INSTRUMENT ADOPTING LYONDELL CHEMICAL COMPANY DEFERRAL PLAN

Exhibit 10.40

 

INSTRUMENT ADOPTING

LYONDELL CHEMICAL COMPANY

DEFERRAL PLAN

 

LYONDELL CHEMICAL COMPANY hereby adopts the Lyondell Chemical Company Deferral Plan, to read in its entirety as the document entitled “Lyondell Chemical Company Deferral Plan”, attached hereto.

 

IN WITNESS WHEREOF, LYONDELL CHEMICAL COMPANY, acting by and through its duly authorized officer, has caused this Instrument to be executed on this 28th day of November, 2005.

 

ATTEST:		LYONDELL CHEMICAL COMPANY
/s/ JoAnn L. Beck		By:		/s/ Dan F. Smith
Assistant Secretary				Dan F. Smith
				President and Chief Executive Officer

Lyondell Chemical Company

 

DEFERRAL PLAN

 

Effective January 1, 2005

Lyondell Chemical Company

Deferral Plan

 

Table of Contents

 

ARTICLE I

 

GENERAL PROVISIONS

 

Section 1.1 Purpose and Intent.

 

This Plan is intended to provide the opportunity for eligible Employees to accumulate supplemental funds for retirement or special needs before retirement through deferral of portions of their regular Salary, Awards and Executive Supplementary Savings Plan benefits.

 

This Plan replaces the deferral provisions of the Lyondell Chemical Company Executive Deferral Plan (“Prior Plan”) to conform to the requirements of Code Section 409A and any related regulation or other guidance promulgated by applicable governmental agencies (“Code Section 409A”) and establishes the provisions of this Plan as intended to apply to deferrals of compensation earned or accrued in 2005 and thereafter. Amounts deferred before 2005 and associated earnings shall continue to be governed by the terms of the Prior Plan.

 

Section 1.2 Effective Date.

 

This Plan document generally shall be effective as of January 1, 2005 and shall apply to those Employees who are employed by the Company on or after January 1, 2005, unless certain provisions specify that they are effective on a different date.

 

Section 1.3 Definitions.

 

Account means a separate bookkeeping account maintained by the Company for each Employee which measures and determines the amounts to be paid to the Employee under the Plan from January 1, 2005 forward. An Account may be divided in subaccounts as needed to reflect particular Deferral Elections.

 

Administrative Committee means the Benefits Administrative Committee of the Company.

 

Awards means immediate cash awards made under the Lyondell Chemical Company annual incentive compensation plans for executives and senior managers or awards under any other plan that the Board of Directors of Lyondell Chemical Company, or its Compensation and Human Resources Committee, has authorized the Company to adopt and to treat as Awards under this Plan.

 

Beneficiary means a person who is entitled to receive a Participant’s interest under this Plan when the Participant dies before his Account is totally distributed.

 

Change in Control means a change in the control of Lyondell Chemical Company as defined in Section 4.9.

 

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Code means the Internal Revenue Code of 1986, as amended, including any successor provisions and any regulations or other guidance promulgated by applicable governmental agencies.

 

Company means Lyondell Chemical Company, a Delaware corporation, or its successor.

 

Deferral Election means a Participant’s election to defer Salary, Awards, and/or ESSP Benefits during a Deferral Period according to Article II.

 

Deferral Period means the particular calendar year for which a Deferral Election is made. A new Deferral Period begins each January 1 and ends each December 31.

 

Deferred Compensation means the amount of Salary, Awards and/or ESSP Benefits a Participant elects to defer by a Deferral Election.

 

Disability means a medically determinable physical or mental impairment which is expected to last for at least a continuous twelve (12) month period or is expected to result in death, where the Participant (i) either cannot engage in any substantial gainful employment due to the impairment or (ii) is receiving disability benefits for at least three (3) months under the Company’s applicable disability plan.

 

Distribution means a distribution of a Participant’s Account as a result of a Separation from Service or other event specified under this Plan and permitted by Code Section 409A.

 

Early Distribution means a distribution before Separation from Service as specified in Section 4.4 and permitted by Code Section 409A.

 

Effective Date means January 1, 2005.

 

Employee means a regular salaried employee of the Company.

 

ERISA means the Employee Retirement Income Security Act of 1974, as amended, including any successor provisions and any regulations or other guidance promulgated by applicable governmental agencies.

 

ESSP Benefits means benefits under the Company’s Executive Supplementary Savings Plan.

 

Financial Hardship means a condition of severe financial difficulty due to an unforeseeable emergency resulting from (i) an illness or accident of the Participant, his spouse or dependent; (ii) a casualty causing a Participant’s property loss; or (iii) other similar or extraordinary and unforeseeable circumstances created by events beyond the Participant’s control, as determined by the Administrative Committee, upon advice of counsel, based on written information supplied by the Participant and which is sufficient, in counsel’s judgment, to justify a change in a distribution election under the Plan without causing the Participant or any other Participant to receive taxable income from the Plan before the Participant actually receives his benefit.

 

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Interest Rate means the interest rate announced by the Company before the Deferral Period and applied to the Participant’s Account during that Plan Year.

 

Key Employee means an Employee who, at any time during the prior Plan Year, was identified as (i) an officer of the Company with annual compensation greater than $130,000, as adjusted, (ii) a five percent (5%) owner of the Company, or (iii) a one percent (1%) owner of the Company with annual compensation from the Company of more than $150,000, as adjusted as determined according to the requirements of Code Sections 409A and 416(i). For Plan distribution purposes, an Employee identified as a Key Employee during a year ending on an identification date shall be considered a Key Employee for a twelve (12) month period beginning on the following April 1. December 31 of the prior Plan Year shall be used as the identification date to identify Key Employees under Code Section 409A.

 

Participant means any Employee who is participating in this Plan under Article II, and any former Employee who has not received the entire benefit to which he is entitled under this Plan.

 

Plan means this Lyondell Chemical Company Deferral Plan.

 

Plan Year means each calendar year beginning on January 1 and ending on December 31.

 

Salary means the Employee’s regular, biweekly salary, excluding Awards and any other special or additional compensatory payments made by the Company.

 

Separation from Service means the Participant’s employment termination from Lyondell Chemical Company, or any of its Subsidiaries and Affiliates, which complies with the requirements of Code Section 409A. A transfer to or from Lyondell Chemical Company and any of its Subsidiaries or Affiliates, shall not be a Separation from Service under this Plan.

 

Subsidiaries or Affiliates means:

 

(a) All corporations that are members of a controlled group of corporations within the meaning of Code Section 414(b) and of which the Company is then a member, and

 

(b) All trades or businesses, whether or not incorporated, that are then under common control with the Company within the meaning of Code Section 414(c).

 

Survivor Benefit means the benefit under Section 4.3 provided when a Participant dies before his Account is distributed.

 

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Valuation Date means the last day of each month, or another date the Administrative Committee determines, in its discretion, which may be either more or less frequent, used to value Participants’ Accounts.

 

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ARTICLE II

 

PARTICIPATION AND DEFERRAL ELECTIONS

 

Section 2.1 Eligibility and Participation.

 

(a) Eligibility. Eligibility to participate in this Plan shall be limited to Employees who (1) are eligible to receive an Award (2) are participants in the Executive Supplementary Savings Plan, or (3) have been designated as eligible by a specific resolution of the Administrative Committee upon recommendation of the Company’s Vice President, Human Resources. Effective January 1, 2006, an Employee who becomes eligible to participate in this Plan after a Deferral Period begins shall not be eligible to participate until the following Deferral Period.

 

(b) Participation . An eligible Employee may elect to participate in the Plan by submitting a Deferral Election for a Deferral Period.

 

Section 2.2 Deferral Types.

 

A Participant may elect to defer Salary, Awards and/or ESSP Benefits, subject to any limits, conditions or restrictions, such as minimum or maximum deferral amounts, as the Administrative Committee prescribes before the Deferral Period begins. A Participant may also elect to defer an Early Distribution at the time and in the manner the Administrative Committee prescribes.

 

Section 2.3 Deferral Elections.

 

Before each Deferral Period, at a time and in the manner the Administrative Committee prescribes, each eligible Employee may elect to defer Salary, Awards, and/or ESSP Benefits. The time and form of distribution of the deferred amount shall be elected when the Deferral Election is made. This Deferral Election shall be irrevocable after the Deferral Period begins, unless modifications are authorized under Section 2.7.

 

Section 2.4 Deferral Limits.

 

Deferral Elections are subject to the following limits:

 

(a)

A Participant may not defer more than fifty percent (50%) of his Salary.

 

(b)

The Administrative Committee shall establish a minimum amount that may be deferred before the Deferral Period begins.

 

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Section 2.5 Separation from Service.

 

Any outstanding Deferral Election relating to Awards and/or ESSP Benefits payable after Separation from Service shall remain binding; otherwise, a Participant’s Deferral Elections shall terminate on the Participant’s Separation from Service.

 

Section 2.6 Transfers.

 

A Participant’s Deferral Elections shall be irrevocable regardless of a transfer of employment among Lyondell Chemical Company, any of its Subsidiaries or Affiliates, or LYONDELL-CITGO Refining LP. When a transfer occurs, the Participant’s Deferral Election shall continue to apply to Awards, Salary or ESSP Benefits granted by the transferee company and the transferee company’s deferral plan shall assume responsibility for the remainder of the Deferral Period, if any, subject to any Deferral Election that the Participant made under the transferor company’s plan.

 

Section 2.7 Modification of Deferral Elections.

 

The Administrative Committee may permit a Participant to cease remaining deferrals under a Deferral Election upon finding that the Participant has suffered a Financial Hardship, to the extent that the Deferral Election may be revoked as a result of Financial Hardship under the Code Section 409A or a hardship distribution under Code Section 401(k).

 

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ARTICLE III

 

DEFERRED COMPENSATION ACCOUNTS

 

Section 3.1 Accounts.

 

Accounts shall be maintained for each Participant for record-keeping purposes only. A Participant’s Account may be divided into subaccounts if necessary to determine how a Participant’s Distribution Elections shall apply to portions of the Account.

 

Section 3.2 Deferred Compensation.

 

A Participant’s Deferred Compensation shall be credited to the Participant’s Account on the date when the corresponding non-deferred portion of the compensation is paid or would have been paid but for the Deferral Election. The Company shall have the right to withhold from Salary (or otherwise to cause the Participant or the executor or administrator of his estate, or his Beneficiary) to pay any federal, state, local and/or foreign taxes required to be withheld on any Deferred Compensation.

 

Section 3.3 Interest Rate.

 

Interest shall be credited monthly on the balance of the Account on each Valuation Date beginning on the date when deferred amounts are credited to the Account. A Participant’s Account will be credited with interest monthly during each Plan Year before the full distribution of the Participant’s Account at the Interest Rate previously announced by the Company to apply during the Plan Year. Prior to January 1, 2006, the monthly interest rate shall be based on the previous monthly average of the Salomon Brothers Corporate BB Bond Yield. Effective January 1, 2006, the monthly Interest Rate during the Plan Year shall be based on the previous monthly average of the closing yield to maturity, as reported by Bloomberg, of Lyondell Chemical Company’s most junior publicly traded debt on December 1 of the prior Plan Year. If this debt is retired during the Plan Year, the monthly interest rate shall be based on the previous monthly average of the then longest maturity for the Company’s most junior publicly traded debt.

 

Section 3.4 Account Value.

 

A Participant’s Account on each Valuation Date shall consist of the balance of the Participant’s Account on the immediately preceding Valuation Date, plus the amount of the Participant’s Deferred Compensation since the Valuation Date, plus interest credited to the Account, and minus any distributions or reductions made from the Account since the immediately preceding Valuation Date.

 

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Section 3.5 Vesting.

 

Each Participant shall be one hundred percent (100%) vested at all times in the amounts credited to the Participant’s Account.

 

Section 3.6 Account Statements.

 

The Company shall provide each Participant with periodic statements setting forth the Participant’s Account balance.

 

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ARTICLE IV

 

PLAN BENEFITS

 

Section 4.1 Basic Plan Benefit.

 

Except as provided in Section 4.2, if a Participant has a Separation from Service, the Company shall pay a Plan benefit equal to the Participant’s Account, including interest at the Interest Rate established in Section 3.3. Interest is payable on a Participant’s Account balance until the Account is fully distributed.

 

Section 4.2 Distribution Elections.

 

(a) Time and Form of Distribution. If the Participant becomes entitled to a distribution due to Separation from Service on or after attaining age fifty-five (55) with at least ten (10) years of service recognized by the Company or due to Disability, distribution shall be made at the time and form specified in the applicable Deferral Elections, unless the Participant’s Separation from Service is due to a transfer to LYONDELL-CITGO Refining LP. If the Participant transfers to LYONDELL-CITGO Refining LP, the Participant will become entitled to a distribution in the tenth (10 ^th ) calendar year following the year when the transfer occurred. A Participant may elect one or more of the following forms and commencement dates for all or portions of his Deferral Account.

 

(1) Lump Sum. A single payment of all of the amount deferred under a Deferral Election.

 

(2) Installment Payments. Monthly installment payments for five (5), ten (10) or fifteen (15) years of the amount deferred under a Deferral Election in substantially equal payments of principal and interest.

 

Notwithstanding the foregoing, a Participant’s Account may be distributed earlier under the Plan terms due to death or Financial Hardship, as provided in Sections 4.3 and 4.5, or for other reasons as may be provided under Code Section 409A.

 

(b) Distribution Elections Inapplicable . If a Participant’s Account becomes distributable due to Separation from Service before attaining age fifty-five (55) with at least ten (10) years of service recognized by the Company, regardless of any