Executive Income Continuity Plan
CYTEC INDUSTRIES INC.
(as amended and restated October 15, 2009)
1. Purpose. The purpose of this Executive Income Continuity Plan (the Plan) is to retain the services of executives in
the senior management group of Cytec Industries Inc. (the Company) and its subsidiaries and to reinforce and encourage the continuing attention, dedication and loyalty of these executives without the distraction of concern over the
possibility of involuntary or constructive termination of employment resulting from unforeseen developments, by providing income continuity for a limited period.
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).
2. Definitions. Unless the context otherwise requires, the
following terms shall have the meanings respectively indicated:
(a) Board of Directors shall mean the board of
directors of Cytec Industries Inc.
(b) Cause shall mean (i) the willful and continued failure by a
Participant substantially to perform such Participants duties with the Company (other than any such failure resulting from such Participants incapacity due to physical or mental illness), after a demand for substantial performance is
delivered to the Participant by the Company which specifically identifies the manner in which the Company believes that the Participant has not substantially performed such Participants duties, or (ii) the willful engaging by the
Participant in conduct demonstrably injurious to the Company. For purposes of this definition, no act, or failure to act, on the part of a Participant shall be considered willful unless done, or omitted to be done, by such Participant
without reasonable belief that such Participants action or omission was in the best interests of the Company and was lawful.
(c) A Change in Control shall be deemed to have occurred upon the occurrence of the one of the following events:
||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 |
||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 |
||A majority of members of the Board is replaced during any 12-month period by directors whose appointment or election is not recommended by a majority of the members of
the Board prior to the date of the appointment or election; or |
||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.
(d) Company shall mean Cytec Industries Inc. and, except for the purposes of Section 2(c) of
the Plan, shall include any of its subsidiaries which employs Participants of this Plan.
Committee shall mean the Compensation and Management Development Committee as constituted from time to time of the Board of Directors, or such other body as shall have similar authority and responsibility.
(f) Date of Termination shall mean (i) if the employment of a Participant is terminated by death, the date of such
Participants death, (ii) if the Participant retires, the date of such Participants retirement, (iii) if such employment is terminated by the Company other than for Cause or other than as a result of Disability, the date
specified in the Notice of Termination, (iv) if such employment is terminated for Disability, the date of such Participants Disability, (v) if employment is terminated by the Participant for Good Reason, the date specified in the
Notice of Termination, (vi) if the Participants employment is terminated following a Change in Control, the date in the Notice of Termination, and (vii) otherwise shall be the last day of work.
(g) Disability shall mean 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.
(h) Good Reason shall mean:
||A change in assignment resulting in the assignment to a Participant of substantially reduced responsibilities compared with those assigned to such Participant prior to
such change, or any change in such Participants status, authority or position which represents a demotion (actual or de facto) from such Participants status, authority or position immediately prior to such change, except in
connection with the termination of such Participants employment because of death or retirement, by the Company for Disability or Cause, or by such Participant other than for a Good Reason enumerated in any of the following subparagraphs of
this subsection (h); |
||The assignment to a Participant of duties inconsistent with such Participants responsibilities prior to such assignment, unless such new duties are consistent
with a position of equal or greater status, authority, and position; |
||A reduction in the then current base salary of a Participant unless substantially all other Participants have their base pay reduced by a similar percentage at
approximately the same time, or a reduction in the then current base salary of a Participant that occurs (i) after a Change in Control or (ii) while a Prospective Change in Control is pending if the pending Prospective Change in Control
becomes a Change in Control within one year after the date of such reduction in base salary; |
||A failure to pay a Participant any portion of such Participants current or deferred compensation within seven (7) days of the date such compensation is due;
||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 such Participants 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 immediately prior to the Change in Control;
||The failure to continue in effect any benefit or compensation plan (including but not limited to the Long-Term Disability Plan, the I.C. Plan, this Plan, the stock
option, stock appreciation rights and stock appreciation right features of the 1993 Stock Award and Incentive Plan (or of any subsequent and/or substitute plan)), the Employees Savings Plan, the Supplemental Savings Plan, 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 Participants eligibility to participate, the amount of the
Participants benefits, and the level of the Participants 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; provided that any of the events specified in this clause (vi) shall constitute Good Reason only if such event occurs (i) after a Change in Control or (ii) while a Prospective Change in Control is pending if the pending
Prospective Change in Control becomes a Change in Control within one year after the date of any of the events specified in this clause (vi); |
||The failure to obtain the assumption of or an agreement to carry out the terms of this Plan by any successor as contemplated in Section 10 of the Plan; or
||Any purported termination of a Participants employment by the Company which is not effected pursuant to a Notice of Termination as herein defined.
(i) I.C. Plan means the existing system of annual cash bonuses payable to Company employees
(including Participants), 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.
(j) Notice of Termination shall mean a notice which indicates the specific basis for termination of employment relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to provide such basis. The Notice of Termination shall also include the date of termination.
(k) Officers shall mean the chairman, vice chairman, president, and any other person designated as an executive officer of Cytec Industries Inc. by resolution of the Board of Directors.
(l) Participant shall mean a person who is employed by the Company on a full-time basis (as reflected in the
Companys payroll records) and for a regular fixed compensation (other than on a retainer or compensation for temporary employment) and who is included in the membership of this Plan as provided in Section 3 of the Plan.
(m) Prospective Change in Control shall have the meaning as defined in Section 13(b) of the Plan.
(m) Service, as used in Section 5 of this Plan, shall mean service as a full time employee of the Company (as reflected in
the Companys payroll records) or one of its subsidiaries.
3. Membership. All Officers shall be Participants. The
Compensation Committee may designate any other employee as a Participant. After an employee becomes a Participant, such employees membership shall continue until the employees death or retirement, termination of employment by the Company
for Cause or Disability, or termination of employment by such Participant other than for Good Reason.
4. Termination of Employment. Each Participant shall be entitled to receive the
income continuation payments provided for in Section 5 of the Plan upon termination of such Participants employment, unless such termination is (a) because of the Participants death, Disability or retirement, (b) by the
Company for Cause, or (c) by such Participant for any reason (other than for Good Reason which occurs within 120 days prior to the termination); provided that, if Notice of Termination is given prior to a Change in Control, such Participant
shall have signed and delivered, in form and substance satisfactory to the General Counsel, a one-year non-compete agreement, a non-disparagement agreement, and a waiver, effectively waiving all claims against the Company (including its directors,
officers, employees and agents) arising out of such Participants employment, other than claims for payment post-termination of employment under the terms of this Plan and employee benefit and compensation plans of the Company, such waiver,
non-disparagement agreement and a non-compete agreement to be delivered no later than the later of thirty days following (i) the date of Notice of Termination, or (ii) written request therefor by the Company.
5. Income Continuation.
(a) Subject to the provisions of Section 7 of the Plan, upon the termination of employment, pursuant to Section 4 of the Plan, of a Participant, who is an Officer or who, on the Date of
Termination, has at least one year of Service, the Company shall pay to the Participant the sum of the Participants annual base salary at the rate in effect at the time Notice of Termination is given plus the Participants Annual Bonus
(excluding performance stock/cash awards) under the I.C. Plan based on such rate, in equal monthly installments over a 12 month period following the Date of Termination, subject to Subsections (c) and (d) of this Section; provided
that in the case of Notice of Termination given after a Change in Control, such 12 month period shall be extended to 36 months and such amount shall be payable in a lump sum following the Date of Termination, subject to Subsections (c) and
(d) of this Section. As used in this Section 5 of the Plan, Annual Bonus means the greater of (i) the annual target bonus under the I.C. Plan attributable to the Participant, or (ii) said annual target bonus times a
fraction equivalent to the average percentage of said annual target bonus paid to said Participant for each of the two preceding fiscal years of the Company (or for such lesser period of time as such Participant participated in the I.C. Plan).
Notwithstanding the foregoing, if termination occurred for Good Reason as specified in Section 2(h)(iii) or 2(h)(vi) of this Plan, the termination payments provided for in this Section 5(a) shall be calculated using the annual base salary
and Annual Bonus as in effect immediately before the reduction of such annual base salary or Annual Bonus. (b) Subject to the provisions of Section 7 of the Plan, upon the termination of employment, pursuant to Section 4 of the Plan,
of any other Participant, the Company shall pay to the Participant the sum of the Participants annual base salary at the rate in effect at the time Notice of Termination is given plus the Participants Annual Bonus (excluding Performance
Stock/Cash Awards) under the I.C. Plan based on such rate, in equal monthly installments over a period of 12 months following the Date of Termination. Notwithstanding the foregoing, if termination occurred for Good Reason as specified in
Section 2(h)(iii) or 2(h)(vi) of this Plan, the termination payments provided for in this Section 5(a) shall be calculated using the annual base salary and Annual Bonus as in effect immediately before the reduction of such annual base
salary or Annual Bonus.(c) All payments under subsections (a) and (b) of this Section 5 of the Plan shall commence, or be paid, on the first business day of the seventh month after the Participants Date of Termination. Payments
that would have been made during the six-month period following the Participants Date of Termination shall be paid to the Participant on the first business day of the seventh month after the Participants Date of Termination, without
(d) Notwithstanding anything in the Plan to the contrary, (i) no payment shall be made
with respect to any period beyond the date of the Participants 65th birthday (including the portion of the lump sum payment described in Subsection (a) that relates to installment payments that would have been made after the Participant
attained age 65 if the Participant would have received installment payments rather than the lump sum payment), and (ii) there shall be deducted from any payments required hereunder (x) any payments made with respect to any required notice
period under any employment agreement between a Participant and the Company or one of its subsidiaries, (y) any payments received by the Participant under the Companys Long Term Disability Plan or under any short term disability plan or
program of the Company during the period with respect to which income continuation is computed hereunder and (z) any severance payments or termination payments received by the Participant from the Company or any of its direct or indirect
subsidiaries required under the local laws of any country other than the United States. Payment that cannot otherwise be made to the Participant prior to the Participants 65th birthday as a result of the six-month delay described in Subsection
(c) of this Section shall be paid to the Participant on the first business day of the seventh month after the Participants Date of Termination, without interest.
6. Other Payments. Subject to the provisions of Section 7 of the Plan, upon termination of the employment of a Participant
pursuant to Section 4 of the Plan, the Company shall, in addition to the payments provided for in Section 5 of the Plan, pay to the Participant:
(a) All relocation payments described in Section 2(h)(v) of the Plan and all legal fees and expenses incurred by the Participant as a result of such termination (including all such fees and expenses,
if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Plan or in connection with any tax audit or proceeding to the extent attributable to the application of
Section 4999 of the Code to any payment or benefit provided hereunder); and
(b) During the period of two years following
the Date of Termination, all reasonable expenses incurred by the Participant in seeking comparable employment with another employer to the extent not otherwise reimbursed to the Participant, including, without limitation, the fees and expenses of a
reputable out placement organization, and reasonable travel, telephone and office expenses.
7. Competitive Employment.
The Company, at its option, may discontinue any payments being made to any Participant pursuant to Section 5 or Section 6 of the Plan if such Participant engages in the operation or management of any business anywhere in the world, whether
as owner, stockholder, partner, officer, consultant, employee or otherwise, which at such time is in competition with any business of the Company in any field with which such Participant was involved during the last two years of the
Participants employment by the Company. Ownership by such Participant of five percent or less of the shares of stock of any company listed on a national securities exchange or having at least 100 stockholders shall not make such Participant a
stockholder within the meaning of that term as used in this Section 7 of the Plan.
8. Maintenance of Other Benefit Plans. For a period of two (2) years following a
Participants Date of Termination, the Company shall maintain in full force and effect, for the continued benefit of each Participant entitled to receive, or who received, payments pursuant to Section 5 of the Plan, comprehensive medical
and dental insurance, group life insurance, and financial planning and tax preparation and counseling services (but not including disability coverage) on the same basis as such Participant participated immediately prior to the Date of Termination,
and further provided that if the Participants continued participation is not permitted under the general terms and provisions of such plans and programs or applicable law, the Company shall provide equivalent benefits.
9. No Mitigation. No Participant shall be required to mitigate the amount of any payment provided for under this Plan by seeking
other employment or otherwise, nor shall the amount of any payment so provided for be reduced by any compensation earned by any Participant as the result of employment by another employer, by retirement benefits or by offset against any amount
claimed to be owed by the Participant to the Company.
10. Successors. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and assets of the Company, by a written agreement, to expressly assume and agree to carry out the provisions of this Plan in the same
manner and to the same extent that the Company would be required to carry them out if no such succession had occurred.
Notice. Any notice expressly provided for under this Plan shall be in writing, shall be given either manually or by mail, telegram, telex, telefax or cable, and shall be deemed sufficiently given, if and when received by the Company at its
offices at 5 Garret Mountain Plaza, West Paterson, New Jersey 07424 Attention: Secretary, or by any Participant at the address on the records of the Company for such Participant, or if and when mailed by registered mail, postage prepaid,
return receipt requested, addressed to the Company or the Participant to be notified at such address. Either the Company or any Participant may, by notice to the other, change its address for receiving notices.
12. Funding. All payments provided for under this Plan for Participants (including those who have retired) shall not be funded or
secured, and no trust shall be created hereunder. Payments under the Plan shall become fully vested and nonforfeitable upon the termination of a Participants employment except for termination where a Participant not be entitled to income
continuation payments as provided in Section 4 and except as provided in Section 7 of the Plan.
(a) The Board of Directors may at any time or from time to time amend or terminate this Plan. No such
amendment or termination may adversely affect any vested benefits hereunder; and, provided further, that after a Change in Control, this Plan may not be amended or terminated without the consent of all persons who were Participants as of the date of
such Change in Control (including those who have retired).
(b) In addition, no amendment or termination made within one year before a Change in Control
and made while a Prospective Change in Control is pending may adversely affect any benefit that might at any time be or become owing hereunder to a person who, immediately prior to the commencement of such Prospective Change in Control, was a
Participant, without the consent of such person (other than a benefit to any such person who is the person, or part of the group, making the offer, or negotiating to make the offer, which constitutes the Prospective Change in Control). As used
herein, the term Prospective Change in Control means (i) any offer presented, directly or indirectly, to the Board of Directors of the Company which, if consummated, would constitute a Change in Control, or (ii) any negotiation
with the Board of Directors or any committee or representative thereof to make such an offer (including the unilateral announcement of the terms on which such an offer would be made).
14. Claim and Appeal Procedure. This Section 14 of the Plan shall not apply after there has been a Change in Control.
The Company shall appoint a person or persons to adjudicate claims and appeals under the Plan (the
Administrator). The Administrator shall provide adequate notice in writing to any Participant or to any beneficiary (the Claimant) whose claim for benefits under the Plan has been denied. The Administrators notice to
the Claimant shall set forth:
(a) The specific reason for the denial;
(b) Specific references to pertinent Plan provisions upon which the Administrator based its denial;
(c) A description of any additional material and information that is needed;
(d) That any appeal the Claimant wishes to make of the adverse determination must be in writing to the Administrator within seventy-five
(75) days after receipt of the Administrators notice of denial of benefits. The Administrators notice must further advise the Claimant that the Claimants failure to appeal the action to the Administrator in writing within the
seventy-five (75) day period will render the Administrators determination final, binding and conclusive; and
The name and address to whom the Claimant may forward an appeal.
If the Claimant should appeal to the Administrator, the
Claimant, or the Claimants duly authorized representative, may submit, in writing, whatever issues and comments the Claimant or the Claimants duly authorized representative feels are pertinent. The Claimant, or the Claimants duly
authorized representative, may review pertinent Plan documents. The Administrator shall re-examine all facts to the appeal and make a final determination as to whether the denial of benefits is justified under the circumstances. The Administrator
shall advise the Claimant of its decision within sixty (60) days of the Claimants written request for review, unless special circumstances (such as a hearing) would make the rendering of a decision within the sixty (60) day limit
unfeasible, but in no event shall the Administrator render a decision respecting a denial for a claim of benefits later than one hundred twenty (120) days after its receipt of a request for review. The Administrators notice to the
Claimant shall set forth:
(i) The specific reason for the denial;
(ii) Specific references to pertinent Plan provisions upon which the Administrator based its
(iii) A statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to,
and copies of, all documents, records, and other information relevant to the Claimants claim; and
(iv) A statement that
the Claimant has a right to bring a civil action under Section 502(a) of ERISA.
15. Governing Law. This Plan, and
the rights and obligations of the Company and the Participants hereunder, shall be construed and governed in accordance with the law of the State of New Jersey.
16. Partial Invalidity. If any provision of this Plan is determined to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining provisions of this Plan, which
shall remain in effect in accordance with its terms.
* * *
|/s/ ROY SMITH
|/s/ MARILYN R. CHARLES
|MARILYN R. CHARLES
* * *
I, _________________________________________, have read and understand the terms of the Plan.