EXHIBIT
10(cc)
The
Dow Chemical Company
Voluntary
Deferred Compensation Plan
For
Non-Employee Directors
As
amended and restated December 10, 2008, effective January 1,
2009
ARTICLE
I
PURPOSE
AND EFFECTIVE DATE
The
Dow Chemical Company Voluntary Deferred Compensation Plan for
Non-Employee Directors ("Plan") provides Non-Employee Directors of
The Dow Chemical Company with the opportunity to elect to defer
receipt of their compensation from The Dow Chemical Company, and to
have these deferred amounts treated as if invested in specified
Hypothetical Investment Benchmarks. The Plan shall be
effective for deferrals made hereunder on or after January 1, 2005.
The benefits provided under the Plan shall be provided in
consideration for services to be performed after the effective date
of the Plan, but prior to the Non-Employee Director’s
Separation from Board Service. Effective October 11,
2006, the Hypothetical Investment Benchmarks were changed as
reflected in Appendix A.
ARTICLE
II
DEFINITIONS
For
the purposes of this Plan, the following words and phrases shall
have the meanings indicated, unless the context clearly indicates
otherwise:
Section 2.01 Administrator.
"Administrator" means the Governance Committee of The Dow Chemical
Company.
Section 2.02 Annual Retainer. "Annual
Retainer" means the annual retainers and fees from the
Company.
Section 2.03 Beneficiary. "Beneficiary"
means the person, persons or entity designated by the Participant
to receive any benefits payable under the Plan pursuant to
Article VIII.
Section 2.04 Board. "Board" means the
Board of Directors of The Dow Chemical Company.
Section 2.05 Change of Control. For
purposes of this Plan, a "Change of Control" shall be deemed to
have occurred upon: (i) the dissolution or liquidation
of The Dow Chemical Company; (ii) a reorganization, merger or
consolidation of The Dow Chemical Company with one or more
corporations as a result of which The Dow Chemical Company is not a
surviving corporation; (iii) approval by the stockholders of The
Dow Chemical Company of any sale, lease, exchange, or other
transfer (in one or series of transactions) of all or substantially
all of the assets of The Dow Chemical Company; (iv) approval by the
stockholders of The Dow Chemical Company of any merger or
consolidation of The Dow Chemical Company in which the holders of
the voting stock of The Dow Chemical Company immediately before the
merger or consolidation will not own fifty percent (50%) or more of
the outstanding voting shares of the continuing or surviving
corporation immediately after such merger or consolidation; or (v)
a change of fifty-one percent (51%) (rounded to the next whole
person) in the membership of the Board of Directors of The Dow
Chemical Company within a twenty-four (24) month period, unless the
election or nomination for election by stockholders of each new
director within such period was approved by the vote of eighty-five
percent (85%) (rounded to the next whole person) of the directors
still in office who were in office at the beginning of the
twenty-four month period.
Section 2.06 Governance Committee.
"Governance Committee" means the general administrator of the Plan
elected by the Board of Directors at its first meeting following
the annual meeting of stockholders.
Section 2.07 Common Stock. "Common Stock"
means the common stock of The Dow Chemical Company.
Section 2.08 Company. "Company" means The
Dow Chemical Company, its successors, any subsidiary or affiliated
organizations authorized by the Board or
the Administrator to participate in the Plan and any
organization into which or with which The Dow Chemical Company may
merge or consolidate or to which all or substantially all of its
assets may be transferred.
Section 2.09 Deferral Account. "Deferral
Account" means the notional account established for record keeping
purposes for each Participant pursuant to Article VI.
Section 2.10 Deferral Period. "Deferral
Period" is defined in Section 4.02.
Section 2.11 Deferred Amount. "Deferred
Amount" is defined in Section 4.02.
Section 2.12 Designee. "Designee" shall
mean The Dow Chemical Company Global Compensation & Benefits
Department.
Section 2.13 Eligible Compensation.
"Eligible Compensation" means any retainer, fees, and any
other monies deemed to be eligible compensation by the
Administrator.
Section 2.14 Fair Market Value. "Fair
Market Value" of a share of Common Stock means
the closing price of The Dow Chemical Company’s
Common Stock on the New York Stock Exchange on the most recent day
on which the Common Stock was so traded that precedes the date the
Fair Market Value is to be determined. The definition of Fair
Market Value in this Section shall be exclusively used to determine
the values of a Participant’s interest in The Dow Chemical
Company Stock Index Fund (defined in Section 6.02(b)) for all
relevant purposes under the Plan.
Section 2.15 Form of Payment. "Form of
Payment" means payment in a lump sum or annual installments not to
exceed 10 years.
Section 2.16 Hardship Withdrawal.
"Hardship Withdrawal" means the early payment of all or part of the
balance in a Deferral Account(s) in the event of an Unforeseeable
Emergency.
Section 2.17 Hypothetical Investment
Benchmark. "Hypothetical Investment Benchmark"
shall mean the phantom investment benchmarks which are used to
measure the return credited to a Participant’s Deferral
Account.
Section 2.18 Other Bonus. "Other Bonus"
means the amount awarded to a Participant for a Board Year under
any other incentive plan maintained by any Company that has been
established and authorized as eligible for deferral.
Section 2.19 Other Deferral. "Other
Deferral" means the amount of a Participant’s Other Bonus
which the Participant elects to have withheld on a pre-tax basis
credited to his or her account pursuant to Section 4.02.
Section 2.20 Participant. "Participant"
means any individual who is eligible and makes an election to
participate in this Plan by filing a Participation Agreement as
provided in Article IV. Members of the Board of
Directors of the Company who are not employees of the Company or
any subsidiary are eligible to participate.
Section 2.21 Participation Agreement.
"Participation Agreement" means an agreement filed by a Participant
in accordance with Article IV.
Section 2.22 Phantom Share Units
. "Phantom Share Units" means units of deemed investment
in shares of The Dow Chemical Company Common Stock so determined
under Section 6.02(b).
Section 2.23 Plan Year. "Plan Year" means
a twelve-month period beginning January 1 and ending the following
December 31.
Section 2.24 Section 16
Participant. "Section 16 Participant" means an officer
or director of The Dow Chemical Company required to report
transactions in The Dow Chemical Company securities to the
Securities and Exchange Commission pursuant to Section 16(a) of the
Securities Exchange Act of 1934.
Section 2.25 Separation from Board
Service. "Separation from Board Service" means the
cessation of a Participant's services as a non-employee director of
the Company, whether voluntary or involuntary, for any reason other
than death.
Section 2.26 Unforeseeable Emergency.
"Unforeseeable Emergency" means a severe financial hardship to the
Participant resulting from an illness or accident of the
Participant, the Participant’s spouse or a dependent of the
Participant, loss of the Participant’s property
due to casualty or other similar extraordinary unforeseeable
circumstances arising as a result of events beyond the control of
the Participant as determined by the Administrator. The amount of
the distribution may not exceed the amounts necessary to satisfy
such emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of the distribution, after taking into
account the extent to which such hardship is or may be relieved
through reimbursement or compensation by insurance or otherwise or
by liquidation of the Participant’s assets (to the extent the
liquidation of such assets would not itself cause severe financial
hardship).
Section 2.27 Valuation Date.
"Valuation Date" means the last day of each
calendar month or such other date as the Administrator in its sole
discretion may determine.
ARTICLE
III
ADMINISTRATION
Section 3.01 Administrator Duties. This
Plan shall be administered by the Governance Committee
(“Administrator”). The Administrator shall be
responsible for the administration of this Plan and shall have all
powers necessary to administer this Plan, including discretionary
authority to determine eligibility for benefits and to decide
claims under the terms of this Plan, except to the extent that any
such powers that are specially vested in any other person
administering this Plan by the Administrator. The
Administrator may from time to time establish rules for the
administration of this Plan, and it shall have the exclusive right
to interpret this Plan and to decide any matters arising in
connection with the administration and operation of this
Plan. All rules, interpretations and decisions of the
Administrator shall be conclusive and binding on any Company,
Participants and Beneficiaries.
The
Designee has the responsibility for performing certain
administrative and ministerial functions under this
Plan. The Designee shall be responsible for determining
in the first instance issues related to eligibility, Hypothetical
Investment Benchmarks, distribution of Deferred Amounts,
determination of account balances, crediting of hypothetical
earnings and debiting of hypothetical losses and of distributions,
withdrawals, deferral elections and any other duties concerning the
day-to-day operation of this Plan. The Administrator
shall have discretion to delegate such additional duties as it may
determine. The Designee may retain and supervise outside
providers, third party administrators, record keepers and
professionals (including in-house professionals) to perform any or
all of the duties delegated to it hereunder.
Neither
The Dow Chemical Company, a member of the Board who is employed by
the Company, a member of the Governance Committee nor any Designee
shall be liable for any act or action hereunder, whether of
omission or commission, by any other member or employee or by any
agent to whom duties in connection with the administration of this
Plan have been delegated or for anything done or omitted to be done
in connection with this Plan.
The
Dow Chemical Company shall, to the fullest extent permitted by law,
indemnify each director, officer or employee of The Dow Chemical
Company (including the heirs, executors, administrators and other
personal representatives of such person), each member of the
Governance Committee and any Designee against expenses (including
attorneys' fees), judgments, fines, amounts paid in settlement,
actually and reasonably incurred by such person in
connection with any threatened, pending or actual suit, action or
proceeding (whether civil, criminal, administrative or
investigative in nature or otherwise) in which such person may be
involved by reason of the fact that he or she is or was serving
this Plan in any capacity at the request of The Dow Chemical
Company, the Administrator or Designee.
Any
expense incurred by The Dow Chemical Company or the Administrator
relative to the administration of this Plan shall be paid by The
Dow Chemical Company and/or may be deducted from the Deferral
Accounts of the Participants as determined by the Administrator or
Designee.
Section 3.02 Claim Procedure. If a
Participant or Beneficiary makes a written request alleging a right
to receive payments under this Plan or alleging a right to receive
an adjustment in benefits being paid under this Plan, such actions
shall be treated as a claim for benefits. All claims for
benefits under this Plan shall be sent to the
Designee. If the Designee determines that any individual
who has claimed a right to receive benefits, or different benefits,
under this Plan is not entitled to receive all or any part of the
benefits claimed, the Designee shall inform the claimant in writing
of such determination and the reasons therefor in terms calculated
to be understood by the claimant. The notice shall be
sent within 60 days of the claim unless the Designee determines
that additional time, not exceeding 60 additional days, is needed
and so notifies the claimant. The notice shall make
specific reference to the pertinent Plan provisions on which the
denial is based, and shall describe any additional material or
information that is necessary to perfect the claim. Such
notice shall, in addition, inform the claimant of the procedure
that the claimant should follow to take advantage of the review
procedures set forth below in the event the claimant desires to
contest the denial of the claim. The claimant may within
60 days thereafter submit in writing to the Administrator a notice
that the claimant contests the denial of his or her claim and
desires a further review by the Administrator. The
Administrator shall within 60 days thereafter review the claim and
authorize the claimant to review pertinent documents and submit
issues and comments relating to the claim to the
Administrator. The Administrator will render a final
decision on behalf of The Dow Chemical Company with specific
reasons therefor in writing and will transmit it to the claimant
within 60 days of the written request for review, unless the
Administrator determines that additional t
