A copy of The Dow Chemical Company Executives Supplemental Retirement Plan, as amended, restated and effective as of April 14, 2010

  1.01.

  1.02.

  1.03.

  1.04.

  1.05.

  1.06.

  1.07.

 

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 mor e 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).

  1.09.

  1.10.

  1.11.

 

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.

  1.14.

  1.15.

  1.16.

  1.17.

  1.18.

 

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.

PLAN

  1.20.

  1.22.

  1.23.

  1.24.

  1.25.

 

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.

  2.02.

  2.03.

  3.01.

 

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 attri butable 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.

 

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.

 

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;

 

b.

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

  3.04.

  3.05.

  3.06.

  4.01.

 

a.

 

i.

 

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.

 

iii.

 

b.

 

i.

 

ii.

 

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.

 

iv.

 

v.

 

c.

 

i.

 

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.

 

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.

 

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.

 

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;

  5.01.

  5.02.

  5.03.

  6.01.

  6.02.

  6.03.

  6.05.

  6.06.

  6.07.

  6.08.

  6.09.

  6.10.

  7.01.

 

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.

 

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.

  7.05.

 

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 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 inform ation 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 se ction 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.

 

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.

  7.07.