EXHIBIT 10.12
ARCH SENIOR EXECUTIVE PENSION PLAN
As Amended and Restated as of October 23, 2003
Article I. The Plan
1.1 Establishment of Plan. Effective as of February 8,
1999 (the "Original Effective Date") Arch Chemicals, Inc. (the
"Company" or "Arch") established a non-qualified deferred compensation
plan known as the Arch Senior Executive Pension Plan (the "Plan") for
the benefit of certain salaried employees of Arch and other Employing
Companies who may be eligible to participate. For purposes of this
Plan, an "Employing Company" means any company which has adopted this
Plan and is included within the definition of an Employing Company
under the terms of The Pension Plan of Arch Chemicals and any other
qualified defined benefit plans maintained by Arch (collectively, the
"Qualified Plans").
1.2 Purpose. The purpose of this Plan is to attract and
retain a management group capable of assuring Arch's future success by
providing them with supplemental retirement income under this Plan.
This Plan is intended to be an unfunded, nonqualified deferred
compensation plan for select management employees.
1.3 Plan Document. This Plan document describes the terms
of the Plan as in effect as of October 23, 2003. Prior Plan documents
govern Plan administration for periods prior to October 23, 2003.
Article II. Eligibility
2.1 Participation. Any Arch Employee whose job is rated
at 2,000 Hay Points (or the equivalent) or more and who is selected by
the Board of Directors of the Company or the Compensation Committee of
the Board (referred to in this Plan as the "Selection Committee" or
"Compensation Committee") shall participate in the Plan (a
"Participant"). As provided hereinafter, the Selection Committee shall
also have the power to remove any Participant from the Plan, whether or
not he or she has begun to receive benefits hereunder.
2.2 Assumption of Prior Olin Plan Liabilities for Arch
Employees; Transfers of Reserves. In conjunction with establishing this
Plan, Arch assumed the liabilities of Olin for the provision of
benefits to participants who, immediately prior to February 8, 1999
(the "Distribution Date") were participants in the Olin Senior
Executive Pension Plan as in effect on the Distribution Date (the "Olin
Senior Plan") and who, as of the Original Effective Date transferred
to, and became employed by, Arch or its affiliated companies. In
consideration of such assumption of liability, Olin transferred, as of
the Original Effective Date, to Arch (or to a rabbi trust established
by Arch) the reserves (including any assets held in a rabbi trust or
similar vehicle) reflecting the value of the accrued liabilities being
transferred, determined in accordance with Olin's established
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policies and accounting methods, uniformly applied for calculating
liabilities under its non-qualified plans.
Article III. Benefits
3.1 Benefit Formula. As of the Distribution Date, each
Eligible Employee who, immediately prior to the Distribution Date, was
a participant in the Olin Senior Executive Pension Plan, was credited
in this Plan with an accrued benefit equal to that credited to such
individual under the Olin Senior Executive Pension Plan as of the
Distribution Date (based upon the Eligible Employee's Average
Compensation and service with Olin), provided however that such
crediting did not occur under this Plan until such employee had
released Olin and its affiliates, and the Olin Senior Plan, from any
liability, or claim for benefits, with respect to the Employee's
participation in said plan.
Upon retirement, as hereinafter provided, a Participant shall be
entitled to receive an annual "Retirement Allowance" equal to the
lesser of (a) and (b) below:
(a) three percent (3%) of the Participant's Average
Compensation, multiplied by the sum of his Years of Benefit
Service credited while the employee was a Participant in this
Plan and, prior to this Plan, the Olin Senior Executive
Pension Plan, plus one and one-half percent (1 1/2%) of the
Participant's Average Compensation multiplied by his aggregate
Years of Benefit Service credited under all qualified defined
benefit plans of Arch (including Years of Benefit Service
credited under the Olin Employees Pension Plan while the
employee was not a Participant in either this Plan or the
prior Olin Senior Executive Pension Plan), provided that the
resulting percentage of Average Compensation shall be reduced
by one-third of one percent (1/3%) for each month by which the
Participant's benefits under this Plan begin prior to his
sixty-second (62nd) birthday;
reduced by the sum of
(i) the Participant's annual retirement
allowance payable from all Arch Qualified Plans and
any other nonqualified defined benefit pension plans
of the Company and all Employing Companies
(including, without limitation, The Pension Plan of
Arch Chemicals), and the equivalent actuarial value
of any other arrangement with the Company or an
Employing Company which the Plan Administrator, in
its sole discretion, determines to be a pension
supplement (collectively referred to hereinafter as
the "Other Arch Plans"); plus
(ii) fifty percent (50%) of the
Participant's Primary Social Security Benefit.
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(b) fifty percent (50%) of the Participant's Average
Compensation, reduced by the sum of
(i) the amount of annual retirement benefits
from The Pension Plan of Arch Chemicals and all Other
Arch Plans (as previously defined) and all qualified
and non-qualified deferred compensation plans of the
Participant's previous and subsequent employers; and
(ii) fifty percent (50%) of the
Participant's Primary Social Security Benefit.
(c) For purposes of determining a Participant's
"Average Compensation," "Years of Benefit Service,"
"Retirement Allowance" and "Primary Social Security Benefit"
under this Plan, such terms shall have the same meaning as
that contained in The Pension Plan of Arch Chemicals and shall
include credit for the compensation received, and service
rendered by such Participant while employed by Arch and its
affiliates, as well as by Olin and its affiliates up through
the Distribution Date (or through February 8, 2000 in the case
of Participants transferring from Olin pursuant to Section
3.5). In calculating a Participant's Average Compensation
under this Plan, (i) "Average Compensation" under this Plan
shall also include deferred amounts of regular salary and
deferrals under management incentive plans (other than the
Performance Unit Plan, the EVA Bonus Bank or similar bonus
bank arrangements, and other long-term incentive and long-term
bonus plans of Olin and Arch); (ii) executive severance which
is payable to certain Participants under employment agreements
shall be treated as if paid over the number of months of
salary used to calculate the amount of such severance, even if
such severance is received in a lump sum; (iii) Average
Compensation shall be calculated without regard to the dollar
limitations imposed by Section 401(a)(17) of the Internal
Revenue Code; and (iv) "Years of Benefit Service" shall
include service imputed as a result of treating any executive
severance paid as having been received over the number of
months used to calculate such severance.
(d) The annual retirement allowances payable under
The Pension Plan of Arch Chemicals, Other Arch Plans and from
pension plans of the Participant's previous employers, which
are to be used to reduce the benefit payable under (a) or (b)
above, shall be determined assuming (i) that the Participant
selected a 50% joint and survivor annuity under such plans,
(ii) began receiving benefits thereunder at their actual
commencement date (rather than the commencement date for
benefits under this Plan), and (iii) using the actuarial
equivalent factors specified in the plans which are the
subject of the offset or, if such factors are not reasonably
available, such factors as may, from time to time, be elected
by the Plan Administrator.
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3.2 Retirement.
(a) Except as otherwise provided in Section 4.2(a), a
Participant may retire from active service with Arch and all
Employing Companies and commence benefits under this Plan at
any time after reaching his fifty-fifth (55th) birthday,
provided, however, that Accelerated Benefits (as provided in
Section 4.2(b) of the Plan) may not commence until at least
twelve (12) full months following the Participant's actual
retirement. In the case of a Participant who transferred
directly to Olin on or before February 8, 2000, (i) "actual
retirement" shall be construed to mean retirement or
termination of service from Olin and its affiliates, and (ii)
service with Olin (and its affiliates) shall be credited in
enabling the Participant to attain his early retirement age
(but not in determining Years of Benefit Service) under this
Plan.
(b) For purposes of (i) determining whether a
Participant has reached his fifty-fifth (55th) birthday and,
thus, is eligible to commence benefits under this Section 3.2
instead of on a deferred vested basis, and (ii) calculating
the annual retirement allowance from The Pension Plan of Arch
Chemicals which is to be used as an offset, any Participant
who has completed at least seven (7) Years of Creditable
Service (as defined in The Pension Plan of Arch Chemicals) and
who is at least age fifty-two (52), but less than age
fifty-five (55) on the date his service is terminated (without
taking into account any severance period) other than (i) for
cause or (ii) as a result of a voluntary termination, shall be
treated as continuing as an eligible Employee until the date
on which the Participant reaches age fifty-five (55). A
Participant in this Plan shall be credited with his prior
service with Olin and its affiliates, as well as Arch and its
affiliates, in enabling the Participant to attain his early
retirement age under this Plan. In the case of a Participant
who transferred directly to Olin on or before February 8,
2000, service with Olin shall be credited in determining
whether the Participant has reached age 55 under this
paragraph (b). Such service shall be imputed for the sole
purposes of determining whether the Participant qualifies for
subsidized early retirement benefits, and shall not be treated
as "Benefit Service" for the purpose of calculating the amount
of the Participant's Retirement Allowance. A Participant may
not commence benefits hereunder until he actually reaches age
fifty-five (55).
3.3 Deferred Vested Employees. Any Participant who
terminates active service with Arch and all Employing Companies prior
to having reached age fifty-five (55) may commence benefits under this
Plan only after having reached age sixty-five (65); provided however
that, in the case of a Participant who transferred directly to Olin on
or prior to February 8, 2000, service with Olin and its affiliates
shall be counted in enabling such Participant to retire on or after
attaining age fifty-five (55) (and actually retiring from Olin), in
accordance with Section 3.2 above. In the case of a deferred vested
Participant, benefits paid from this Plan will be calculated assuming
that the Participant did not commence benefits under The Pension Plan
of Arch Chemicals until he or she reached age sixty-five (65), even
though the Participant may actually
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commence benefits under The Pension Plan of Arch Chemicals prior to
that date. In the event that an Arch Employee was re-employed by Olin
prior to February 8, 2000, and again participates in the Olin Senior
Executive Pension Plan, such re-employment shall not constitute a
separation from service permitting a distribution of benefits under
this, or any other, provision of this Plan.
3.4 Calculation of Benefit if Participant is Disabled. In
the event that a Participant becomes Totally Disabled as that term is
defined in The Pension Plan of Arch Chemicals, the Participant shall
continue to receive the same service credit under this Plan as would be
applicable to Totally Disabled nonbargaining employees covered by The
Pension Plan of Arch Chemicals. The disabled Participant's benefit
under this Plan shall be calculated in accordance with 3.1(a) and (b),
and shall be payable as of the date that the Participant is no longer
Totally Disabled (if such date occurs after age fifty-five (55)) or at
age sixty-five (65), if the Employee is still then Disabled. If a
Participant is no longer Disabled prior to reaching age fifty-five
(55), then his entitlement to benefits shall be determined under
Section 3.3, if he terminates service prior to reaching age 55, or
under the other applicable provisions of this Plan, if he returns to
active service. No Participant shall qualify for Disability Benefits
hereunder if such Participant become Disabled after he or she is no
longer actively employed by Arch, Inc. or its affiliates.
3.5 Transfers between Arch and Olin.
(a) Transfer to Olin From Arch. In the event that a
Plan Participant transferred employment to Olin after the
Distribution Date and on or prior to February 8, 2000, benefit
accrual under this Plan shall cease and Arch shall remain
liable for payment of any benefits accrued under this Plan to
the date of transfer. No reserves shall be transferred with
respect to any such Participant. As provided in Section 3.3,
no separation from service shall be deemed to occur under this
Plan permitting a distribution under this Plan and benefits
hereunder shall not commence until the Participant has
terminated his employment with Olin and has otherwise
qualified for benefits hereunder. When commenced, benefits
payable hereunder shall be based upon the Participant's
service with Arch (and, if applicable, any past service with,
and compensation from, Olin and its affiliates recognized as
of the Distribution Date), provided, however that Arch shall
continue to recognize a Participant's service with Olin and
its affiliates subsequent to his transfer to Olin solely for
purposes of determining the Participant's vesting and
attainment of retirement dates under this Plan.
(b) Transfer from Olin to Arch. In the event that an
Olin employee transferred employment to Arch from Olin after
the Distribution Date and on or prior to February 8, 2000,
benefit accrual under the Olin Senior Executive Pension Plan
shall cease and Olin shall remain liable for payment of any
benefits accrued under the Olin Senior Plan to the employee's
date of transfer to Arch. No reserves shall be transferred
from Olin or the Olin Senior Executive Pension Plan with
respect to such Olin Employee. Benefits shall not commence
under the Olin Senior Executive Pension Plan until the former
Olin employee terminates service with Arch and its affiliates
and has otherwise qualified for benefits under the Olin
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Senior Executive Pension Plan. Following such transfer, Olin
shall continue to credit such employee's service with Arch and
its affiliates subsequent to his transfer to Arch solely for
purposes of determining his vesting and attainment of
retirement dates under the Olin Senior Executive Pension Plan.
In computing the benefits, and determining attainment of
retirement ages under this Plan, Arch shall recognize the
compensation received, and service rendered by such
Participant while employed by Olin and its affiliates up to
the Participant's date of transfer to Arch. When benefits
commence under this Plan, they shall be offset by the benefit
that would be payable to the Participant from the Olin Senior
Executive Pension Plan, as of the date benefits commence
hereunder, regardless of when, or whether, such benefit under
the Olin Senior Executive Pension Plan actually commences.
Article IV. Payment of Benefits
4.1 Payment of Benefits; in General.
In the event that the Participant (i) does not elect to
establish an employee-grantor trust in accordance with Section 4.2(a),
(ii) does not elect to receive Accelerated Benefits in accordance with
Section 4.2(a), and (iii) elects to commence his benefits under this
Plan at the same time that he commences his Qualified Plan Benefit,
then the Retirement Allowance payable hereunder shall be paid
commencing at the same time and in the same form as that in which the
Qualified Plan Benefit is payable to the Participant. If the
Participant elects an actuarially equivalent form of benefit payment
with respect to his or her Qualified Plan Benefits, that same form of
payment shall apply to payment of his or her Retirement Allowance
hereunder. Any election to receive regular monthly benefits under this
Section 4.3 must be made at least one full year prior to the
Participant's Accelerated Benefit Commencement Date.
4.2 Payment Provisions for Active Employees.
(a) As of October 31 of the calendar year following
the year in which an actively employed Participant meets the
Minimum Benefit Accumulation threshold provided for in Section
4.4(c), the Actuarial Present Value (determined as hereinafter
provided) of the after-tax amount of an actively employed
Participant's Retirement Allowance shall be deposited in an
employee-grantor trust established by the Participant unless,
at least one full year prior to the funding of such
employee-grantor trust, the Participant shall instead have
elected to receive "Accelerated Benefits" as hereinafter
provided. If a Participant elects to receive Accelerated
Benefits, then the Actuarial Present Value of such Benefits
shall be paid, at the election of the Participant, either in a
single sum or in up to three (3) annual installments (such
single sum or annual installments being referred to in this
Plan as "Accelerated Benefits"). The Participant's Accelerated
Benefits shall commence on his Accelerated Benefit
Commencement Date, which shall be twelve full months following
his actual retirement date at age fifty-five (55) or later
(the "Participant's Accelerated Benefit Commencement Date").
In
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the case of a Participant who transferred directly to Olin on
or before February 8, 2000, "actual retirement" shall be
construed to mean retirement or termination of service from
the transferee employer. Service with Olin (and its
affiliates) shall be credited in enabling the Participant to
attain his early retirement age (but not in determining his
Years of Benefit Service) under this Plan.
(b) In the event that an actively employed
Participant elects not to establish an employee-grantor trust,
but instead to receive Accelerated Benefits, regular monthly
benefits shall commence to be paid upon such Participant's
actual retirement in accordance with Section 4.3 until such
Participant reaches his Accelerated Benefit Commencement Date,
at which time Accelerated Benefits shall be paid in the form
and manner elected by the Participant, either in a single sum,
in up to three (3) annual installments, or in a combination of
annuity payments and either a single sum or annual
installments.
(c) Alternatively, the actively employed Participant
may elect, at least one full year prior to such Accelerated
Benefit Commencement Date, to receive his entire benefit in
the form of an annuity in accordance with Section 4.3 of this
Plan.
4.3 Payment of Regular Monthly Benefits.
(a) Participants retiring from active service from
Arch and all Employing Companies may elect to receive regular
monthly benefits in lieu of receiving Accelerated Benefits or
establishing an employee-grantor trust. Such monthly benefits
shall be calculated and payable (without reduction for the
death benefit protection) in the form of a joint and 50%
survivor annuity with the Participant's Spouse as the joint
annuitant.
(b) Any Participant who terminates service with Arch
and all Employing Companies before reaching age 55 may not
commence benefits under this Plan prior to reaching age 65
unless he is eligible for "lay-off credit" pursuant to Section
3.2(b) and, thus, is deemed to qualify for early retirement
benefits. Any benefits payable under this Plan with respect to
a Participant who terminates service prior to reaching age 55,
and who is not eligible for any imputed service under the
lay-off provisions of Section 3.2(b), will be calculated
assuming that the Participant did not commence benefits under
The Pension Plan of Arch Chemicals until reaching age 65, even
though his actual commencement date under The Pension Plan of
Arch Chemicals may have been earlier.
4.4 Assumptions used for Determining Amount to be contributed to
Employee-grantor Trust; Threshold for Accelerated Benefits.
(a) Actuarial Assumptions for Employee-Grantor Trust.
In determining the Actuarial Present Value of the
Participant's Plan benefit to be used for purposes funding an
employee-grantor trust, the benefit shall be determined:
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(i) as of the close of the Plan Year (i.e.,
December 31) prior to the year in which the employee
grantor trust is being funded;
(ii) using an annuity purchase rate based
upon a discount rate equal to the municipal AAA 10
Year bond rate determined as of October 1st of the
year prior to the year the payment to the trust is
scheduled to be made; and
(iii) assuming that the benefit commences
under this Plan
(1) on the Participant's 65th
birthday, if the Participant terminates
service (or is treated as terminating
service) prior to age 55;
(2) on the Participant's 62nd
birthday, if the Participant terminates
service on or after reaching age 55 and
before reaching age 62; and
(3) on the Participant's 65th
birthday, if the Participant terminates
service on or after reaching age 62.
(b) Actuarial Assumptions for Determining Accelerated
Benefits. In determining the Actuarial Present Value of the
Participant's Accelerated Benefit, the benefit shall be
determined:
(i) as of the close of the Plan Year in
which the Participant retires or terminates service;
(ii) using an annuity purchase rate based
upon a discount rate equal to the municipal AAA 10
Year bond rate determined as of October 1st of the
year prior to the year of the Participant's
Accelerated Benefit Commencement Date; and
(iii) assuming that the benefit commences
under this Plan
(1) on the Participant's 65th
birthday, if the Participant terminates
service (or is treated as terminating
service) prior to age 55;
(2) on the Participant's 62nd
birthday, if the Participant terminates
service on or after reaching age 55 and
before reaching age 62; and
(3) on the Participant's 65th
birthday, if the Participant terminates
service on or after reaching age 62.
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(c) Minimum Benefit Accumulation Threshold. No
Accelerated Benefits shall commence to be paid, and no
Participant shall be given the opportunity to fund an
employee-grantor trust, until the Participant has accumulated
benefits under this Plan and the Arch Supplementary and
Deferral Benefit Pension Plan which, in the aggregate, have an
actuarial present value of at least One Hundred Thousand
Dollars ($100,000.00).
4.5 Surviving Spouse Benefit.
(a) The Surviving Spouse of a Participant who dies
after commencing regular monthly benefits shall receive a
survivor benefit for his or her lifetime equal to 50% of the
monthly payments that were being paid to the Participant under
the Plan as of his death.
(b) The Surviving Spouse of a Participant who dies
after having elected to receive Accelerated Benefits, but who
as of the date of his death has not received the entire value
of his Accelerated Benefits, shall receive the remainder of
any Accelerated Benefits not yet paid in the form of payment
in effect with respect to the Participant.
(c) The Surviving Spouse of any Participant who dies
prior to benefit commencement shall be entitled to receive a
benefit equal to 50% of the benefit that the Participant would
have been entitled to had he survived to the earliest date on
which he could commence benefits hereunder, retired and
commenced monthly regular benefits under the Plan, and then
died the next day.
(d) Notwithstanding (a)-(c) above, if the Surviving
Spouse is more than four years younger than the Participant,
the Surviving Spouse's benefit under this Plan shall be
reduced so that the present value of the spouse's lifetime
benefit, as determined by the Company, is the same as it would
have been if he or she were only four years younger than the
Participant.
(e) For purposes of this Plan, the term "Spouse"
shall mean the person to whom a Participant is validly married
at the date of his death, as evidenced by a marriage
certificate issued in accordance with state law; provided
however, that (i) if a Participant's Spouse at his or her
death was not the Participant's Spouse at least 12 months
prior to the Participant's death, no Surviving Spouse's
retirement allowance shall be paid, and (ii) common law
marriages shall not be recognized hereunder.
4.6 Benefit Upon a Change of Control.
(a) Lump Sum Payment Upon a Change of Control.
Notwithstanding any other provision of the Plan, upon a Change
in Control, each Participant covered by the Plan shall
automatically be paid a lump sum amount in cash by the Company
sufficient to purchase an annuity which, together with the
monthly payment, if any, under a Rabbi or other trust
arrangement established by the
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Company to make payments hereunder in the event of a Change in
Control and/or pursuant to any other annuity purchased by the
Company for the Participant to make payments hereunder, shall
provide the Participant with the same monthly after-tax
benefit as he would have received under the Plan based on the
benefits accrued to the Participant hereunder as of the date
of the Change in Control. Payment under this Section shall not
in and of itself terminate the Plan, but such payment shall be
taken into account in calculating benefits under the Plan
which may otherwise become due the Participant thereafter.
(b) No Divestment Upon a Change of Control. If a
Participant is removed from participation in the Plan after a
Change of Control has occurred, in no event shall his years of
Benefit Service accrued prior to such removal, and the benefit
accrued prior thereto, be adversely affected.
(c) Change of Control Defined. For purposes of the
Plan, a "Change in Control" of the Company shall have occurred
in the event that
(i) the Company ceases to be, directly or
indirectly, owned of record by at least 1,000
stockholders;
(ii) a person, partnership, joint venture,
corporation or other entity, or two or more of any of
the foregoing acting as "person" within the meaning
of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended (the "Act"), other than the Company,
a majority-owned subsidiary of the Company or an
employee benefit plan of the Company or such
subsidiary (or such plan's related trust), become(s)
the "beneficial owner" (as defined in Rule 13d-3 of
the Act) of 20% or more of the then outstanding
voting stock of the Company; or
(iii) during any period of two consecutive
years, individuals who at the beginning of such
period constitute the Company's Board of Directors
(together with any new Director whose election by the
Company's Board or whose nomination for election by
the Company's stockholders, was approved by a vote of
at least two-thirds of the Directors of the Company
then still in office who either were Directors at the
beginning of such period or whose election or
nomination for election was previously so approved)
cease for any reason to constitute a majority of the
Directors then in office; or
(iv) all or substantially all of the
business of the Company is disposed of pursuant to a
merger, consolidation or other transaction in which
the Company is not the surviving corporation or the
Company combines with another company and is the
surviving corporation (unless the shareholders of the
Company immediately following such merger,
consolidation, combination, or other transaction
beneficially own, directly or indirectly, more than
50% of the aggregate voting stock or other
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ownership interests of (x) the entities, if any, that
succeed to the business of the Company or (y) the
combined company);.or
(v) the shareholders of the Company approve
a sale of all or substantially all of the assets of
the Company or a liquidation or dissolution of the
Company.
(d) Arbitration. Any dispute or controversy arising
under or in connection with the Plan subsequent to a Change in
Control shall be settled exclusively by arbitration in
Connecticut, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having
jurisdiction.
4.7 Removal from the Plan; Non-Payment of Benefits.
(a) Any Participant may be removed from the Plan by
the Compensation Committee at any time "for cause" as
determined by the Compensation Committee in its sole
discretion, whether or not the Participant has begun to
receive payments under the Plan, and whether or not the
Participant's employment has been terminated. "Cause" shall
include, without limitation, rendering services in any
capacity to a competitor of the Company or Employing Company
without the consent of the Compensation Committee. Neither the
Participant nor his or her Spouse shall be entitled to receive
any payments from the Plan from and after the date of the
removal of the Participant nor have any cause of action as a
result of such removal. The Participant or Spouse shall not be
required to return any payments made prior to removal of the
Participant from the Plan.
(b) The Compensation Committee may notify a
Participant that he or she is being suspended from the Plan as
a result of job performance which the Compensation Committee
in its sole discretion deems unsatisfactory. From and after
the date of such notification and notwithstanding the
Participant's actual Hay Points, he or she will not be deemed
to have 2,000 or more Hay Points for purposes of calculating
the Participant's Retirement Allowance. Any prior Years of
Benefit Service shall not be affected by such suspension.
Article V. Funding
5.1 Unfunded Plan. This Plan shall be unfunded. All
payments under this Plan shall be made from the general assets of Arch
and other Employing Companies.
5.2 Liability for Payment. Arch and each other Employing
Company shall pay the benefits provided under this Plan with respect to
Participants who are employed, or were formerly employed by it during
their participation in the Plan. In the case of a Participant who was
employed by more than one Employing Company, the Committee shall
allocate the cost of such benefits among such Employing Companies in
such manner as it deems equitable. The obligations of the Employing
Company shall not be
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funded in any manner. The rights of any person to receive benefits
under this Plan are limited to those of a general creditor of the
Employing Company liable for payment hereunder.
5.3 Anti-alienation. No Participant or beneficiary shall
have the right to assign, transfer, encumber or otherwise subject to
any lien any payment or any other interest under this Plan, nor shall
such payment or interest be subject to attachment, execution or levy of
any kind.
Article VI. Plan Administration
6.1 Plan Administrator. The Company hereby appoints the
Pension Administration and Review Committee as the Plan Administrator
(the "Plan Administrator" or "Committee"). Any person, including, but
not limited to, the directors, shareholders, officers and employees of
the Company, shall be eligible to serve on the Committee. Any person so
appointed shall signify his acceptance by undertaking the duties
assigned. Any member of the Committee may resign by delivering written
resignation to the Company. The Company may also remove any member of
the Committee by delivery of a written notice of removal, which shall
take effect upon delivery or on a date specified. Upon resignation or
removal of a Committee member, the Company shall promptly designate in
writing such other person or persons as a successor.
6.2 Allocation and Delegation. The Committee members may
allocate the responsibilities among themselves, and shall notify the
Company in writing of such action and the responsibilities allocated to
each member.
6.3 Powers, Duties and Responsibilities. The Plan
Administrator shall have all power to administer the Plan for the
exclusive benefit of the Participants and their Beneficiaries, in
accordance with the terms of the Plan. The Plan Administrator shall
have the absolute discretion and power to determine all questions
arising in connection with the administration, interpretation and
application of the Plan. Any such determination by the Plan
Administrator shall be conclusive and binding upon all persons. The
Plan Administrator may correct any defect or reconcile any
inconsistency in such manner and to such extent as shall be deemed
necessary or advisable to carry out the purposes of the Plan; provided,
however, that such interpretation or construction shall be done in a
non-discriminatory manner and shall be consistent with the intent of
the Plan.
The Plan Administrator shall:
(a) compute the amount and kind of benefits to which
any Participant shall be entitled hereunder;
(b) maintain all necessary records for the
administration of the Plan;
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(c) interpret the provisions of the Plan and make and
publish such rules for regulation of the Plan as are
consistent with the terms hereof;
(d) assist any Participant regarding his rights,
benefits or elections available under the Plan; and
(e) communicate to Participants and their
Beneficiaries concerning the provisions of the Plan.
6.4 Records and Reports. The Plan Administrator shall
keep a record of all actions taken and shall keep such other books of
account, records and other information that may be necessary for proper
administration of the Plan. The Plan Administrator shall file and
distribute all reports that may be required by the Internal Revenue
Service, Department of Labor or others, as required by law.
6.5 Appointment of Advisors. The Plan Administrator may
appoint accountants, actuaries, counsel, advisors and other persons
that it deems necessary or desirable in connection with the
administration of the Plan.
6.6 Majority Actions. The Committee shall act by a
majority of their numbers, but may authorize one or more of them to
sign all papers on their behalf.
6.7 Indemnification of Members. The Company shall
indemnify and hold harmless any member of the Committee and of the
Compensation Committee from any liability incurred in his or her
capacity as such for acts which he or she undertakes in good faith as a
member of such Committee.
Article VII. Termination and Amendment
7.1 Amendment or Termination. The Company may amend or
terminate the Plan at any time, in whole or in part, by action of its
Board of Directors, the Compensation Committee of the Board or any
other duly authorized committee or officer. Any Employing Company may
withdraw from participation in the Plan at any time. No amendment or
termination of the Plan or withdrawal therefrom by an Employing Company
shall adversely affect the vested benefits payable hereunder to any
Participant for service rendered prior to the effective date of such
amendment, termination or withdrawal.
Article VIII. Miscellaneous
8.1 Gender and Number. Whenever any words are used herein
in the masculine, feminine or neuter gender, they shall be construed as
though they were also used in another gender in all cases where such
would apply, and whenever any words are used herein in the singular or
plural form, they shall be construed as though they were also used in
another form in all cases where they would so apply.
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8.2 Action by the Company. Whenever the Company under the
terms of this Plan is permitted or required to do or perform any act or
thing, it shall be done and performed by an officer or committee duly
authorized by the Board of Directors of the Company.
8.3 Headings. The headings and subheadings of this Plan
have been inserted for convenience of reference only and shall not be
used in the construction of any of the provisions hereof.
8.4 Uniformity and Non Discrimination. All provisions of
this Plan shall be interpreted and applied in a uniform
nondiscriminatory manner.
8.5 Governing Law. To the extent that state law has not been
preempted by the provisions of ERISA or any other laws of the United
States heretofore or hereafter enacted, this Plan shall be construed
under the laws of the State of Connecticut.
8.6 Employment Rights. Nothing in this Plan shall confer
any right upon any Employee to be retained in the service of the
Company or any of its affiliates.
8.7 Incompetency. In the event that the Plan
Administrator determines that a Participant is unable to care for his
affairs because of illness or accident or any other reason, any amounts
payable under this Plan may, unless claim shall have been made therefor
by a duly appointed guardian, conservator, committee or other legal
representative, be paid by the Plan Administrator to the spouse, child,
parent or other blood relative or to any other person deemed by the
Plan Administrator to have incurred expenses for such Participant, and
such payment so made shall be a complete discharge of the liabilities
of the Plan therefor.
IN WITNESS WHEREOF, Arch Chemicals, Inc. has caused this Plan to be
executed by its duly authorized officer as of October 23, 2003.
ARCH CHEMICALS, INC.
By:_________________________________________
Its Vice President of Human Resources
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