
contribution that would have been made on the
Section 401(a)(17) Participant’s behalf under the
Savings Plan without giving effect to contributions to either this
Plan or any other deferred compensation plan but for the imposition
of the limit imposed for that Plan Year under the Tax Limited Code
Sections, minus the amount of the employer matching contributions
made to Section 401(a)(17) Participants under the Savings Plan
for that Plan Year. In no event shall matching contributions under
this Plan exceed the amount that is deferred by such Participant
for that Plan Year pursuant to the Plan. The matching contribution
shall be payable at an administratively convenient time subsequent
to the Plan Year, or Separation from Service, if earlier, and shall
not be entitled to any interest.
ARTICLE IV
Profit Sharing Contributions and
Transition Credits
4.1 Profit Sharing
Contributions . Each Section 401(a)(17) Participant and
each Section 401(a)(17) Eligible Employee shall receive a
profit sharing contribution with respect to each payroll period
equal to the amount of the profit sharing contribution that would
have been made on the Section 401(a)(17) Eligible
Employee’s behalf under the Savings Plan but for the
imposition of the limits under the Tax Limited Code Sections less
the amount of profit sharing contributions that such
Section 401(a)(17) Eligible Employee actually receives in the
Savings Plan with respect to that payroll period.
4.2 Transition Credits . Each
Section 401(a)(17) Participant shall receive Transition
Credits with respect to each payroll period equal to the amount of
the Transition Credits that
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would have been made on the
Section 401(a)(17) Participant’s behalf under the
Savings Plan but for the imposition of the limits under the Tax
Limited Code Sections less the amount of transition credits that
such Section 401(a)(17) Eligible Employee actually receives in
the Savings Plan with respect to that payroll period.
4.3 Employer Contributions on
behalf of Tax Limited Eligible Employees . Each Tax Limited
Eligible Employee shall receive an employer contribution after the
end of the Plan Year, or Separation from Service, if earlier, equal
to the amount of matching contributions, transition credits and
profit sharing contributions that the Tax Limited Eligible Employee
would have received under the Savings Plan but for the imposition
of the limits under the Tax Limited Code Sections less the amount
of employer matching contributions, transition credits and profit
sharing contributions that such Tax Limited Eligible Employee
actually receives in the Savings Plan with respect to such Plan
Year. Such matching amount shall be based on the average of the Tax
Limited Eligible Employee’s deferral elections under the
Savings Plan during the period January 1 through the date the
Tax Limited Eligible Employee reaches any one of the limitations in
the Tax Limited Code Sections.
ARTICLE V
Participant
Accounts
5.1 Establishment; Crediting of
Amounts Deferred . An account will be established for each
Section 401(a)(17) Participant to reflect the amount credited
to a Section 401(a)(17) Participant as a deferral pursuant to
Section 3.1 of the Plan on the approximate date on which such
amounts would have been paid to the Section 401(a)(17)
Participant but for the Section 401(a)(17) Participant’s
election to defer receipt hereunder, as well as the amount of
matching contribution, profit sharing contribution and Transition
Credits which is credited to the Section 401(a)(17)
Participant’s hypothetical Account Balance pursuant to
Section 3.2 of the Plan and Article IV of the Plan,
respectively.
A
