EXHIBIT 10.2
Director's Deferred Compensation Agreement
This Agreement is made and effective as of by and between DOW
XXXXX & COMPANY, INC., a Delaware corporation, having its principal office
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company," which term
shall include its successors and assigns), and
("Director").
W I T N E S S E T H:
THAT WHEREAS, Director is a member of the Company's Board of Directors
(the "Board"); and
WHEREAS, Director and the Company wish to provide for the compensation
to be paid to Director, on both a current and deferred basis, for his
services as a member of the Board;
NOW, THEREFORE, in consideration of the premises it is agreed as
follows:
1. Period of Service. Director will, except in the event of his
earlier death or disability, serve the Company as a member of its Board for
such term as he has been, and may hereafter be, elected, provided that
although Director may agree to stand for reelection to the Board after the
date hereof, he is under no obligation to do so and the Company is under no
obligation to submit his name for reelection by the stockholders.
2. Compensation and Deferral of Payment.
(a) Amount of Compensation. The Company will pay Director an
annual cash retainer of (insert amount currently payable to directors as
director's fees in cash), and will credit Director with an annual deferred
stock grant of (insert amount currently payable to directors as directors
fee's in stock equivalents), under the directors' deferred stock
compensation plan. It will also pay Director a fee of (insert amount
currently payable to directors as meeting fees), for each Board meeting
attended, (insert amount currently payable to directors as committee fees),
for each Board committee meeting attended, and an annual fee of (insert
amount currently payable to directors as committee chairman fees), if
Director serves as a Board committee chairman. It is contemplated that
comparable or greater fees will be paid in subsequent years, if any, during
which Director serves on the Board.
(b) Election to Defer. By filing written notice with the
Company at any time prior to the commencement of any calendar year or, with
respect to (insert current year), within 30 days after his election to the
Board, Director may irrevocably elect that all or part of any annual cash
retainer, Board meeting fee, Board committee meeting fee or Board committee
chairmanship fee which he may earn for such year (provided that, with
respect to (insert current year), such fee is earned after any such
election is made) shall be paid to him as deferred compensation at such
later date and in such manner as he may become entitled thereto pursuant to
the provisions of this Agreement. By such written notice Director shall
also elect whether to have his deferred compensation account credited with
(i) dollar amounts equal to the deferred fees (the "Deferred Cash
Election") or (ii) units ("Stock Equivalents") equivalent to shares of Dow
Xxxxx common stock (the "Deferred Stock Election"). To the extent that
Director does not elect to receive his fees as deferred compensation, such
fees shall be paid at such time, in such manner and in such amounts as the
Company shall determine.
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(c) Deferred Stock Grant. The annual deferred stock grant shall
be credited, quarterly, in the form of Stock Equivalents, to Director's
deferred compensation account hereunder, as provided in subparagraph 4(b).
3. Calculation of Deferred Compensation Under Deferred Cash Election.
To the extent that Director elects the Deferred Cash Election, then, for
purposes of paragraph 5, below, the aggregate amount allocable to his
account as deferred compensation as of the date on which he receives his
first installment (or lump sum payment) of deferred compensation shall be
the sum of
(a) the amount of each deferred retainer or fee that Director is
entitled to receive as deferred compensation pursuant to subparagraph 2(b),
above, each such deferred retainer or fee being credited to Director's
account as of the last business day of the month in which the retainer or
fee would have been paid absent the election, and
(b) for the period from the date hereof to the end of the month
preceding the month in which Director becomes entitled to his first
installment (or lump sum payment) of deferred compensation pursuant to
paragraph 5, below, simple interest on the amount, if any, allocated to
Director's account (including, as of the beginning of each calendar year,
any amount previously allocated thereto pursuant to this subparagraph
3(b)), calculated at an annual interest rate equal to the DJ 20 Bond Index
rate in effect on the first business day of each calendar year.
4. Crediting of Stock Equivalents.
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(a) Deferred Stock Election. To the extent that Director elects
the Deferred Stock Election, Director's account shall be credited, as of
the last business day of the month in which the deferred retainer or fee
would have been paid absent the election, with the number of Stock
Equivalents equal to that whole number obtained by dividing the amount of
the deferred retainer or fee by the fair market value of a share of common
stock of the Company on such date.
(b) Annual Deferred Stock Grant. Director's account shall also
be credited, as of the last business day of each calendar quarter in which
he or she serves as a director, with the number of Stock Equivalents equal
to that whole number obtained by dividing one-quarter of the annual
deferred stock grant by the fair market value of a share of common stock of
the Company on such date.
(c) Valuation of Stock. For purposes of this Agreement, the
fair market value of a share of common stock of the Company as of any date
shall be the closing sale price of the stock on the New York Stock Exchange
on such date, or, if no sales were quoted on such date, on the most recent
preceding date on which sales were quoted. Any amount of deferred retainer
or fee or deferred stock grant remaining after the division described in
subparagraphs 4(a) and 4(b), respectively, which is less than the fair
market value of a single share on such date, shall be credited to
Director's account and retained there, without accruing interest, until
Stock Equivalents are next credited to Director's account, at which time
the retained amount shall be added to deferred retainers and fees for
purposes of computing the number of Stock Equivalents to be so credited.
(d) Dividend Equivalents. With respect to each Stock Equivalent
theretofore credited to Director's account, said account shall be credited
with an amount equal to any dividend paid with respect to each outstanding
share of common stock of the Company, at the same time any such dividend is
paid. Any such amounts so credited shall not accrue interest and shall
thereafter be treated as deferred fees to be converted into Stock
Equivalents on the date on which Stock Equivalents can next be credited to
Director's account.
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(e) Antidilution Adjustments. In the event of any change in the
common stock of the Company by reason of any stock dividend,
recapitalization, reorganization, merger, consolidation, split-up,
combination or exchange of shares, or rights offering to purchase common
stock at a price substantially below fair market value, or of any similar
change affecting the common stock, the value and attributes of each Stock
Equivalent shall be appropriately adjusted consistent with such change to
the same extent as if such Stock Equivalents were, instead, issued and
outstanding shares of common stock of the Company.
5. Payment of Deferred Compensation Under Deferred Cash Election.
(a) Form of Payment. The aggregate amount allocable to Director
as deferred compensation, determined pursuant to paragraph 3, above, shall
be payable to Director in (a lump sum) (the form of an annuity
commencing)(1) on the first day of the third month following the month in
which Director ceases to serve on the Company's Board of Directors for
whatever cause.
(b) Calculation of Annuity Payments. If the deferred
compensation is payable to Director in the form of an annuity, it
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(1) Delete in one bracketed clause
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(i) shall include an assumed interest factor, as calculated
by the Company, equal to the average annual rate of
interest applicable under subparagraph 3(b) for the last
three complete calendar years during which Director
rendered services as a member of the Board under
paragraph 1 or such shorter period of time during which
Director served on the Board; and
(ii) shall be payable in (2) equal annual installments
or in such greater number of installments as shall be
not less than half the number of years remaining in
Director's life expectancy, determined as of the date
on which Director receives his first installment of
deferred compensation or as of the date of his death,
if earlier. For purposes of the preceding sentence,
Director's life expectancy shall be equal to the
expected return multiple shown for Director's age in
'Table V. Ordinary Life Annuities--One Life--Expected
Return Multiples' in Regulation l.72-9 of the Federal
Income Tax Regulations, as in effect on the date of
such determination.
6. Payment of Stock Equivalents as Deferred Compensation.
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(2) Insert Appropriate number up to 15
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(a) Form of Payment. The Stock Equivalents credited to
Director's account, pursuant to paragraph 4, above, shall be payable to
Director in (a lump sum) ( (3) annual installments
commencing) (the form of a cash annuity commencing (4)) on, or as soon as
practicable after, the first day of the third month following the month in
which Director ceases to serve on the Company's Board for whatever cause.
Any deferred retainer or fee amount or deferred stock grant amount which
has not been converted into Stock Equivalents shall be paid to Director at
such time.
(b) Election of Payment in Cash or Stock. Stock Equivalents
credited to Director's account shall be paid in cash or in shares of common
stock of the Company, or partly in each, as the Director shall elect by
written notice filed with the Company prior to the commencement of payment
to Director pursuant to subparagraph 6(a). For purposes of determining the
amount of any distribution that Director elects to receive in cash, except
as otherwise provided in subparagraph 6(c), each Stock Equivalent shall be
deemed to have a value equal to the fair market value of a share of common
stock of the Company as of the date immediately preceding the date of
payment.
(c) Calculation of Annuity Payments. If the cash annuity is
selected under subparagraph 6(a), the aggregate fair market value of the
Stock Equivalents shall be determined as of the last business day of the
second month following the month in which Director ceases to serve on the
Company's Board. Such annuity
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(3) Insert appropriate number up to 15
(4) Delete two of the three bracketed clauses
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(i) shall include an assumed interest factor, as calculated
by the Company, equal to the average annual rate of
interest which, had the Deferred Cash Election been
made, would have applied under subparagraph 3(b) for
the last three complete calendar years during which
Director rendered services as a member of the Board
under paragraph 1 or such shorter period of time during
which Director served on the Board; and
(ii) shall be payable in (5) equal annual installments
or in such greater number of installments as shall be
not less than half the number of years remaining in
Director's life expectancy, determined as of the date
on which Director receives his first installment of
deferred compensation or as of the date of his death,
if earlier. For purposes of the preceding sentence,
Director's life expectancy shall be equal to the
expected return multiple shown for Director's age in
'Table V. Ordinary Life Annuities--One Life--Expected
Return Multiples' in Regulation 1.72-9 of the Federal
Income Tax Regulations, as in effect on the date of
such determination.
7. Payments Following Director's Death. If Director should die
before receiving any or all of the installments of deferred compensation to
which he is entitled, any unpaid installments shall be paid (as they become
due) (in a lump sum)(6) to such person or persons and in such proportions
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(5) Insert appropriate number up to 15
(6) Delete one bracketed clause
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as Director may have expressly designated by written notice received by the
Company prior to Director's death, or, absent such a designation, to
Director's estate.
8. Acceleration of Payment. Notwithstanding the foregoing paragraphs
5 and 6, the Company, in its sole discretion, may accelerate the payment of
all or part of the balance of Director's deferred compensation, in cash or
in shares of common stock of the Company, or partly in each, if so
requested by Director or, after Director's death, by his beneficiary as
designated pursuant to paragraph 7; provided, however, that any such
accelerated payment may be permitted only in case of an unforeseeable
emergency (within the meaning of Section 457 of the Internal Revenue Code
and the regulations promulgated thereunder) that is caused by an event
beyond the control of Director or his beneficiary and that would result in
severe financial hardship to such person if accelerated payment were not
permitted. Any such accelerated payment shall be limited to the amount
necessary to meet or satisfy the emergency.
9. Director is Unsecured Creditor. Director shall be a general
unsecured creditor of the Company with respect to his or her right to
receive payments of deferred compensation hereunder. This Agreement
represents a mere promise by the Company to make payments of deferred
compensation in the future. All payments of deferred compensation to be
made hereunder shall be paid from the Company's general funds and no
special or separate fund shall be established and no segregation of assets
shall be made to assure the payment of such amounts. Nothing contained in
this Agreement, and no action taken pursuant to its provisions, shall
create or be construed to create a trust of any kind, or a fiduciary
relationship between the Company and Director or any other person, with
respect to the deferred compensation. It is the intention of the Company
and Director that this Agreement and the Company's obligation to make
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payments of deferred compensation hereunder be unfunded both for tax
purposes and for purposes of Title I of ERISA.
10. Termination of Agreement. The Company may terminate the right
to defer retainers or fees under this Agreement at any time, in which case
the provisions of paragraphs 5, 6 and 7 of this Agreement shall survive.
The Company retains the right to change Director's compensation at any
time.
11. No Assignment of Rights. This Agreement shall be binding upon
and inure to the benefit of the Company and its successors and assigns and
Director, his designees and his estate. Neither Director, his designees
nor his estate shall commute, encumber, sell or otherwise dispose of the
right to receive the payments provided for in this Agreement, which
payments and rights thereto are expressly declared to be nontransferable
and nonassignable.
12. Governing Law. This Agreement shall be governed by the laws of
the State of New York from time to time in effect.
13. Notices. Unless either party notifies the other to the
contrary, any notice required hereunder shall be duly given if delivered in
person or by registered first class mail (a) if to the Company, to the
Treasurer, X.X. Xxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000, and (b) if to
Director, to his address appearing on the records of the Company.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date set forth above.
DOW XXXXX & COMPANY, INC.
By:
---------------------------
Director
Director's Deferred Compensation Agreement
This Agreement is made and effective as of April 16, 1997, by and between
DOW XXXXX & COMPANY, INC., a Delaware corporation, having its principal
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company,"
which term shall include its successors and assigns), and -----------------
("Director").
W I T N E S S E T H:
THAT WHEREAS, Director is a member of the Company's Board of Directors (the
"Board"); and
WHEREAS, Director and the Company wish to provide for the compensation to
be paid to Director, on both a current and deferred basis, for his services
as a member of the Board;
NOW, THEREFORE, in consideration of the premises it is agreed as follows:
1. Period of Service. Director will, except in the event of his
earlier death or disability, serve the Company as a member of its Board for
such term as he has been, and may hereafter be, elected, provided that
although Director may agree to stand for reelection to the Board after the
date hereof, he is under no obligation to do so and the Company is under no
obligation to submit his name for reelection by the stockholders.
2. Compensation and Deferral of Payment.
(a) Amount of Compensation. The Company will pay Director an
annual cash retainer of $20,000, and will credit Director with an annual
deferred stock grant of $20,000 under the directors' deferred stock
compensation plan. It will also pay Director a fee of $1,200 for each
Board meeting attended, $1,000 for each Board committee meeting attended,
and an annual fee of $3,000 if Director serves as a Board committee
chairman. It is contemplated that comparable or greater fees will be paid
in subsequent years, if any, during which Director serves on the Board.
(b) Election to Defer. By filing written notice with the
Company at any time prior to the commencement of any calendar year,
Director may irrevocably elect that all or part of any annual cash
retainer, Board meeting fee, Board committee meeting fee or Board committee
chairmanship fee which he may earn for such year shall be paid to him as
deferred compensation at such later date and in such manner as he may
become entitled thereto pursuant to the provisions of this Agreement. By
such written notice Director shall also elect whether to have his deferred
compensation account credited with (i) dollar amounts equal to the deferred
fees (the "Deferred Cash Election") or (ii) units ("Stock Equivalents")
equivalent to shares of Dow Xxxxx common stock (the "Deferred Stock
Election"). To the extent that Director does not elect to receive his fees
as deferred compensation, such fees shall be paid at such time, in such
manner and in such amounts as the Company shall determine.
(c) Deferred Stock Grant. The annual deferred stock grant
shall be credited, quarterly, in the form of Stock Equivalents, to
Director's deferred compensation account hereunder, as provided in
subparagraph 4(b).
(d) Accrued Directors' Retirement Plan Amounts. To the extent
that Director commenced his or her service on the Board prior to the 1997
annual meeting of stockholders, amounts accrued under the directors'
retirement plan in respect of the Director through the date of such meeting
will be
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added to the Director's deferred compensation account and subject to a
Deferred Cash Election or Deferred Stock Election as the Director shall
elect, in the same manner as any annual retainer or other director's fee
that the Director may elect to have paid to him as deferred compensation;
provided, however, that amounts accrued, but unvested, under the directors'
retirement plan in respect of the Director will also be added to the
Director's deferred compensation account but such amounts, and any earnings
thereon, will not become vested, if at all, until the Director shall have
completed five years of service on the Board.
3. Calculation of Deferred Compensation Under Deferred Cash
Election. To the extent that Director elects the Deferred Cash Election,
then, for purposes of paragraph 5, below, the aggregate amount allocable to
his account as deferred compensation as of the date on which he receives
his first installment (or lump sum payment) of deferred compensation shall
be the sum of
(a) the amount, with respect to which the Deferred Cash
Election has been made, of each deferred retainer or fee
that Director is entitled to receive as deferred
compensation pursuant to subparagraph 2(b), above, each
such deferred retainer or fee being credited to Director's
account as of the last business day of the month in which
the retainer or fee would have been paid absent the
election,
(b) the amount, with respect to which the Deferred Cash
Election has been made, accrued under the directors'
retirement plan and added to Director's deferred
compensation account pursuant to subparagraph 2(d) above,
such amount being credited to Director's account as of the
effective date of this Agreement, and
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(c) for the period from the date hereof to the end of the
month preceding the month in which Director becomes
entitled to his first installment (or lump sum payment) of
deferred compensation pursuant to paragraph 5, below,
simple interest on the amount, if any, allocated to
Director's account (including, as of the beginning of each
calendar year, any amount previously allocated thereto
pursuant to this subparagraph 3(c)), calculated at an
annual interest rate equal to the DJ 20 Bond Index rate in
effect on the first business day of each calendar year.
4. Crediting of Stock Equivalents.
(a) Deferred Stock Election. To the extent that Director
elects the Deferred Stock Election, Director's account shall be credited,
(i) as of the last business day of the month in which the deferred retainer
or fee would have been paid absent the election, with the number of Stock
Equivalents equal to that whole number obtained by dividing the amount of
the deferred retainer or fee, with respect to which the Deferred Stock
Election has been made, by the fair market value of a share of common stock
of the Company on such date, and (ii) as of the effective date of this
Agreement, with the number of Stock Equivalents equal to that whole number
obtained by dividing the amount, with respect to which the Deferred Stock
Election has been made, accrued under the directors' retirement plan and
added to Director's deferred compensation account pursuant to subparagraph
2(d) above, by the fair market value of a share of common stock of the
Company on such date.
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(b) Annual Deferred Stock Grant. Director's account shall
also be credited, as of the last business day of each calendar quarter in
which he or she serves as a director, with the number of Stock Equivalents
equal to that whole number obtained by dividing one-quarter of the annual
deferred stock grant by the fair market value of a share of common stock of
the Company on such date.
(c) Valuation of Stock. For purposes of this Agreement, the
fair market value of a share of common stock of the Company as of any date
shall be the closing sale price of the stock on the New York Stock Exchange
on such date, or, if no sales were quoted on such date, on the most recent
preceding date on which sales were quoted. Any amount of deferred retainer
or fee or deferred stock grant remaining after the division described in
subparagraphs 4(a) and 4(b), respectively, which is less than the fair
market value of a single share on such date, shall be credited to
Director's account and retained there, without accruing interest, until
Stock Equivalents are next credited to Director's account, at which time
the retained amount shall be added to deferred retainers and fees for
purposes of computing the number of Stock Equivalents to be so credited.
(d) Dividend Equivalents. With respect to each Stock
Equivalent theretofore credited to Director's account, said account shall
be credited with an amount equal to any dividend paid with respect to each
outstanding share of common stock of the Company, at the same time any such
dividend is paid. Any such amounts so credited shall not accrue interest
and shall thereafter be treated as deferred fees to be converted into Stock
Equivalents on the date on which Stock Equivalents can next be credited to
Director's account.
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(e) Antidilution Adjustments. In the event of any change in
the common stock of the Company by reason of any stock dividend,
recapitalization, reorganization, merger, consolidation, split-up,
combination or exchange of shares, or rights offering to purchase common
stock at a price substantially below fair market value, or of any similar
change affecting the common stock, the value and attributes of each Stock
Equivalent shall be appropriately adjusted consistent with such change to
the same extent as if such Stock Equivalents were, instead, issued and
outstanding shares of common stock of the Company.
5. Payment of Deferred Compensation Under Deferred Cash Election.
(a) Form of Payment. The aggregate amount allocable to
Director as deferred compensation, determined pursuant to paragraph 3,
above, shall be payable to Director in (a lump sum) (the form of an annuity
commencing)(*1) on the first day of the third month following the month in
which Director ceases to serve on the Company's Board of Directors for
whatever cause.
(b) Calculation of Annuity Payments. If the deferred
compensation is payable to Director in the form of an annuity, it
(i) shall include an assumed interest factor, as
calculated by the Company, equal to the average
annual rate of interest applicable under subparagraph
3(c) for the last three complete calendar years
during which Director rendered services as a member
of the Board under paragraph 1 or such shorter period
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(*1) Delete one bracketed clause
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of time during which Director served on the Board;
and
(ii) shall be payable in (*2) equal annual
installments or in such greater number of
installments as shall be not less than half the
number of years remaining in Director's life
expectancy, determined as of the date on which
Director receives his first installment of deferred
compensation or as of the date of his death, if
earlier. For purposes of the preceding sentence,
Director's life expectancy shall be equal to the
expected return multiple shown for Director's age in
'Table V. Ordinary Life Annuities--One Life--Expected
Return Multiples' in Regulation l.72-9 of the Federal
Income Tax Regulations, as in effect on the date of
such determination.
6. Payment of Stock Equivalents as Deferred Compensation.
(a) Form of Payment. The Stock Equivalents credited to
Director's account, pursuant to paragraph 4, above, shall be payable to
Director in (a lump sum) ( (*3) annual installments commencing) (the
form of a cash annuity commencing)(*4) on, or as soon as practicable
after, the first day of the third month following the month in which
Director ceases to serve on the Company's Board for whatever cause. Any
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(*2) Insert appropriate number up to 15
(*3) Insert appropriate number up to 15
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deferred retainer or fee amount or deferred stock grant amount which has
not been converted into Stock Equivalents shall be paid to Director at such
time.
(b) Election of Payment in Cash or Stock. Stock Equivalents
credited to Director's account shall be paid in cash or in shares of common
stock of the Company, or partly in each, as the Director shall elect by
written notice filed with the Company prior to the commencement of payment
to Director pursuant to subparagraph 6(a). For purposes of determining the
amount of any distribution that Director elects to receive in cash, except
as otherwise provided in subparagraph 6(c), each Stock Equivalent shall be
deemed to have a value equal to the fair market value of a share of common
stock of the Company as of the date immediately preceding the date of
payment.
(c) Calculation of Annuity Payments. If the cash annuity is
selected under subparagraph 6(a), the aggregate fair market value of the
Stock Equivalents shall be determined as of the last business day of the
second month following the month in which Director ceases to serve on the
Company's Board. Such annuity
(i) shall include an assumed interest factor, as
calculated by the Company, equal to the average
annual rate of interest which, had the Deferred Cash
Election been made, would have applied under
subparagraph 3(b) for the last three complete
calendar years during which Director rendered
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(footnote continued from previous page)
(*4) Delete two of the three bracketed clauses
services as a member of the Board under paragraph 1
or such shorter period of time during which Director
served on the Board; and
(ii) shall be payable in (*5) equal annual installments
or in such greater number of installments as shall
be not less than half the number of years remaining
in Director's life expectancy, determined as of the
date on which Director receives his first
installment of deferred compensation or as of the
date of his death, if earlier. For purposes of the
preceding sentence, Director's life expectancy shall
be equal to the expected return multiple shown for
Director's age in 'Table V. Ordinary Life Annuities-
-One Life--Expected Return Multiples' in Regulation
1.72-9 of the Federal Income Tax Regulations, as in
effect on the date of such determination.
7. Payments Following Director's Death. If Director should die
before receiving any or all of the installments of deferred compensation to
which he is entitled, any unpaid installments shall be paid (as they become
due) (in a lump sum)(*6) to such person or persons and in such proportions
as Director may have expressly designated by written notice received by the
Company prior to Director's death, or, absent such a designation, to
Director's estate.
8. Acceleration of Payment. Notwithstanding the foregoing
paragraphs 5, 6 and 7, the Company, in its sole discretion, may accelerate
the payment of all or part of the balance of Director's deferred
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(*5) Insert appropriate number up to 15
(*6) Delete one bracketed clause
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compensation, in cash or in shares of common stock of the Company, or
partly in each, if so requested by Director or, after Director's death, by
his beneficiary as designated pursuant to paragraph 7; provided, however,
that any such accelerated payment may be permitted only in case of an
unforeseeable emergency (within the meaning of Section 457 of the Internal
Revenue Code and the regulations promulgated thereunder) that is caused by
an event beyond the control of Director or his beneficiary and that would
result in severe financial hardship to such person if accelerated payment
were not permitted. Any such accelerated payment shall be limited to the
amount necessary to meet or satisfy the emergency.
9. Director is Unsecured Creditor. Director shall be a general
unsecured creditor of the Company with respect to his or her right to
receive payments of deferred compensation hereunder. This Agreement
represents a mere promise by the Company to make payments of deferred
compensation in the future. All payments of deferred compensation to be
made hereunder shall be paid from the Company's general funds and no
special or separate fund shall be established and no segregation of assets
shall be made to assure the payment of such amounts. Nothing contained in
this Agreement, and no action taken pursuant to its provisions, shall
create or be construed to create a trust of any kind, or a fiduciary
relationship between the Company and Director or any other person, with
respect to the deferred compensation. It is the intention of the Company
and Director that this Agreement and the Company's obligation to make
payments of deferred compensation hereunder be unfunded both for tax
purposes and for purposes of Title I of ERISA.
10. Termination of Agreement. The Company may terminate the right
to defer retainers or fees under this Agreement at any time, in which case
the provisions of paragraphs 5, 6 and 7 of this Agreement shall survive.
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The Company retains the right to change Director's compensation at any
time.
11. No Assignment of Rights. This Agreement shall be binding upon
and inure to the benefit of the Company and its successors and assigns and
Director, his designees and his estate. Neither Director, his designees
nor his estate shall commute, encumber, sell or otherwise dispose of the
right to receive the payments provided for in this Agreement, which
payments and rights thereto are expressly declared to be nontransferable
and nonassignable.
12. Governing Law. This Agreement shall be governed by the laws
of the State of New York from time to time in effect.
13. Notices. Unless either party notifies the other to the
contrary, any notice required hereunder shall be duly given if delivered in
person or by registered first class mail (a) if to the Company, to the
Treasurer, X.X. Xxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000, and (b) if to
Director, to his address appearing on the records of the Company.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date set forth above.
DOW XXXXX & COMPANY, INC.
By:
----------------------
Director
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Director's Deferred Compensation Agreement
This Amended and Restated Agreement ("Agreement") is made and effective as
of April 16, 1997, by and between DOW XXXXX & COMPANY, INC., a Delaware
corporation, having its principal office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Company," which term shall include its successors and
assigns), and ("Director").
W I T N E S S E T H:
THAT WHEREAS, Director is a member of the Company's Board of Directors (the
"Board"); and
WHEREAS, Director and the Company entered into an agreement dated as of ---
-------with respect to Director's service on the Board and the deferral of
his fees for such service; and
WHEREAS, Director and the Company wish to amend and restate such agreement
in its entirety and to provide for the compensation to be paid to Director,
on both a current and deferred basis, for his services as a member of the
Board;
NOW, THEREFORE, in consideration of the premises it is agreed as follows:
1. Period of Service. Director will, except in the event of his
earlier death or disability, serve the Company as a member of its Board for
such term as he has been, and may hereafter be, elected, provided that
although Director may agree to stand for reelection to the Board after the
date hereof, he is under no obligation to do so and the Company is under no
obligation to submit his name for reelection by the stockholders.
2. Compensation and Deferral of Payment.
(a) Amount of Compensation. The Company will pay Director an
annual cash retainer of $20,000, and will credit Director with an annual
deferred stock grant of $20,000 under the directors' deferred stock
compensation plan. It will also pay Director a fee of $1,200 for each
Board meeting attended, $1,000 for each Board committee meeting attended,
and an annual fee of $3,000 if Director serves as a Board committee
chairman. It is contemplated that comparable or greater fees will be paid
in subsequent years, if any, during which Director serves on the Board.
(b) Election to Defer. By filing written notice with the
Company at any time prior to the commencement of any calendar year,
Director may irrevocably elect that all or part of any annual cash
retainer, Board meeting fee, Board committee meeting fee or Board committee
chairmanship fee which he may earn for such year shall be paid to him as
deferred compensation at such later date and in such manner as he may
become entitled thereto pursuant to the provisions of this Agreement. By
such written notice Director shall also elect whether to have his deferred
compensation account credited with (i) dollar amounts equal to the deferred
fees (the "Deferred Cash Election") or (ii) units ("Stock Equivalents")
equivalent to shares of Dow Xxxxx common stock (the "Deferred Stock
Election"). To the extent that Director does not elect to receive his fees
as deferred compensation, such fees shall be paid at such time, in such
manner and in such amounts as the Company shall determine.
(c) Deferred Stock Grant. The annual deferred stock grant
shall be credited, quarterly, in the form of Stock Equivalents, to
Director's deferred compensation account hereunder, as provided in
subparagraph 4(b).
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(d) Accrued Directors' Retirement Plan Amounts. To the extent
that Director commenced his or her service on the Board prior to the 1997
annual meeting of stockholders, amounts accrued under the directors'
retirement plan in respect of the Director through the date of such meeting
will be added to the Director's deferred compensation account and subject
to a Deferred Cash Election or Deferred Stock Election as the Director
shall elect, in the same manner as any annual retainer or other director's
fee that the Director may elect to have paid to him as deferred
compensation; provided, however, that amounts accrued, but unvested, under
the directors' retirement plan in respect of the Director will also be
added to the Director's deferred compensation account but such amounts, and
any earnings thereon, will not become vested, if at all, until the
Director shall have completed five years of service on the Board.
3. Calculation of Deferred Compensation Under Deferred Cash
Election. To the extent that Director elects the Deferred Cash Election,
then, for purposes of paragraph 5, below, the aggregate amount allocable to
his account as deferred compensation as of the date on which he receives
his first installment (or lump sum payment) of deferred compensation shall
be the sum of
(a) the amount, with respect to which the Deferred Cash
Election has been made, of each deferred retainer or fee
that Director is entitled to receive as deferred
compensation pursuant either to subparagraph 2(b), above,
or to any predecessor to this Agreement, each such
deferred retainer or fee being credited to Director's
account as of the last business day of the month in which
the retainer or fee would have been paid absent the
election,
(b) the amount, with respect to which the Deferred Cash
Election has been made, accrued under the directors'
retirement plan and added to Director's deferred
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compensation account pursuant to subparagraph 2(d) above,
such amount being credited to Director's account as of the
effective date of this Agreement, and
(c) for the period from the date hereof to the end of the
month preceding the month in which Director becomes
entitled to his first installment (or lump sum payment) of
deferred compensation pursuant to paragraph 5, below,
simple interest on the amount, if any, allocated to
Director's account (including, as of the beginning of each
calendar year, any amount previously allocated thereto
pursuant either to this subparagraph 3(c) or to any
predecessor to this Agreement), calculated at an annual
interest rate equal to the DJ 20 Bond Index rate in
effect on the first business day of each calendar year.
4. Crediting of Stock Equivalents.
(a) Deferred Stock Election. To the extent that Director
elects the Deferred Stock Election, Director's account shall be credited,
(i) as of the last business day of the month in which the deferred retainer
or fee would have been paid absent the election, with the number of Stock
Equivalents equal to that whole number obtained by dividing the amount of
the deferred retainer or fee, with respect to which the Deferred Stock
Election has been made, by the fair market value of a share of common stock
of the Company on such date, and (ii) as of the effective date of this
Agreement, with the number of Stock Equivalents equal to that whole number
obtained by dividing the amount, with respect to which the Deferred Stock
Election has been made, accrued under the directors' retirement plan and
added to Director's deferred compensation account pursuant to subparagraph
2(d) above, by the fair market value of a share of common stock of the
Company on such date.
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(b) Annual Deferred Stock Grant. Director's account shall
also be credited, as of the last business day of each calendar quarter in
which he or she serves as a director, with the number of Stock Equivalents
equal to that whole number obtained by dividing one-quarter of the annual
deferred stock grant by the fair market value of a share of common stock of
the Company on such date.
(c) Valuation of Stock. For purposes of this Agreement, the
fair market value of a share of common stock of the Company as of any date
shall be the closing sale price of the stock on the New York Stock Exchange
on such date, or, if no sales were quoted on such date, on the most recent
preceding date on which sales were quoted. Any amount of deferred retainer
or fee or deferred stock grant remaining after the division described in
subparagraphs 4(a) and 4(b), respectively, which is less than the fair
market value of a single share on such date, shall be credited to
Director's account and retained there, without accruing interest, until
Stock Equivalents are next credited to Director's account, at which time
the retained amount shall be added to deferred retainers and fees for
purposes of computing the number of Stock Equivalents to be so credited.
(d) Dividend Equivalents. With respect to each Stock
Equivalent theretofore credited to Director's account, whether pursuant to
this Agreement or any predecessor agreement, said account shall be credited
with an amount equal to any dividend paid with respect to each outstanding
share of common stock of the Company, at the same time any such dividend is
paid. Any such amounts so credited shall not accrue interest and shall
thereafter be treated as deferred fees to be converted into Stock
Equivalents on the date on which Stock Equivalents can next be credited to
Director's account.
-5-
(e) Antidilution Adjustments. In the event of any change in
the common stock of the Company by reason of any stock dividend,
recapitalization, reorganization, merger, consolidation, split-up,
combination or exchange of shares, or rights offering to purchase common
stock at a price substantially below fair market value, or of any similar
change affecting the common stock, the value and attributes of each Stock
Equivalent shall be appropriately adjusted consistent with such change to
the same extent as if such Stock Equivalents were, instead, issued and
outstanding shares of common stock of the Company.
5. Payment of Deferred Compensation Under Deferred Cash Election.
(a) Form of Payment. The aggregate amount allocable to
Director as deferred compensation, determined pursuant to paragraph 3,
above, shall be payable to Director in (a lump sum) (the form of an annuity
commencing)(*1) on the first day of the third month following the month in
which Director ceases to serve on the Company's Board of Directors for
whatever cause.
(b) Calculation of Annuity Payments. If the deferred
compensation is payable to Director in the form of an annuity, it
(i) shall include an assumed interest factor, as
calculated by the Company, equal to the average
annual rate of interest applicable under subparagraph
3(c) for the last three complete calendar years
during which Director rendered services as a member
of the Board under paragraph 1 or such shorter period
----------------------------------------------
(*1) Delete one bracket clause
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of time during which Director served on the Board;
and
(ii) shall be payable in (*2) equal annual installments
or in such greater number of installments as shall
be not less than half the number of years remaining
in Director's life expectancy, determined as of the
date on which Director receives his first
installment of deferred compensation or as of the
date of his death, if earlier. For purposes of the
preceding sentence, Director's life expectancy shall
be equal to the expected return multiple shown for
Director's age in 'Table V. Ordinary Life Annuities-
-One Life--Expected Return Multiples' in Regulation
l.72-9 of the Federal Income Tax Regulations, as in
effect on the date of such determination.
6. Payment of Stock Equivalents as Deferred Compensation.
(a) Form of Payment. The Stock Equivalents credited to
Director's account, whether pursuant to paragraph 4, above, or pursuant to
any predecessor agreement, shall be payable to Director in (a lump sum)
((*3) annual installments commencing) (the form of a cash annuity
commencing)(*4) on, or as soon as practicable after, the first day of the
third month following the month in which Director ceases to serve on the
----------------------------------------------
(*2) Insert appropriate number up to 15
(*3) Insert appropriate number up to 15
(*4) Delete two of the three bracketed clauses
-7-
Company's Board for whatever cause. Any deferred retainer or fee amount or
deferred stock grant amount which has not been converted into Stock
Equivalents shall be paid to Director at such time.
(b) Election of Payment in Cash or Stock. Stock Equivalents
credited to Director's account shall be paid in cash or in shares of common
stock of the Company, or partly in each, as the Director shall elect by
written notice filed with the Company prior to the commencement of payment
to Director pursuant to subparagraph 6(a). For purposes of determining the
amount of any distribution that Director elects to receive in cash, except
as otherwise provided in subparagraph 6(c), each Stock Equivalent shall be
deemed to have a value equal to the fair market value of a share of common
stock of the Company as of the date immediately preceding the date of
payment.
(c) Calculation of Annuity Payments. If the cash annuity is
selected under subparagraph 6(a), the aggregate fair market value of the
Stock Equivalents shall be determined as of the last business day of the
second month following the month in which Director ceases to serve on the
Company's Board. Such annuity
(i) shall include an assumed interest factor, as
calculated by the Company, equal to the average
annual rate of interest which, had the Deferred Cash
Election been made, would have applied under
subparagraph 3(b) for the last three complete
calendar years during which Director rendered
services as a member of the Board under paragraph 1
or such shorter period of time during which Director
served on the Board; and
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(ii) shall be payable in (*5) equal annual installments
or in such greater number of installments as shall
be not less than half the number of years remaining
in Director's life expectancy, determined as of the
date on which Director receives his first
installment of deferred compensation or as of the
date of his death, if earlier. For purposes of the
preceding sentence, Director's life expectancy shall
be equal to the expected return multiple shown for
Director's age in 'Table V. Ordinary Life Annuities-
-One Life--Expected Return Multiples' in Regulation
1.72-9 of the Federal Income Tax Regulations, as in
effect on the date of such determination.
7. Payments Following Director's Death. If Director should die
before receiving any or all of the installments of deferred compensation to
which he is entitled, any unpaid installments shall be paid (as they become
due) (in a lump sum)(*6) to such person or persons and in such proportions
as Director may have expressly designated by written notice received by the
Company prior to Director's death, or, absent such a designation, to
Director's estate.
8. Acceleration of Payment. Notwithstanding the foregoing
paragraphs 5, 6 and 7, the Company, in its sole discretion, may accelerate
the payment of all or part of the balance of Director's deferred
compensation, in cash or in shares of common stock of the Company, or
partly in each, if so requested by Director or, after Director's death, by
his beneficiary as designated pursuant to paragraph 7; provided, however,
that any such accelerated payment may be permitted only in case of an
unforeseeable emergency (within the meaning of Section 457 of the Internal
--------------------------------------------------
(*5) Insert appropriate number up to 15
(*6) Delete one bracketed clause
-9-
Revenue Code and the regulations promulgated thereunder) that is caused by
an event beyond the control of Director or his beneficiary and that would
result in severe financial hardship to such person if accelerated payment
were not permitted. Any such accelerated payment shall be limited to the
amount necessary to meet or satisfy the emergency.
9. Director is Unsecured Creditor. Director shall be a general
unsecured creditor of the Company with respect to his or her right to
receive payments of deferred compensation hereunder. This Agreement
represents a mere promise by the Company to make payments of deferred
compensation in the future. All payments of deferred compensation to be
made hereunder shall be paid from the Company's general funds and no
special or separate fund shall be established and no segregation of assets
shall be made to assure the payment of such amounts. Nothing contained in
this Agreement, and no action taken pursuant to its provisions, shall
create or be construed to create a trust of any kind, or a fiduciary
relationship between the Company and Director or any other person, with
respect to the deferred compensation. It is the intention of the Company
and Director that this Agreement and the Company's obligation to make
payments of deferred compensation hereunder be unfunded both for tax
purposes and for purposes of Title I of ERISA.
10. Termination of Agreement. The Company may terminate the right
to defer retainers or fees under this Agreement at any time, in which case
the provisions of paragraphs 5, 6 and 7 of this Agreement shall survive.
The Company retains the right to change Director's compensation at any
time.
11. No Assignment of Rights. This Agreement shall be binding upon
and inure to the benefit of the Company and its successors and assigns and
Director, his designees and his estate. Neither Director, his designees
nor his estate shall commute, encumber, sell or otherwise dispose of the
-10-
right to receive the payments provided for in this Agreement, which
payments and rights thereto are expressly declared to be nontransferable
and nonassignable.
12. Governing Law. This Agreement shall be governed by the laws
of the State of New York from time to time in effect.
13. Notices. Unless either party notifies the other to the
contrary, any notice required hereunder shall be duly given if delivered in
person or by registered first class mail (a) if to the Company, to the
Treasurer, X.X. Xxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000, and (b) if to
Director, to his address appearing on the records of the Company.
14. Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the payment
and deferral of director fees by the Company and supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date set forth above.
DOW XXXXX & COMPANY, INC.
By:
----------------------
Director
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