Dow Inc. Voluntary Deferred Compensation Plan for Non-Employee Directors, restated and effective as of April 1, 2019

The Dow Inc. Voluntary Deferred Compensation Plan for Non-Employee Directors (the “Plan,”) provides non-employee directors of Dow Inc. with the opportunity to elect to defer receipt of their compensation from Dow Inc. and to have these deferred amounts treated as if invested in specified Hypothetical Investment Benchmarks. The Plan shall be effective for deferrals made hereunder on or after January 1, 2005. Effective October 11, 2006, the Hypothetical Investment Benchmarks were changed, as reflected in Appendix A.

The instant restated Plan document is adopted effective as of April 1, 2019 and was amended and restated to (1) reflect the corporate restructuring of Dow Inc. and its subsidiaries in anticipation of, and in connection with, its spinoff from DowDuPont Inc., (2) conform certain administrative and governance provisions to corresponding provisions in other retirement plans sponsored by Dow Inc. and its subsidiaries, and (3) make certain other changes deemed desirable by Dow Inc.

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

“Administrator” shall mean the person, group of persons, or entity responsible for administering the Plan, as provided in Section 3.01. The Compensation Committee of the Board of Directors of Dow Inc. is the Administrator, except to the extent a different person group of persons or entity is designated as the Administrator pursuant to Section 3.02(a) or the Administrator delegates its responsibilities to another person, group of persons, or entity pursuant to Section 3.02(d).

“Appeals Administrator” shall mean the person, group of persons, or entity responsible for reviewing adverse benefit determinations under the Plan. The Compensation Committee of the Board of Directors of Dow Inc. is the Appeals Administrator, except to the extent a different person, group of persons or entity is designated as the Appeals Administrator pursuant to Section 3.02(a) or the Appeals Administrator delegates its responsibility for deciding appeals to another person, group of persons or entity pursuant to Section 3.02(d).

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

“Board” shall mean the board of directors of Dow Inc.

A “Change of Control” under the Plan shall be deemed to have occurred on:     

the total voting power of the stock of Dow Inc.; or

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 in Treas. Reg. § 1.409A-3(i)(5) (or any successor provision thereto), and in no circumstance shall an event be treated as a Change of Control unless this Section 2.05 complies with such requirements.

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Common Stock” shall mean the common stock of Dow Inc., or any successor entity or entities or other controlled group member of Dow Inc. that is listed on the New York Stock Exchange or such other publicly-traded stock exchange, as determined by the Administrator.

“Company” shall mean Dow Inc. and any other entity that is included in the Dow Controlled Group. The Dow Controlled Group for this purpose shall mean a controlled group of corporations within the meaning of section 414(b) or section 414(c) of the Code or an affiliated service group within the meaning of section 414(m) of the Code with respect to Dow Inc. and any other entity required to be aggregated with Dow Inc. under section 414(o) of the Code.

“Deferral Account” shall mean the notional account established for record keeping purposes for each Participant pursuant to Article VI.

“Deferred Amount” shall mean the amount deferred pursuant to Section 4.02.

“Deputy Administrator” shall mean the person, group of persons, or entity designated as the Deputy Administrator pursuant to Sections 3.02(a) and (d). The Deputy Administrator is responsible for performing certain administrative and ministerial functions of the Plan, as provided in Section 3.02(b).

“Domestic Partner” shall mean shall mean the person with whom the Participant is in a Domestic Partnership on the Participant’s date of death or other determination date. For purposes of this definition, “Domestic Partnership” means two people claiming to be “domestic partners” who meet all of the requirements of paragraph 2.12(a) or all of the requirements of paragraph 2.12(b):

(a)    Requirements of paragraph (a):

(b)    Requirements of paragraph (b):

“Eligible Compensation” shall mean any:

“Eligible Director” shall mean a member of the Board (or of the board of directors of such other Company authorized to participate in the Plan) who is not an employee of the Company.

“Fair Market Value” of a share of Common Stock shall mean the closing price of 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.

“Form of Payment” shall mean payment in a lump sum or annual installments not to exceed 10 years as set forth in Section 7.01(b).

“Hardship Withdrawal” shall mean the early payment of all or part of the balance in a Deferral Account(s) in the event of an Unforeseeable Emergency.

“Hypothetical Investment Benchmark” shall mean the phantom investment benchmarks, which are used to measure the return credited to a Participant’s Deferral Account as set forth in Section 6.02.

“Initial Claims Reviewer” shall mean the person, group of persons or entity designated as the Initial Claims Reviewer pursuant to Sections 3.02(a) and (d). The Initial Claims Reviewer is responsible for deciding benefit claims under the Plan (i.e., first level claims for benefits).

“Participant” shall mean an Eligible Director who makes an election to participate in this Plan by filing a Participation Agreement as provided in Article IV, or who no longer qualifies as an Eligible Director but still has a Deferral Account under the Plan.

“Participation Agreement” shall mean an agreement filed by an Eligible Director in accordance with Article IV.

“Phantom Share Units” shall mean Deferred Amounts that are deemed to be invested in the Dow Inc. Index Fund and converted into units in the manner set forth in Section 6.02.

“Plan” shall mean the Dow Inc. Voluntary Deferred Compensation Plan For Non-Employee Directors as set forth herein, together with any and all amendments and supplements hereto.

“Plan Year” shall mean the twelve-month period beginning January 1 and ending December 31.

“Section 16 Participant” shall mean an officer or director of Dow Inc. required to report transactions in Dow Inc. securities to the Securities and Exchange Commission pursuant to section 16(a) of the Securities Exchange Act of 1934.

“Separation from Board Service” or “Separates from Board Service” shall mean a “separation from service” within the meaning of Section 409A.

“Section 409A” means Code section 409A, as may be amended from time to time, and the regulations or other guidance issued thereunder, as may be promulgated from time to time.

“Time of Payment” shall mean (i) in the month of July following Separation from Board Service; (ii) in the month of July following the first anniversary of Separation from Board Service; or (iii) in the month of July following the Participant’s 72nd birthday. In addition, Time of Payment also may mean, in accordance with Section 7.05 of the Plan, payment within thirty (30) days after a Change of Control.

“Unforeseeable Emergency” shall mean (i) 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, (ii) loss of the Participant’s property due to casualty, or (iii) 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.

“Valuation Date” shall mean the last day of each calendar month or such other date as the Administrator in its sole discretion may determine.

The Administrator shall be responsible for the administration of the Plan and shall have the power and authority to control and manage the operation and administration of the Plan.

The principal duty of the Administrator shall be to see that the Plan is carried out in accordance with its terms. The responsibility and authority of the Administrator shall include, but shall not be limited to, the following duties and powers:

Administrator. The Deputy Administrator shall be responsible for determining in the first instance issues related to eligibility, Deferral Accounts, Hypothetical Investment Benchmarks, distribution of Deferred Amounts, determination of account balances, crediting of hypothetical earnings and debiting of hypothetical losses, withdrawals, deferral elections, and any other duties concerning the day-to-day operation of this Plan. The Administrator shall have discretion to delegate such additional duties to the Deputy Administrator as it may determine. The Deputy Administrator shall have authority to retain third-party administrators, consultants, accountants, actuaries, and other individuals or entities as he or she deems necessary to carry out his or her responsibilities under the Plan.

Notwithstanding any provision of the Plan to the contrary, the Administrator or the Board shall have exclusive responsibility for all administrative functions under the Plan to the extent necessary to prevent adverse consequences under Section 16 of the Exchange Act.

have such discretionary power as may be necessary in order to carry out those duties and

powers; and (ii) the Initial Claims Reviewer and Appeals Administrator shall have the sole and absolute discretion to decide claims and appeals as described in Section 3.05 and to exercise the duties and powers set forth in Section 3.05, and shall have such discretionary power as may be necessary in order to carry out those duties and powers.

Dow Inc. agrees to indemnify and to defend to the fullest extent permitted by law any employee or former employee of the Company or member of the Board who is serving or has served as an Administrator, Deputy Administrator, Initial Claims Reviewer, Appeals Administrator, any delegee of each the Administrator, the Initial Claims Reviewer or the Appeals Administrator (irrespective of whether such delegation is provided in writing, orally or by action), and any Board member, officer, employee, or former employee of a Company who acts on behalf of the Administrator, Deputy Administrator, Initial Claims Reviewer, Appeals Administrator, or delegee with respect to the Plan against all liabilities, damages, costs and expenses (including attorneys’ fees and amounts paid in settlement of any claims approved by Dow Inc.) occasioned by any act or omission to act in connection with the Plan, if such act or omission is in good faith. Notwithstanding the foregoing, nothing in this indemnification provision extends any indemnification rights to any third-party service providers, except for any indemnification rights that may be provided in written contracts between Dow Inc. or the Plan and such third-party service providers.

 

The claimant may submit written comments, documents, records and other information relating to the claim for benefits. Further, the claimant shall be provided, upon request, and free of charge, reasonable access to and copies of, all documents, records and other information relevant to the claimant’s claim for benefits.

If the claim is denied, the Appeals Administrator shall set forth in writing the specific reasons for such denial and such notification shall:

The claimant shall be provided, upon request, and free of charge, reasonable access to and copies of, all documents, records and other information relevant to the claimant’s claim for benefits.

A claim for a benefit under this Section 3.05 shall include any Applicable Claim as defined in Section 3.06(b).

court with jurisdiction over such claim or action no later than the earlier of (i) 180 days after the mailing or delivery of the adverse determination by the Appeals Administrator, or (ii) one year after:

provided that if a request for administrative review, timely made in accordance with Section 3.05, is pending before the Initial Claims Reviewer or Appeals Administrator when the period described in this Section 3.06 expires, the deadline for filing such claim or action in a court with proper jurisdiction shall be extended to the date that is 180 days after the mailing or delivery of the adverse determination by the Appeals Administrator.

The period described by this Section 3.06 is referred to as the “Applicable Limitations Period.” The Applicable Limitations Period replaces and supersedes any limitations 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. Except as provided in the following two sentences, a claim or action filed after the expiration of the Applicable Limitations Period shall be deemed time-barred. The Applicable Limitations Period may be extended by the Administrator or its designee in his sole discretion upon a showing of exceptional circumstances that, in the opinion of the Administrator or its designee, provide good cause for an extension. The exercise of this discretion is committed solely to the Administrator or its designee and is not subject to review.

Initial Claims Reviewer or Appeals Administrator, or any officer, employee, or former employee of the Company or other person who acts on behalf of the Plan.

Any expense incurred by the Company, the Administrator, Deputy Administrator, Initial Claims Reviewer, and Appeals Administrator, and their delegees, relative to the administration of this Plan shall be paid by Dow Inc. and/or may be deducted from the Deferral Accounts of the Participants as determined by the Administrator or Deputy Administrator.

An Eligible Director may elect to defer Eligible Compensation under the Plan by filing a Participation Agreement with the Deputy Administrator in accordance with the Plan’s enrollment procedures. An individual shall not be eligible to file a Participation Agreement unless he or she qualifies as an Eligible Director for the Plan Year to which the Participation Agreement applies.

A Participation Agreement normally must be filed on or prior to the December 15 (Eastern Standard Time) immediately preceding the Plan Year to which the Participation Agreement applies. The Administrator, in its sole discretion and to the extent permitted by Section 409A, may permit: (i) a Participation Agreement to be filed after the December 15 but on or before the December 31 (Eastern Standard Time) immediately preceding the Plan Year to which the Participation Agreement applies; and (ii) a newly-eligible Eligible Director to submit a Participation Agreement within 30 days after the date the Eligible Director becomes eligible, and deferrals shall commence as soon as practical thereafter for Eligible Compensation earned after the Deputy Administrator receives a completed and timely submitted Participation Agreement.

An individual who no longer qualifies as an Eligible Director shall continue to be a Participant in the Plan until he or she no longer has a Deferral Account under the Plan.

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”). Each Participation Agreement shall also set forth a Time of Payment and a Form of Payment in accordance with the provisions of Article VII. Participation Agreements are to be completed in a format specified by the Deputy Administrator. Notwithstanding the foregoing, if a Participant files a Participation Agreement but fails to designate the Form of Payment or the Time of Payment for a Deferred Amount in the manner required by the Plan, payment of such Deferred Amount shall be made in a lump sum or in the month of July following Separation from Board Service, as applicable.

A Participant may not change the amount of his or her Deferred Amount during a Plan Year, except as contemplated in the second to last sentence of Section 4.01 (concerning elections for newly Eligible Directors) or unless otherwise permitted under Section 409A. A Participant’s Participation Agreement may not be made, modified, or revoked retroactively.

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. An earnings credit shall be applied to the Deferral Account under Section 6.02 based on a Participant’s investment selection among the Hypothetical Investment Benchmarks.

For Section 16 Participants who elect to direct their Deferred Amount to the Hypothetical Investment Benchmark of the Dow Inc. Stock Index Fund (as defined in Section 6.02(b), below), 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 Inc. Stock Index Fund.

A Participant shall be 100% vested in his or her Deferral Account as of each Valuation Date.

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 of Payment and 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 Deputy 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 distributions pursuant to Article VII with respect to such Deferral Account since the preceding Valuation Date.

following the Spinoff in accordance with rules established by the Administrator.

For purposes of this Section 6.02(b), the "Spinoff" means the separation of Dow Inc. from DowDuPont Inc. by means of a pro rata distribution of all of the then-issued and outstanding shares of Common Stock to DowDuPont's stockholders.

A Participant may subsequently elect an alternative Time of Payment or Form of Payment (only to the extent permitted by the Plan at the time of such election) in a writing filed with the Deputy Administrator at the time and in the manner required by the Deputy Administrator; provided, however, that:

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), Dow Inc. 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 after the Participant’s death, provided that such Beneficiary or Beneficiaries shall not have the right to designate the taxable year of payment.

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 7.04. A distribution pursuant to this Section 7.04 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 7.04 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 7.04 shall be made by the Administrator. Upon such an early payment under this Section 7.04 in a Plan Year, the Participant’s deferral election pursuant to Article IV shall be cancelled with respect to any Deferred Amounts that would otherwise be deferred for the remainder of such Plan Year.

An Eligible Director may, when completing a Participation Agreement during the enrollment period, elect that, if a Change of Control occurs, the Participant shall receive a lump sum payment of the balance of the Deferral Account within thirty (30) days after the Change of Control. This election is irrevocable and shall apply to the entire Deferral Account both before and after Separation from Board Service. 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 7.05 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 file any Participation Agreements under the Plan with respect to the first Plan Year that begins after such distribution is made.

A Participant’s benefits shall be paid earlier than the date(s) specified in this Article VII under the following circumstances, each only to the extent permitted under Section 409A:

Notwithstanding any other provision of the Plan to the contrary, amounts payable hereunder may be delayed after the date(s) specified under this Article VII under the following circumstances, each to the extent permitted under Section 409A:

the alternate payee and the amount assigned to the Participant under the order; (b) if the order is a separate interest order, only if it can be interpreted as providing for an immediate lump sum distribution to the alternate payee of the portion of the benefit assigned to the alternate payee; and (c) if the order is a shared payment order, only if it can be interpreted to provide that upon the death of the alternate payee, the alternate payee’s interest shall revert to the Participant and not to any contingent alternate payee. In addition, an order that is approved after payment to the Participant commences shall be valid only if it is a shared payment order. References in the Plan to Participants shall include alternate payees to the extent (x) required by an applicable valid domestic relations order and (y) consistent with the Procedures and the terms of the Plan.

If a Participant or Beneficiary believes he is entitled to have received a benefit but has not received payment, the Participant or Beneficiary must accept any payment made under the Plan and make prompt, reasonable, good faith efforts to collect the remaining portion of the payment, as determined under Treas. Reg. § 1.409A-3(g). For this purpose (and as determined under such regulation), efforts to collect the payment will be presumed not to be prompt, reasonable, good faith efforts unless the Participant or Beneficiary provides notice to the Administrator within 90 days of the latest date upon which the payment could have been timely made in accordance with the terms of the Plan and the regulations under Section 409A, and unless, if not paid, the Participant or Beneficiary takes further enforcement measures within 180 days after such latest date. The requirements of this Section 7.09 shall be in addition to, and shall not supersede or be superseded by, the provisions of Section 3.05.

Each Participant shall have the right to designate a 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 Deputy Administrator, on such form and in accordance with such procedures as the Deputy Administrator shall establish from time to time.

If a Participant 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 the Default Beneficiary. For purposes of this Section 8.02, “Default Beneficiary” shall mean the spouse or Domestic Partner of the Participant, if any; (ii) if there is no spouse or Domestic Partner, the child(ren) of the Participant, if any; and (iii) if there are no spouse, Domestic Partner or children, the estate of the Participant.

The Board may at any time amend this Plan in whole or in part, 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.

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 Dow Inc. 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 Accounts in accordance with Article VI until the Deferral Account balances are fully distributed. Any termination pursuant to this Section 9.02 shall be performed in a manner consistent with the requirements of Section 409A.

This Plan shall be binding upon and inure to the benefit of Dow Inc., its successors, Participants, Beneficiaries, and their respective successors, assigns (to the extent such assignment is permitted under the Plan), heirs, personal representatives, executors, administrators, and legatees.

Nothing contained herein shall in any manner affect any service relationship between the Company and any Company service provider, nor shall anything contained herein be construed to enlarge upon or to add, directly or indirectly, to the rights of any individual service provider, except the right to become eligible to become an Eligible Director under the Plan subject to and as provided in the Plan document.

This Plan does not constitute a contract of employment or service or impose in the Participant or the Company any right, or obligation, for the Participant to remain on the Board or otherwise remain a service provider to the Company.

The Plan shall be administered, construed and enforced under the laws of the State of Delaware, the laws of the State of Delaware shall apply, 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.

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 any of 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 Administrator shall have the right, to the extent permitted by 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 Administrator may prescribe.

If any provision of the Plan should be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if such illegal or invalid provision had never been inserted herein.

No notice, election or communication in connection with the Plan made or submitted by any Participant, Beneficiary, claimant, or other person shall be effective unless duly executed and filed with the Deputy Administrator in the form and manner required by the Deputy Administrator.

No term, condition, or provision of the Plan shall be deemed waived unless the purported waiver is in writing signed by the Administrator. No waiver signed by the Administrator shall be deemed a continuing waiver unless so specifically stated in the writing, and any such waiver shall operate only for the stated period and only as to the specific term, condition, or provision waived.

The Company, Administrator, Deputy Administrator, Initial Claims Reviewer, Appeals Administrator, and any person to whom the Plan’s operation or administration is delegated may rely conclusively on any advice, opinion, valuation, or other information furnished by any actuary, accountant, appraiser, legal counsel, or physician whom such entity or person engages or employs. A good faith action or omission based on this reliance is binding on all parties, and no liability can be incurred for it except as the law requires.

The Plan shall be construed and interpreted to comply with, or be exempt from, Section 409A, and all provisions of the Plan shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If the Administrator determines that any provision of the Plan is, or might be, inconsistent with the restrictions imposed by Section 409A, such provision shall be deemed to be amended to the extent that the Administrator determines it is necessary to bring it into compliance with Section 409A. Any such deemed amendment shall be effective as of the earliest date such amendment is necessary under Section 409A.

Notwithstanding the foregoing, nothing in the Plan shall be interpreted or construed to transfer any liability for any tax (including a tax or penalty due as a result of a failure to comply with Section 409A) from a Participant to the Company or to any other individual or entity. Each installment payment required under this Plan shall be considered a separate payment for purposes of Section 409A.

Notwithstanding anything in the contrary in the Plan, distributions may not be made to a Participant who is a Key Employee upon a Separation from Board Service before the date which is six months after the date of the Key Employee’s Separation from Board Service (or, if earlier, the date of the Key Employee’s death). During the period between a Key Employee’s Separation from Board Service and a distribution pursuant to this Section 10.09, the Key Employees’ Deferral Accounts shall remain invested among the same Hypothetical Investment Benchmarks as at the time of the Separation from Board Service, and the Participant shall retain the right to direct the manner in which his or her Deferral Accounts will be deemed to be invested. During this time, 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.

For purposes of this Section 10.09,     “Key Employee” shall mean a Participant who is a key employee within the meaning of Treas. Reg. § 1.409A-1(i), as determined in accordance with the procedures adopted by the Company.

The Plan shall be applied and interpreted without regard to any scrivener’s error in this instrument. The determination whether a scrivener’s error has occurred shall be made by the Administrator in the exercise of its best judgment and sole discretion, based on its understanding of the intent of Dow Inc. as settlor of the Plan, and taking into account such evidence, written or oral, as it deems appropriate or helpful. The Administrator is authorized to correct any scrivener’s errors discovered in this instrument, retroactively or prospectively.

If Dow Inc., The Dow Chemical Company, or other Company (or a person or entity acting on behalf of Dow Inc., The Dow Chemical Company, or other Company) or an Administrator, Deputy Administrator, Initial Claims Reviewer, Appeals Administrator, any delegee of the Administrator, Deputy Administrator, Initial Claims Reviewer or Appeals Administrator, or any officer, employee, or former employee of Dow Inc. The Dow Chemical Company, or any other Company (an “Advisee”) engages an attorney, accountant, actuary, consultant, or other person or entity to advise the Advisee on issues related to the Plan or the Advisee’s responsibilities under the Plan (an “Advisor”):

For purposes of the Plan, unless the contrary is clearly indicated by the context:

This Plan is intended to be an unfunded plan providing deferred compensation. All payments pursuant to the Plan shall be made from the general assets of Dow Inc. and no special or separate fund shall be established or other segregation of assets made to assure payment. No Participant or other person shall have under any circumstances any interest in any particular property or assets of Dow Inc., or any other Company as a result of participating in the Plan. Notwithstanding the foregoing, Dow Inc. may (but shall not be obligated to) create one or more grantor trusts, the assets of which are subject to the claims of Dow Inc.’s creditors, to assist it in accumulating funds to pay its obligations.

Except as specifically set forth in the Plan, 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.

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