Exhibit 10.52
KOPPERS INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN II
Amended and Restated as
of
January 1,
2009
TABLE OF CONTENTS
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Page
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ARTICLE I
GENERAL
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1
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Section 1.1
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Effective Date; Grandfathered
Benefits
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1
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Section 1.2
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Intent
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1
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ARTICLE II
DEFINITIONS AND USAGE
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2
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Section 2.1
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Definitions
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2
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Section 2.2
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Usage
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5
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ARTICLE III
ELIGIBILITY AND PARTICIPATION
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6
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Section 3.1
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Eligibility
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6
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Section 3.2
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Participation
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6
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Section 3.3
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Plan
Frozen
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6
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ARTICLE IV
RETIREMENT BENEFITS
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7
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Section 4.1
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Normal
Retirement Benefit
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7
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Section 4.2
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Early
Retirement Benefit
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8
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Section 4.3
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Termination of Employment
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9
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Section 4.4
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Disability
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9
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Section 4.5
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Death
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9
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Section 4.6
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Vesting and Forfeiture of Retirement
Benefit
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9
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ARTICLE
V PAYMENT OF RETIREMENT BENEFITS
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11
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Section 5.1
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Distribution of Retirement Benefits
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11
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Section 5.2
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Designation of Beneficiary
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12
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ARTICLE
VI CHANGE IN CONTROL
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13
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Section 6.1
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“Change in Control”
Defined
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13
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Section 6.2
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Vesting Upon Change in Control
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13
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ARTICLE VII
ADMINISTRATION
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14
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Section 7.1
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General
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14
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Section 7.2
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Administrative Rules
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14
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Section 7.3
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Duties
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14
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Section 7.4
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Fees
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14
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ARTICLE VIII
CLAIMS PROCEDURE
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15
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Section 8.1
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General
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15
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Section 8.2
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Denials
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15
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Section 8.3
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Notice
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15
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Section 8.4
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Appeals Procedure
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15
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Section 8.5
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Review
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15
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Section 8.6
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Arbitration of Disputes
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16
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TABLE OF CONTENTS
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Page
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ARTICLE IX
MISCELLANEOUS PROVISIONS
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17
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Section 9.1
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Amendment and Termination
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17
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Section 9.2
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No
Assignment
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17
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Section 9.3
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Successors and Assigns
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17
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Section 9.4
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Governing Law
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17
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Section 9.5
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No
Guarantee of Employment
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17
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Section 9.6
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Severability
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17
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Section 9.7
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Notification of Addresses
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17
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Section 9.8
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Bonding
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18
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Section 9.9
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Taxes
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18
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Section 9.10
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Compliance with Section 409A
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18
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ARTICLE
X FUNDING
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19
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Section 10.1
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Employer Liability
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19
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Section 10.2
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Unfunded Plan
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19
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Section 10.3
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Trust
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ii
KOPPERS INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN II
PREAMBLE
Koppers Inc. (the
“Company”) recognizes that the Internal Revenue Service
limitations on compensation that may be taken into account for
purposes of determining retirement benefits under a retirement plan
qualified under Section 401(a) of the Internal Revenue Code
may prevent some key employees from realizing sufficient benefits
from the Company’s qualified retirement plan. The purpose of
the Koppers Inc. Supplemental Executive Retirement Plan II
(formerly named the Koppers Industries, Inc. Supplemental Executive
Retirement Plan II) is to acknowledge and reward certain key
employees of the Company for their efforts on behalf of the Company
by providing additional post employment income to such key
employees in order to facilitate their attainment of adequate
levels of retirement income.
ARTICLE I
GENERAL
Section 1.1 Effective
Date; Grandfathered Benefits . The original effective date of the Plan was
December 1, 1997. The Plan, as hereby amended and restated,
shall be effective as of January 1, 2009. The Plan as amended
and restated applies only to a Participant’s Retirement
Benefit that accrued on or after January 1, 2005, or
Retirement Benefit that accrued prior to that date but was not
fully vested on December 31, 2004. The Plan preceding this
amendment and restatement applies to any Retirement Benefit that
accrued and was vested prior to January 1, 2005
(“Grandfathered Benefits”); provided that any increase
in the value of any subsidy with respect to Grandfathered Benefits
payable upon retirement prior to the Retirement Plan’s Normal
Retirement Date that accrues or increases as the result of service
after December 31, 2004, shall not be treated as Grandfathered
Benefits. The rights, if any, of any person whose status as an
employee of an Employer has terminated shall be determined pursuant
to the Plan as in effect on the date such employee terminated,
unless a subsequently adopted provision of the Plan is made
specifically applicable to such person.
Section 1.2
Intent . The Plan
is intended to be an unfunded plan maintained primarily for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees, as such group is
described under Section 201(2), 301(a)(3), and 401(a)(1) of
ERISA. Benefits provided under this Plan shall be funded solely
from the general assets of the Employer and no participant or
beneficiary hereunder shall have any interest or right to such
assets.
1
ARTICLE II
DEFINITIONS AND
USAGE
Section 2.1
Definitions .
Wherever used in the Plan, the following words and phrases shall
have the meaning set forth below unless the context plainly
requires a different meaning:
“ Actuarial Equivalent
” means a benefit having the same actuarial value as the
benefit it replaces, determined using the same assumptions and
methods as are used for determining an actuarial equivalent benefit
under the Retirement Plan.
“ Accumulated Service
” means Accumulated Service as defined in the Retirement
Plan.
“ Administrator ”
means the Pension Committee appointed by the Board, or such other
person or persons as designated by the Board.
“ Board ” means
the Board of Directors of the Company.
“ Change in Control
” means a change in the ownership or control of the Company,
as defined in Section 6.1.
“ Code ” means
the Internal Revenue Code of 1986, as amended from time to time.
Any reference to a particular Code section shall include any
provision which modifies, replaces or supersedes it.
“ Company ” means
Koppers Inc and any successor entity, and any entity that acquires
ownership or control of Koppers Inc. or any successor
entity.
“ Disability ” or
“ Disabled ” means a physical or mental
condition of a Participant resulting from a bodily injury, disease,
or mental disorder which renders him incapable of continuing in the
employment of the Employer. Such Disability shall be determined by
the Administrator, in its sole and complete discretion, based upon
appropriate medical advice and examination, and taking into account
the ability of the Participant to continue in his or her same or
similar, position with the Employer.
“ Early Retirement Date
” means the date on which a Participant retires from
employment with the Employer after becoming eligible for an early
retirement benefit under the Salaried Plan thereunder by reason of
having (1) reached the age of 60 and completed 25 years of
Accumulated Service, or (2) reached the age of 55 and
completed 10 years of Accumulated Service, or (3) in the case
of a Participant who has been Involuntarily Terminated on or after
January 1, 1998 (other than a Participant who has ceased to be
an active employee performing his or her normal job function but
who is accruing benefits pursuant to a severance arrangement or
employment contract with the Company), completed 30 years of
Accumulated Service.
“ Employer ”
means the Company and any other entity related to the Company in a
manner described in Sections 414(b), (c), (m) or (o) of
the Code.
2
“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as amended
from time to time. Any reference to a particular ERISA section
shall include any provision which modifies, replaces, or supersedes
it.
“ Final Average Pay
” means, with respect to any Participant, the sum of the
following amounts: (i) the highest monthly base salary
(excluding bonuses and other variable payments) paid in his or her
last sixty (60) calendar months of full-time employment with
the Employer multiplied by twelve (12); provided ,
however , that if a Participant has fewer than sixty
(60) calendar months of full-time employment with the
Employer, there shall be used in this clause the average of his or
her regular base salary (excluding bonuses and other variable
payments) during all of his or her calendar months of full-time
employment with the Employer; plus (ii) the average
incentive payment made for the last five (5) years of
employment.
“ Involuntarily
Terminated ” means any termination of a
Participant’s employment with an Employer by reason of the
discharge, firing or other involuntary termination of the
Participant’s employment by action of such Employer, other
than a Termination for Cause (as determined in good faith by the
Administrator).
“ Normal Form ”
means the normal form of distribution of the Participant’s
Retirement Plan Benefit (i.e., a single life annuity for an
unmarried Participant or a joint and 50% survivor annuity for a
married Participant).
“ Normal Retirement Age
” means the age 65, or such other age that is defined from
time to time as the normal retirement age under the Retirement
Plan.
“ Normal Retirement
Date ” means the date on which a Participant attains the
Normal Retirement Age.
“ Participant ”
means an eligible employee of an Employer who is participating in
the Plan in accordance with Section 3.2.
“ Plan ” means
the Koppers Inc. Supplemental Executive Retirement Plan II, as set
forth herein and as it may be amended from time to time.
“ Plan Year ”
means the calendar year.
“ Qualified Plan
” means the Retirement Plan and any other defined benefit
pension plan(s) (within the meaning of Section 414(j) of the
Code) intended to be qualified under Section 401(a) of the
Code adopted and maintained by the Employer that provides benefits
to Participants in this Plan.
“ Qualified Plan
Benefit ” means the annuity annual equivalent benefit,
expressed in the form of the annuity payable to a Participant under
Section 5.1 hereof, that can be derived from the Qualified
Plan. The determination of such annuity annual equivalent benefit
shall be made
3
using the mortality table that is in effect at
such time for the Retirement Plan, an interest rate equal to the
interest rate used under FAS 87 for the Retirement Plan for the
previous year, and a commencement age under the Qualified Plan that
is the same age at which the Retirement Benefit is to commence
hereunder, in accordance with procedures established by the
Administrator.
“ Retirement Benefit
” means the benefit payable under this Plan, as determined
under Article IV.
“ Retirement Plan
” means the Retirement Plan for Koppers Inc., as subsequently
amended and restated from time to time hereafter.
“ Retirement Plan
Benefit ” means the benefit payable to a Participant
under the Retirement Plan.
“ Separation from
Service ” means a Participant’s separation from
service with the Employer within the meaning of Section 409A
of the Code. A Separation from Service occurs when the facts and
circumstances indicate that the Employer and the Participant
reasonably anticipate that no further services would be performed
after a certain date or that the level of services the Participant
would perform after such date would permanently decrease to no more
than 20% of the average level of services performed over the
immediately preceding 36-month period (or, if shorter, the entire
period of the Participant’s employment with the
Employer).
“ Social Security
Benefit ” means the annual benefit payable under the
Social Security Act at the Participant’s Social Security
Retirement Age, relating to Old-Age and Disability benefits,
determined under the provisions of the Social Security Act in
effect on the date of a Participant’s Separation from
Service. The Social Security Benefit will be calculated assuming
that a Participant will not receive any future income that would be
treated as wages for purposes of such Act, except that in the case
of any deferred vested Retirement Benefit payable under
Section 4.3, the Social Security Benefit will be calculated
assuming that the Participant will receive the maximum amount of
future income that would be treated as wages for purposes of the
Social Security Act from the date of his or her Separation from
Service until the Social Security Retirement Age.
“ Social Security Normal
Retirement Age ” means the age used as the retirement age
under Section 216(1) of the Social Security Act, as
amended.
“ Specified Employee
” has the meaning set forth in Section 1.409A-1(i) of
the Treasury Regulations issued under Section 409A of the
Code.
“ Termination for Cause
” means the termination of a Participant’s employment
due to (a) the willful and continued failure by the
Participant to substantially perform his or her duties of
employment (other than any such failure resulting from incapacity
due to physical or mental illness) or any such actual or
anticipated failure after the issuance of a notice of termination,
after a written demand for substantial performance is delivered to
the Participant by the Board, which
4
demand specifically identifies the manner in
which the Board believes that the Participant has not substantially
performed his or her duties, and the Participant is given a
reasonable opportunity to remedy such identified failure to
perform, or (b) the willful engaging by the Participant in
conduct which is demonstrably and materially injurious to the
Employer, monetarily or otherwise. For purposes of this definition,
no act or failure to act, shall be deemed “willful”
unless done, or omitted to be done, not in good faith and without
reasonable belief that such action or omission was in the best
interest of the Employer.
Notwithstanding the foregoing, a
Participant shall not be considered to have been terminated for
cause unless there is delivered to the Participant a copy of a
resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) of the entire membership of the Board at
a meeting of the Board called and held for such purpose (after
reasonable notice to the Participant and an opportunity for the
Participant, with legal counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, the
Participant was engaged in the type of conduct set forth above in
this definition, which specifies particular details and examples of
such conduct.
“ Years of Service
” means the total number of years of “credited
service” (as defined in the Retirement Plan) credited to a
Participant under the Retirement Plan. In no event shall more than
thirty-five (35) years be credited to any Participant,
regardless of his or her actual period of service with the Employer
or the number of years of credited service accumulated by the
Participant under the Retirement Plan. At the discretion of the
Administrator, Participants may be granted additional Years of
Service that relate to employment with another employer for
purposes of determining Retirement Benefits under this Plan, upon
such terms and conditions as the Administrator may require (which
conditions may include, but not be limited to, completion of a
period of future service with the Employer and reducing the
Participant’s Retirement Benefit hereunder by the pension
benefits provided by such other employer).
Section 2.2
Usage . Except
where otherwise indicated by the context, any masculine terminology
used herein shall also include the feminine and vice versa, and the
definition of any term herein in the singular shall also include
the plural and vice versa.
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ARTICLE III
ELIGIBILITY AND
PARTICIPATION
Section 3.1
Eligibility . An
employee of an Employer shall be eligible to participate in the
Plan if he or she is (i) an elected corporate officer of the
Employer and agrees to enter into a non-compete, non-solicitation
confidentiality agreement or (ii) a senior manager of the
Employer who has been selected for participation in this Plan and
agrees to enter into a non-compete, non-solicitation
confidentiality agreement and who is participating in the
Retirement Plan; provided, however, that any such employee shall be
eligible to participate only to the extent, and for the period,
that he or she is a member of a select group of management or
highly compensated employees, as such group is described under
Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA. The Board shall
make all determinations of eligibility in its sole and absolute
discretion.
Section 3.2
Participation . An
employee who is eligible to participate in the Plan pursuant to
Section 3.1 as an elected corporate officer of the Employer
and who is participating in the Retirement Plan shall automatically
become a Participant upon election to such office and the execution
of a non-compete, non-solicitation confidentiality agreement. Each
other employee who is eligible to participate in the Plan pursuant
to Section 3.1 shall become a Participant at such time and for
the period as he or she is designated as eligible by the Board or,
if no such period is specified, until his or her participation
ceases in accordance with the terms of the Plan.
Section 3.3
Plan Frozen .
Notwithstanding the foregoing, no employee shall become eligible to
participate in this Plan after December 31, 2006, and the
Retirement Benefit of any Participant in the Plan as of
December 31, 2006, was frozen on such date and will not
thereafter increase.
6
ARTICLE IV
RETIREMENT
BENEFITS
Section 4.1 Normal
Retirement Benefit .
(a) Eligibility and
Commencement . Subject to Section 4.6(b), a
Participant who retires from employment with the Employer on or
after his or her Normal Retirement Date shall receive a Retirement
Benefit, determined in accordance with Section 4.1(b), which
shall commence to be paid after the Participant’s retirement
from the Employer becomes effective. The time and form of payment
of the Retirement Benefit shall be determined in accordance with
Section 5.1.
(b) Amount . The
Retirement Benefit for a Participant who retires on or after his or
her Normal Retirement Date shall be an annual amount, payable in
the form specified under Section 5.1 that is equal to the
following:
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(1)
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The
product of the following amounts:
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(A)
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two
percent (2%) of such Participant’s Final Average Pay
multiplied by
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(B)
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his
or her Years of Service (not in excess of thirty-five
(35) years);
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(2)
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Reduced
by the following amounts:
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(A)
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the
Qualified Plan Benefit;
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(B)
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the
annuity annual equivalent benefit, expressed in the form of the
annuity payable to a Participant under Section 5.1 hereof,
payable under any other nonqualified retirement plan maintained
by
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