EXHIBIT 10.1

 

THE DOW CHEMICAL COMPANY

EXECUTIVES' SUPPLEMENTAL

RETIREMENT PLAN

Restated and Effective April 14, 2010

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 was 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.  On April 14, 2010, the Plan was amended and restated to make certain changes to the administrative provisions of the Plan.

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 Delaware applies, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this provision to the substantive law of another jurisdiction.

 

 

 

ARTICLE I

DEFINITIONS

 

1.01.

ADMINISTRATOR

 

"Administrator" means the U.S. Pension Plan Leader, his delegee, and such other person, group of persons or entity which may be designated by The Dow Chemical Company in accordance with Section 7.02.  For purposes of Sections 7.01, 7.03 and 7.04, the Administrator shall also include the Appeals Administrator and the Initial Claims Reviewer (if the Initial Claims Reviewer is not the U.S. Pension Plan Leader).

 

1.02.

Appeals Administrator

 

"Appeals Administrator" means the Global Director of Benefits or his delegee and such other person, group of persons or entity which may be designated by the Dow Chemical Company in accordance with Section 7.02.

 

1.03.

AVERAGE COMPENSATION

 

"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.

 

1.04.

BENEFICIARY

 

"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.

 

1.05.

BOARD

 

"Board" means the board of directors of The Dow Chemical Company.

 

1.06.

CADRE BENEFITS

 

"Cadre Benefits" shall mean the benefits described in Section 3.06.

 

1.07.

CADRE EMPLOYEE

 

"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.

 

 

"Change of Control", for purposes of the Plan,   shall be deemed to have occurred on:

 

a

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;

 

b

the date that a majority of the members of the Board 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;

 

c

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

 

d

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).

 

 

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.

 

1.09.

Code

 

"Code" means the Internal Revenue Code of 1986, as amended.

 

1.10.

COMPANY

 

"Company" shall mean The Dow Chemical Company and any other entity authorized to participate in the Plan by the Board or the Administrator.

 

1.11.

COMPENSATION

 

"Compensation" shall mean the sum of:

 

a

compensation as defined under the Dow Employees' Pension Plan without regard to Code limitations; and

 

b

deferred compensation to The Dow Chemical Company Elective Deferral Plan.

 

1.12.

DEPP COMPONENT

 

"DEPP Component" shall mean benefits accrued under the provisions contained in the Dow Employees' Pension Plan applicable to the DEPP component of such Plan.

 

 

"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.

 

1.14.

EMPLOYEE

 

"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.

 

1.15.

ERISA

 

"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.

 

1.16.

INITIAL CLAIMS REVIEWER

 

"Initial Claims Reviewer" means the person, group of persons or entity responsible for deciding benefit claims under the Plan, as described in DOL Reg. s. 2560.503-1(e) ( i.e. , first level claims for benefits).  The Initial Claims Reviewer is the U.S. Pension Plan Leader or such other person, group of persons or entity who may be designated by The Dow Chemical Company in accordance with Section 7.02.

 

1.17.

KEY EMPLOYEE

 

"Key Employee" means a Participant who has a job level of 820 points or higher as of his Separation from Service.

 

1.18.

PARTICIPANT

 

"Participant" shall mean:

 

a

an Employee who is entitled to a Restricted Benefit under this Plan as determined by the Administrator;

 

b

an Employee who is a Board member who is an officer or Employee of the Company and who may relinquish line responsibility;

 

c

an Employee whose benefits under the Dow Employees' Pension Plan are limited by the Code or ERISA;

 

d

an Employee who is part of a select group of management or highly compensated Employees, as determined by the Administrator, who receives forms of compensation that do not constitute compensation as defined in the Dow Employees' Pension Plan;

 

e

a Prior UCC Program Participant; or

 

f

a Cadre Employee.

 

1.19.

P LAN

 

"Plan" means The Dow Chemical Company Executives' Supplemental Retirement Plan as set forth herein, together with any and all amendments and supplements hereto.

 

1.20.

PLAN YEAR

 

"Plan Year" shall mean the twelve (12) month period beginning January 1 and ending December 31.

 

 

"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.

 

1.22.

PPA COMPONENT SUPPLEMENTAL RETIREMENT BENEFITS

 

"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.

 

1.23.

RESTRICTED BENEFIT

 

"Restricted Benefit" shall mean the benefits described in Part A of Article III.

 

1.24.

SEPARATION FROM SERVICE OR SEPARATES FROM SERVICE

 

"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 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.

 

1.25.

VPHR

 

"VPHR" means the Vice President of Human Resources.

 

Additional definitions appear in the Preamble of the Plan.

A pronoun or adjective in the masculine gender includes the feminine gender, and the singular includes the plural, unless the context clearly indicates otherwise.  The title of an officer or employee when used in the plan document shall mean the respective officer or employee of The Dow Chemical Company, except where otherwise indicated. The title for a person or entity who is assigned responsibilities under the Plan shall mean any successor title to such position as such title may be changed from time to time.

ARTICLE II

 

PARTICIPATION

 

2.01.

ELIGIBILITY AND PARTICIPATION

 

a.

Each Employee who is participating in Dow Employees' Pension Plan and is specifically named by the Administrator shall be eligible to participate in the Plan.

b.

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").

c.

Each Employee who is determined by the Administrator to be entitled to a Restricted Benefit shall be eligible to participate under this Plan.

d.

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.

Each Employee shall furnish such information and perform such acts as the Company may require in order to maintain such eligibility.

 

2.02.

MEANING OF PARTICIPATION

 

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.

 

2.03.

TERMINATION OF PARTICIPATION

 

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

 

3.01.

CALCULATION OF RESTRICTED BENEFITS

 

a

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 Administrator, receive (I) eligibility and vesting service under the Dow Employees' Pension Plan for such service with a Prior Company, as determined by the Administrator, and/or (II) a pension benefit based on their aggregate service (and compensation) rendered to Dow and the Prior Company, as determined by the Administrator (the "Approved Service"), but that benefits attributable to such Approved Service do 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.

ii.

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 Section 3.01(a)(iv) below.

iii.

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.

iv.

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.

b.

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 Administrator receive (I) eligibility and vesting service under the Dow Employees' Pension Plan for such service with a Nonparticipating Company, as determined by the Administrator, and/or (II) a pension benefit based on their aggregate service (and compensation) rendered to Dow and the Nonparticipating Company, as determined by the Administrator (the "Approved Service"), but that benefits attributable to such Approved Service do 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 Approved Service .

c.

For this purpose, the value of the Dow Employees' Pension Plan benefit shall be determined under the terms of such plan (as modified by Section 3.01(a) above) as in effect on the earlier of Separation from Service or death.

 

3.02.

VESTING OF RESTRICTED BENEFITS

 

A Participant's vested interest in his or her Restricted Benefit calculated under Section 3.01 ( i.e., vesting percentage) shall be determined in accordance with the applicable vesting schedule in the Prior Plan as in effect when the Participant transferred from that plan.  Such vested interest shall be determined by aggregating service earned under the Prior Plan and the Dow Employees' Pension Plan.

 

3.03.

ADDITIONAL RESTRICTED BENEFITS TO RETURNING CEO

 

The amount of the additional Restricted Benefit for Returning CEO is (a) minus (b) calculated as follows:

 

a.

The amount of benefit calculated under the terms of the frozen Key Employee Insurance Program, modified as follows:

i.

the highest three years of Compensation shall be used, whether or not consecutive; and

ii.

provided that the Returning CEO does not leave the positions of President and CEO without the prior concurrence of the Company's Board of Directors, before December 31, 2004, Compensation for the years 2003 and 2004 shall be defined as follows:

A.

2003:  (a) the total base salary paid in 2003 as posted in Dow's Global Human Resources Information System; plus (b) the percentage established as of March 1 for the Executive Performance Plan target performance award multiplied by the base salary paid in 2003 as described in Subsection 3.03(a)(ii)(A)(a); and

B.

2004:  (a) the total base salary paid from January 1, 2004 to October 31, 2004 as posted in Dow's Global Human Resources Information System; plus (b) the percentage established as of March 1 for the Executive Performance Plan target performance award multiplied by the base salary paid the month of October, 2004 multiplied by 10; plus (c) the deceleration base salary for November 1 to December 31, 2004 as posted in Dow's Global Human Resources Information System;

MINUS

b.

The amount of benefit calculated under the terms of the frozen Key Employee Insurance Program without modification.

PART B – SUPPLEMENTAL RETIREMENT BENEFITS

 

3.04.

DEPP COMPONENT SUPPLEMENTAL RETIREMENT BENEFITS

 

The amount of DEPP Component Supplemental Retirement Benefits payable to a Participant equals the benefit which would be payable to or on behalf of the Participant under the DEPP Component of the Dow Employees' Pension Plan if Compensation as defined in Section 1.11 were substituted for compensation as defined in the Dow Employees' Pension Plan and the provisions of the Dow Employees' Pension Plan providing for the limitation of benefits in accordance with Code sections 415 and 401(a)(17) were inapplicable, less the benefit actually payable to or on behalf of the Participant under the Dow Employees' Pension Plan.

 

The amount of Supplemental Retirement Benefits payable to 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, equals the greater of the benefit calculated under the above paragraph or the benefit calculated as of December 31, 2005 which would be payable to or on behalf of the Participant under the Dow Employees' Pension Plan if Average Compensation as defined in Section 1.03 of the Plan were substituted for compensation as defined in the Dow Employees' Pension Plan under the formula of Section 4.1(b)(iii) or Section   4.5(b)(iii) of the Union Carbide Employees' Pension Plan, as applicable, and the provisions of   the Dow Employees' Pension Plan providing for the limitation of benefits in accordance with section 415 and 401(a)(17) of the Code were inapplicable, less the benefit actually payable to or on behalf of the Participant under in the Dow Employees' Pension Plan. 

 

A Participant's vested interest in his or her DEPP Component Supplemental Retirement Benefit calculated under this Section 3.04 ( i.e., vesting percentage) shall be determined in accordance with the applicable vesting schedule in the Dow Employees' Pension Plan.

 

3.05.

PPA COMPONENT SUPPLEMENTAL RETIREMENT BENEFITS

 

The amount of PPA Component Supplemental Retirement Benefits payable to a Participant equals the benefit which would be payable to or on behalf of the Participant under the PPA Component of the Dow Employees' Pension Plan if Compensation as defined in Section 1.11 were substituted for compensation as defined in the Dow Employees' Pension Plan and the provisions of the Dow Employees' Pension Plan providing for the limitation of benefits in accordance with Code sections 415 and 401(a)(17) were inapplicable, less the benefit actually payable to or on behalf of the Participant under the Dow Employees' Pension Plan.

 

A Participant's vested interest in his or her PPA Component Supplemental Retirement Benefit calculated under this Section 3.05 ( i.e. , vesting percentage) shall be determined in accordance with the applicable vesting schedule in Dow Employees' Pension Plan.

 

PART C – CADRE EMPLOYEE BENEFITS

 

3.06.

CADRE BENEFITS

 

A Cadre Employee on assignment to the U.S. will receive the same defined benefit accrual schedule with respect to his or her service in the U.S. as would have applied under the Cadre Pension Plan if such individual had continued working outside of the U.S. (including death and disability benefits).  This Cadre Benefit shall be determined in accordance with Section 3.4 of the Cadre Pension Plan, based solely on the U.S. credited service, highest consecutive three-year average compensation, and U.S. annual accrual rate; provided, however, that the amount payable under this Plan shall also include any pay roll-up on the Cadre Pension Plan benefit if such benefit is determined using U.S. sourced compensation. 

 

PART D – ESRP BENEFITS

 

3.07.

ESRP BENEFIT CALCULATIONS

 

For any Participant, the ESRP benefit under this Plan shall be the sum of the value of (i) supplemental retirement benefits under Section 3.04 or 3.05, (ii) Cadre Employee benefits under Section 3.06, (iii) returning CEO benefits under Section 3.03, and (iv) Restricted Benefits under Section 3.01, as applicable.  For this purpose, actuarial equivalence under this Plan shall be determined using the applicable actuarial factors contained in the Dow Employees' Pension Plan as of the determination date.

 

 

ARTICLE IV

 

DISTRIBUTION OF RESTRICTED BENEFITS AND SUPPLEMENTAL RETIREMENT BENEFITS

 

4.01.

PAYMENT OF RESTRICTED BENEFITS, DEPP COMPONENT AND PPA COMPONENT SUPPLEMENTAL RETIREMENT BENEFITS

 

a.

Form of Payment

i.

Restricted Benefits, DEPP Component Supplemental Retirement Benefits, and Cadre Benefits

Subject to the special rules provided in this Section 4.01, a Participant's vested Restricted Benefits, vested DEPP Component Supplemental Retirement Benefits, and/or vested Cadre Benefits accrued under the Plan shall be payable in one of the actuarially equivalent life annuities described below.  In the event the Participant does not select a form of payment, the following default provisions will apply.  If a Participant is married or has a domestic partner (as defined in the Dow Employees' Pension Plan) when the Participant Separates from Service, then the Participant's vested Restricted Benefits, vested DEPP Component Supplemental Retirement Benefits, and/or vested Cadre Benefits shall be paid in the form of a 100 % joint and survivor annuity.  If a Participant does not have a spouse or domestic partner when the Participant Separates from Service, then the Participant's vested Restricted Benefit, vested DEPP Component Supplemental Retirement Benefits, and/or vested Cadre Benefits shall be paid in the form of a single life annuity.  A Participant may elect an optional form of payment from the list of actuarially equivalent life annuities (within the meaning of Treas. Reg. section 1.409A-2(b)(2)(ii)) described below.  The election of an optional form of payment by the Participant shall be made without regard to the timing or form of payment elected by the Participant under the Dow Employees' Pension Plan and must occur prior to the month in which   benefit payments under the Plan are scheduled to commence.

The optional forms of payment are:

A.           Single life annuity

B.           50% joint and survivor annuity

C.           100% joint and survivor annuity

D.

For the Restricted Benefits and/or DEPP Component Supplemental Retirement Benefits, to the extent the Participant is eligible to elect it, any of the three options described above – single life annuity, 50% joint and survivor annuity, or 100% joint and survivor annuity – with a Guaranteed Payout Option.

The Guaranteed Payout Option is an additional option elected in conjunction with one of the life annuities otherwise available as a form of distribution under the Plan. The Guaranteed Payout Option provides reduced benefits that are payable monthly during the Participant's and surviving annuitant's lifetime(s), with any remaining guaranteed payout amount paid in the form of a single lump sum payment in the first month following the death of the last annuitant.   Unless a Participant has (i) accrued less than 10 years of Eligibility or Vesting Service (as determined under the Dow Employees' Pension Plan) and (ii) is considered Totally Disabled as defined under the Dow Employees' Pension Plan, a Participant may elect the Guaranteed Payout Option.

The amount of the guaranteed payout shall equal the excess, if any, of (i) the Participant's account balance from a vested Restricted Benefit or a vested DEPP Component Supplemental Retirement Benefit   determined on the date the Participant Separates from Service over (ii) the sum of all monthly benefits payments made before the date of death of the last annuitant to die. The Guaranteed Payout amount shall be paid to the Participant's remaining Beneficiary as determined in Section 1.07.

ii.            PPA Component Supplemental Retirement Benefits

A Participant's vested PPA Component Supplemental Retirement Benefits payable under the Plan shall be paid in the form of a single lump sum payment following the Participant's Separation from Service.  Payment of the PPA Component Supplemental Retirement Benefit shall be made without regard to the timing or form of payment elected by the Participant under the Dow Employees' Pension Plan.

iii.

Small Benefits

Notwithstanding the provisions in this Section 4.01, if the present value of the sum of a Participant's vested Restricted Benefits, vested DEPP Component Supplemental Retirement Benefits, and/or vested Cadre Benefits under this Plan as of the date the Participant Separates from Service, is equal to or less than twenty five thousand dollars ($25,000), such benefits will instead be paid as a single lump sum payment at the time provided in Section 4.01(b)(iii).

b.

Date of Payment

i.

Restricted Benefits, DEPP Component Supplemental Retirement Benefits, and Cadre Benefits

Subject to the delay for Key Employees, vested Restricted Benefits, vested DEPP Component Supplemental Retirement Benefits, and vested Cadre Benefits accrued under the Plan shall be payable commencing in the first month following the Participant's Separation from Service.

ii.

PPA Component Supplemental Retirement Benefits

A Participant's vested PPA Component Supplemental Retirement Benefits accrued under the Plan shall be payable in the seventh month following the Participant's Separation from Service.

iii.

Small Benefits

Subject to the delay for Key Employees, a Participant's vested Restricted Benefits, vested DEPP Component Supplemental Retirement Benefits, and/or vested Cadre Benefits that satisfy the description of small benefits in Section 4.01(a)(iii) shall be paid as a single lump sum in the third month following the Participant's Separation from Service.

iv.

Delay for Key Employees

Notwithstanding the foregoing, in the event the Participant is a Key Employee upon the Participant's Separation from Service, any distribution of benefits under the Plan shall be delayed until the seventh month following the date of the Participant's Separation from Service (or if earlier, the date of the Participant's death).  Amounts otherwise payable to the Participant during such period of delay shall be accumulated and paid in the seventh month following the Participant's Separation from Service, along with interest on the delayed payments.

v.

Change of Control

Notwithstanding the foregoing, in the event of a Change of Control, a Participant's vested Restricted Benefits, vested DEPP Component Supplemental Retirement Benefits, vested PPA Component Supplemental Retirement Benefits, and/or vested Cadre Benefits accrued under this Plan shall become payable immediately and shall be paid as a single lump sum payment within ninety (90) days of the Change of Control, provided that the Participant shall not be able to designate the tax year in which such lump sum payment will occur.

c.

Benefit Payments upon Death

i.

Death Prior to Commencement of Benefit Payments.

In the event of a Participant's death before the month in which benefit payments commence under Section 4.01(b), death benefits equal to   the Participant's vested Restricted Benefits, vested DEPP Component Supplemental Retirement Benefits, vested PPA Component Supplemental Retirement Benefits, and/or vested Cadre Benefits, as applicable, shall be paid in the first month following the month in which the Participant dies.  The death benefit shall be payable in a lump sum to the Participant's Beneficiary.

ii.

Death after Commencement of Benefit Payments.

In the event of a Participant's death after benefit payments have commenced under Section 4.01(b), the death benefit, if any, payable hereunder shall be paid in accordance with the applicable form of payment specified in Section 4.01(a) and any optional form of payment elected by the Participant (if applicable).

d.

Benefit Payments upon Inclusion in Income

If a Participant's vested Restricted Benefits, vested DEPP Component Supplemental Retirement Benefits, vested PPA Component Supplemental Retirement Benefits, and/or vested Cadre Benefits under this Plan are includible in income pursuant to Code section 409A, such benefits shall be distributed immediately to the Participant.

e.

Permitted Delays in Distribution

Notwithstanding the foregoing, any payment to a Participant under the Plan shall be delayed upon the Committee's reasonable anticipation of one or more of the following events:

i.

The Company's deduction with respect to such payment would be eliminated by application of Code section 162(m); or

ii.

The making of the payment would violate Federal securities laws or other applicable law;

provided, that any payment delayed pursuant to this Section 4.01 shall be paid in accordance with Code section 409A and any official guidance issued thereunder.

ARTICLE V

 

FINANCING OF BENEFITS

 

5.01.

FINANCING OF BENEFITS

 

The entire cost of providing benefits under the Plan shall be paid by the Company out of its current operating budget, and the Company shall not be required under any circumstances to fund its obligations under the Plan.  Notwithstanding the foregoing, the Company may, at its sole option, informally fund its obligations under the Plan in whole or in part by the creation of book reserves, the establishment of a grantor trust, the purchase of insurance and other assets, or by other means.  In no event shall any Participant or Beneficiary have any incidents of ownership to any such insurance contracts or other assets.  In addition, no Participant or Beneficiary shall be named a beneficiary under any such insurance contract.  If the Company informally funds the Plan, in whole or in part, the manner of such informal funding and the continuance or discontinuance of such informal funding shall be the sole decision of the Company.

 

5.02.

GENERAL CREDITOR

 

The Participant, and/or Beneficiary, shall be regarded as an unsecured general creditor of the Company with respect to any rights derived by the Participant, and/or Beneficiary, from the existence of this Plan.  Title to and beneficial ownership of any Company assets (including any assets that may be held in trust) which may be used to satisfy the Company's obligation for payment of Restricted Benefits and Supplemental Retirement Benefits shall remain solely the property of the Company.

 

5.03.

LIABILITY OF THE COMPANY

 

Nothing in this Plan shall constitute the creation of a trust or other fiduciary relationship between the Company, its agents, representatives or other Employees dealing with the Plan and the Participant, Beneficiary or any other person.  The obligations of the Company under the Plan shall be an unfunded and unsecured promise to pay.

 

5.04.

ASSIGNMENT

 

No interest of any person in, or right to receive a distribution under, the Plan shall be subject in any manner to sale, transfer, assignment, pledge, attachment, garnishment, or other alienation or encumbrance of any kind; nor may such interest or right to receive a distribution be taken, either voluntarily or involuntarily for the satisfaction of the debts of, or other obligations or claims against, such person.  The obligations and rights of the Company under this Plan may be encumbered in the event of the Company's insolvency.

 

 

 

ARTICLE VI

 

MISCELLANEOUS

 

6.01.

PLAN IS BINDING

 

This Plan shall be binding upon and inure to the benefit of the Company, participating Employees and their respective successors, assigns, heirs, personal representatives, executors, administrators, Beneficiaries, and legatees.

 

6.02.

ENTIRE PLAN

 

This document constitutes the entire Plan and no representations or other actions by a Company Employee or representative may modify the rights and obligations set forth in the Plan.

 

6.03.

NO GUARANTEE OF EMPLOYMENT

 

Nothing in this Plan shall be construed as an employment contract or as a guarantee of employment for any period of time.

 

6.04.

GOVERNING LAW

 

In the event that ERISA does not preempt state law, the state law of Michigan applies.

 

6.05.

TERMINATION

 

The Dow Chemical Company reserves the right to terminate the Plan completely subject to the conditions set forth below.  Such termination shall have prospective application only and shall not reduce or impair a Participant's right to benefits accrued and vested under the Plan as of the date of termination.  Each Participant shall receive written note of the termination of the Plan describing the action taken in detail.  Any plan termination made pursuant to this Section 6.05 shall be performed in a manner consistent with the requirements of Code section 409A and any regulations or other applicable guidance issued thereunder.

 

Except as provided in the next sentence, no amendment or termination of the Plan shall adversely affect the rights of any Participant to any amounts accrued and vested under this Plan as of the effective date of such amendment or termination.  Upon termination of the Plan, distributions under this Plan shall be made to Participants and beneficiaries in the manner and at the time described in Article IV, unless the Company determines in its sole discretion that all such amounts shall be distributed upon termination in accordance with the requirements under Code section 409A.  Upon termination of the Plan, no further benefit accruals under Article III shall be permitted.

 

6.06.

AMENDMENT

 

The Board or its delegee may amend or modify the Plan at any time, and the President, Chief Financial Officer and VPHR, each acting individually, may amend or modify the Plan at any time.

 

Notwithstanding the foregoing:  (i) an amendment that affects only Section 16 Employees, as defined by the Securities Exchange Act of 1934 and determined by the Administrator, shall not be valid unless it is adopted or approved by the Board; (ii) any amendment shall have prospective application only and shall not reduce or impair a Participant's right to benefits accrued and vested under the Plan as of the date such amendment is made; and (iii) no amendment of the Plan shall apply to amounts that were earned and vested (within the meaning of Code section 409A and regulations thereunder) under the Plan prior to 2005, unless the amendment specifically provides that it applies to such amounts.  The purpose of this restriction is to prevent a Plan amendment from resulting in an inadvertent "material modification" to amounts that are "grandfathered" and exempt from the requirements of Code section 409A.

 

Each Participant shall receive written notice of the amendment or termination of the Plan describing the action taken in detail.

 

The authority of the President, Chief Financial Officer and VPHR, to amend or modify the Plan under this Section 6.06 may not be delegated.

 

6.07.

WITHHOLDING TAXES

 

The Company shall have the right to withhold taxes from any payments made pursuant to the Plan, or make such other provisions as it deems necessary or appropriate to satisfy its obligations to withhold federal, state, local or foreign income or other taxes incurred by reason of payments pursuant to the Plan.  In lieu thereof, the Company shall have the right, to the extent permitted by Code section 409A and other provisions of law, to withhold the amount of such taxes from any other sums due or to become due from the Company to the Participant or any Beneficiary upon such terms and conditions as the Company may prescribe.  The Company may also accelerate and pay a portion of a Participant's benefits in a lump sum equal to the Federal Insurance Contributions Act ("FICA") tax imposed and the income tax withholding related to such FICA amounts.

 

6.08.

OVERPAYMENTS

 

If any overpayment of benefits is made under this Plan, the amount of the overpayment must be refunded.

 

6.09.

PLAN DOCUMENT CONTROLS

 

Notwithstanding the provisions of any agreement that was entered into with a Participant on or before December 31, 2008, the terms of Article III shall control the accrual of any benefits under this Plan and the terms of Article IV shall control the payment of any benefits under this Plan.  The terms of Articles III and IV shall supersede the applicable terms of any such agreements that purported to control the accrual and payment of nonqualified deferred compensation benefits under this Plan.

 

6.10.

SUCCESSOR TITLES OR POSITIONS

 

The title of any person or entity who is assigned responsibilities under the Plan shall include any successor title to such position as such title may be changed from time to time.

 

ARTICLE VII

 

PLAN ADMINISTRATION

 

7.01.

DUTIES AND POWERS OF THE ADMINISTRATOR

 

The Administrator shall be responsible for the administration of the Plan and shall see that the Plan is carried out in accordance with its terms.  However, any discretionary actions regarding Section 16 Employees, as defined by the Securities Exchange Act of 1934 and determined by the Administrator, are reserved for the Board.

 

 

Except as provided in Section 7.02, the responsibility and authority of the Administrator shall include, but shall not be limited to, the following duties and powers:

 

 

a.

To promulgate and enforce such rules and regulations and prescribe the use of such forms as he shall deem necessary or appropriate for the proper and efficient administration of the Plan;

 

b.

To interpret the Plan and to resolve any possible ambiguities, inconsistencies and omissions therein or therefrom;

 

c.

To decide all questions concerning the Plan;

 

d.

To prepare and disseminate communications to Participants and Beneficiaries as are necessary or appropriate to properly administer the Plan; and

 

e.

To retain third party administrators, consultants, accountants and other individuals or entities as he deems necessary or advisable to assist him in fulfilling his responsibilities under the Plan, consistent with The Dow Chemical Company's guidelines on hiring and retention of outside service providers; and monitor the performance of such individuals and entities, decide whether to discontinue the services of such individuals and entities, and make payment to such individuals and entities in accordance with the terms of the plan document.

 

7.02.

DESIGNATION OF ADDITIONAL ADMINISTRATORS AND DELEGATION OF ADMINISTRATIVE RESPONSIBILITIES

 

The Dow Chemical Company may designate one or more persons or entities to serve as an Administrator of the Plan, in addition to or in lieu of the Administrator named in the plan document, through an action of the Board or through a written designation signed by the VPHR, the Vice President of Compensation and Benefits, the Global Director of Benefits, each acting individually, or such other person as the Board shall designate.  Any such designation of additional Administrators shall set forth in general or specific terms such person's or entity's responsibilities and authority.

 

In addition, each Administrator may designate other persons to carry out its responsibilities under the Plan in a writing that sets forth the responsibilities assigned to the delegee and, if applicable, the period for which such delegation shall be in effect.

 

7.03.

DECISIONS OF ADMINISTRATORS

 

 

a.

Each Administrator shall have the sole and absolute discretion to interpret the plan document, make findings of fact, operate, administer and decide any matters arising with respect to the Plan, and may adopt such rules and procedures as it deems necessary, desirable or appropriate in the administration of the Plan.  All rules and decisions of such Administrators shall be conclusive and binding on all persons having an interest in the Plan.

 

 

b.

Any determination by an Administrator shall be binding on all parties.  If challenged in court, such determination shall not be subject to de novo review and shall not be overturned unless proven to be arbitrary and capricious based upon the evidence presented to the Administrator at the time of its determination.

 

7.04.

INDEMNIFICATION OF ADMINISTRATORS

 

The Company agrees to indemnify and to defend to the fullest extent permitted by law any employee or former employee of the Company   or entity within the Company’s controlled group (a controlled group of corporations within the meaning of section 414(b) or section 414(c) of the Code)   who is serving or has served as an Administrator or who is acting or has acted on behalf of an Administrator against all liabilities, damages, costs and expenses (including attorneys' fees and amounts paid in settlement of any claims approved by the Company) occasioned by any act or omission to act in connection with the Plan, if such act or omission is in good faith.  This limitations period replaces and supersedes any limitation period ending at a later time that might otherwise be deemed applicable under state or federal law in the absence of this Section 7.04.

 

7.05.

CLAIM PROCEDURE

 

If a Participant or Beneficiary ("claimant") 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.  Benefits under this Plan shall be payable only if the Initial Claims Reviewer or the Appeals Administrator, as the case may be, determines, in its sole discretion, that a claimant is entitled to them.

 

a.

Initial Claim for Benefits

All initial claims for benefits under this Plan shall be sent to the Initial Claims Reviewer.  If the Initial Claims Reviewer 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 Initial Claims

 

Reviewer 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 90 days   of receipt of the claim unless the Initial Claims Reviewer determines that additional time, not exceeding 90 additional days, is needed and so notifies the claimant in writing before the expiration of the initial 90 day period.  Any written notice of extension for review shall include the circumstances requiring extension and date by which a decision is expected to be rendered.  A written notice of denial of benefits shall (i) state specific reasons for the denial, (ii) make specific reference to the pertinent Plan provisions on which the denial is based, (iii) describe any additional material or information that is necessary to support the claimant's claim and an explanation of why such material or information is necessary, and (iv) include a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of all documents, records or other information relevant (as defined by Department of Labor Regulation section 2560.503-1(m)) to 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, including the right to bring a civil action under section 502(a) of ERISA following exhaustion of review procedures set forth herein.

 

b.

Appeal of Denied Claims

The claimant may within 60 days   after notice of the denial submit, in writing, to the Appeals Administrator a notice that the claimant contests the denial of his or her claim and desires a further review by the Appeals Administrator.  During the review process, the claimant has the right to submit written comments, documents, records and other information relating to the claim for benefits, which the Appeals Administrator shall consider without regard to whether the items were considered upon the initial review.  The Appeals Administrator shall within 60 days thereafter review the claim and authorize the claimant to, upon request and free of charge, have reasonable access to, and copies of all documents, records or other information relevant (as defined by  Department of Labor Regulation section 2560.503-1(m)) to the claim.  The Appeals 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 Appeals Administrator determines that additional time, not exceeding 60 days, is needed, and so notifies the claimant in writing before the expiration of the initial 60 day period.  In no event shall the Appeals Administrator render a final decision later than the initial 60 days plus the possible additional 60 days following receipt of the claimant's appeal. Any written notice of extension for review shall include the circumstances requiring extension and date by which a decision is expected to be rendered.  A written notice of denial of benefits upon review shall (i) state specific reasons for the denial, (ii) make specific reference to the pertinent Plan provisions on which the denial is based, and (iii) include a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of all documents, records or other information relevant (as defined by Department of Labor Regulation section 2560.503-1(m)) to the claim.  Such notice shall, in addition, inform the claimant of the right to bring a civil action under section 502(a) of ERISA.  If such determination is adverse to the claimant, it shall be binding and conclusive unless the claimant notifies the Appeals Administrator within 90 days after the mailing or delivery to him or her by the Appeals Administrator of its determination that he or she intends to institute legal proceedings challenging the determination of the Appeals Administrator, and actually institutes such legal proceeding within the applicable limitations period described in Section 7.06 below.

7.06.

COMMENCEMENT OF LEGAL ACTION

 

A claim for benefits under the Plan (including a claim that the claimant is eligible to participate in the Plan) may not be filed in any court:

 

a.

until the claimant has exhausted the claims review procedures described in Section 7.05 above, including complying with the 90-day notice requirement in Section 7.05(b), and

 

b.

unless such claim is filed in a court with jurisdiction over such claim the earlier of:

1.

180 days after the mailing or delivery of the adverse determination by the Appeals Administrator, or

2.

two (2) years after (i) the date the first benefit payment was allegedly due, or (ii) the date the Plan first repudiated its alleged obligation to provide such benefits or coverage (regardless of whether such repudiation occurred before or during the administrative review process), whichever is earlier.

 

This limitations period replaces and supersedes any limitation period ending at a later time that might otherwise be deemed applicable under state or federal law in the absence of this Section 7.06.

7.07.

FORUM SELECTION

 

 

To the fullest extent permitted by law, any putative class action lawsuit relating to the Plan shall be filed in the jurisdiction in which the Plan is principally administered or the jurisdiction in which the largest number of putative class members resides.  If any such putative class action is filed in a different jurisdiction, or if any non-class action filed in a different jurisdiction is subsequently amended or altered to include class action allegations, then the Plan, all parties to such action that are related to the Plan (such as the Administrator) and all alleged Participants and Beneficiaries shall take all necessary steps to have the action removed to, transferred to or re-filed in a jurisdiction described in the first sentence of this Section 7.07.  This forum selection provision is waived if no party invokes it within 120 days of the filing of a putative class action or the assertion of class action allegations.  This provision does not relieve any putative class member from any obligation existing under the Plan or by law to exhaust administrative remedies before initiating litigation.

 

IN WITNESS WHEREOF , the Company has caused this amended and restated Plan document to be executed in its name and on its behalf by its officers duly authorized on this 14th day of April, 2010.

 

 

APPENDIX A

GRANDFATHERED AMOUNTS

 

Distribution of amounts that were earned and vested (within the meaning of Code section 409A and regulations thereunder) under the Plan prior to 2005 (and earnings thereon) and are exempt from the requirements of Code section 409A shall be made in accordance with the Plan terms as in effect on October 3, 2004, as attached hereto.

 

[INSERT PLAN AS IN EFFECT ON OCTOBER 3, 2004 HERE.]

“[A copy of The Dow Chemical Company Executives’ Supplemental Retirement Plan in effect on October 3, 2004 is contained in Exhibit 10(a) to The Dow Chemical Company Annual Report on Form 10-K for the year ended December 31, 2004, and is incorporated herein by this reference.]”

 
 

 

EXHIBIT 10.2

 

The Dow Chemical Company

Elective Deferral Plan

(Pre-2005)

Restated and Effective April 14, 2010

ARTICLE I

 

PURPOSE AND EFFECTIVE DATE

 

The purpose of The Dow Chemical Company Elective Deferral Plan ("Plan") is to aid The Dow Chemical Company and its subsidiaries in retaining and attracting executive employees by providing them with tax deferred savings opportunities.  The Plan provides a select group of management and highly compensated employees, within the meaning of sections 201(2), 301 (a)3 and 401 (a)(1) of the Employee Retirement Income Security Act of 1974, as amended (ERISA) and therefore exempt from Parts 2, 3, and 4 of Title I of ERISA, of The Dow Chemical Company with the opportunity to elect to defer receipt of specified portions of compensation, and to have these deferred amounts treated as if invested in specified Hypothetical Investment Benchmarks.  The Plan shall be effective for deferral elections made hereunder on or after January 1, 2001.  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 executive's retirement.  Any references to "plan document" with respect to this Plan is a reference to the document herein.

Effective December 15, 1994, The Dow Chemical Company originally adopted The Dow Chemical Company Elective Deferral Plan.  Minor amendments were made to the Plan on December 11, 1997. On October 19, 2000 The Dow Chemical Company amended and restated the Plan, to be effective as of January 1, 2001, to read as set forth in this Plan document.  Minor amendments to the restated Plan were made on December 11, 2000, September 10, 2001, October 4, 2001, September 9, 2002, December 2, 2002, February 3, 2003, April 7, 2003, July 7, 2003, August 4, 2003 and December 10, 2003.  The Dow Chemical Company again restated the Plan on August 6, 2004, effective as of January 1, 2001, in order to clarify certain provisions of the Plan.  Minor amendments to the restated Plan were made on October 7, 2004. Effective September 1, 2006 and January 1, 2007, The Dow Chemical Company amended the Plan to change the Hypothetical Investment Benchmarks.  On January 1, 2010, minor amendments to the Plan were made via a Plan restatement due to change in the third party administrator of the plan to change the Hypothetical Investment Benchmarks, to clarify the valuation date used for the calculation of installment payments, and to eliminate the small balance distribution.  On January 4, 2010, deferrals allocated to "The Dow Chemical Company Stock Index Fund" were converted to the "Dow Stock Fund".   On January 27, 2010, the plan was amended via restatement to allow Participants with deferrals that occurred prior to January 1, 2001 to reallocate such deferrals to any of the Hypothetical Investment Benchmarks.  On April 14, 2010, the Plan was amended and restated to make certain changes to the administrative provisions of the Plan.

ART ICLE II

 

DEFINITIONS

 

For the purposes of this Plan, the following words and phrases shall have the meanings indicated, unless the context clearly indicates otherwise:

2.01	Administrator

 

"Administrator" means the U.S. Pension Plan Leader, his delegee, and such other person, group of persons or entity which may be designated by The Dow Chemical Company in accordance with Section 3.02.  For purposes of Sections 3.01, 3.03 and 3.04, the Administrator shall also include the Appeals Administrator and the Initial Claims Reviewer (if the Initial Claims Reviewer is not the U.S. Pension Plan Leader).

 

2.02	Appeals Administrator

 

"Appeals Administrator" means the Global Director of Benefits or his delegee and such other person, group of persons or entity which may be designated by the Dow Chemical Company in accordance with Section 3.02.

 

 

"Base Salary" means the annual base rate of pay from the Company at which a Participant is employed (excluding Performance Awards, commissions, relocation expenses, and other non-regular forms of compensation) before deductions under (A) deferrals pursuant to Section 4.02 and (B) contributions made on his or her behalf to any qualified plan maintained by any Company or to any cafeteria plan under section 125 of The Internal Revenue Code maintained by any Company.

 

2.04	Base Salary Deferral

 

"Base Salary Deferral" means the amount of a Participant's Base Salary which the Participant elects to have withheld on a pre-tax basis from his Base Salary and credited to his or her Deferral Account pursuant to Section 4.02.

 

2.05	Beneficiary

 

"Beneficiary" means the person, persons or entity designated by the Participant to receive any benefits payable under the Plan pursuant to Article VIII.

 

2.06

Board

 

"Board" means the board of directors of The Dow Chemical Company.

 

2.07	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.

 

2.08	Common Stock

 

"Common Stock" means the common stock of The Dow Chemical Company.

 

2.09

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.

 

2.10	Deferral Account

 

"Deferral Account" means the notional account established for record keeping purposes for each Participant pursuant to Article VI.

 

2.11	Deferral Period

 

"Deferral Period" is defined in Section 4.02.

 

 

"Deferred Amount" is defined in Section 4.02.

 

2.13

Disabled

 

"Disabled" or "Disability" means eligibility for disability benefits under the terms of the Long-Term Disability Plan maintained by The Dow Chemical Company.

 

2.14	Eligible Compensation

 

"Eligible Compensation" means any Base Salary, Performance Awards or Other Bonuses and any other monies deemed to be eligible compensation by The Dow Chemical Company.

 

2.15	Eligible Employee

 

"Eligible Employee" means a key employee of any Company who:

 

a.

is a United States employee or an expatriate who is paid from one of The Dow Chemical Company's U.S. entities,

 

b.

is a member of the functional specialist/functional leader or global leadership job families,

 

c.

has a job level of 1.2 or higher,

 

d.

is eligible for participation in the Savings Plan,

 

e.

is designated by the Administrator as eligible to participate in the Plan as of September 30 for deferral of Base Salary and Performance Awards, and

 

f.

qualifies as a member of the "select group of management or highly compensated employees" under ERISA.

 

2.16

ERISA

 

"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.

 

2.17	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.

 

2.18	Form of Payment

 

"Form of Payment" means payment in one lump sum or in substantially equal monthly, quarterly or annual installments not to exceed 15 years.

 

2.19	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.

 

2.20	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.

 

 

"Initial Claims Reviewer" means the person, group of persons or entity responsible for deciding benefit claims under the Plan, as described in DOL Reg. s. 2560.503-1(e) ( i.e. , first level claims for benefits).  The Initial Claims Reviewer is the U.S. Pension Plan Leader or such other person, group of persons or entity who may be designated by the Dow Chemical Company in accordance with Section 3.02.

 

2.22	Matching Contribution

 

"Matching Contribution" means the amount of annual matching contribution that each Company will make to the Plan.

 

2.23	Other Bonus

 

"Other Bonus" means the amount awarded to a Participant for a Plan Year under any other incentive plan maintained by any Company that has been established and authorized as eligible for deferral.

 

2.24	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.

 

2.25	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.

 

2.26	Participation Agreement

 

"Participation Agreement" means an agreement filed by a Participant in accordance with Article IV.

 

2.27	Performance Awards

 

"Performance Awards" means the amount paid in cash to the Participant by any Company in the form of annual incentive bonuses for a Plan Year.

 

2.28	Performance Deferral

 

"Performance Deferral" means the amount of a Participant's Performance Award which the Participant elects to have withheld on a pre-tax basis from his or her Performance Award and credited to his or her account pursuant to Section 4.02.

 

2.29	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).

 

2.30

Plan

 

"Plan" means The Dow Chemical Company Elective Deferral Plan (Pre 2005) as set forth herein, together with any and all amendments and supplements hereto.

 

2.31

Plan Year

 

"Plan Year" means a twelve-month period beginning January 1 and ending the following December 31.

 

 

"Retirement" means normal or early retirement of a Participant from the Companies after attaining age 65 or age 50 with at least ten years of service under the Dow Employees' Pension Plan or any other defined benefit pension plan maintained by a Company under which a Participant is eligible to receive a benefit.

 

2.33	Savings Plan

 

"Savings Plan" means The Dow Chemical Company Employees' Savings Plan as it currently exists and as it may subsequently be amended.

 

2.34	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.

 

2.35	Termination of Employment

 

"Termination of Employment" means the cessation of a Participant's services as an employee of the Companies, whether voluntary or involuntary, for any reason other than Retirement, Disability or Death.

 

2.36	Unforeseeable Emergency

 

"Unforeseeable Emergency" means severe financial hardship to the Participant resulting from a sudden and unexpected illness or accident of the Participant or a dependent of the Participant, loss of the Participant's property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant as determined by the Administrator.

 

2.37	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.   Effective January 1, 2010, "Valuation Date" means the 4 th day of the month or the prior business day of each calendar month or such other date as the Administrator in its sole discretion may determine.

 

2.38

VPHR

 

"VPHR" means the Vice President of Human Resources.

 

A pronoun or adjective in the masculine gender includes the feminine gender, and the singular includes the plural, unless the context clearly indicates otherwise.  The title of an officer or employee when used in the plan document shall mean the respective officer or employee of The Dow Chemical Company, except where otherwise indicated. The title for a person or entity who is assigned responsibilities under the Plan shall mean any successor title to such position as such title may be changed from time to time.

ARTICLE III

 

ADMINISTRATION

 

3.01	Duties and Powers of the Administrator

 

The Administrator shall be responsible for the administration of the Plan and shall see that the Plan is carried out in accordance with its terms.

 

Except as provided in Section 3.02, the responsibility and authority of the Administrator shall include, but shall not be limited to, the following duties and powers:

 

 

 

b.

To interpret the Plan and to resolve any possible ambiguities, inconsistencies and omissions therein or therefrom;

 

c.

To decide all questions concerning the Plan;

 

d.

To prepare and disseminate communications to Participants and Beneficiaries as are necessary or appropriate to properly administer the Plan; and

 

e.

To retain third party administrators, consultants, accountants and other individuals or entities as he deems necessary or advisable to assist him in fulfilling his responsibilities under the Plan, consistent with The Dow Chemical Company's guidelines on hiring and retention of outside service providers; and monitor the performance of such individuals and entities, decide whether to discontinue the services of such individuals and entities, and make payment to such individuals and entities in accordance with the terms of the plan document.

 

3.02	Designation of Additional Administrators and Delegation of Administrative Responsibilities

 

The Dow Chemical Company may designate one or more persons or entities to serve as an Administrator of the Plan, in addition to or in lieu of the Administrator named in the plan document, through an action of the Board or through a written designation signed by the VPHR, the Vice President of Compensation and Benefits, the Global Director of Benefits, each acting individually, or such other person as the Board shall designate.  Any such designation of additional Administrators shall set forth in general or specific terms such person's or entity's responsibilities and authority.

 

In addition, each Administrator may designate other persons to carry out its responsibilities under the Plan in a writing that sets forth the responsibilities assigned to the delegee and, if applicable, the period for which such delegation shall be in effect.

 

3.03	Decisions of Administrators

 

 

a.

Each Administrator shall have the sole and absolute discretion to interpret the plan document, make findings of fact, operate, administer and decide any matters arising with respect to the Plan, and may adopt such rules and procedures as it deems necessary, desirable or appropriate in the administration of the Plan.  All rules and decisions of such Administrators shall be conclusive and binding on all persons having an interest in the Plan.

 

 

b.

Any determination by an Administrator shall be binding on all parties.  If challenged in court, such determination shall not be subject to de novo review and shall not be overturned unless proven to be arbitrary and capricious based upon the evidence presented to the Administrator at the time of its determination.

 

3.04	Indemnification of Administrators

 

 

The Company agrees to indemnify and to defend to the fullest extent permitted by law any employee or former employee of the Company or entity within the Company’s controlled group (a controlled group of corporations within the meaning of section 414(b) or section 414(c) of the Code)   who is serving or has served as an Administrator or who is acting or has acted on behalf of an Administrator against all liabilities, damages, costs and expenses (including attorneys' fees and amounts paid in settlement of any claims approved by the Company) occasioned by any act or omission to act in connection with the Plan, if such act or omission is in good faith.  This limitations period replaces and supersedes any limitation period ending at a later time that might otherwise be deemed applicable under state or federal law in the absence of this Section 3.04.

 

If a Participant or Beneficiary ("claimant") 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.  Benefits under this Plan shall be payable only if the Initial Claims Reviewer or the Appeals Administrator, as the case may be, determines, in its sole discretion, that a claimant is entitled to them.

a.

All initial claims for benefits under this Plan shall be sent to the Initial Claims Reviewer.  If the Initial Claims Reviewer 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 Initial Claims Reviewer shall inform the claimant in writing of such determination and the reasons therefore in terms calculated to be understood by the claimant.  The notice shall be sent within 90 days of receipt of the claim unless the Initial Claims Reviewer determines that additional time, not exceeding 90 additional days, is needed and so notifies the claimant in writing before the expiration of the initial 90 day period.  Any written notice of extension for review shall include the circumstances requiring extension and date by which a decision is expected to be rendered.  A written notice of denial of benefits shall (i) state specific reasons for the denial, (ii) make specific reference to the pertinent Plan provisions on which the denial is based, (iii) describe any additional material or information that is necessary to support the claimant's claim and an explanation of why such material or information is necessary, and (iv) include a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of all documents, records or other information relevant (as defined by Department of Labor Regulation section 2560.503-1(m)) to 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, including the right to bring a civil action under section 502(a) of ERISA following exhaustion of review procedures set forth herein.

b.

The claimant may within 60 days after notice of the denial submit, in writing, to the Appeals Administrator a notice that the claimant contests the denial of his or her claim and desires a further review by the Appeals Administrator.  During the review process, the claimant has the right to submit written comments, documents, records and other information relating to the claim for benefits, which the Appeals Administrator shall consider without regard to whether the items were considered upon the initial review.  The Appeals Administrator shall within 60 days thereafter review the claim and authorize the claimant to, upon request and free of charge, have reasonable access to, and copies of all documents, records or other information relevant (as defined by Department of Labor Regulation section 2560.503-1(m)) to the claim.  The Appeals 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 Appeals Administrator determines that additional time, not exceeding 60 days, is needed, and so notifies the claimant in writing before the expiration of the initial 60 day period.  In no event shall the Appeals Administrator render a final decision later than the initial 60 days  plus the possible additional 60 days following receipt of the claimant's appeal.  Any written notice of extension for review shall include the circumstances requiring extension and date by which a decision is expected to be rendered.  A written notice of denial of benefits upon review shall (i) state specific reasons for the denial, (ii) make specific reference to the pertinent Plan provisions on which the denial is based, and (iii) include a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of all documents, records or other information relevant (as defined by Department of Labor Regulation section 2560.503-1(m)) to the claim.  Such notice shall, in addition, inform the claimant of the right to bring a civil action under section 502(a) of ERISA. If such determination is adverse to the claimant, it shall be binding and conclusive unless the claimant notifies the Appeals Administrator within 90 days after the mailing or delivery to him or her by the Appeals Administrator of its determination that he or she intends to institute legal proceedings challenging the determination of the Appeals Administrator, and actually institutes such legal proceeding within the applicable limitations period described in Section 3.06 below.

 

3.06	Commencement of Legal Action

 

A claim for benefits under the Plan (including a claim that the claimant is eligible to participate in the Plan) may not be filed in any court:

 

 

 

b.

unless such claim is filed in a court with jurisdiction over such claim the earlier of:

1.

180 days after the mailing or delivery of the adverse determination by the Appeals Administrator, or

 

2.

two (2) years after (i) the date the first benefit payment was allegedly due, or (ii) the date the Plan first repudiated its alleged obligation to provide such benefits or coverage (regardless of whether such repudiation occurred before or during the administrative review process), whichever is earlier.

 

This limitations period replaces and supersedes any limitation period ending at a later time that might otherwise be deemed applicable under state or federal law in the absence of this Section 3.06.

3.07	Forum Selection

 

 

To the fullest extent permitted by law, any putative class action lawsuit relating to the Plan shall be filed in the jurisdiction in which the Plan is principally administered or the jurisdiction in which the largest number of putative class members resides.  If any such putative class action is filed in a different jurisdiction, or if any non-class action filed in a different jurisdiction is subsequently amended or altered to include class action allegations, then the Plan, all parties to such action that are related to the Plan (such as the Administrator) and all alleged Participants and Beneficiaries shall take all necessary steps to have the action removed to, transferred to or re-filed in a jurisdiction described in the first sentence of this Section 3.07.  This forum selection provision is waived if no party invokes it within 120 days of the filing of a putative class action or the assertion of class action allegations.  This provision does not relieve any putative class member from any obligation existing under the Plan or by law to exhaust administrative remedies before initiating litigation.

 

 

ARTICLE IV

 

PARTICIPATION

 

4.01	Participation

 

Participation in the Plan shall be limited to Eligible Employees who elect to participate in this Plan by filing a Participation Agreement with the Administrator.  A Participation Agreement must be filed on or prior to the November 30 immediately preceding the Plan Year for which it is effective.  The Administrator shall have the discretion to establish special deadlines regarding the filing of Participation Agreements for Participants.  Notwithstanding the foregoing, the Retirement Board, in its sole discretion, may permit a newly eligible Participant to submit a Participation Agreement within 30 days of that employee becoming eligible, and deferrals shall commence as soon as practical thereafter.  An individual shall not be eligible to elect to participate in this Plan unless the individual is a Participant for the Plan Year for which the election is made.  In the event a Participant transfers to a subsidiary of any Company and such subsidiary does not participate in the Plan, the Participant's Deferred Amount shall cease, and the Participant's Deferral Account shall remain in effect until such time as the benefits are distributed as originally elected by the Participant in the Participation Agreement.

 

4.02	Contents of Participation Agreement

 

Subject to Article VII, each Participation Agreement shall set forth: (i) the amount of Eligible Compensation for the Plan Year or performance period to which the Participation Agreement relates that is to be deferred under the Plan (the 'Deferred Amount"), expressed as either a dollar amount or a percentage of the Base Salary and Performance Awards for such Plan Year or performance period; provided , that the minimum Deferred Amount for any Plan Year or performance period shall not be less than 5% (in 5% increments) of Base Salary and/or 5% (in 5% increments) of Performance Award/Other Bonus; (ii) the maximum Deferred Amount for any Plan Year or performance period shall not exceed 50% of Base Salary and 85% of Performance Award/Other Bonus; (iii) the period after which payment of the Deferred Amount is to be made or begin to be made (the 'Deferral Period"), which shall be (A) a specific future year, not greater than the year the Participant reaches age 70 34 or (B) the period ending upon the

 

Retirement or prior termination of employment of the Participant; and (iv) the form in which payments are to be made, which may be a lump sum or in substantially equal monthly, quarterly or annual installments not to exceed 15 years. Participation Agreements are to be completed in a format specified by the Administrator.

 

4.03	Modification or Revocation of Election by Participant

 

A Participant may not change the amount of his or her Deferred Amount during a Plan Year. A Participant's Participation Agreement may not be made, modified or revoked retroactively, nor may a deferral period be shortened or reduced except as expressly provided in this Plan. For deferrals to occur from Performance Awards, the Participant must be actively employed, an eligible retiree or a member of an entire class of employees identified by the Administrator as eligible under Section 7.10.

 

 

ARTICLE V

 

DEFERRED COMPENSATION

 

5.01	Elective Deferred Compensation

 

Except for Section 16 Participants, the Deferred Amount of a Participant with respect to each Plan Year of participation in the Plan shall be credited to the Participant's Deferral Account as and when such Deferred Amount would otherwise have been paid to the Participant. For Section 16 Participants who elect to direct their Deferred Amount to the Hypothetical Investment Benchmark of The Dow Chemical Company Stock Index Fund only, the Deferred Amount of that Participant with respect to each Plan Year of participation shall be credited to the Participant's Deferral Account in the Hypothetical Investment Benchmark of 125% of Ten Year Treasury Notes as and when such Deferred Amount would otherwise have been paid to the Participant; on a quarterly basis (on the last business day of the months of March, June, September and December), such Deferred Amount shall be reallocated to the Hypothetical Investment Benchmark of The Dow Chemical Company Stock Index Fund.  If a Participant is employed at a Company other than The Dow Chemical Company, such Company shall pay or transfer the Deferred Amounts for all such Company's Participants to The Dow Chemical Company as and when the Deferred Amounts are withheld from a Participant's Base Salary, Performance Award or Other Bonus.  Such forwarded Deferred Amounts will be held as part of the general assets of The Dow Chemical Company.  The earnings based on a Participant's investment selection among the Hypothetical Investment Benchmarks specified in Appendix A hereto, as amended by the VPHR, Chief Financial Officer or their delegees from time to time, shall be borne by The Dow Chemical Company.  To the extent that any Company is required to withhold any taxes or other amounts from the Deferred Amount pursuant to any state, Federal or local law, such amounts shall be taken out of other compensation eligible to be paid to the Participant that is not deferred under this Plan.

 

5.02	Vesting of Deferral Account

 

Except as provided in Sections 7.03 and 7.15, a Participant shall be 100% vested in his or her Deferral Account as of each Valuation Date.

 

 

ARTICLE VI

 

MAINTENANCE AND INVESTMENT OF ACCOUNTS

 

6.01	Maintenance of Accounts

 

Separate Deferral Accounts shall be maintained for each Participant.  More than one Deferral Account may be maintained for a Participant as necessary to reflect (a) various Hypothetical Investment Benchmarks and/or (b) separate Participation Agreements specifying different Deferral Periods and/or forms of payment.  A Participant's Deferral Account(s) shall be utilized solely as a device for the measurement and determination of the amounts to be paid to the Participant pursuant to this Plan, and shall not constitute or be treated as a trust fund of any kind.  The Administrator shall determine the balance of each Deferral Account, as of each Valuation Date, by adjusting the

 

balance of such Deferral Account as of the immediately preceding Valuation Date to reflect changes in the value of the deemed investments thereof, credits and debits pursuant to Section 6.02 and Section 7.03 and distributions pursuant to Article VII with respect to such Deferral Account since the preceding Valuation Date.

 

6.02	Hypothetical Investment Benchmarks

 

a.

Direction of Hypothetical Investments .  Each Participant shall be entitled to direct the manner in which his or her Deferral Accounts will be deemed to be invested, selecting among the Hypothetical Investment Benchmarks specified in Appendix A hereto, as amended by the VPHR, Chief Financial Officer or their delegees from time to time, and in accordance with such rules, regulations and procedures as the Administrator may establish from time to time.  Notwithstanding anything to the contrary herein, earnings and losses based on a Participant's investment elections shall begin to accrue as of the date such Participant's Deferral Amounts are credited to his or her Deferral Accounts. Participants, except for Section 16 Participants, can reallocate among the Hypothetical Investment Benchmarks on a daily basis. Section 16 Participants can reallocate among the Hypothetical Investment Benchmarks in accordance with such rules, regulations and procedures as the Administrator may establish from time to time.

 

b.

Dow Chemical Stock Index Fund .

 

i.

The Hypothetical Investment Benchmarks available for Deferral Accounts will include 'The Dow Chemical Company Stock Index Fund." The Dow Chemical Company Stock Index Fund will consist of deemed investments in shares of The Dow Chemical Company Common Stock including reinvestment of dividends, stock splits and without brokerage fees.  Deferred Amounts that are deemed to be invested in The Dow Chemical Company Stock Index Fund shall be converted into Phantom Share Units based upon the Fair Market Value of the Common Stock as of the date(s) the Deferred Amounts are to be credited to a Deferral Account.  The portion of any Deferral Account that is invested in The Dow Chemical Company Stock Index Fund shall be credited, as of each dividend payment date, with additional Phantom Share Units of Common Stock with respect to cash dividends paid on the Common Stock with record dates during the period beginning on the day after the most recent preceding Valuation Date and ending on such Valuation Date.

 

ii.

When a reallocation or a distribution of all or a portion of a Deferral Account that is invested in The Dow Chemical Company Stock Index Fund is to be made, the balance in such a Deferral Account shall be determined by multiplying the Fair Market Value of one share of Common Stock on the most recent Valuation Date preceding the date of such reallocation or distribution by the number of Phantom Share Units to be reallocated or distributed.  Upon a distribution, the amounts in The Dow Chemical Company Stock Index Fund shall be distributed in the form of cash having a value equal to the Fair Market Value of a comparable number of actual shares of Common Stock.

 

iii.

In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger, consolidation, or other change in the corporate structure of The Dow Chemical Company affecting Common Stock, or a sale by The Dow Chemical Company of all or part of its assets, or any distribution to stockholders other than a normal cash dividend, then the Administrator may make appropriate adjustments to the number of deemed shares credited to any Deferral Account.  The determination of the Administrator as to such adjustments, if any, to be made shall be conclusive.

 

iv.

Notwithstanding any other provision of this Plan, the Administrator shall adopt such procedures as it may determine are necessary to ensure that with respect to any Participant who is actually or potentially subject to section 16(b) of the Securities Exchange Act of 1934, as amended, the crediting of deemed shares to his or her Deferral Account is deemed to be an exempt purchase for purposes of such section 16(b), including without limitation requiring that no shares of Common Stock or cash relating to such deemed shares may be distributed for six months after being credited to such Deferral Account.

 

 

Each Participant shall be issued quarterly statements of his or her Deferral Account(s) in such form as the Administrator deems desirable, setting forth the balance to the credit of such Participant in his or her Deferral Account(s) as of the end of the most recently completed quarter.

 

 

ARTICLE VII

 

BENEFITS

 

7.01	Time and Form of Payment.

 

At the end of the Deferral Period for each Deferral Account, The Dow Chemical Company shall pay to the Participant the balance of such Deferral Account at the time or times elected by the Participant in the applicable Participation Agreement.  If the Participant is employed at a Company other than The Dow Chemical Company, such Company shall pay the balance of such Participant's Deferral Account, pursuant to the terms of the Plan, and The Dow Chemical Company shall reimburse such Company for any such payments.  If the Participant has elected to receive payments from a Deferral Account in a lump sum, The Dow Chemical Company (or any other Company as described above) shall pay the balance in such Deferral Account (determined as of the most recent Valuation Date preceding the end of the Deferral Period) in a lump sum in cash on the January 31 st after the end of the Deferral Period, and/or as soon as administratively feasible in the year of the payment of the Performance Award for the Performance Award deferral.  If a Participant has elected in a Participation Agreement to have a Deferral Account be distributed in installment payments, each installment payment shall equal the balance of such Deferral Account as of the most recent Valuation Date preceding the payment date, times a fraction, the numerator of which is one and the denominator of which is the number of remaining installment payments. The first such installment shall be paid on the January 31 st after the end of the Deferral Period.  Each subsequent installment shall be paid on or about the succeeding anniversary of such first payment or in monthly or quarterly intervals, if selected.  Each such installment shall be deemed to be made on a pro rata basis from each of the different deemed investments of the Deferral Account (if there is more than one such deemed investment).

 

For Participants who elect to commence distribution of benefits upon Retirement, the lump sum cash payment or the first installment shall be paid on the January 31 st after Retirement, and/or as soon as administratively feasible in the year of the payment of the Performance Award for the Performance Award deferral.

 

Notwithstanding any of the foregoing, Deferred Account distributions must begin no later than the April 1 st after the calendar year in which the Participant reaches age 70 ½.

 

7.02	Changing Form of Benefit

 

Participants may elect an alternative form of payout as available under Section 7.01 by written election filed with the Administrator; provided, however, that the Participant files the election in the prior tax year and at least six (6) months prior to the first day of the month in which payments are to commence.  Distribution change elections for payments commencing in January must be made no later than June 30 of the prior calendar year.

 

Effective January 1, 2010, Participants may no longer elect to change their benefits to quarterly installments.

 

If the Participant files the election in the year that the benefit payments are to commence or in the prior year but less than six (6) months prior to the date of benefit commencement, the Participant will have his or her Deferral Account reduced by ten percent (10%) at the Valuation Date immediately prior to commencement of payments, and, for future deferrals only, all Participation Agreements previously filed by such Participant shall be null and void after such election is filed (including without limitation Participation Agreements with respect to Plan Years or performance periods that have not yet been complete, and such a Participant shall not thereafter be entitled to file any Participation Agreements under the Plan with respect to the first Plan Year that begins after such election is made.

 

 

Each Participant who elects to make deferrals of Eligible Compensation to the Plan will be credited with a Matching Contribution utilizing the same formula authorized under the Savings Plan for employer matching contributions.  For purposes of calculating the match under this Plan, The Dow Chemical Company will assume each Participant is contributing the maximum allowable amount to the Savings Plan and receiving a match thereon.  This assumed match from the Savings Plan will be offset from the Matching Contribution calculated under provisions of the Elective Deferral Plan.  Notwithstanding the foregoing, the sum of the Matching Contribution under the Plan plus the assumed employer matching contributions under the Savings Plan may not exceed fifteen thousand dollars ($15,000) in each Plan Year.  The amount of the Matching Contribution may be based on a formula that takes into account a Participant's overall compensation and may be subject to maximum or minimum limitations.  The Matching Contribution shall be credited to the Deferral Account as soon as administratively feasible within the first 60 days of the following Plan Year.  The Matching Contribution shall be invested among the same Hypothetical Investment Benchmarks as defined in 6.02 in the same proportion as the elections made by the Participant governing the Base Salary deferrals of the Participant.  The Matching Contribution shall be distributed to the Participant according to the election made by the Participant governing his or her Base Salary deferrals and will vest one hundred percent (100%) on the date credited to the Participant's account.

 

If a Participant is employed by a Company, other than The Dow Chemical Company, an amount equal to all Matching Contributions credited to Participants of such Company shall be paid or transferred in full by such Company to The Dow Chemical Company as of the date such Matching Contribution is credited to a Participant's Deferred Account The Dow Chemical Company shall hold such amounts as part of the general assets of The Dow Chemical Company.

 

7.04	Retirement

 

Subject to Section 7.01 and Section 7.11 hereof, if a Participant has elected to have the balance of his or her Deferral Account distributed upon Retirement or after a Specific Future Year, the account balance of the Participant (determined as of the most recent Valuation Date preceding the end of the Deferral Period) shall be distributed in installments or a lump sum in accordance with the Plan and as elected in the Participation Agreement. Notwithstanding any of the foregoing, Deferred Account distributions must begin no later than the April 1 st after the calendar year in which the Participant reaches age 70 ½.

 

7.05	Distributions after Specific Future Year

 

Subject to Section 7.01 and Section 7.11 hereof, if a Participant has elected to defer Eligible Compensation under the Plan until a stated future year, the account balance of the Participant (determined as of the most recent Valuation Date preceding such Deferral Period) shall be distributed in installments or a lump sum in accordance with the Plan and as elected in the Participation Agreement.  Notwithstanding any of the foregoing, Deferred Account distributions must begin no later than the April 1 st after the calendar year in which the Participant reaches age 70 ½.

 

7.06	Pre-Retirement Survivor Benefit

 

If a Participant dies prior to Retirement and prior to receiving full payment of his or her Deferral Account(s), The Dow Chemical Company shall pay the remaining balance (determined as of the most recent Valuation Date preceding such event) to the Participant's Beneficiary or Beneficiaries (as the case may be) according to the form elected by the Participant as a part of the Participation Agreement. If a Participant was employed at a Company other than The Dow Chemical Company, such Company shall pay the remaining balance of such deceased Participant's Deferral Account in accordance with the preceding sentence and The Dow Chemical Company shall reimburse the Company for such payment.  In the event that installment payments are elected, The Dow Chemical Company shall continue to credit interest on the unpaid balance of the Deferral Account subject to Section 6.02(a) hereof, based on the Participant's investment elections. A Participant's Beneficiary may request acceleration of timing and form of payment by filing a written designation with the Administrator within 60 days of the death of the Participant, provided that such change shall not be effective until the January 31 st after the calendar year of the Participant's death.

 

 

If a Participant dies after Retirement and prior to receiving full payment of his or her Deferral Account(s), The Dow Chemical Company shall pay the remaining balance (determined as of the most recent Valuation Date preceding such event) to the Participant's Beneficiary or Beneficiaries (as the case may be) according to the form elected by the Participant as a part of The Participation Agreement. If a Participant was employed at a Company other than The Dow Chemical Company, such Company shall pay the remaining balance of such deceased Participant's Deferral Account in accordance with the preceding sentence, and The Dow   Chemical Company shall reimburse such Company for such payments.  In the event that installment payments are elected, The Dow Chemical Company shall continue to credit interest on the unpaid balance of the Deferral Account subject to Section 6.02(a) hereof, based on the Participant's investment elections.  A Participant's Beneficiary may   request acceleration of timing and form of payment by filing a written designation with the Administrator within 60 days of the death of the Participant, provided that such change shall not be effective until the January 31 st after the calendar year of the Participant's death.

 

7.08	Disability

 

If a Participant suffers a Disability, the Participant's Deferred Amount shall cease, and The Dow Chemical Company (or, a Company other than The Dow Chemical Company, if the Participant is employed at a Company other than The Dow Chemical Company, subject to reimbursement by The Dow Chemical Company) shall pay the benefit described in Section 7.01. A Participant may request acceleration of timing and form of payment by filing a written designation with the Administrator within 60 days of the determination of Disability of the Participant, provided that such change shall not be effective until the January 31 st after the calendar year of the Participant's Disability.

 

7.09	Termination of Employment

 

In the event of Termination of Employment which takes place prior to eligibility for Retirement, The Dow Chemical Company (or, a Company other than The Dow Chemical Company, if the Participant is employed at a Company other than The Dow Chemical Company, subject to reimbursement by The Dow Chemical Company) shall pay the benefits described in Section 7.01 in a single lump sum payment as soon as practicable after the Termination of Employment.

 

7.10	Merger, Joint Venture or Sale of Business Exception

 

Notwithstanding any of the foregoing, if the Termination of Employment occurs as a direct result of a merger, joint venture or sale of a subsidiary, division, business or other unit of any Company, or as a result of transfer of the Participant to a non-participating subsidiary or joint venture, as determined by the Administrator, the Administrator may, in its sole discretion,

 

a.

elect to waive the lump sum distribution of benefits for an entire class of affected employees transferring to the joint venture. In cases where this election is made by the Administrator, the Participant's Base Salary Deferrals shall cease and the Participant's Deferral Account shall remain deferred, in accordance with the distribution elected in the Participation Agreement, until the Participant's termination of employment from the joint venture, provided however, the Participant is employed by the joint venture until at least age 50; in cases where the Participant is not 50 years old at the time of termination of employment from the entity, The Dow Chemical Company (or, a Company other than The Dow Chemical Company, it the Participant is employed at a Company other than The Dow Chemical Company, subject to reimbursement by The Dow Chemical Company) shall pay to the Participant a lump sum termination benefit equal to the balance of the Deferral Account as of the Valuation Date.  If any Company terminates its ownership interest in the joint venture, the Participant's Deferral Account shall remain deferred, in accordance with the distribution elected in the Participation Agreement, until the Participant's termination of employment from the remaining joint venture partners, provided however, the Participant is employed by the remaining joint venture partners until at least age 50; in cases where the Participant is not 50 years old at the time of termination of employment from the remaining joint venture partners, The Dow Chemical Company (or, a Company other than The Dow Chemical Company, if the Participant is employed at a Company other than The Dow Chemical Company, subject to reimbursement by The Dow Chemical Company) shall pay to the Participant a lump sum termination benefit equal to the balance of the Deferral Account as of the Valuation Date.

b.

elect to waive the lump sum distribution of benefits for an entire class of affected employees of a sale.  In cases where this election is made by the Administrator, the Participant's Base Salary Deferrals shall cease and the Participant's Deferral Account shall remain in effect until such time as the benefits are distributed to Participants in accordance with the distribution elected in the Participation Agreement, provided however, the Participant is employed by the purchaser until at least age 50; in cases where the Participant is not 50 years old at the time of termination of employment from the purchaser, The Dow Chemical Company (or, a Company other than The Dow Chemical Company, if the Participant is employed at a Company other than The Dow Chemical Company, subject to reimbursement by The Dow Chemical Company) shall pay to the Participant a lump sum termination benefit equal to the balance of the Deferral Account as of the Valuation Date.

c.

elect to permit the Performance Deferral for an entire class of affected employees transferring to the joint venture. In cases where this election is made by the Administrator, the award will be credited to the Participant's Deferral Account and the Participant's Deferral Account shall remain in effect until such time as benefits are distributed to Participants as provided under Section 7.10 (a).

d.

elect to permit the Performance Deferral for an entire class of affected employees of a sale. In cases where this election is made by the Administrator, the award will be credited to the Participant's Deferral Account and the Participant's Deferral Account shall remain in effect until such time as the benefits are distributed to Participants as provided under Section 7.10 (b).

 

Participants who retire or terminate after merger, joint venture or sale of a subsidiary, division, business or other unit of any Company, or as a result of transfer of the Participant to a non-participating subsidiary or joint venture assume the personal responsibility to notify The Dow Chemical Company of their status change. Failure to promptly notify The Dow Chemical Company may result in the loss of earnings beyond the status change date.

 

7.11	Hardship Withdrawals

 

Notwithstanding the provisions of Section 7.01 and any Participation Agreement, a Participants on-going Deferred Amount shall cease and a Participant shall be entitled to early payment of all or part of the balance in his or her Deferral Account(s) in the event of an Unforeseeable Emergency, in accordance with this Section 7.11.  A distribution pursuant to this Section 7.11 may only be made to the extent reasonably needed to satisfy the Unforeseeable Emergency need, and may not be made if such need is or may be relieved (i) through reimbursement or compensation by insurance or otherwise, (ii) by liquidation of the Participant's assets to the extent such liquidation would not itself cause severe financial hardship, or (iii) by cessation of participation in the Plan.  An application for an early payment under this Section 7.11 shall be made to the Administrator in such form and in accordance with such procedures as the Administrator shall determine from time to time.  The determination of whether and in what amount and form a distribution will be permitted pursuant to this Section 7.11 shall be made by the Administrator.

 

7.12	Voluntary Early Withdrawal

 

Notwithstanding the provisions of Section 7.01 and any Participation Agreement, a Participant shall be entitled to elect to withdraw all or a portion of the balance in his or her Deferral Account(s) in accordance with this Section 7.12 by filing with the Administrator such form and in accordance with such procedures as the Administrator shall determine from time to time.  The amount of this withdrawal must be at least twenty five percent (25%) of the balance of the Deferral Account, or $10,000.00, whichever is less.  As soon as practicable after receipt of such form by the Administrator, The Dow Chemical Company (or, a Company other than The Dow Chemical Company, if the Participant is employed at a Company other than The Dow Chemical Company, subject to reimbursement by The Dow Chemical Company) shall pay an amount equal to ninety (90) percent of the amount elected for withdrawal (determined as of the most recent Valuation Date preceding the date such election is filed) to the electing Participant in a lump sum in cash, and the Participant shall forfeit the remaining ten percent (10%) of the amount elected for withdrawal.  For future deferrals only, all Participation Agreements previously filed by a Participant who elects to make a withdrawal under this Section 7.12 shall be null and void after such election is filed (including without limitation Participation Agreements with respect to Plan Years or performance periods that have not yet been completed), and such a Participant shall not thereafter be entitled to file any Participation Agreements under the Plan with respect to the first Plan Year that begins after such election is made.

 

 

An Eligible Employee may, when completing a Participation Agreement during the enrollment period, elect that, if a Change of Control occurs, the Participant (or after the Participants death the Participant's Beneficiary) shall receive a lump sum payment of the balance of the Deferral Account within thirty (30) days after the Change of Control.  This election may be changed only during a 30-day period ending on November 30 of each calendar year and shall apply to the entire Deferral Account both before and after Retirement.  The Deferral Account balance shall be determined as of the most recent Valuation Date preceding the month in which Change of Control occurs.  All Participation Agreements previously filed by a Participant who, receives a distribution under this Section 7.13 shall be null and void (including without limitation Participation Agreements with respect to Plan Years or performance periods that have not yet been completed), and such a Participant shall not thereafter be entitled to tile any Participation Agreements under the Plan with respect to the first Plan Year that begins after such distribution is made.

 

7.14	Discretionary Company Contributions

 

Any Company may at any time contribute a discretionary Company contribution.  The amount of the discretionary contribution may vary from payroll period to payroll period throughout the Plan Year, may be based on a formula which takes into account a Participant's overall compensation, and otherwise may be subject to maximum or minimum limitations.  The Discretionary Contribution shall be credited to the Deferral Account as soon as administratively feasible following the end of the payroll period.  The discretionary contribution shall be invested among the same Hypothetical Investment Benchmarks as defined in Section 6.02 in the same proportion as the elections made by the Participant governing the deferrals of the Participant. The discretionary contribution shall be distributed to the Participant according to the election made by the Participant governing his or her deferrals. The vesting schedule shall be at the sole discretion of the Administrator.  If a Participant is employed at a Company other than The Dow Chemical Company, such Company shall pay or transfer to The Dow Chemical Company any amounts designated as discretionary Company contributions for all such Participants as of the date such discretionary Company contributions are credited to a Participant's Deferral Account.  The Dow Chemical Company shall hold such amounts as part of the general assets of The Dow Chemical Company.

 

7.15	Withholding of Taxes

 

Notwithstanding any other provision of this Plan, any Company shall withhold from payments made hereunder any amounts required to be so withheld by any applicable law or regulation.

 

ARTICLE VIII

 

BENEFICIARY DESIGNATION

 

8.01	Beneficiary Designation

 

Each Participant shall have the right, at any time, to designate any person, persons or entity as his or her Beneficiary or Beneficiaries.  A Beneficiary designation shall be made, and may be amended, by the Participant by filing a written designation with the Administrator, on such form and in accordance with such procedures as the Administrator shall establish from time to time.

 

8.02	No Beneficiary Designation

 

If a Participant or Beneficiary fails to designate a Beneficiary as provided above, or if all designated Beneficiaries predecease the Participant or his or her Beneficiary, then the Participant's Beneficiary shall be deemed to be, in the following order:

 

a.

the spouse of such person, if any;

 

b.

the children of such person, if any;

 

c.

the beneficiary of any Company Paid Life Insurance of such person, if any;

 

d.

the beneficiary of the Executive Life Insurance of such person, if any;

 

e.

the beneficiary of any Company-sponsored life insurance policy for which any Company pays all or part of the premium of such person, if any; or

 

f.

the deceased person's estate.

 

 

ARTICLE IX

 

AMENDMENT AND TERMINATION OF PLAN

 

9.01

Amendment

 

The Board or its delegee may amend or modify the Plan at any time, and the President, Chief Financial Officer and VPHR, each acting individually, may amend or modify the Plan at any time, provided, however, that no amendment shall be effective to decrease the balance in any Deferral Account as accrued at the time of such amendment, nor shall any amendment otherwise have a retroactive effect.

 

Notwithstanding the foregoing, an amendment that affects only Section 16(b) Participants shall not be valid unless it is adopted or approved by the Board.

 

The authority of the President, Chief Financial Officer and VPHR, to amend or modify the Plan under this Section 9.01 may not be delegated.

 

9.02	Company's Right to Terminate

 

The Board may at any time terminate the Plan with respect to future Participation Agreements.  The Board may also terminate the Plan in its entirety at any time for any reason, including without limitation if, in its judgment, the continuance of the Plan, the tax, accounting, or other effects thereof, or potential payments thereunder would not be in the best interests of The Dow Chemical Company, and upon any such termination, The Dow Chemical Company shall pay to each Participant (or shall transfer to a Company other than The Dow Chemical Company for payment if the Participant is employed at a Company other than The Dow Chemical Company) the benefits such Participant is entitled to receive under the Plan as monthly installments over a three (3) year period commencing within ninety (90) days (determined as of the most recent Valuation Date preceding the termination date).  Any Company may cease participation in the Plan for any reason by notifying The Dow Chemical Company in writing at least 30 days prior to such Company's cessation of participation. Payments to Participants by any such Company will commence in accordance with the terms of the Plan.

 

ARTICLE X

 

MISCELLANEOUS

 

10.01

Unfunded Plan

 

This Plan is intended to be an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, within the meaning of sections 201, 301 and 401 of ERISA and therefore meant to be exempt from Parts 2, 3 and 4 of Title I of ERISA.  All payments pursuant to the Plan shall first be made from the general assets of The Dow Chemical Company, as the entity primarily liable for such payments, and no special or separate fund shall be established or other segregation of assets made to assure payment.  As described above, if a Participant is employed at a Company other than The Dow Chemical Company, such Company shall pay such Participant's Deferral Account balance to such Participant according to the terms of the Plan, and The Dow Chemical Company shall reimburse such Company for the amount of the payment.  In the event The Dow Chemical Company is insolvent or is otherwise unable to make any required payment or reimbursement to a Participant or a Company, the Company (other than The Dow Chemical Company) that employed such Participant shall be secondarily liable for such payments from the general assets of such

 

Company.  No Participant or other person shall have under any circumstances any interest in any particular property or assets of The Dow Chemical Company or any other Company as a result of participating in the Plan.  Notwithstanding the foregoing, The Dow Chemical Company may (but shall not be obligated to) create one or more grantor trusts, the assets of which are subject to the claims of The Dow Chemical Company's creditors, to assist it in accumulating funds to pay its obligations.

 

10.02

Nonassignability

 

Except as specifically set forth in the Plan with respect to the designation of Beneficiaries, neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are, expressly declared to be unassignable and non-transferable.  No part of the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person, nor be transferable by operation of law in the event of a Participant's or any other person's bankruptcy or insolvency.

 

10.03

Validity and Severability

 

The invalidity or unenforceability of any provision of this Plan shall not affect the validity or enforceability of any other provision of this Plan, which shall remain in full force and effect and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

10.04

Governing Law

 

The validity, interpretation, construction and performance of this Plan shall in all respects be governed by the laws of the State of Delaware, without reference to principles of conflict of law, except to the extent preempted by federal law.

 

10.05

Employment Status

 

This Plan does not constitute a contract of employment or impose on the Participant or any Company any obligation for the Participant to remain an employee of such Company or change the status of the Participant's employment or the policies of such Company and its affiliates regarding termination of employment.

 

10.06

Underlying Incentive Plans and Programs

 

Nothing in this Plan shall prevent any Company from modifying, amending or terminating the compensation or the incentive plans and programs pursuant to which Performance Awards are earned and which are deferred under this Plan.

 

10.07

Severance

 

Payments from the Executive Severance Supplement equal to six months' Base Salary will be credited to the Participant's Deferral Account subject to the same earnings methods and distribution elections most recently elected by the Participant governing his or her Base Salary deferrals.  The Executive Severance Supplement for individuals who do not have an established Deferral Account will be deemed to be invested using the U.S. Treasury Note Hypothetical Investment Benchmark and a ten year payout distribution election.

 

10.08

Successors of the Company

 

The rights and obligations of The Dow Chemical Company shall inure to the benefit of, and shall be binding upon, the successors and assigns of The Dow Chemical Company.

 

10.09

Waiver of Breach

 

The waiver by The Dow Chemical Company of any breach of any provision of the Plan by the Participant shall not operate or be construed as a waiver of any subsequent breach by the Participant.

 

10.10

Notice

 

Any notice or filing required or permitted to be given to The Dow Chemical Company under the Plan shall be sufficient if in writing and hand-delivered, or sent by first class mail to the principal office of The Dow Chemical Company, directed to the attention of the Administrator. Such notice shall be deemed given as of the date of delivery, or, if delivery is made by mail, as of the date shown on the postmark.

 

10.11

Successor Titles or Positions

 

The title of any person or entity who is assigned responsibilities under the Plan shall include any successor title to such position as such title may be changed from time to time.

 

 

IN WITNESS WHEREOF , the Company has caused this amended and restated Plan document to be executed in its name and on its behalf by its officers duly authorized on this 14th day of April, 2010.

 

 

 

APPENDIX A: Hypothetical Investment Benchmarks

Hypothetical funds that align with the funds offered in the Savings Plan are also offered in this plan.

 

Ten Year U.S. Treasury Notes Plus Fund

 

The Angus Cash Fund is grandfathered to existing Participants.  No new contributions are allowed.

EXHIBIT 10.3

 

The Dow Chemical Company

Elective Deferral Plan

(Post 2004)

Restated and Effective April 14, 2010

ARTICLE I

 

PURPOSE AND EFFECTIVE DATE

 

The purpose of The Dow Chemical Company Elective Deferral Plan ("Plan") is to aid The Dow Chemical Company (the "Company") and its subsidiaries in retaining and attracting executive employees by providing them with tax deferred savings opportunities.  The Plan provides a select group of management and highly compensated employees of The Dow Chemical Company and certain subsidiaries with the opportunity to elect to defer receipt of specified portions of compensation, and to have these deferred amounts treated as if invested in specified Hypothetical Investment Benchmarks.  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 executive's Separation from Service.  Any references to "plan document" with respect to this Plan is a reference to the document herein.

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 Internal Revenue Code of 1986 ("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.

The Plan shall be effective for deferrals made hereunder on or after January 1, 2005.  Amendments were made to the Plan on January 10, 2005 and March 11, 2005 to comply with the provisions of Code section 409A, and a minor amendment was made to the Plan on January 23, 2006. On September 1, 2006, the Plan was amended to further comply with the provisions of Code section 409A and, effective September 1, 2006 and January 1, 2007, to change the Hypothetical Investment Benchmarks.  On November 1, 2006, the Plan was amended for Change of Control language.  On December 31, 2008, the Plan was amended and restated to comply with the requirements of Code section 409A and the final regulations thereunder, effective January 1, 2009.  On January 1, 2010, minor amendments to the Plan were made via a Plan restatement to change the Hypothetical Investment Benchmarks, to clarify the valuation date used for the calculation of installment payments, and to eliminate the small balance distribution.  On April 14, 2010, the Plan was amended and restated to make certain changes to the administrative provisions of the Plan.

For rules that apply to the distribution of amounts that were earned and vested prior to 2005 (and earnings thereon) and are exempt from the requirements of Code section 409A, refer to the plan document in effect on October 3, 2004. For rules that apply to the distribution of amounts that were earned and vested prior to January 1, 2010 (and earnings thereon) refer to the plan document in effect on January 1, 2009 unless such distributions have been further modified by a participant election per section 7.02 below.

 

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:

2.01.

Administrator

 

"Administrator" means the U.S. Pension Plan Leader, his delegee, and such other person, group of persons or entity which may be designated by The Dow Chemical Company in accordance with Section 3.02.  For purposes of Sections 3.01, 3.03 and 3.04, the Administrator shall also include the Appeals Administrator and the Initial Claims Reviewer (if the Initial Claims Reviewer is not the U.S. Pension Plan Leader).

 

 

"Appeals Administrator" means the Global Director of Benefits or his delegee and such other person, group of persons or entity which may be designated by the Dow Chemical Company in accordance with Section 3.02.

 

2.03.

Base Salary

 

"Base Salary" means the annual base rate of pay from the Company at which a Participant is employed (excluding Performance Awards, commissions, relocation expenses, and other non-regular forms of compensation) before deductions under (A) deferrals pursuant to Section 4.02 and (B) contributions made on his or her behalf to any qualified plan maintained by any Company or to any cafeteria plan under Code section 125 maintained by any Company. "Base Salary" for a Cadre Employee means the annual base rate of pay (excluding Performance Awards, commissions, relocation expenses, and other non-regular forms of compensation) before the deductions listed above payable to a Cadre Employee while the Cadre Employee is on U.S. assignment.

 

2.04.

Base Salary Deferral

 

"Base Salary Deferral" means the amount of a Participant's Base Salary which the Participant elects to have withheld on a pre-tax basis from his or her Base Salary and credited to his or her Deferral Account pursuant to Section 4.02.

 

2.05.

Beneficiary

 

"Beneficiary" means the person, persons or entity designated by the Participant to receive any benefits payable under the Plan pursuant to Article VIII.

 

2.06.

Board

 

"Board" means the board of directors of The Dow Chemical Company.

 

2.07.

Cadre Employee

 

"Cadre Employee" means an employee who has been authorized by Dow Europe GmbH to participate in the Cadre Pension Plan and who earns compensation while on assignment in the U.S.

 

2.08.

Change of Control

 

For purposes of this Plan, a "Change of Control" shall be deemed to have occurred on: (a) 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% of the total fair market value or total voting power of the stock of The Dow Chemical Company, (b) the date that a majority of the members of the Board 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, (c) 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% or more of the total voting power of the stock of such corporation, (d) 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 has a total gross fair market value equal to or more than 40% 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% 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% or more of the stock of The Dow Chemical Company, or (iv) a transfer to an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (iii). This definition of "Change of Control" is intended to conform to the definition of a "change in 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 subsequent authority

 

issued pursuant thereto, and no corporate event shall be considered a Change of Control unless it meets such requirements.

 

2.09.

Code

 

"Code" means the Internal Revenue Code of 1986, as amended.

 

2.10.

Common Stock

 

"Common Stock" means the common stock of The Dow Chemical Company.

 

2.11.

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.

 

2.12.

Deferral Account

 

"Deferral Account" means the notional account established for record keeping purposes for each Participant pursuant to Article VI.

 

2.13.

Deferred Amount

 

"Deferred Amount" means the amount deferred pursuant to Section 4.02.

 

2.14.

Disabled

 

"Disabled" or "Disability" means a Participant who, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, is receiving income replacement benefits for a period of not less than 3 months under the Company's ERISA welfare plan that provides long-term disability payments.

 

2.15.

Discretionary Company Contribution

 

"Discretionary Company Contribution" means an amount credited to a Participant's Deferral Account pursuant to Section 7.08.

 

2.16.

Domestic Partner

 

"Domestic Partner" means a person who is a member of a Domestic Partnership.

 

2.17.

Domestic Partnership

 

"Domestic Partnership" means a partnership of two people that meets the definition of "Domestic Partnership" as defined in the Savings Plan.

 

2.18.

Eligible Compensation

 

"Eligible Compensation" means any Base Salary, Performance Awards and any other monies treated as eligible compensation by The Dow Chemical Company, payable to a Participant to the extent the Participant is on the U.S. payroll of the Company at the time the amount would have otherwise been paid to the Participant.  "Eligible Compensation" for a Cadre Employee means any Base Salary, Performance Awards and any other monies treated as eligible compensation by The Dow Chemical Company, payable to a Cadre Employee while the Cadre Employee is on U.S. assignment.

 

 

 

"Eligible Employee"' means an employee of any Company who:

 

a.

is a United States employee or an expatriate who is paid from one of The Dow Chemical Company's U.S. entities,

 

b.

is a member of the functional specialist/functional leader or global leadership job families,

 

c.

has a job level of 362 points or higher,

 

d.

is eligible for participation in the Savings Plan,

 

e.

is designated by the Administrator as eligible to participate in the Plan as of September 30 for deferral of Base Salary and Performance Awards, and

 

f.

qualifies as a member of the "select group of management or highly compensated employees" under ERISA.

 

For purposes of Section 7.08, Discretionary Company Contributions, only, "Eligible Employee" means an employee who:

a.

is a United States employee,

 

b.

has terminated employment with a foreign affiliate of the Company and has accepted employment with one of the Company's U.S. entities,

 

c.

is eligible for a signing bonus from one of the Company's U.S. entities,

 

d.

has a job level of 208 points or higher,

 

e.

is eligible for participation in the Savings Plan, and

 

f.

qualifies as a member of the "select group of management or highly compensated employees" under ERISA.

 

 

2.20.

ERISA

 

"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.

 

2.21.

Executive Life Insurance

 

"Executive Life Insurance" means a life insurance policy under TDCC Executive Split Dollar Life Insurance Plan, or the UCC Executive Life Insurance Plan.

 

2.22.

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.

 

2.23.

Form of Payment

 

"Form of Payment" means payment in one lump sum or in substantially equal monthly, quarterly or annual installments not to exceed 15 years.

 

 

 

"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.

 

2.25.

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.

 

2.26.

Initial Claims Reviewer

 

"Initial Claims Reviewer" means the person, group of persons or entity responsible for deciding benefit claims under the Plan, as described in DOL Reg. s. 2560.503-1(e) ( i.e. , first level claims for benefits).  The Initial Claims Reviewer is the U.S. Pension Plan Leader or such other person, group of persons or entity who may be designated by the Dow Chemical Company in accordance with Section 3.02.

 

2.27.

Key Employee

 

"Key Employee" means any Eligible Employee or Cadre Employee who has a job level of 820 points or higher as of his Separation from Service.

 

2.28.

Matching Contribution

 

"Matching Contribution" means the amount of annual matching contribution that each Company will make to the Plan.

 

2.29.

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.

 

2.30.

Participation Agreement

 

"Participation Agreement" means an agreement filed by a Participant in accordance with Article IV.

 

2.31.

Performance Awards

 

"Performance Awards" means the amount paid in cash to the Participant by any Company in the form of annual incentive bonuses for a Plan Year.  "Performance Awards" for a Cadre Employee means the annual incentive bonuses for a Plan Year payable to a Cadre Employee while the Cadre Employee is on U.S. assignment.

 

2.32.

Performance Deferral

 

"Performance Deferral" means the amount of a Participant's Performance Award which the Participant elects to have withheld on a pre-tax basis from his or her Performance Award and credited to his or her account pursuant to Section 4.02.

 

2.33.

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).

 

2.34.

Plan

 

"Plan" means The Dow Chemical Company Elective Deferral Plan (Post 2004) as set forth herein, together with any and all amendments and supplements hereto.

 

 

 

"Plan Year" means a twelve-month period beginning January 1 and ending the following December 31.

 

2.36.

Savings Plan

 

"Savings Plan" means The Dow Chemical Company Employees' Savings Plan as it currently exists and as it may subsequently be amended.

 

2.37.

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.

 

2.38.

Separation from Service

 

"Separation from Service" or "Separates from Service" means 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 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.

 

2.39.

Unforeseeable Emergency

 

"Unforeseeable Emergency' means severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant's spouse, or a dependent (as defined in Code section 152(a)) of the Participant loss of the Participant's property due to casualty, or other similar extraordinary and 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, by liquidation of the Participant's assets (to the extent the liquidation of such assets would not itself cause severe financial hardship) or by cessation of the Participant's deferrals under the Plan.

 

2.40.

Valuation Date

 

"Valuation Date" means the 4 th day or the prior business day of each calendar month or such other date as the Administrator in its sole discretion may determine.

 

2.41.

VPHR

 

"VPHR" means the Vice President of Human Resources.

 

A pronoun or adjective in the masculine gender includes the feminine gender, and the singular includes the plural, unless the context clearly indicates otherwise.  The title of an officer or employee when used in this Plan document shall mean the respective officer or employee of The Dow Chemical Company, except where otherwise indicated.  The title for a person or entity who is assigned responsibilities under the Plan shall mean any successor title to such position as such title may be changed from time to time.

 

 

ARTICLE III

 

ADMINISTRATION

 

3.01.

Duties and Powers of the Administrator

 

 

The Administrator shall be responsible for the administration of the Plan and shall see that the Plan is carried out in accordance with its terms.

 

 

Except as provided in Section 3.02, the responsibility and authority of the Administrator shall include, but shall not be limited to, the following duties and powers:

 

 

a.

To promulgate and enforce such rules and regulations and prescribe the use of such forms as he shall deem necessary or appropriate for the proper and efficient administration of the Plan;

 

b.

To interpret the Plan and to resolve any possible ambiguities, inconsistencies and omissions therein or therefrom;

 

c.

To decide all questions concerning the Plan;

 

d.

To prepare and disseminate communications to Participants and Beneficiaries as are necessary or appropriate to properly administer the Plan; and

 

e.

To retain third party administrators, consultants, accountants and other individuals or entities as he deems necessary or advisable to assist him in fulfilling his responsibilities under the Plan, consistent with The Dow Chemical Company's guidelines on hiring and retention of outside service providers; and monitor the performance of such individuals and entities, decide whether to discontinue the services of such individuals and entities, and make payment to such individuals and entities in accordance with the terms of the plan document.

 

3.02.

Designation of Additional Administrators and Delegation of Administrative Responsibilities

 

 

The Dow Chemical Company may designate one or more persons or entities to serve as an Administrator of the Plan, in addition to or in lieu of the Administrator named in the plan document, through an action of the Board or through a written designation signed by the VPHR, the Vice President of Compensation and Benefits, the Global Director of Benefits, each acting individually, or such other person as the Board shall designate.  Any such designation of additional Administrators shall set forth in general or specific terms such person's or entity's responsibilities and authority.

 

 

In addition, each Administrator may designate other persons to carry out its responsibilities under the Plan in a writing that sets forth the responsibilities assigned to the delegee and, if applicable, the period for which such delegation shall be in effect.

 

3.03.

Decisions of Administrators

 

 

a.

Each Administrator shall have the sole and absolute discretion to interpret the plan document, make findings of fact, operate, administer and decide any matters arising with respect to the Plan, and may adopt such rules and procedures as it deems necessary, desirable or appropriate in the administration of the Plan. All rules and decisions of such Administrators shall be conclusive and binding on all persons having an interest in the Plan.

 

 

b.

Any determination by an Administrator shall be binding on all parties.  If challenged in court, such determination shall not be subject to de novo review and shall not be overturned unless proven to be arbitrary and capricious based upon the evidence presented to the Administrator at the time of its determination.

 

 

 

The Company agrees to indemnify and to defend to the fullest extent permitted by law any employee or former employee of the Company or entity within the Company’s controlled group (a controlled group of corporations within the meaning of section 414(b) or section 414(c) of the Code)   who is serving or has served as an Administrator or who is acting or has acted on behalf of an Administrator against all liabilities, damages, costs and expenses (including attorneys' fees and amounts paid in settlement of any claims approved by the Company) occasioned by any act or omission to act in connection with the Plan, if such act or omission is in good faith.  This limitations period replaces and supersedes any limitation period ending at a later time that might otherwise be deemed applicable under state or federal law in the absence of this Section 3.04.

 

3.05.

Claim Procedure

 

If a Participant or Beneficiary ("claimant") 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.  Benefits under this Plan shall be payable only if the Initial Claims Reviewer or the Appeals Administrator, as the case may be, determines, in its sole discretion, that a claimant is entitled to them.

a.

All initial claims for benefits under this Plan shall be sent to the Initial Claims Reviewer.  If the Initial Claims Reviewer 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 Initial Claims Reviewer shall inform the claimant in writing of such determination and the reasons therefore in terms calculated to be understood by the claimant.  The notice shall be sent within 90 days of receipt of the claim unless the Initial Claims Reviewer determines that additional time, not exceeding 90 additional days, is needed and so notifies the claimant in writing before the expiration of the initial 90 day period.  Any written notice of extension for review shall include the circumstances requiring extension and date by which a decision is expected to be rendered.  A written notice of denial of benefits shall (i) state specific reasons for the denial, (ii) make specific reference to the pertinent Plan provisions on which the denial is based, (iii) describe any additional material or information that is necessary to support the claimant’s claim and an explanation of why such material or information is necessary, and (iv) include a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of all documents, records or other information relevant (as defined by Department of Labor Regulation section 2560.503-1(m)) to 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, including the right to bring a civil action under section 502(a) of ERISA following exhaustion of review procedures set forth herein.

b.

The claimant may within 60 days after notice of the denial submit, in writing, to the Appeals Administrator a notice that the claimant contests the denial of his or her claim and desires a further review by the Appeals Administrator.  During the review process, the claimant has the right to submit written comments, documents, records and other information relating to the claim for benefits, which the Appeals Administrator shall consider without regard to whether the items were considered upon the initial review.  The Appeals Administrator shall within 60 days thereafter review the claim and authorize the claimant to, upon request and free of charge, have reasonable access to, and copies of all documents, records or other information relevant (as defined by Department of Labor Regulation section 2560.503-1(m)) to the claim.  The Appeals 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 Appeals Administrator determines that additional time, not exceeding 60 days, is needed, and so notifies the claimant in writing before the expiration of the initial 60 day period.  In no event shall the Appeals Administrator render a final decision later than the initial 60 days plus the possible additional 60 days following receipt of the claimant's appeal.  Any written notice of extension for review shall include the circumstances requiring extension and date by which a decision is expected to be rendered.  A written notice of denial of benefits upon review shall (i) state specific reasons for the denial, (ii) make specific reference to the pertinent Plan provisions on which the denial is based, and (iii) include a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of all documents, records or other information relevant (as defined by Department of Labor Regulation section 2560.503-1(m)) to the claim.  Such notice shall, in addition, inform the claimant of the right to bring a civil

action under section 502(a) of ERISA.  If such determination is adverse to the claimant, it shall be binding and conclusive unless the claimant notifies the Appeals Administrator within 90 days after the mailing or delivery to him or her by the Appeals Administrator of its determination that he or she intends to institute legal proceedings challenging the determination of the Appeals Administrator, and actually institutes such legal proceeding within the applicable limitations period described in Section 3.06 below.

3.06.

Commencement of Legal Action

 

A claim for benefits under the Plan (including a claim that the claimant is eligible to participate in the Plan) may not be filed in any court:

 

a.

until the claimant has exhausted the claims review procedures described in Section 3.05 above, including complying with the 90-day notice requirement in Section 3.05(b), and

 

b.

unless such claim is filed in a court with jurisdiction over such claim the earlier of:

1.

180 days after the mailing or delivery of the adverse determination by the Appeals Administrator, or

 

2.

two (2) years after (i) the date the first benefit payment was allegedly due, or (ii) the date the Plan first repudiated its alleged obligation to provide such benefits or coverage (regardless of whether such repudiation occurred before or during the administrative review process), whichever is earlier.

 

This limitations period replaces and supersedes any limitation period ending at a later time that might otherwise be deemed applicable under state or federal law in the absence of this Section 3.06.

 
 

3.07.

Forum Selection

 

 

To the fullest extent permitted by law, any putative class action lawsuit relating to the Plan shall be filed in the jurisdiction in which the Plan is principally administered or the jurisdiction in which the largest number of putative class members resides.  If any such putative class action is filed in a different jurisdiction, or if any non-class action filed in a different jurisdiction is subsequently amended or altered to include class action allegations, then the Plan, all parties to such action that are related to the Plan (such as the Administrator) and all alleged Participants and Beneficiaries shall take all necessary steps to have the action removed to, transferred to or re-filed in a jurisdiction described in the first sentence of this Section 3.07.  This forum selection provision is waived if no party invokes it within 120 days of the filing of a putative class action or the assertion of class action allegations.  This provision does not relieve any putative class member from any obligation existing under the Plan or by law to exhaust administrative remedies before initiating litigation.

 

ARTICLE IV

 

PARTICIPATION

 

4.01.

Participation

 

a.

Eligible Employees . In general, participation in the Plan shall be limited to Eligible Employees who elect to participate in this Plan by filing a Participation Agreement with the Administrator in accordance with the Company's enrollment procedures.  A Participation Agreement normally must be filed on or prior to the November 30 (Eastern Standard Time) immediately preceding the Plan Year in which the Eligible Compensation to which the Participation Agreement relates is earned.  An individual shall not be eligible to elect to participate in this Plan unless the individual qualifies as an Eligible Employee for the Plan Year for which the election is made.  The Administrator, in its sole discretion and to the extent permitted by Code section 409A and the regulations or other guidance issued thereunder, may permit a newly Eligible Employee to submit a Participation Agreement within 30 days after the date the Eligible Employee

 

becomes eligible, and deferrals shall commence as soon as practical thereafter for Eligible Compensation earned after the Administrator receives a completed and timely submitted Participation Agreement.

 

b.

Cadre Employees . Cadre Employees shall also be eligible to participate in the Plan by filing a Participation Agreement with the Administrator in accordance with the Company's enrollment procedures.  A Participation Agreement normally must be filed on or prior to the November 30 (Eastern Standard Time) immediately preceding the Plan Year in which the Eligible Compensation to which the Participation Agreement relates is earned.  The Administrator, in its sole discretion and to the extent permitted by Code section 409A and the regulations or other guidance issued thereunder, may permit a newly eligible Cadre Employee to submit a Participation Agreement within 30 days after the date the Cadre Employee becomes eligible, and deferrals shall commence as soon as practical thereafter for Eligible Compensation earned after the Administrator receives a completed and timely submitted Participation Agreement. In addition, the Administrator, in its sole discretion and to the extent permitted by Code section 409A and the regulations or other guidance issued thereunder, may permit a newly eligible Cadre Employee for the first Plan Year in which the Cadre Employee is a resident alien to make a deferral election in a timely manner as permitted under Treas. Reg. section 1.409A-2(c).

 

4.02.

Contents of Participation Agreement

 

a.

Eligible Employees . Subject to Article VII, each Participation Agreement shall set forth the amount of Eligible Compensation for the Plan Year to which the Participation Agreement relates that is to be deferred under the Plan (the "Deferred Amount"), expressed as either a dollar amount or a percentage of the Base Salary and Performance Awards for such Plan Year; provided, that the minimum Deferred Amount for any Plan Year shall not be less than 5% (in 5% increments) of Base Salary and/or 5% (in 5% increments) of any Performance Award and the maximum Deferred Amount for any Plan Year shall not exceed 50% of Base Salary and 85% of any Performance Award.  Effective for deferrals earned on or after January 1, 2010, the maximum Deferred Amount for any Plan Year shall not exceed 75% of Base Salary and 100% of Performance Award.  In accordance with the provisions contained in Article VII, each Participation Agreement shall also set forth a time and Form of Payment of a Deferred Amount. Participation Agreements are to be completed in a format specified by the Administrator. Notwithstanding the foregoing, if a Participant shall have failed to designate properly the form of payment of the Participant's benefit under the Plan, such payment will be in a lump sum.

 

b.

Cadre Employees . A Cadre Employees Participation Agreement shall set forth the amount of Base Salary for the Plan Year to which the Participation Agreement relates that is to be deferred under the Plan (the "Deferred Amount"), expressed as a whole percentage of the Base Salary for such Plan Year; provided that the maximum Deferred Amount for any Plan Year shall not exceed 15% of Base Salary.  In addition, each Participation Agreement shall, in accordance with the provisions contained in Article VII, set forth a time and Form of Payment of a Deferred Amount.  Participation Agreements are to be completed in a format specified by the Administrator.

 

4.03.

Modification or Revocation of Election by Participant

 

A Participant may not change the amount of his or her Deferred Amount during a Plan Year.  A Participants Participation Agreement may not be made, modified or revoked retroactively.

ARTICLE V

 

DEFERRED COMPENSATION

 

5.01.

Elective Deferred Compensation

 

The Deferred Amount of a Participant with respect to each Plan Year of participation in the Plan shall be credited to the Participant's Deferral Account as and when such Deferred Amount would otherwise have been paid to the Participant. If a Participant is employed at a Company other than The Dow Chemical Company, such Company shall pay or transfer the Deferred Amounts for all such Company's Participants to The Dow Chemical Company as and

 

when the Deferred Amounts are withheld from a Participant's Base Salary or Performance Award.  Such forwarded Deferred Amounts will be held as part of the general assets of The Dow Chemical Company.  The earnings credit under Section 6.02 based on a Participant's investment selection among the Hypothetical Investment Benchmarks specified in Appendix A hereto, as amended by the VPHR, Chief Financial Officer or their delegees from time to time, shall be borne by The Dow Chemical Company.  To the extent that any Company is required to withhold any taxes or other amounts from the Deferred Amount pursuant to any state, Federal or local law, such amounts shall be taken out of other compensation eligible to be paid to the Participant that is not deferred under this Plan.

 

5.02.

Vesting of Deferral Account

 

Except as provided in Sections 7.10 and 7.11, a Participant shall be 100% vested in his or her Deferral Account as of each Valuation Date.

 

 

ARTICLE VI

 

MAINTENANCE AND INVESTMENT OF ACCOUNTS

 

6.01.

Maintenance of Accounts

 

Separate Deferral Accounts shall be maintained for each Participant.  More than one Deferral Account may be maintained for a Participant as necessary to reflect (a) various Hypothetical Investment Benchmarks and/or (b) separate Participation Agreements specifying different times and Forms of Payment.  A Participants Deferral Account(s) shall be utilized solely as a device for the measurement and determination of the amounts to be paid to the Participant pursuant to this Plan, and shall not constitute or be treated as a trust fund of any kind.  The Administrator shall determine the balance of each Deferral Account, as of each Valuation Date, by adjusting the balance of such Deferral Account as of the immediately preceding Valuation Date to reflect changes in the value of the deemed investments thereof, credits and debits pursuant to Section 6.02 and Section 7.08 and distributions pursuant to Article VII with respect to such Deferral Account since the preceding Valuation Date.

 

6.02.

Hypothetical Investment Benchmarks

 

a.

Direction of Hypothetical Investments .  Each Participant shall be entitled to direct the manner in which his or her Deferral Accounts will be deemed to be invested, selecting among the Hypothetical Investment Benchmarks specified in Appendix A hereto, as amended by the VPHR, Chief Financial Officer or their delegees from time to time, and in accordance with such rules, regulations and procedures as the Administrator may establish from time to time.  Notwithstanding anything to the contrary herein, earnings and losses based on a Participant's investment elections shall begin to accrue as of the date such Participant's Deferred Amounts are credited to his or her Deferral Accounts.  Participants, except for Section 16 Participants, can reallocate among the Hypothetical Investment Benchmarks on a daily basis. Section 16 Participants can reallocate among the Hypothetical Investment Benchmarks in accordance with such rules, regulations and procedures as the Administrator may establish from time to time.

 

b.

Dow Chemical Stock Index Fund .

 

 

1.

The Hypothetical Investment Benchmarks available for Deferral Accounts will include "The Dow Chemical Company Stock Index Fund."  The Dow Chemical Company Stock Index Fund will consist of deemed investments in shares of The Dow Chemical Company Common Stock including reinvestment of dividends and stock splits. Deferred Amounts that are deemed to be invested in The Dow Chemical Company Stock Index Fund shall be converted into Phantom Share Units based upon the Fair Market Value of the Common Stock as of the date(s) the Deferred Amounts are to be credited to a Deferral Account.  The portion of any Deferral Account that is invested in The Dow Chemical Company Stock Index Fund shall be credited, as of each dividend payment date, with additional Phantom Share Units of Common Stock with respect to cash dividends paid on the Common Stock with record dates during the period beginning on the day after the most recent preceding Valuation Date and ending on such Valuation Date.

 

 

2.

When a reallocation or a distribution of all or a portion of a Deferral Account that is invested in The Dow Chemical Company Stock Index Fund is to be made, the balance in such a Deferral Account shall be determined by multiplying the Fair Market Value of one share of Common Stock on the most recent Valuation Date preceding the date of such reallocation or distribution by the number of Phantom Share Units to be reallocated or distributed. Upon a distribution, the amounts in The Dow Chemical Company Stock Index Fund shall be distributed in the form of cash having a value equal to the Fair Market Value of a comparable number of actual shares of Common Stock.

 

 

3.

In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger, consolidation, or other change in the corporate structure of The Dow Chemical Company affecting Common Stock, or a sale by The Dow Chemical Company of all or part of its assets, or any distribution to stockholders other than a normal cash dividend, then the Administrator may make appropriate adjustments to the number of Phantom Share Units credited to any Deferral Account.  The determination of the Administrator as to such adjustments, if any, to be made shall be conclusive.

 

Section 16 Participants may not elect to direct their Deferral Amount into the Hypothetical Investment Benchmark of The Dow Chemical Company Stock Index Fund.

 

4.

Notwithstanding any other provision of this Plan, the Administrator shall adopt such procedures as it may determine are necessary to ensure that with respect to any Participant who is actually or potentially subject to section 16(b) of the Securities Exchange Act of 1934, as amended, the crediting of deemed shares to his or her Deferral Account is deemed to be an exempt purchase for purposes of such section 16(b), including without limitation requiring that no shares of Common Stock or cash relating to such deemed shares may be distributed for six months after being credited to such Deferral Account.

 

6.03.

Statement of Accounts

 

Each Participant shall be issued quarterly statements of his or her Deferral Account(s) in such form as the Administrator deems desirable, setting forth the balance to the credit of such Participant in his or her Deferral Account(s) as of the end of the most recently completed quarter.

ARTICLE VII

 

BENEFITS

 

7.01.

Time and Form of Payment

 

a.

For Deferral Accounts for years prior to 2010 . The Dow Chemical Company shall pay to the Participant the balance of each Deferral Account at the time and in the Form of Payment as provided in this Section 7.01(a). A separate distribution election can be made for Base Salary and Performance Award. If the Participant is employed at a Company other than The Dow Chemical Company, such Company shall pay the balance of such Participants Deferral Account, pursuant to the terms of the Plan, and The Dow Chemical Company shall reimburse such Company for any such payments.

 

 

1.

Distributions in a Specific Year . A Participant may elect in a Participation Agreement to have a Deferral Account be distributed in a lump sum (determined as of the most recent Valuation Date preceding the payment date) in cash in a specific future year or be distributed in installment payments (either annual or monthly from 2 to 15 years) beginning in a specific future year. Distributions pursuant to this Section 7.01(a) shall be made or commence on the January 31 (or the last immediately preceding business day of January if such January 31st is not a business day) of the year that the Participant has selected to begin receiving distributions.  If a Participant has selected quarterly installment payments, such distributions shall commence on the March 31 (or the last immediately preceding business day of March if such March 31st is not a business day) of

 

 

the year that the Participant has selected to begin receiving distributions. The minimum deferral period is 12 months for Base Salary and 24 months for Performance Awards.

 

 

2.

Distributions upon Separation from Service . Alternatively, a Participant may elect in a Participation Agreement to have a Deferral Account be distributed (i) in a lump sum (determined as of the most recent Valuation Date preceding the payment date) in cash in the year after the year in which the Participant's Separation from Service occurs, (ii) in installment payments (either annual, quarterly or monthly for up to 15 years) beginning in the year after the year in which the Participant's Separation from Service occurs, (iii) in a lump sum (determined as of the most recent Valuation Date preceding the payment date) in cash in the second year after the year in which the Participant's Separation from Service occurs, or (iv) in installment payments (either annual, quarterly or monthly for up to 15 years) beginning in the second year after the year in which the Participant's Separation from Service occurs. Except when a Participant elects quarterly installment payments, such distributions pursuant to this Section 7.01(a) shall be made or commence on the January 31 (or the last immediately preceding business day of January if such January 31st is not a business day) of the applicable year.  If a Participant has selected quarterly installment payments, such distributions pursuant to this Section 7.01(a) shall commence on the March 31st (or the last immediately preceding business day of March if such March 31st is not a business day) of the applicable year.

 

 

3.

Distributions upon Separation from Service by a Key Employee .  Notwithstanding the foregoing, distributions may not be made to a Key Employee upon a Separation from Service before the date which is six months after the date of the Key Employee's Separation from Service (or, if earlier, the date of the Key Employee's death).

 

 

4.

Calculation of Installments .  If a Participant has elected in a Participation Agreement to have a Deferral Account be distributed in installment payments, each installment payment shall equal the balance of such Deferral Account as of the most recent Valuation Date preceding the payment date, times a fraction, the numerator of which is one and the denominator of which is the number of remaining installment payments.  Each subsequent installment shall be paid on or about the succeeding anniversary of such first payment or in quarterly or monthly intervals, if selected.  Each such installment shall be deemed to be made on a pro rata basis from each of the different deemed investments of the Deferral Account (if there is more than one such deemed investment).

 

b.

For Deferral Accounts for years 2010 and later . The Dow Chemical Company shall pay to the Participant the balance of each Deferral Account at the time and in the Form of Payment as provided in this Section 7.01(b).  A separate distribution election can be made for Base Salary and Performance Award.  If the Participant is employed at a Company other than The Dow Chemical Company, such Company shall pay the balance of such Participants Deferral Account, pursuant to the terms of the Plan, and The Dow Chemical Company shall reimburse such Company for any such payments.

 

 

1.

Distributions in a Specific Year . A Participant may elect in a Participation Agreement to have a Deferral Account be distributed in a lump sum (determined as of the most recent Valuation Date preceding the payment date) in cash in a specific future year or be distributed in installment payments (either annual or monthly from 2 to 15 years) beginning in a specific future year. Distributions pursuant to this Section 7.01(b) shall be made or commence within the month elected by the participant.

 

 

2.

Distributions upon Separation from Service . Alternatively, a Participant may elect in a Participation Agreement to have a Deferral Account be distributed (i) in a lump sum (determined as of the most recent Valuation Date preceding the payment date) in cash commencing within 60 days in which the Participant's Separation from Service occurs, (ii) in a lump sum (determined as of the most recent Valuation Date preceding the payment date) in cash commencing within 60 days following the twelve months anniversary from the Participant's Separation from Service, (iii) in installment payments (either annual or monthly from 2 to 15 years) in cash commencing within 60 days following the Participant's Separation from Service, or (iv) in installment payments (either

 

 

annual or monthly from 2 to 15 years) in cash commencing within 60 days following the twelve months anniversary from the Participant's Separation from Service.

 

 

3.

Distributions upon Separation from Service by a Key Employee .  Notwithstanding the foregoing, distributions may not be made to a Key Employee upon a Separation from Service before the date which is six months after the date of the Key Employee's Separation from Service (or, if earlier, the date of the Key Employee's death).

 

 

4.

Calculation of Installments .  If a Participant has elected in a Participation Agreement to have a Deferral Account be distributed in installment payments, each installment payment shall equal the balance of such Deferral Account as of the most recent Valuation Date preceding the payment date, times a fraction, the numerator of which is one and the denominator of which is the number of remaining installment payments.  Each subsequent installment shall be paid on or about the succeeding anniversary of such first payment or in quarterly (applicable for disbursement elections made prior to January 1, 2010) or monthly intervals, if selected.  Each such installment shall be deemed to be made on a pro rata basis from each of the different deemed investments of the Deferral Account (if there is more than one such deemed investment).

 

7.02.

Changing Time or Form of Benefit

 

A Participant may subsequently elect an alternative time or Form of Payment as available under Section 7.01 by written election filed with the Administrator; provided, however, that:

a.

the election will not be effective for the twelve (12) month period after the date on which the election is made;

 

b.

the election must be made at least twelve (12) months prior to the date the distribution is scheduled to be made or commence; and,

 

c.

a distribution may not be made earlier than at least five (5) years following the date the distribution would have been made or commenced.

 

d.

the election may not cause the payments to be accelerated.

 

e.

quarterly installments are no longer a disbursement election effective January 1, 2010.

 

7.03.

Survivor Benefit

 

Notwithstanding any election by a Participant in a Participation Agreement or provisions of the Plan to the contrary, if a Participant dies prior to receiving full payment of his or her Deferral Account(s), The Dow Chemical Company shall pay the remaining balance (determined as of the most recent Valuation Date preceding death) to the Participant's Beneficiary or Beneficiaries (as the case may be) in a lump sum in cash as soon as administratively practicable within 90 days after the Participant's death, provided that such beneficiary or beneficiaries shall not have the right to designate the taxable year of payment.  If a Participant was employed at a Company other than The Dow Chemical Company, such Company shall pay the remaining balance of such deceased Participant's Deferral Account in accordance with the preceding sentence, and The Dow Chemical Company shall reimburse the Company for such payment.

 

7.04.

Disability

 

Notwithstanding any election by a Participant in a Participation Agreement or provisions of the Plan to the contrary, if a Participant incurs a Disability prior to receiving full payment of his or her Deferral Account(s), The Dow Chemical Company shall pay the remaining balance (determined as of the most recent Valuation Date preceding death) to the Participant in a lump sum in cash as soon as administratively practicable within 90 days after the Participant becomes Disabled, provided that the Participant shall not have the right to designate the taxable year of payment.  If a Participant was employed at a Company other than The Dow Chemical Company, such Company

 

shall pay the remaining balance of such Participant's Deferral Account in accordance with the preceding sentence, and The Dow Chemical Company shall reimburse the Company for such payment.

 

7.05.

Hardship Withdrawals

 

Notwithstanding the provisions of Section 7.01 and any elections by a Participant in a Participation Agreement a Participant shall be entitled to early payment of all or part of the balance in his or her Deferral Account(s) in the event of an Unforeseeable Emergency, in accordance with this Section 7.05.  A distribution pursuant to this Section 7.05 may only be made to the extent reasonably needed to satisfy the Unforeseeable Emergency need, and may not be made if such need is or may be relieved (i) through reimbursement or compensation by insurance or otherwise, (ii) by liquidation of the Participant's assets to the extent such liquidation would not itself cause severe financial hardship, or (iii) by cessation of participation in the Plan.  An application for an early payment under this Section 7.05 shall be made to the Administrator in such form and in accordance with such procedures as the Administrator shall determine from time to time.  The determination of whether and in what amount a distribution will be permitted pursuant to this Section 7.05 shall be made by the Administrator.  Upon such an early payment under this Section 7.05 in a Plan Year, the Participant's deferral election pursuant to Section 4.02 shall be cancelled with respect to any Deferred Amounts that would otherwise be deferred for the remainder of such Plan Year.

 

7.06.

Change of Control

 

In accordance with the Company's procedures and to the extent permitted by Code section 409A, a Participant may elect in a Participation Agreement that, if a Change of Control occurs, the Participant shall receive a lump sum payment of the balance of the Participant's applicable Deferral Account within thirty (30) days after the Change of Control.  Certain Participants were provided with transition elections during the Code section 409A transition period to have their 2005-2008 Deferral Accounts, if any, paid in a lump sum within thirty (30) days after a Change of Control.  In the event a Participant did not elect to have his 2005-2008 Deferral Accounts, if any, paid in a lump sum upon a Change of Control, such 2005-2008 Deferral Accounts, if any, will be distributed in accordance with the Participant's Distribution elections in the relevant Participation Agreements.

 

7.07.

Matching Contribution

 

Each Eligible Employee who elects to make deferrals of Eligible Compensation to the Plan will be credited with a Matching Contribution utilizing the same formula authorized under the Savings Plan for employer matching contributions.  For purposes of calculating the match under this Plan, The Dow Chemical Company will assume each Participant is contributing the maximum allowable amount to the Savings Plan and receiving a match thereon.  The Matching Contribution calculated under provisions of this Plan will be reduced by this assumed match from the Savings Plan.  The amount of the Matching Contribution may be based on a formula that takes into account a Participant's overall compensation and may be subject to maximum or minimum limitations.  The Matching Contribution shall be credited to the Deferral Account as soon as administratively feasible within the first 60 days of the following Plan Year.  The Matching Contribution shall be invested among the same Hypothetical Investment Benchmarks as defined in Section 6.02 in the same proportion as the elections made by the Participant governing the Eligible Compensation deferrals of the Participant at such time.  The Matching Contribution for a Plan Year shall be distributed to the Participant at the same time and in the same Form of Payment as the Participant's Deferred Amount (and earnings thereon) for such Plan Year in accordance with this Article VII, and will vest one hundred percent (100%) on the date credited to the Participant's account. In the event a Participant has elected one time and Form of Payment with respect to his or her Base Salary Deferral for such Plan Year and another time and Form of Payment with respect to his or her Performance Deferral for such Plan Year, the Matching Contribution (and earnings thereon) for such Plan Year shall be distributed in accordance with the time and Form of Payment applicable to the Participant's Base Salary Deferral for such Plan Year.  A Cadre Employee is not eligible for a Matching Contribution.

 

If a Participant is employed by a Company, other than The Dow Chemical Company, an amount equal to all Matching Contributions credited to Participants of such Company shall be paid or transferred in full by such Company to The Dow Chemical Company as of the date such Matching Contribution is credited to a Participant's Deferral Account. The Dow Chemical Company shall hold such amounts as part of the general assets of The Dow Chemical Company.

 

 

 

Any Company may at any time contribute a discretionary Company contribution. This discretionary Company contribution may be for payments including, but not limited to, signing or retention bonuses.  The amount of the discretionary Company contribution may vary from payroll period to payroll period throughout the Plan Year, may be based on a formula which takes into account a Participant's overall compensation, and otherwise may be subject to maximum or minimum limitations.  The discretionary Company contribution shall be credited to the Deferral Account as soon as administratively feasible following the end of the payroll period.  The discretionary contribution shall be invested among the same Hypothetical Investment Benchmarks as defined in Section 6.02 in the same proportion as the elections made by the Participant governing the deferrals of the Participant at the time, or if none, BGI LifePath (according to age). Subject to the other provisions contained in this Article VII, if no distribution election is made, any vested discretionary contribution (and earnings thereon) shall be distributed to the Participant in cash in a lump sum within 60 days following the Participant's Separation from Service.  Any vesting schedule shall be determined by the Administrator at the time the discretionary Company contribution is made. A Cadre Employee is not eligible for a discretionary Company contribution.

 

If a Participant is employed at a Company other than The Dow Chemical Company, such Company shall pay or transfer to The Dow Chemical Company any amounts designated as discretionary Company contributions for all such Participants as of the date such discretionary Company contributions are credited to a Participant's Deferral Account.  The Dow Chemical Company shall hold such amounts as part of the general assets of The Dow Chemical Company.

 

7.09.

Special Cadre Plan Contributions

 

Each Cadre Employee will be credited with a nondiscretionary Company contribution equal to (1) 4% of the Cadre Employee's monthly Base Salary for each month while he is an eligible to participate in the Plan, and (2) 12% of the Cadre Employee's Performance Awards received annually while he is eligible to participate in the Plan.  The Company contribution shall be credited to the Deferral Account as soon as administratively feasible following the end of the applicable period.  The Company contribution shall be invested among the same Hypothetical Investment Benchmarks as defined in Section 6.02 in the same proportion as the elections made by the Participant governing the deferrals of the Participant at the time, or if none, BGI LifePath (according to age).  Subject to the other provisions contained in this Article VII, the Company contribution shall be distributed to the Participant at the same time and in the same form as the Participants deferrals for the Plan Year in which the nondiscretionary Company contribution is made in accordance with this Article VII.  In the event a Participant has elected one time and Form of Payment with respect to his or her Base Salary Deferral for such year and another time and Form of Payment with respect to his or her Performance Deferral for such year, the Company contribution (and earnings thereon) for such year shall be distributed in accordance with the time and Form of Payment applicable to the Participant's Base Salary Deferral for such year. If no base salary deferral election is made by the Participant, the nondiscretionary Company contribution distribution will be made via lump sum at separation per Section 7.01. The nondiscretionary Company contributions will vest one hundred percent (100%) on the date the Participant is eligible to participate in the Plan.

 

If a Participant is employed by a company other than The Dow Chemical Company, an amount equal to all nondiscretionary Company contributions credited to Participants of such company shall be paid or transferred in full by such company to The Dow Chemical Company as of the date such contribution is credited to a Participant's Deferral Account.  The Dow Chemical Company shall hold such amounts as part of the general assets of The Dow Chemical Company.

 

7.10.

Withholding of Taxes

 

Notwithstanding any other provision of this Plan, any Company shall withhold from payments made hereunder any amounts required to be so withheld by any applicable law or regulation.  The Company may also accelerate and pay a portion of a Participant's benefits in a lump sum equal to the Federal Insurance Contributions Act ("FICA") tax imposed and the income tax withholding related to such FICA amounts.

 

7.11.

Distribution Upon Inclusion in Income

 

Notwithstanding the foregoing, if a portion of the Participant's Deferral Account balance is includible in income under Code section 409A, such portion shall be distributed immediately to the Participant.

 

ARTICLE VIII

 

BENEFICIARY DESIGNATION

 

8.01.

Beneficiary Designation

 

Each Participant shall have the right, at any time, to designate any person, persons or entity as his or her Beneficiary or Beneficiaries.  A Beneficiary designation shall be made, and may be amended, by the Participant by filing a written designation with the Administrator, on such form and in accordance with such procedures as the Administrator shall establish from time to time.

 

8.02.

No Beneficiary Designation

 

If a Participant or Beneficiary fails to designate a Beneficiary as provided above or if all designated Beneficiaries predecease the Participant or his or her Beneficiary, then the Participant's Beneficiary shall be deemed to be, in the following order:

 

a.

the spouse or Domestic Partner of such person, if any;

b.

the children of such person, if any;

c.

the beneficiary of any company paid life insurance of such person, if any:

d.

the beneficiary of the Executive Life Insurance of such person, if any;

e.

the beneficiary of any Company-sponsored life insurance policy for which any Company pays all or part of the premium of such person, if any; or

f.

the deceased person's estate.

ARTICLE IX

 

AMENDMENT AND TERMINATION OF PLAN

 

9.01.

Amendment

 

The Board or its delegee may amend or modify the Plan at any time, and the President, Chief Financial Officer and VPHR, each acting individually, may amend or modify the Plan at any time, provided, however, that no amendment shall be effective to decrease the balance in any Deferral Account as accrued at the time of such amendment, nor shall any amendment otherwise have a retroactive effect.

 

Notwithstanding the foregoing:  (i) an amendment that affects only Section 16(b) Participants shall not be valid unless it is adopted or approved by the Board; and (ii) no amendment of the Plan shall apply to amounts that were earned and vested (within the meaning of Code section 409A and regulations thereunder) under the Plan prior to 2005, unless the amendment specifically provides that it applies to such amounts.  The purpose of this restriction is to prevent a Plan amendment from resulting in an inadvertent "material modification" to amounts that are "grandfathered" and exempt from the requirements of Code section 409A.

 

The authority of the President, Chief Financial Officer and VPHR, to amend or modify the Plan under this Section 9.01 may not be delegated.

 

9.02.

Company's Right to Terminate

 

The Board may at any time terminate the Plan with respect to future Participation Agreements.  The Board may also terminate the Plan in its entirety at any time for any reason, including without limitation if, in its judgment, the

 

continuance of the Plan, the tax, accounting, or other effects thereof, or potential payments thereunder would not be in the best interests of The Dow Chemical Company.  Any plan termination made pursuant to this Section 9.02 shall be performed in a manner consistent with the requirements of Code section 409A and any regulations or other applicable guidance issued thereunder.  In the event a Participant is employed by a Company other than The Dow Chemical Company at the time distributions are made as a result of the plan termination and such Company makes the required payments to the Participant, The Dow Chemical Company shall transfer to such Company an amount equal to the amount paid to the Participant on account of termination of the Plan.  Any Company may cease participation in the Plan for any reason by notifying The Dow Chemical Company in writing at least 30 days prior to such Company's cessation of participation. Payments to Participants by any such Company will commence in accordance with the terms of the Plan and the Company's cessation of participation will otherwise comply with Code section 409A.

 

9.03.

Effect of Amendment or Termination

 

Except as provided in the next sentence, no amendment or termination of the Plan shall adversely affect the rights of any Participant to amounts credited to his Deferral Accounts as of the effective date of such amendment or termination.  Upon termination of the Plan, distribution of balances in Deferral Accounts shall be made to Participants and beneficiaries in the manner and at the time described in Article VII, unless the Company determines in its sole discretion that all such amounts shall be distributed upon termination in accordance with the requirements under Code section 409A.  Upon termination of the Plan, no further deferrals of Eligible Compensation shall be permitted; however, earnings, gains and losses shall continue to be credited to Deferral Account balances in accordance with Article VI until the Deferral Account balances are fully distributed.

 

 

ARTICLE X

 

MISCELLANEOUS

 

10.01.

Unfunded Plan

 

This Plan is intended to be an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, within the meaning of sections 201, 301 and 401 of ERISA and therefore meant to be exempt from Parts 2, 3 and 4 of Title I of ERISA.  All payments pursuant to the Plan shall first be made from the general assets of The Dow Chemical Company, as the entity primarily liable for such payments, and no special or separate fund shall be established or other segregation of assets made to assure payment.  As described above, if a Participant is employed at a Company other than The Dow Chemical Company, such Company shall pay such Participant's Deferral Account balance to such Participant according to the terms of the Plan, and The Dow Chemical Company shall reimburse such Company for the amount of the payment In the event The Dow Chemical Company is insolvent or is otherwise unable to make any required payment or reimbursement to a Participant or a Company, the Company (other than The Dow Chemical Company) that employed such Participant shall be secondarily liable for such payments from the general assets of such Company.  No Participant or other person shall have under any circumstances any interest in any particular property or assets of The Dow Chemical Company or any other Company as a result of participating in the Plan.  Notwithstanding the foregoing, The Dow Chemical Company may (but shall not be obligated to) create one or more grantor trusts, the assets of which are subject to the claims of The Dow Chemical Company's creditors, to assist it in accumulating funds to pay its obligations.

 

10.02.

Nonassignability

 

Except as specifically set forth in the Plan with respect to the designation of Beneficiaries, neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are, expressly declared to be unassignable and non-transferable.  No part of the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person, nor be transferable by operation of law in the event of a Participant's or any other person's bankruptcy or insolvency.

 

10.03.

Validity and Severability

 

The invalidity or unenforceability of any provision of this Plan shall not affect the validity or enforceability of any other provision of this Plan, which shall remain in full force and effect, and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

10.04.

Governing Law

 

The validity, interpretation, construction and performance of this Plan shall in all respects be governed by the laws of the State of Delaware, without reference to principles of conflict of law, except to the extent preempted by federal law.

 

10.05.

Employment Status

 

This Plan does not constitute a contract of employment or impose on the Participant or any Company any obligation for the Participant to remain an employee of such Company or change the status of the Participant's employment or the policies of such Company and its affiliates regarding termination of employment.

 

10.06.

Underlying Incentive Plans and Programs

 

Nothing in this Plan shall prevent any Company from modifying, amending or terminating the compensation or the incentive plans and programs pursuant to which Performance Awards are earned and which are deferred under this Plan.

 

10.07.

Successors of the Company

 

The rights and obligations of The Dow Chemical Company shall inure to the benefit of, and shall be binding upon, the successors and assigns of The Dow Chemical Company.

 

10.08.

Waiver of Breach

 

The waiver by The Dow Chemical Company of any breach of any provision of the Plan by the Participant shall not operate or be construed as a waiver of any subsequent breach by the Participant.

 

10.09.

Notice

 

Any notice or filing required or permitted to be given to The Dow Chemical Company under the Plan shall be sufficient if in writing and hand-delivered, or sent by first class mail to the principal office of The Dow Chemical Company, directed to the attention of the Administrator. Such notice shall be deemed given as of the date of delivery, or, if delivery is made by mail, as of the date shown on the postmark.

 

10.10.

Successor Titles or Positions

 

The title of any person or entity who is assigned responsibilities under the Plan shall include any successor title to such position as such title may be changed from time to time.

 

 

IN WITNESS WHEREOF , the Company has caused this amended and restated Plan document to be executed in its name and on its behalf by its officers duly authorized on this 14th day of April, 2010.

 

 

 

APPENDIX A: Hypothetical Investment Benchmarks

 

 

The funds offered in the Savings Plan are also offered in this plan.

 

Ten Year U.S. Treasury Notes Plus Fund

 

The Angus Cash Fund is grandfathered to existing participants.  No new contributions are allowed.

EXHIBIT 10.4

 

Amendment to

The Dow Chemical Company

Executive Supplemental Retirement Plan

 

By authority of the resolution of the board of directors of The Dow Chemical Company adopted on April 14, 2010, and Article VI of The Dow Chemical Company Executive Supplemental Retirement Plan (“Plan”), as restated and effective April 14, 2010, Section 6.06 is amended and restated as follows:

 

6.06

Amendment

 

The Board or its delegate may amend or modify the Plan at any time, and the President, Chief Financial Officer, VPHR, Vice President of Compensation and Benefits, and Global Director of Benefits, each acting individually, may amend or modify the Plan at any time.

 

Notwithstanding the foregoing:  (i) an amendment that affects only Section 16 Employees, as defined by the Securities Exchange Act of 1934 and determined by the Administrator, shall not be valid unless it is adopted or approved by the Board; (ii) any amendment shall have prospective application only and shall not reduce or impair a Participant's right to benefits accrued and vested under the Plan as of the date such amendment is made; and (iii) no amendment of the Plan shall apply to amounts that were earned and vested (within the meaning of Code section 409A and regulations thereunder) under the Plan prior to 2005, unless the amendment specifically provides that it applies to such amounts.  The purpose of this restriction is to prevent a Plan amendment from resulting in an inadvertent "material modification" to amounts that are "grandfathered" and exempt from the requirements of Code section 409A.

 

Each Participant shall receive written notice of the amendment or termination of the Plan describing the action taken in detail.

 

The authority of the President, Chief Financial Officer, VPHR, Vice President of Compensation and Benefits, and Global Director of Benefits to amend or modify the Plan under this Section 6.06 may not be delegated.

 

IN WITNESS WHEREOF , the Company has caused this amended and restated Plan document to be executed in its name on this 14th day of April, 2010.

 

 

 

THE DOW CHEMICAL COMPANY

 

 

	By:	/s/ GREGORY M. FREIWALD
	Its:	Executive Vice President of Human Resources,
		Aviation & Corporate Affairs

 

 

EXHIBIT 10.5