EXHIBIT
10(a)
THE
DOW CHEMICAL COMPANY
EXECUTIVES'
SUPPLEMENTAL
RETIREMENT
PLAN
Restated
and Effective January 1, 2009
PREAMBLES
ESTABLISHMENT
OF PLAN
On May
14, 1992, The Dow Chemical Company (the "Company") established the
Executives' Supplemental Retirement Plan as an unfunded program of
deferred compensation for executives, which included Part A for
Non-U.S. Service, Non-Controlled Group Service and/or Non-Covered
Controlled Group Service and Part B for a Select Group of
Management or Highly Compensated Employees, Board members of the
Company and Employees whose Benefits are Statutorily
Limited. On March 1, 1997, the Company amended and
restated the Executives' Supplemental Retirement Plan (the "Plan")
to incorporate the terms of the Enhanced Executives' Supplemental
Retirement Options. On January 1, 2003, the Plan was
amended and restated to include other benefits in addition to those
provided under the Key Employee Insurance Program for any Chief
Executive Officers of the Company who return to executive
management at the request of the Board of Directors as a
non-executive Chairman of the Board (hereinafter "Returning
CEOs"). On March 1, 2004, the Plan was amended to
include other benefits for former employees of Union Carbide
Corporation who transferred to the Company after the merger of the
Company with Union Carbide Corporation and the liability for such
benefits was transferred to the Plan, herein after referred to as
"Prior UCC Program Participants". Effective April 7,
2004, the Plan was amended to include the benefit provided to the
CEO appointed in November, 2004. Effective, December 31,
2006, retroactive to January 1, 2005, the Plan was amended and
restated to comply with Section 409A of the Internal Revenue Code
of 1986, as amended, ("Code") and to reformat the Plan document to
combine Parts A and B. Effective January 1, 2009, the
Plan is further amended and restated to comply with the
requirements of Section 409A of the Code and official guidance
issued thereunder, and to include provisions with respect to
employees who have accrued benefits under the Cadre Pension Plan to
the extent such employees ("Cadre Employees") earn Compensation
while on assignment in the U.S. The terms of the Plan
supersede the terms of the Plan in effect prior to the effective
date of this Plan. For the rules that apply to the
distribution of amounts that were earned and vested (within the
meaning of Section 409A of the Code) under the Plan prior to 2005
(and earnings thereon) and are exempt from the requirements of
Section 409A of the Code, see Appendix A.
PURPOSE
The
Company desires to (a) to provide certain of its executives and a
select group of management employees with retirement benefits that
might otherwise be provided by the Dow Employees' Pension Plan, but
for (i) restriction of the exclusive benefit rule under Code
section 401(a), (ii) the inability to grant past service, under the
Dow Employees' Pension Plan, to highly compensated Employees
because of the non-discrimination requirements of Code section
401(a)(4), and/or (iii) the inability to credit service to
Employees while employed by a controlled group member not covered
by the Dow Employees' Pension Plan, and (b) to
restore benefits which are reduced under Dow Employees' Pension
Plan due to the statutory limitations imposed by Code sections
401(a)(17) and 415 and which are not otherwise provided by any
other plan maintained by the Company.
INTERPRETATION
AND GOVERNING LAW
The
Plan is intended to (1) constitute an unfunded program maintained
primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated Employees
consistent with the requirements of Sections 201(2), 301(a)(3) and
401(a)(1) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and (2) comply with Section 409A of the Code
and official guidance issued thereunder. Notwithstanding
any other provision of this Plan, this Plan shall be interpreted,
operated and administered in a manner consistent with these
intentions. In the event ERISA does not preempt state law, the
state law of Michigan applies.
ARTICLE
I
DEFINITIONS
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AVERAGE
COMPENSATION for
purposes of the Supplemental Retirement Benefit of a Prior UCC
Program Participant who was in the Union Carbide Compensation
Deferral Program on February 6, 2001 and who shall attain at least
age 50 and have at least 10 years of Eligibility Service, as
defined under the Dow Employees' Pension Plan, as of or before
December 31, 2005, shall equal the highest three year average
compensation ("HC3A") as defined in the Dow Employees' Pension Plan
but using Compensation as defined in the Plan, without regard to
incentive compensation, plus the highest three year average, as
defined in the former Union Carbide Corporation Enhanced Retirement
Income Plan (attached as Exhibit I), of incentive compensation
averaged separately. For calendar years 2004 and 2005,
incentive compensation shall mean Compensation as defined in the
Plan without regard to either deferred or paid base
compensation. This Average Compensation shall be used to
calculate benefits as specified under Section 3.04.
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BENEFICIARY
shall
mean that person or persons designated by the Participant to
receive a distribution of any amounts payable under the Plan due to
the death of the Participant. The beneficiary of a
Participant shall be deemed to be such Participant's spouse, if
married, unless such spouse agrees in writing to waive this right,
or their domestic partner, if in an approved domestic partner
relationship (as defined in the Dow Employees' Pension Plan)
(written waiver does not apply to a domestic
partner). If the Participant is not married or in an
approved domestic partner relationship and fails to designate a
Beneficiary, the amounts payable, if any, under this Plan due to
the death of the Participant shall be paid in the following
order: (a) to the children of the
Participant; (b) to the beneficiary of the Company Paid Life
Insurance of the Participant; (c) to the beneficiary of any
Company-sponsored life insurance policy for which the Company pays
all or part of the premium of the Participant; or (d) to the estate
of the Participant.
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CADRE
BENEFITS
shall
mean the benefits described in Section 3.06.
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CADRE
EMPLOYEE shall
mean an employee who has been authorized by Dow Europe GmbH to
participate in the Cadre Pension Plan and who earns compensation
while on assignment to the U.S.
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CHANGE
OF CONTROL , for
purposes of the Plan, shall be deemed to have
occurred on:
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the
date that any one person, or more than one person acting as a
group, acquires ownership of stock of The Dow Chemical Company
that, together with stock held by such person or group, constitutes
more than 50 percent of the total fair market value or total voting
power of the stock of The Dow Chemical Company;
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the
date that a majority of the members of the Board of Directors of
The Dow Chemical Company is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a
majority of the directors before the date of the appointment or
election;
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the
date that 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 Dow Chemical Company possessing
30 percent or more of the total voting power of the stock of The
Dow Chemical Company; or
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the
date that 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 Dow Chemical Company that have a total
gross fair market value equal to or more than 40 percent of the
total gross fair market value of all of the assets of The Dow
Chemical Company immediately before such acquisition or
acquisitions, provided that the following asset transfers shall not
result in a Change of Control: (i) a transfer of assets
to a stockholder of The Dow Chemical Company in exchange for or
with respect to its stock, (ii) a transfer to a corporation, 50
percent or more of the total value or voting power of which is
owned directly or indirectly, by The Dow Chemical Company, (iii) a
transfer to a person, or more than one person acting as a group,
that owns 50 percent or more of the stock of The Dow Chemical
Company, or (iv) a transfer to an entity, at least 50 percent of
the total value or voting power of which is owned, directly or
indirectly, by a person described in clause (iii).
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This
definition of "Change of Control" is intended to satisfy the
definition of a "change in the ownership or effective control of a
corporation, or a change in the ownership of a substantial portion
of the assets of a corporation" as
defined
under Code section 409A and any official guidance issued
thereunder, and no corporate event shall be considered a Change of
Control unless it meets such requirements.
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COMPANY
shall
mean The Dow Chemical Company and any other entity authorized to
participate in the Plan by the Corporate Vice President of Human
Resources of the Company or her/his delegate.
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COMPENSATION
shall
mean the sum of:
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compensation
as defined under the Dow Employees' Pension Plan without regard to
Code limitations; and
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deferred
compensation to The Dow Chemical Company Elective Deferral
Plan.
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DEPP
COMPONENT shall
mean benefits accrued under the provisions contained in the Dow
Employees' Pension Plan applicable to the DEPP component of such
Plan.
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DEPP
COMPONENT SUPPLEMENTAL RETIREMENT BENEFITS
shall
mean the benefits accrued by Participants and Prior UCC Program
Participants in accordance with Section 3.04 of the Plan that would
have been provided under the DEPP Component of the Dow Employees'
Pension Plan but for the statutory limitations in Code sections 415
and 401(a)(17) and based upon the alternative definitions of
Compensation and Average Compensation, as applicable, provided in
this Plan.
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EMPLOYEE
shall
mean someone who is employed by the Company to perform personal
services in an employer-employee relationship who receives
compensation from the Company, other than a retirement benefit,
severance pay, retainer, or fee under contract.
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KEY
EMPLOYEE means
a Participant who has a job level of 820 points or higher as of his
Separation from Service.
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an
Employee who is entitled to a Restricted Benefit under this Plan as
determined by the Corporate Vice President of Human Resources of
the Company or her/his delegate;
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an
Employee who is a Board member who is an officer or Employee of the
Company and who may relinquish line responsibility;
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an
Employee whose benefits under the Dow Employees' Pension Plan are
limited by the Code or ERISA;
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an
Employee who is part of a select group of management or highly
compensated Employees, as determined by the Corporate Vice
President of Human Resources of the Company or her/his delegate,
who receives forms of compensation that do not constitute
compensation as defined in the Dow Employees' Pension
Plan;
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a
Prior UCC Program Participant; or
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PLAN
YEAR shall
mean the twelve (12) month period beginning January 1 and ending
December 31.
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PPA
COMPONENT shall
mean benefits accrued under the provisions contained in the Dow
Employees' Pension Plan applicable to the Personal Pension Account
or PPA component of such plan.
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PPA
COMPONENT SUPPLEMENTAL RETIREMENT BENEFITS
shall
mean the benefits accrued by Participants in accordance with
Section 3.05 of the Plan that would have been provided under the
PPA Component of the Dow Employees' Pension Plan but for the
statutory limitations in Code sections 415 and 401(a)(17) and based
upon the alternative definition of Compensation, as applicable,
provided in this Plan.
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RESTRICTED
BENEFIT shall
mean the benefits described in Part A of Article III.
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SEPARATION
FROM SERVICE or SEPARATES FROM SERVICE shall
mean a "separation from service" within the meaning of Section 409A
of the Code, except that in applying Section 1563(a)(1), (2), and
(3) of the Code for purposes of determining a controlled group of
corporations under Section 414(b) and (c) of the Code, and in
applying Treasury Regulation section 1.414(c)-2 for purposes of
determining trades or businesses that are under
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common
control under Section 414(c) of the Code, the language "at least 45
percent" is used instead of "at least 80 percent" each place it
appears.
Additional
definitions appear in the Preamble of the Plan.
ARTICLE
II
PARTICIPATION
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ELIGIBILITY
AND PARTICIPATION
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Each
Employee who is participating in Dow Employees' Pension Plan and is
specifically named by the Corporate Vice President of Human
Resources of the Company or her/his delegate shall be eligible to
participate in the Plan.
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Each
Employee who is a member of a select group of management or a
highly compensated Employee, Board member of the Company and/or
whose benefits are statutorily limited shall be eligible to
participate in the Plan. Each former employee of Union
Carbide Corporation who transferred to the Company after the merger
of the Company with Union Carbide Corporation who was in the Union
Carbide Compensation Deferral Program on February 6, 2001 and who
shall attain at least age 50 and have at least 10 years of
Eligibility Service, as defined under the Dow Employees' Pension
Plan, as of or before December 31, 2005 shall also be a Participant
in the Plan ("Prior UCC Program Participants").
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Each
Employee who is determined by the Corporate Vice President of Human
Resources of the Company to be entitled to a Restricted Benefit
shall be eligible to participate under this Plan.
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Each
Cadre Employee who has been authorized by Dow Europe GmbH
to participate in the Company's Cadre Pension Plan shall be
eligible to participate in the Plan while such employee is on
assignment to the U.S.
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Each
Employee shall furnish such information and perform such acts as
the Company may require in order to maintain such
eligibility.
A
Participant in the Plan shall be entitled to receive a Restricted
Benefit, a DEPP Component Supplemental Retirement Benefit, a PPA
Component Supplemental Retirement Benefit, and/or a Cadre Benefit,
as applicable.
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TERMINATION
OF PARTICIPATION
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An
otherwise eligible Employee shall cease to actively participate in
the Plan upon the earlier of the Participant's Separation from
Service, death, or receipt of written notification that he or she
is no longer eligible to participate in the
Plan. Thereafter, participation shall continue only for
the purposes of receiving a distribution of those benefits accrued
and vested as of the date the Participant ceased to actively
participate in the Plan.
ARTICLE
III
RESTRICTED
BENEFITS AND SUPPLEMENTAL RETIREMENT BENEFITS
PART
A – RESTRICTED BENEFITS
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CALCULATION
OF RESTRICTED BENEFITS
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The
amount of retirement benefits payable under the Dow Employees'
Pension Plan to Participants who transfer from (i) a Dow foreign
entity to a Dow U.S. entity covered by the Dow Employees' Pension
Plan, (ii) a controlled group entity that does not participate in
the Dow Employees' Pension Plan, or (iii) a non-controlled group
entity or non-affiliated company (collectively, a "Prior Company"),
may not include compensation and service with the Prior
Company. The intent of this Section is to ensure that
Participants, as named by the Corporate Vice President of Human
Resources or her/his delegate (the "VP"), receive (I) eligibility
and vesting service under the Dow Employees' Pension Plan for such
service with a Prior Company, as determined by the VP, and/or (II)
a pension benefit based on their aggregate service (and
compensation) rendered to Dow and the Prior Company, as determined
by the VP (the "Approved Service"), but that benefits attributable
to such Approved Service not result in a duplication of
benefits. However, Restricted Benefits attributable to
such Approved Service shall be reduced by the value of any benefit
payable under the Dow Employees' Pension Plan or any other
tax-qualified retirement savings vehicle sponsored by a member of
the Dow controlled group, attributable to such Approved
Service. For purposes of calculating the Participant's
Restricted Benefits, the amount of retirement benefits payable
under the Dow Employees' Pension Plan to Participants with Approved
Service shall be calculated as provided in Section 3.01(a)(i), (ii)
or (iii), as applicable to the Participant.
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No
Proration Method .
Under this method, the Restricted Benefits shall be determined by
counting the Approved Service as eligibility and vesting service
under the Dow Employees' Pension Plan.
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Equivalent
Benefits Method .
Under this method, the Restricted Benefits shall be
determined by using the entire Approved Service as credited
service, and such benefit shall be reduced by the accrued benefit
under the plan maintained by the Prior Company, as determined under
(iv) below.
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Proration
Method .
Under this method, the Restricted Benefits shall be determined
under the proration rules set forth in the Global Pension
Relocation Policy (the "Policy"), and in accordance with section
3.01(a)(iv) below.
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The
Employee's accrued benefit under the plan maintained by the Prior
Company shall be determined under the terms and
provisions of such plan as of the date of the Employee's transfer
to this Plan. To the extent such plan provides a fixed
value based on compensation and service (or other factors) earned
prior to participation in the Plan, the value shall be fixed and
determinable as of the date of transfer. To the extent
such plan provides an accrued benefit that is not reasonably
ascertainable as of the date of transfer, such benefit shall be
determined based on objectively determinable factors set forth
under such plan as of the date of transfer (e.g., conversion rate,
age or service, interest rates, actuarial assumptions), and shall
not be subject to the discretion of any Employee, Company, or Prior
Company.
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The
amount of retirement benefits payable under the Dow Employees'
Pension Plan to Participants who transfer to (i) a Dow foreign
entity not covered by the Dow Employees' Pension Plan, (ii) a
controlled group entity that does not participate in the Dow
Employees' Pension Plan, or (iii) a non-controlled group entity or
non-affiliated company (collectively, a "Nonparticipating
Company"), may not include compensation and service with the
Nonparticipating Company. The intent of this Section is
to ensure that Participants, as named by the VP receive (I)
eligibility and vesting service under the Dow Employees' Pension
Plan for such service with a Nonparticipating Company, as
determined by the VP, and/or (II) a pension benefit based on their
aggregate service (and compensation) rendered to Dow and the
Nonparticipating Company, as determined by the VP (the "Approved
Service"), but that benefits attributable to such Approved Service
not result in a duplication of benefits . Any
such Restricted Benefits shall be determined under the proration
rules set forth in the Policy, and in accordance with the rules in
Section 3.01(a)(iv), and shall be reduced by any benefit payable
under the Dow Employees' Pension Plan or any other tax-qualified
retirement savings vehicle sponsored by a member of the Dow
controlled group, attributable to such A
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