Exhibit 10.4
NINTH AMENDED AND RESTATED
ASHLAND INC.
SUPPLEMENTAL EARLY RETIREMENT PLAN
FOR CERTAIN KEY EXECUTIVE EMPLOYEES
September 19, 1996
ARTICLE I. PURPOSE AND EFFECTIVE DATE.
1.01 The purpose of the Plan is to allow designated senior executive
employees to retire prior to their sixty-fifth birthday without an
immediate substantial loss of income. This Plan is a supplemental
retirement arrangement for a select group of management.
1.02 The Plan as described herein shall amend and supersede, as of
September 19, 1996, all provisions of the Eighth Amended and
Restated Ashland Inc. Supplemental Early Retirement Plan for
Certain Key Executive Employees. However, the rights and
obligations of Employees who were selected by the Board or
approved for participation pursuant to the eligibility
requirements of the Plan to receive a benefit under the Plan, or
who were receiving benefits under a prior plan, prior to September
19, 1996 (irrespective of the Effective Retirement Date(s) of such
Employee(s)), shall be governed by the terms of the Plan in effect
at the time of such retirement.
ARTICLE II. DEFINITIONS.
The following terms used herein shall have the following meanings
unless the context otherwise requires:
2.01 "Age" - means the age of an Employee as of his or her last birthday.
2.02 "Annual Retirement Income" - means the annual income payable under
this Plan by Ashland for the lifetime
of a Participant commencing on such Participant's Effective
Retirement Date and ending on his or her date of death, subject to
the provisions of Section 5.04.
2.03 "Ashland" - means Ashland Inc. and its present or future subsidiary
corporations.
2.04 "Board of Directors" - means the Board of Directors of Ashland.
2.05 "Change in Control" - shall be deemed to occur (1) upon the
approval of the shareholders of Ashland (or
if such approval is not required, the approval of the Board) of
(A) any consolidation or merger of Ashland in which Ashland is not
the continuing or surviving corporation or pursuant to which
shares of Ashland common stock would be converted into cash,
securities or other property other than a merger in which the
holders of Ashland common stock immediately prior to the merger
will have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, (B) any sale,
lease, exchange, or other transfer (in one transaction or a series
of related transactions) of all or substantially all the assets of
Ashland, or (C) adoption of any plan or proposal for the
liquidation or dissolution of Ashland, (2) when any "person" (as
defined in Section 3(a)(9) or 13(d) of the Securities Exchange Act
of 1934), other than Ashland or any subsidiary or employee benefit
plan or trust maintained by Ashland or any of its subsidiaries,
shall become the "beneficial owner" (as defined in Rule 13d-3
under the Securities Exchange Act of 1934), directly or
indirectly, of more than 15% of the Ashland common stock
outstanding at the time, without the approval of the Board, or (3)
if at any time during a period of two consecutive years,
individuals who at the beginning of such period constituted the
Board shall cease for any reason to constitute at least a majority
thereof, unless the election or nomination for election by
Ashland's shareholders of each new director during such two-year
period was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning
of such two-year period.
2.06 "Committee" - means the Personnel and Compensation Committee of the
Board.
2.07 "Effective Retirement Date" - means the date upon which a
Participant retires under this Plan which shall be the first day
of the month following the Participant's 62nd birthday or, at
Ashland's discretion or as otherwise provided in Article VI, any
earlier age. Upon Board or Chief Executive Officer and/or Chief
Operating Officer approval, as applicable, the "Effective
Retirement Date" of a Participant may occur after the Employee
reaches age 62.
2.08 "Employee" - means an executive employee of Ashland who (i) is at
least 55 years of age; and (ii) holds a position classified at the
level of 1,000 Hay Points or above (and who is deemed on the
Effective Retirement Date to be a Level V or above employee under
the Incentive Compensation Plan).
2.09 "Employment Contracts" - means those contractual agreements, in
effect from time to time, which are approved by the Board and
which provide an Employee with a specified period of employment
and other benefits.
2.10 "Final Average Bonus" - means the Participant's average bonus paid
under the Incentive Compensation Plan (including amounts that may
have been accrued, but deferred in payment under such plan) during
the highest thirty-six (36) months out of the final sixty-month
(60) period. For these purposes, the "bonus accruedpaid" for a
particular month contained within a particular fiscal year related
to payments under such plan shall be equal to the amount of such
bonus actually paid (regardless of the date paid, but excluding
any adjustment for the deferral of such payment) to such
Participant on account of such fiscal year divided by the number
of months contained in such fiscal year which were used in
determining the amount of such bonus actually paid to such
Participant.
2.11 "Final Average Compensation" - means the Participant's average
base compensation paid during the highest thirty-six months (36)
out of the final sixty-month (60) period plus the Final Average
Bonus. For these purposes, the base the average total compensation
paid during the highest thirty-six months (36) out of the final
sixty-month (60) period. For these purposes, "total compensation
paid" is the sum of the "compensation paid" and the "bonus paid"
during a particular month. compensation paid with respect to any
particular calendar month, "Compensation paid" shall be the base
rate of compensation for such Participant in effect on the first
day of such calendar month. "Bonus paid" shall have the same
meaning as set forth in Section 2.10.
2.12 "Incentive Compensation Plan" - means the Ashland Inc. Incentive
Compensation Plan or the Ashland Inc.
Incentive Compensation Plan for Key Executives, as applicable.
2.13 "Participant" - means an Employee who has been approved for
participation in the Plan pursuant to Article III or Section 5.06.
2.14 "Plan" - means the Ninth Amended and Restated Ashland Inc.
Supplemental Early Retirement Plan for Certain Key Executive
Employees as set forth herein.
2.15 "Service" - means the number of years and fractional years of
employment by Ashland of an Employee, measured from the first day
of the month coincident with or next succeeding his or her initial
date of employment up to and including such Employee's Effective
Retirement Date. For purposes of this Section 2.142.15, Service
shall include an Employee's employment with a subsidiary or an
affiliate of Ashland determined in accordance with rules from time
to time adopted or approved by the Board.
ARTICLE III. PARTICIPATION IN PLAN.
Eligibility for benefits shall be determined as follows:
3.01 Except as otherwise provided in Section 3.03, an Employee who on
the Effective Retirement Date holds a position classified at the
level of 2,000 Hay Points or above (and who is deemed to be a
Level I or II Participant under the Incentive Compensation Plan)
shall require Board approval to participate in this Plan.
3.02 An Employee who on the Effective Retirement Date holds a position
classified at the level of less than 2,000 Hay Points (and who is
deemed to be a Level III, IV, or V Participant under the Incentive
Compensation Plan) shall require the approval of either Ashland's
Chief Executive Officer or Chief Operating Officer to participate
in this Plan.
3.03 Subject to the provisions of Article VI, in the event of a "Change
in Control" (as defined in Section 2.05), an Employee who who has
2,000 or more Hay Points (and who is deemed to be a Level I or II
Participant under the Incentive Compensation Plan) shall
automatically be deemed to
be approved by the Board for participation under this Plan.
3.04 The Board or Chief Executive Officer or Chief Operating Officer,
as applicable, may approve such key executives for participation
in the Plan as they deem to be appropriate, all in its sole
discretion.
3.05 Ashland reserves the right to terminate any Participant for
"Cause" prior to his or her Effective Retirement Date, with a
resulting forfeiture of the payment of benefits under the Plan.
Ashland also reserves the right to terminate any Participant's
participation in the Plan for "Cause" subsequent to his or her
Effective Retirement Date. For purposes of this Section 3.05,
"Cause" shall mean the willful and continuous failure of a
Participant to substantially perform his or her duties to Ashland
(other than any such failure resulting from incapacity due to
physical or mental illness), or the willful engaging by a
Participant in gross misconduct materially and demonstrably
injurious to Ashland, each to be determined by Ashland in its sole
discretion.
ARTICLE IV. INTERACTION WITH EMPLOYMENT CONTRACTS.
4.01 Notwithstanding any provision of this Plan to the contrary, an
Employee who has entered into an Employment Contract with Ashland
and who is either terminated without "Cause" prior to a "change in
control of Ashland" or is terminated without "Cause" or resigns
for "Good Reason" following a "change in control of Ashland" (each
quoted term as defined in the applicable employment agreement)
shall be entitled to receive the benefits as provided pursuant to
this Plan. Benefits payable hereunder in such a situation shall be
calculated in accordance with the payment option selected by the
Employee at such time.
4.02 Benefits Prior to "Change in Control."
If the Employee's termination is without "Cause" prior to a
"change in control of Ashland," benefits payable hereunder shall
not include those benefits which would have been payable to the
Employee during the first two (2) years of his or her retirement
under the Plan. The benefits payable hereunder shall commence no
earlier than as of the first day of the calendar month coincident
with or next following the second anniversary following the
Employee's "Date of Termination" (as defined in the applicable
employment agreement); however, if the Employee elects to receive
such benefits in a lump sum as provided in Section 5.04(b)(1),
such benefits shall commence and be payable as therein specified.
4.03 Benefits Subsequent to a "Change in Control."
If the Employee's termination is without "Cause" or he or she
resigns for "Good Reason" following a "change in control of
Ashland," benefits payable hereunder shall not include those
benefits which would have been payable to the Employee during the
first three (3) years of his or her retirement under the Plan. The
benefits payable hereunder shall commence no earlier than as of
the first day of the calendar month coincident with or next
following the third anniversary following the Employee's "Date of
Termination" (as defined in the applicable employment agreement);
however, if the Employee elects to receive such benefits in a lump
sum as provided in Section 5.04(b)(1), such benefits shall
commence and be payable as therein specified.
4.04 If a Participant accepts, during a period of five (5) years
subsequent to his or her Effective Retirement Date, any consulting
or employment activity which is in direct conflict with the
business of Ashland at such time (such determination regarding
conflicting activity to be made in the sole discretion of the
Board), he or she shall not be entitled to the receipt of any
further payments of Annual Retirement Income under this Plan;
provided, however, he or she shall not be restricted in any manner
with respect to any other nonconflicting activity in which he or
she is engaged. If a Participant wishes to accept employment or
consulting activity which may be prohibited under this Section
4.04, such Participant may submit to Ashland written notice
(Attention: Administrative Vice President, Human Resources) of his
or her wish to accept such employment or consulting activity. If
within ten (10) business days following receipt of such notice
Ashland does not notify the Participant in writing of Ashland's
objection to his or her accepting such employment or consulting
activity, then such Participant shall be free to accept such
employment or consulting activity for the period of time and upon
the basis set forth in his or her written request.
ARTICLE V. ANNUAL RETIREMENT INCOME AND OTHER BENEFITS.
5.01 LEVELS I AND II.
The Annual Retirement Income of a Participant who retired from a
position which was assigned a Hay Point rating equal to or
exceeding 2,000 points (and who is deemed to be a Level I or II
Participant under the Incentive Compensation Plan) shall be equal
to: (a) Pre-Age 62 Benefit
A Participant who retires under this Plan shall receive
an Annual Retirement Income from and after the first day
of the calendar month next following his or her Effective
Retirement Date until the end of the month in which he or
she attains age 62 equal to the greater of (1) the
amounts provided in the following schedule; or (2) 50% of
Final Average Compensation; provided, however, that in
the event such Participant retired with less than 20
years of Service, such Annual Retirement Income shall be
50% of Final Average Compensation multiplied by a
fraction (A) the numerator of which is such Participant's
years of and fractional years of Service, and (B) the
denominator of which is twenty (20).
% of
Retirement Compensation
---------- ------------
1st - Year After Effective 75%
Retirement Date
2nd - ( 70%
3rd - ( 65%
4th - ( 60%
5th - ( 55%
6th - Year and thereafter 50%
to Age 62
For purposes of this Section 5.01(a), "% of Compensation"
shall mean the annualized average of the Participant's
base monthly compensation rates (excluding incentive
awards, bonuses, and any other form of extraordinary
compensation) in effect with respect to Ashland on the
first day of the thirty-six (36) consecutive calendar
months which will give the highest average out of the
one-hundred twenty (120) consecutive calendar month
period ending on the Participant's Effective
Retirement Date.
(b) Age 62 Benefit and Thereafter
From and after the first day of the calendar month next
following his or her Effective Retirement Date, or the
attainment of age 62, whichever is later, the
Participant's Annual Retirement Income shall be equal to
50% of Final Average Compensation; provided, however,
that in the event such Participant retired with less than
20 years of Service, such Annual Retirement Income shall
be 50% of Final Average Compensation multiplied by a
fraction (A) the numerator of which is such Participant's
years of and fractional years of Service, and (B) the
denominator of which is twenty (20).
(c) Benefit Reduction
The amount of benefit provided in paragraphs (a) and (b) of
this Section 5.01 shall be reduced by the sum of the
following:
(1) the Participant's benefit under the Ashland Inc.
and Affiliates Pension Plan (the
"Pension Plan") (assuming 50% of such
Participant's account under the Ashland Inc.
Leveraged Employee Stock Ownership Plan were
transferred to the Pension Plan, as allowed under
the terms of each of the said plans), determined
on the basis of a single life annuity form of
benefit;
(2) the Participant's benefit under any other defined
benefit pension plan qualified under Section
401(a) of the Internal Revenue Code of 1986, as
amended which is maintained by Ashland, determined
on the basis of a single life annuity form of
benefit (said plans referred to in sub-paragraphs
(1) and (2) of this paragraph (c) are hereinafter
referred to jointly and severally as the "Affected
Plans");
(3) the Participant's benefit under the Ashland Inc.
Non-qualified Excess Benefit Pension Plan, deter-
mined on the basis of a single life annuity form
of benefit; and
(4) the Participant's benefit under the Ashland Inc.
ERISA Forfeiture Plan attributable to amounts
which were forfeited under the Ashland Inc.
Leveraged Employee Stock Ownership Plan,
multiplied by 50%, and determined on the basis of
a single life annuity benefit.
In the event a Participant's benefit hereunder is paid as
a lump sum pursuant to an election under Section
5.04(b)(1), the reduction to such benefit shall be
calculated based upon the lump sum actuarial present
present actuarial value of the benefits referred to in
sub-paragraphs (1)-(4) of this paragraph (c) to which the
Participant would be entitled at age 62, regardless of
the date payments actually commence. In the event the
Participant's benefit hereunder is paid in any form of
periodic payments, the reduction shall apply from and
after the date the Participant actually commences
payments under the plans referred to under sub-paragraphs
(1) or, (2) or (3) of this paragraph (c).
5.02 LEVELS III, IV AND V.
The Annual Retirement Income of a Participant who retired from a
position which was assigned a Hay Point rating of less than 2,000
points (and who on his or her Effective Retirement Date was deemed
to be a Level III, IV, or V Participant under the Incentive
Compensation Plan) shall, from and after the first day of the
calendar month next following his or her 62nd birthday, be equal
to 50% of Participant's Final Average Bonus; provided, however,
that in the event such Participant retired with less than 20 years
of Service, such Annual Retirement Income after age 62 shall be
50% of Final Average Bonus multiplied by a fraction (A) the
numerator of which is such Participant's years of and fractional
years of Service, and (B) the denominator of which is twenty (20).
Although a Participant may elect to commence benefits under this
Plan upon his or her Effective Retirement Date, there shall be an
actuarial adjustment (consistent with that applied under Ashland's
qualified pension plan, as from time to time in effect) for
Participants receiving benefits under this Section 5.02 whose
Effective Retirement Date is retire prior to age 62.
5.03 Annual Retirement Income benefits payable under Sections 5.01 and
5.02 for
a period of less than 12 months due to a Participant's
attainment of age 62 or death will be payable on a pro-rata basis,
with months taken as a fraction of a year.
5.04 Payment Options.
(a) Election.
A Participant shall, subject to Sections 5.05 and 5.06,
elect the form in which such benefit shall be paid from
among those identified in this Section 5.04 and such
election shall be made at the time and in the manner
prescribed by Ashland, from time to time, provided that
the election is made before the date as of which such
Participant is entitled to have the benefit
commenceParticipant's Effective Retirement Date. Such
election, including the designation of any contingent
annuitant or alternate recipient under Sections
5.04(b)(4) or (5), shall be irrevocable except as
otherwise set forth herein. . Notwithstanding anything in
the foregoing to the contrary, any Participant approved
for participation in the Plan pursuant to Sections 3.01,
3.01 3.02 and 3.04 who makes an election under Section
5.04(b)(2) shall make such election by the later of -
(1) the 60th day following such Participant's
approval to participate in in this Plan; or
(2) the earlier of -
(A) the date six months prior to Participant's
termination from employment Effective Retirement
Date; or
(B) the December 31 immediately preceding the
first day of the month following such Participant's
termination from employment. Participant's
Effective Retirement Date.
Such deferral election shall be made in the
manner prescribed by Ashland, from time to time,
and shall be irrevocable as of the applicable
time identified under Sections 5.04(a)(1) or
(2).
Until the time at which such an election becomes
irrevocable, an Participant shall be able to change it.
(b) Optional Forms of Payment.
(1) Lump Sum Option. A Participant may elect to
receive the benefit under Article V as a lump
sum distribution, subject to the discretion of
the Committee as described below. A lump sum
benefit payable under the Plan to a Participant
shall be computed on the basis of the present
actuarially equivalent present value of such
Participant's benefit under Article V based upon
the applicable actuarial assumptions and other
relevant provisions used for the same in the
Pension Plan and any other applicable plan as
described in 5.01(c)(2) (all such plans
hereafter referred to jointly and severally as
the "Affected Plans"). (1) the 1971 Group
Annuity Mortality Table for males, regardless of
whether the Participant is male or female and
(2) the average of the monthly published Pension
Benefit Guaranty Corporation ("PBGC") interest
rates for the six-month period which ends on the
January 1 or July 1, which immediately precedes
the date as of which this calculation is made
(hereinafter called the "Applicable PBGC Rate").
The Applicable PBGC Rate is the one, used for
the valuation of benefits paid as annuities from
terminating single-employer plans for the first
20 years following the valuation date. Such lump
sum shall be payable within thirty (30) days
following the later of the Participant's
Effective Retirement Date, or at such later date
as Ashland or its delegate may determine, in its
sole discretion. designated retirement date or
the date the required election form is executed
and filed with Ashland The Committee shall have
the sole discretion to provide a lump sum
benefit option to a class of retirees for a
given calendar year. The decision as to whether
to provide a lump sum benefit option shall
generally be made by the Committee at the last
Committee meeting prior thereto. The option
shall be made available to a Participant
contingent upon various considerations,
including, but not limited to, the following:
The tax status of Ashland, including without
limitation, the corporate and individual tax
rate then applicable and whether or not Ashland
has or projects a net operating loss; the
current and projected liquidity of Ashland,
including cash flow, capital expenditures and
dividends; Ashland `s borrowing requirements and
debt leverage; applicable book charges;
organizational issues, including succession
issues; security of the retirement payment(s)
with respect to the retiree; and the
Participant's preference.
(2) Lump Sum Deferral Option. A Participant who is
eligible to receive a lump sum distribution
under 5.04(b)(1) and who was part of a select
group of management or a highly compensated
employee, shall be able to elect to defer all or
a any portion of the receipt of the elected lump
sum (in increments of 25%), by having the
obligation to distribute such amount transferred
to the Ashland Inc. Deferred Compensation Plan
to be held thereunder in a notional account and
paid pursuant to the applicable provisions of
such Plan, as they may be amended from time to
time; provided, however, that the election to
defer such distribution shall be made at the
time and in the manner prescribed in Section
5.04(a)(1) and (2). The amount deferred under
this sub-paragraph (2) shall not be less than
$1,000.
(3) Single Life Annuity. A Participant may elect to
have such benefit paid in the form of equal
monthly payments for and during such
Participant's life, with such payments ending at
such Participant's death. The election of this
option is irrevocable on the date as of which
the benefit payments commence. Before that date,
the Participant may change the option elected,
subject to the applicable limitations and
conditions applied to elections for
the options described under Section 5.04(a)(1)
and (2). Payments under this option shall
commence effective as of the date on which
payments to such Participant commence under the
Affected Plans and shall be actuarially equivalent
to the benefit provided under Section 5.01 or 5.02,
whichever is applicable, determined on the basis
of the applicable actuarial assumptions and
other relevant provisions used for the same in
the Pension Plan.
(4) Joint and Survivor Income Option. A Participant
may elect to receive an actuarially reduced
benefit payable monthly during the Participant's
lifetime with payments to continue after his or
her death to the person he designates
(hereinafter called "contingent annuitant"), in
an amount equal to (1) 100% of such actuarially
reduced benefit, (2) 66 2/3% of such actuarially
reduced benefit, or (3) 50% of such actuarially
reduced benefit. Benefit payments under this
option shall terminate with the monthly payment
for the month in which occurred the date of
death of the later to die of the Participant and
his or her contingent annuitant. The following
additional limitations and conditions apply to
this option:
(A) The contingent annuitant shall be desig-
nated by the Participant in writing in
such form and at such time as Ashland
may from time to time prescribe..
Before the Participant's Effective
Retirement Date, the Participant may
change the contingent annuitant
elected.(B) The election of an option
and designation of a contingent
annuitant under this sub-paragraph (4)
is irrevocable on the date as of which
the benefit payments commence. Before
that date, the Participant may change
the contingent annuitant or change the
option elected, subject to the
applicable limitations and conditions
applied to
elections for the options described
under 5.04(a)(1) and (2).
(B) In the event of the death of the
contingent annuitant prior to the date
as of which the election is
irrevocable, the Participant's
selection of this option shall be void
and the Participant may change the
contingent annuitant or change the
option elected, subject to the
applicable limitations and conditions
applied to elections for the options
described under 5.04(a)(1) and (2).
(C) In the event of the death of the
contingent annuitant prior to the date
as of which the election is
irrevocable, the Participant's
selection of this option shall be void
and the Participant may change the
contingent annuitant or change the
option elected, subject to the
applicable limitations and conditions
applied to elections for the options
described under under 5.04(a)(1) and
(2).
(D) In the event of the death of the
Participant prior to the date as of
which the election is irrevocable, the
election of this option shall be void
and all rights to any benefit under
this Plan shall cease except as
otherwise provided in Section 5.06.
(EC) Actuarial equivalence under this
sub-paragraph (4) shall be determined
on the basis of the applicable
actuarial assumptions and other
relevant provisions used for the same
in the Pension Plan. Payments under
this option shall commence effective as
of the date on which payments to such
Participant commence under the Affected
Plans.
(5) Period Certain Income Option. A Participant may
elect to receive an actuarially reduced benefit
payable monthly during his or her lifetime and
terminating with the monthly payment for the
month in which his or her death occurs, with the
provision that not less
than a total of 120 monthly payments shall be
made in any event to him or her and/or the person
designated by him or her to receive payments
under this sub-paragraph (5) in the event of his
or her death (hereinafter called "alternate
recipient"). Such alternate recipient shall be
designated in writing by the Participant in such
form and at such time as Ashland may from time
to time prescribe. If a Participant and his or
her alternate recipient die after the Effective
Retirement Date, date as of which payments have
commenced but before the total specified monthly
payments have been made to such Participant
and/or his or her alternate recipient, the
commuted value of the remaining unpaid payments
shall be paid in a lump sum to the estate of the
later to die of the Participant or his or her
alternate recipient. The following additional
limitations and conditions shall apply to this
option:
(A) The election of this option and the
designation of an alternate recipient
under this sub-paragraph (5) is
irrevocable on the date as of which the
benefit payments commence; provided,
however, a The alternate recipient
shall be designated in writing by the
Participant in such form and at such
time as Ashland may from time to time
prescribe. The designation of an
alternate recipient under this
sub-paragraph (5) is irrevocable after
the Effective Retirement Date,
provided, however, a Participant may
designate a new alternate recipient if
the one first designated dies before
the Participant and after the Effective
Retirement Date the date as of which
the benefit commenced. Before the date
on which the election becomes
irrevocable, the Participant may change
the alternate recipient or change the
option elected, subject to the
applicable limitations and conditions
applied to
elections for the options
described under 5.04(a)(1) and (2).
(B) In the event of the death of the
alternate recipient prior to the date
as of which the election is
irrevocable, the Participant's
selection of this option shall be void
and the Participant may change the
alternate recipient or change the
option elected, subject to the
applicable limitations and conditions
applied to elections for the options
described under 5.04(a)(1) and (2). (B)
In the event of the death of the
alternate recipient prior to the date
as of which the election is
irrevocable, the Participant's
selection of this option shall be void
and the Participant may change the
alternate recipient or change the
option elected, subject to the
applicable limitations and conditions
applied to elections for the options
described under 5.04(a)(1) and (2).
(C) In the event of the death of the
Participant prior to the date as of
which the election is irrevocable, the
election of this option shall be void
and all rights to any benefit under
this Plan shall cease except as
otherwise provided in Section 5.06(b).
(DC) Actuarial equivalence under this sub-paragraph (5) shall
be determined on the basis of the applicable actuarial
assumptions and other relevant provisions used for the
same in the Pension Plan. Payments under this option
shall commence effective as of the date on which payments
to such Participant commence under the Affected Plans.
5.05. Payment of Small Amounts.
Unless such Participant elects to receive his or her
benefit in a lump sum as provided in Section 5.04, in the
event a monthly benefit under this Plan, payable to
either a Participant or to his or her contingent
annuitant, alternate recipient or surviving spouse, is
too small (in the sole judgment of Ashland) to be paid
monthly, such benefit may be paid quarterly,
semi-annually, or annually, as determined by Ashland to
be
administratively convenient.
5.06. Surviving Benefits.
(a) Except as otherwise provided in Section 5.04 of
or this Plan, in the event that a Participant receiving
Annual Retirement Income benefits shall die after his o
her Effective Retirement Date, no additional benefits shall
be payable by Ashland under this Plan to such
deceased Participant's beneficiaries, survivors,
or estate.
(b)If an Employee diesdies while in active service with
Ashland
(1) prior to approval for participation in the
Plan and said Employee is a Level I or II participant
under the Incentive Compensation Plan and at least 55
years of age; or
(2) after approval for participation in the Plan
but prior to making an election pursuant to Section
5.04(a) and said Employee is a Level I -V participant
under the Incentive Compensation Plan; (1) before his or
her Effective Retirement Date, or (2) prior to his or her
approval or nomination for participation in the Plan but
meets all of the following requirements on the date of
his or her death: (A) such Employee dies in active
service with Ashland on or after his or her 55th
birthday; and (B) such Employee holds a position
classified at 2,000 Hay Points or more (and who is deemed
to be a Level I or II participant under Ashland's
Incentive Compensation Plan), then such Employee shall be
deemed:
(ai) to be a Participant under the Plan in the
case of Section 5.06 (b)(1);
(bii) to have commenced participation one (1)
day prior to the date of the Employee's death;
and
(ciii) if no election has been previously made,
such Employee shall be
deemed to have elected to receive his or her
benefits in the form of the 100% Joint & Survivor
retirement income option and shall be deemed
to have designated his or her spouse as the
beneficiary thereunder.
(c) In the event an Employee is approved for
participation under the Plan and dies after having made an
election under Section 5.04(a) but prior to his or her Effective
Retirement Date, then such Employee shall be deemed to have
commenced participation one (1) day prior to the date of the
Employee's death and payment shall be made under this Plan in
accordance with the Employee's election.
5.07 After a Participant's reaches his or her Effective Retirement Date
and retires under this Plan, he or she shall continue to
participate in Ashland's Group Life Insurance, Medical and Dental
programs in the same manner and under the same terms and
conditions as provided for retirees as a class under the
provisions of such programs, as from time to time in effect.
Except as otherwise expressly provided in this Plan, a
Participant's active participation in all employee benefit
programs maintained by Ashland derived from his or her employment
status with Ashland shall be discontinued.
ARTICLE VI. CHANGE IN CONTROL.
Notwithstanding any provision of this Plan to the contrary, in the
event of a Change in Control, an Employee with 2,000 or more Hay
Points (and who is deemed to be a Level I or II Participant under
Ashland's Incentive Compensation Plan), shall automatically be
deemed to be approved by the Board for participation under this
Plan and may, in his or her sole discretion, elect to retire prior
to the date the Employee reaches age 62. In addition, Ashland
shall reimburse an Employee for legal fees and expenses incurred
by such Employee if he or she is required to, and is successful
in, seeking to obtain or enforce any right to payment pursuant to
the Plan. In the event that it shall be determined that such
Employee is properly entitled to the payment of benefits
hereunder, such Employee shall also be entitled to interest
thereon payable in an amount equivalent to the prime rate of
interest (quoted by Citibank, N.A. as its prime commercial lending
rate on the latest date practicable prior to the date of the
actual commencement of payments) from the date such payment(s)
should have been made to and including the date it is made.
Notwithstanding any provision of this Plan to the contrary, the
provisions of this Plan may not be amended after a Change in
Control occurs without the written consent of a majority of the
Board who were directors prior to the Change in Control.
ARTICLE VII. MISCELLANEOUS.
7.01 The obligations of Ashland hereunder constitute merely the promise
of Ashland to make the payments provided for in this Plan. No
employee, his or her spouse or the estate of either of them shall
have, by reason of this Plan, any right, title or interest of any
kind in or to any property of Ashland. To the extent any
Participant has a right to receive payments from Ashland under
this Plan, such right shall be no greater than the right of any
unsecured general creditor of Ashland.
7.02 Full power and authority to construe, interpret and administer
this Plan shall
be vested in the Board or its delegate. Decisions
of the Board or its delegate shall be final, conclusive and
binding upon all parties.
7.03 This Plan shall be binding upon Ashland and any successors to the
business of Ashland and shall inure to the benefit of the
Participants and their beneficiaries, if applicable. Except as
otherwise provided in Article VI, the Board or its delegate may,
at any time, amend this Plan, retroactively or otherwise, but no
such amendment may adversely affect the rights of any Participant
who has been approved for participation in the Plan except to the
extent that such action is required by law.
7.04 Except as otherwise provided in Section 5.04, no right or interest
of the Participants under this Plan shall be subject to voluntary
or involuntary alienation, assignment or transfer of any kind.
7.05 This Plan shall be governed for all purposes by the laws of the
Commonwealth of Kentucky.