|
Exhibit 10.24
SUPPLEMENTARY PENSION PLAN
OF
AIR PRODUCTS AND CHEMICALS, INC.
AS AMENDED AND RESTATED
EFFECTIVE JANUARY 1, 2005
TABLE OF
CONTENTS
|
|
|
|
|
|
|
ARTICLE 1 PURPOSE OF THE PLAN
|
|
|
2
|
|
|
Section 1.1
|
|
|
2
|
|
|
ARTICLE 2 DEFINITIONS
|
|
|
2
|
|
|
Section 2.1
|
|
|
2
|
|
|
Section 2.3
|
|
|
6
|
|
|
ARTICLE 3 BENEFITS
|
|
|
7
|
|
|
Section 3.1 Eligibility and
Vesting
|
|
|
7
|
|
|
Section 3.2 Amount of Benefits
|
|
|
7
|
|
|
Section 3.3 Employee Compensation
|
|
|
7
|
|
|
Section 3.4 Allocation of Incentive
Compensation
|
|
|
8
|
|
|
Section 3.5 Payment of Benefits
|
|
|
8
|
|
|
Section 3.6 Optional Forms of Retirement
Benefit
|
|
|
10
|
|
|
Section 3.6A Election of Benefit
Form Prior to 1 October 2006
|
|
|
11
|
|
|
Section 3.7 Election of Benefit Form On
or After 1 October 2006
|
|
|
13
|
|
|
Section 3.8 Pre-Retirement Spousal
Benefits
|
|
|
13
|
|
|
Section 3.9 Small Benefit Payment
Procedures
|
|
|
14
|
|
|
Section 3.10 Change in Control
|
|
|
15
|
|
|
ARTICLE 3A SPECIAL SUPPLEMENTAL
BENEFITS
|
|
|
15
|
|
|
ARTICLE 4 ADMINISTRATION
|
|
|
17
|
|
|
Section 4.1 Plan Administration and
Interpretation
|
|
|
17
|
|
|
Section 4.2 Claim and Appeal
Procedure
|
|
|
17
|
|
|
ARTICLE 5 FUNDING
|
|
|
19
|
|
|
Section 5.1 Benefits Unfunded
|
|
|
19
|
|
|
Section 5.2 Non-Qualified Plan
|
|
|
20
|
|
|
Section 5.3 ERISA
|
|
|
20
|
|
|
ARTICLE 6 AMENDMENT AND TERMINATION
|
|
|
20
|
|
|
Section 6.1 Amendment and
Termination
|
|
|
20
|
|
|
Section 6.2 Contractual
Obligations
|
|
|
21
|
|
|
Section 6.3 No Employment Rights
|
|
|
21
|
|
|
ARTICLE 7 GENERAL PROVISIONS
|
|
|
22
|
|
|
Section 7.1 Non-alienation of
Benefits
|
|
|
22
|
|
|
Section 7.2 Minor or Incompetent
|
|
|
22
|
|
|
Section 7.3 Payee Unknown
|
|
|
23
|
|
|
Section 7.4 Illegal or Invalid
Provision
|
|
|
23
|
|
|
Section 7.5 Governing Law and
Headings
|
|
|
23
|
|
|
Section 7.6 Liability Limitation
|
|
|
23
|
|
|
Section 7.7 Notices
|
|
|
24
|
|
|
Section 7.8 Entire Agreement
|
|
|
24
|
|
|
Section 7.9 Binding Effect
|
|
|
24
|
|
ii
Exhibit 10.24
SUPPLEMENTARY PENSION PLAN
OF
AIR PRODUCTS AND CHEMICALS, INC.
Amended and Restated Effective January 1,
2005
WHEREAS , Air Products and
Chemicals, Inc. did, effective October 1, 1978, establish a
Supplementary Retirement Plan for those of its employees eligible
to participate therein, which Plan was thereafter amended from time
to time, and was amended, restated and renamed the Supplementary
Pension Plan of Air Products and Chemicals, Inc. as of
October 1, 1988, and was thereafter amended, inter alia
, as of 20 September 1995, 1 October 1995, 1
January 1996, 16 September 1999, and 20
September 2000 and amended and restated as of 1
May 2003;
WHEREAS , Air Products and
Chemicals, Inc. now wishes to make certain revisions in the Plan
and to restate said Plan in its entirety;
NOW, THEREFORE , the
Supplementary Pension Plan of Air Products and Chemicals, Inc. is
hereby amended and restated in its entirety as follows, effective
as of 1 January 2005; and the said Supplementary Pension Plan,
as so revised and restated, shall apply only to an Employee whose
Separation from Service occurs on or after 1 January 2005,
except as otherwise provided. The Plan is further amended,
effective January 1, 2006, to comply with Section 409A of
the Code and regulations thereunder applicable to nonqualified
deferred compensation plans. The rights and benefits, if any, of a
former employee shall be determined in accordance with the
provisions of the Plan in effect on the date his Separation from
Service occurred, except as otherwise provided.
ARTICLE
1
PURPOSE OF THE PLAN
Section 1.1 This Plan
is established to provide supplementary retirement income benefits
to a certain select group of management or highly compensated
persons in the employ of Air Products and Chemicals, Inc. and
participating subsidiaries. It thereby supplements the benefits
payable to such persons under the Air Products and Chemicals, Inc.
Pension Plan for Salaried Employees.
ARTICLE 2
DEFINITIONS
Section 2.1 As used
herein, the following terms shall have the following meanings,
unless the context clearly indicates otherwise.
"Accrued Benefit" shall
mean, in the case of an Employee, a monthly retirement benefit for
the life of the Employee that such Employee would receive,
commencing at his Normal Retirement Date, in an amount determined
under Section 3.2 hereof based on his Credited Service,
Average Compensation and benefit payable under the Salaried Pension
Plan as of the date such Accrued Benefit is being determined.
"Annual Incentive Plan"
shall mean the Air Products and Chemicals, Inc. 1997 Annual
Incentive Plan adopted by the Company’s stockholders, as it
may be amended from time to time.
"Annuity Starting Date"
shall mean the first day of the first period for which a benefit
under Section 3.1 will be paid as an annuity or, in the case
of a benefit not paid in the form of an annuity, the date of
payment; provided that, in
2
the case of a former Key
Employee described in Section 3.5(b), the Annuity Starting
Date shall be determined as if the Employee’s benefit
distribution was not delayed in accordance with
Section 3.5.
"Average Compensation"
shall have the meaning set forth in Section 3.3 hereof.
"Board" shall mean the
board of directors of the Company or any Committee thereof acting
on behalf of the Board pursuant to its Charter or other delegation
of power from the Board or the Chairman of the Board acting
pursuant to a delegation of authority from the Board.
"Change in Control" shall
mean the first to occur of any one of the events described
below:
(i) Stock Acquisition. Any
"person", as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934 (the "Act"), other than the
Company or a corporation whose outstanding stock entitled to vote
is owned in the majority, directly or indirectly, by the Company,
or a trustee of an employee benefit plan sponsored solely by the
Company and/or such a corporation, is or becomes, other than by
purchase from the Company or such a corporation, the "beneficial
owner" (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company representing
35% or more of the combined voting power of the Company’s
then outstanding voting securities. Such a Change in Control shall
be deemed to have occurred on the first to occur of the date
securities are first purchased by a tender or exchange offeror, the
date on which the Company first learns of acquisition of 35% of
such securities,
3
or the later of the effective
date of an agreement for the merger, consolidation or other
reorganization of the Company or the date of approval thereof by a
majority of the Company’s shareholders, as the case may
be.
(ii) Change in Board. During
any 12-month period, individuals who at the beginning of such
period were members of the Board cease for any reason to constitute
at least a majority of the Board, unless the election or nomination
for election by the Company’s shareholders of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning
of the period. Such a Change in Control shall be deemed to have
occurred on the date upon which the requisite majority of directors
fail to be elected by the shareholders of the Company.
(iii) This provision shall in
all cases be interpreted to comply with the requirements of Code
Section 409A, as amended.
"Committee" shall mean the
Company’s Benefits Committee or other Committee designated to
hear appeals under the Plan in accordance with the provisions of
Article 4 hereof.
"Company" shall mean Air
Products and Chemicals, Inc. and any successor thereto by merger,
purchase or otherwise.
"Compensation" shall have
the meaning set forth in Section 3.3 hereof.
"Effective Date" shall
mean, as to the Company, October 1, 1978, and as to any other
Employer, the date as of which the Salaried Pension Plan initially
becomes effective for Employees of the Employer.
4
"Employee" shall mean any person who is employed by an
Employer on a regular salaried basis on or after the Effective Date
of the Plan applicable to such Employer, who participates or
participated in the Salaried Pension Plan as an "Employee" as
defined therein, and who has been granted Incentive Compensation by
an Employer for and in respect of any fiscal year of the Company or
part thereof during such person’s most recent 120 months
of employment or such Employee’s period of employment by an
Employer, if less than 120 months.
"Employer" shall mean the
Company and/or any Participating Employer either collectively or
separately as the context requires.
"Incentive Compensation"
shall mean a bonus award of stock and/or cash paid on a current
basis by an Employer pursuant to the Annual Incentive Plan upon or
following the conclusion of the Company’s fiscal year to
which such award relates and/or a bonus award of stock and/or cash,
the payment of which was deferred under the terms of the Annual
Incentive Plan.
"Key Employee" shall mean
any Employee or former Employee (not including a beneficiary of
either in the event that such Employee or former Employee is
deceased) who at any time during a Plan Year is in salary grade 217
or above or the equivalent grade in any future grade structure of
the Company where such grade indicates status as an officer. The
determination of whether an employee is a Key Employee shall be
made consistent with final regulations promulgated under Code
Section 409A and procedures developed by the Plan
Administrator.
"Participating Employer"
shall mean each Affiliated Company, some or all of whose employees
are participating in the Salaried Pension Plan as
5
"Employees" as defined therein,
and have also received awards under the Annual Incentive
Plan.
"Plan" shall mean the
"Supplementary Pension Plan of Air Products and Chemicals, Inc." as
set forth herein and as amended from time to time.
"Plan Administrator" shall
mean the Company’s Director of Compensation and Benefits
prior to February 1, 2006 and, thereafter, the Vice President
– Human Resources, or such other person or entity as the Vice
President – Human Resources shall appoint to fill such
role.
"Plan Year" shall mean the
annual period beginning on October 1 and ending on
September 30. A Plan Year shall be designated according to the
calendar year in which such Plan Year ends (e.g., the 2006 Plan
Year refers to the Plan Year beginning on October 1, 2005 and
ending on September 30, 2006).
"Salaried Pension Plan"
shall mean the "Air Products and Chemicals, Inc. Pension Plan for
Salaried Employees" as amended from time to time.
Section 2.2 As used
herein, the terms "Credited Service," "ERISA," "Employee,"
"Retire," "Retired," or "Retirement" and "Separate," "Separated" or
"Separation from Service," and, except as specifically provided in
this Article, all other capitalized terms, shall have the same
meanings as in the Salaried Pension Plan, unless the context
clearly indicates otherwise.
Section 2.3 The
masculine pronoun whenever used herein shall include the feminine.
The singular shall include the plural and the plural shall include
the singular whenever used herein, unless the context otherwise
requires.
6
ARTICLE
3
BENEFITS
Section 3.1 Eligibility
and Vesting. Subject to Sections 5.1 and 6.2, an Employee
shall be entitled to receive benefits under this Plan if such
person shall be entitled to receive a benefit under the Salaried
Pension Plan. Benefits under this Plan shall be calculated in
accordance with Section 3.2 hereof and shall be subject to the
limitations herein provided.
Section 3.2 Amount of
Benefits. The amount of the benefit to be paid to an Employee
or any other person entitled to receive a benefit hereunder shall
be equal to the amount of the benefit such person would have
received under the Salaried Pension Plan (without regard to the
limitations under Sections 401(a)(17), and 415 of the Internal
Revenue Code) if such benefit were calculated using Average
Compensation calculated pursuant to Section 3.3 hereof, and
then reduced by the amount of the actual benefit payable to such
person under the Salaried Pension Plan. The normal form of benefit
under Section 4.1 of the Salaried Pension Plan shall be
employed as the basis for making computations under this
Section 3.2 in order to insure the attaining for such purpose
of equivalency between the various forms of benefits provided by
the Salaried Pension Plan and this Plan, regardless of whether an
optional form of benefit has been selected under Article V of
the Salaried Pension Plan and/or under Section 3.6 of this
Plan.
Section 3.3 Employee
Compensation. For purposes of computing an Employee’s
benefit in accordance with Section 3.2 hereof, the
Employee’s Average Compensation shall be the monthly average
of the Compensation of the Employee for the 36 consecutive months
(or total consecutive months if he or she was employed by an
Employer for less than 36 months) in which his Compensation
was the highest during the 120 months nearest preceding
his
7
Separation from Service (or
during the total period of employment if he or she was employed by
an Employer less than 120 months). For this purpose, an
Employee’s Compensation for any period shall be equal to the
sum of (a) his "Compensation" for such period as defined in
Article I of the Salaried Pension Plan, provided that no
limitation based on Code Section 401(a)(17) shall apply,
(b) one hundred percent (100%) of the Employee’s
Incentive Compensation allocated to such period in accordance with
Section 3.4 hereof and (c) one hundred percent (100%) of
the amount of annual salary deferred by the Employee under the Air
Products and Chemicals, Inc. Supplementary Savings Plan on or
before September 1, 2006 and the Air Products and Chemicals,
Inc. Deferred Compensation Plan thereafter, which amount, but for
such deferral election, would have been received by the Employee as
annual salary during such period.
Section 3.4 Allocation of
Incentive Compensation. For the purpose of computing the
Employee’s Compensation in accordance with Section 3.3
hereof, all Incentive Compensation shall be allocated to the period
for which the Incentive Compensation was awarded to the Employee by
the Employer, notwithstanding actual distribution of the Incentive
Compensation at a later time. The total dollar value of Incentive
Compensation awards shall be allocated in equal amounts to each
month of the period for which the award was made.
Section 3.5 Payment of
Benefits.
|
|
(a)
|
|
Benefits shall be payable under the Plan under
the same terms and conditions, and at such time or times, as a
corresponding benefit is payable to the Employee or such other
person entitled thereto under the Salaried Pension Plan; provided
that, an Employee who Separates from Service prior to Retirement
shall not be permitted to commence payment of benefits until
attaining age fifty five (55) except as provided for small
benefits in Section 3.9. Payment of benefits will commence
only upon the Employee’s proper
|
8
| |
|
|
|
|
application therefore, except for small benefits
as described in Section 3.9(a). For benefit payments
commencing before 1 October 2006, benefits shall be paid in
the Primary Form of Benefit as determined in Section 5.2 of
the Salaried Pension Plan, unless the Employee shall elect to have
an optional form of benefit in accordance with the provisions of
Section 3.6A hereof. For benefit payments commencing on or
after 1 October 2006, benefits shall be paid in a lump sum
form of benefit described in Section 3.6(b) below unless the
Employee shall elect to have an optional form of benefit in
accordance with the provisions of Section 3.7 hereof in which
case, the benefit shall be paid in the same form of benefit as that
elected in the Salaried Pension Plan. All payments of benefits
shall be subject to Federal income and such other tax withholding
as required by applicable law.
|
|
|
|
|
|
|
|
(b)
|
|
Notwithstanding the above, a distribution to a
Participant who at the time of his or her Separation from Service
is a Key Employee shall not be made or commence before the later of
the date which is six months after the occurrence of such
Separation from Service or the first day of the Fiscal Year
following his or her Separation from Service (or, if earlier, the
date of death of such Key Employee). If the form of benefit elected
by such Key Employee is a lump sum, such lump sum shall be
increased to reflect the delayed payment in accordance with the
Plan Administrator’s procedures for such adjustments, and if
the form of benefit is an annuity, the Key Employee will receive,
on the delayed payment date, all payments that would have been made
during the period of delay, adjusted for the delay in accordance
with the Plan Administrator’s procedures for such
adjustments. The discount rate as it would have applied on the
Annuity Starting Date shall be used to adjust the delayed
distributions to Key Employees.
|
9
Section 3.6 Optional Forms of Retirement
Benefit.
|
|
(a)
|
|
An Employee may elect as provided in
Section 3.6A or 3.7, as applicable, to have distribution of
any benefits otherwise payable in accordance with Section 3.5
hereof made in:
|
|
|
(i)
|
|
Options A, B or C as set forth in such
Section 5
|
| 
