EXHIBIT 10.4
DOW CORNING CORPORATION
RESTATED SUPPLEMENTAL BENEFIT PLAN
Prepared by:
Kelly M. Hayes
Keywell and Rosenfeld
2301 W. Big Beaver Road, Suite 600
Troy, Michigan 48084
(810) 649-3200
TABLE OF CONTENTS
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PAGE
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ARTICLE I
BACKGROUND AND PURPOSE.......................................... 1
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1.1 Background............................................ 1
1.2 Purpose............................................... 1
ARTICLE II
DEFINITIONS..................................................... 2
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ARTICLE III
ELIGIBILITY AND PARTICIPATION................................... 4
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ARTICLE IV
BENEFITS OFFERED UNDER THIS PLAN................................ 5
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ARTICLE V
FUNDING......................................................... 6
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5.1 Funding from General Assets........................... 6
5.2 Trust or Escrow Arrangement........................... 6
ARTICLE VI
DISTRIBUTION PROCEDURES......................................... 7
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ARTICLE VII
VESTING......................................................... 8
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7.1 General Vesting....................................... 8
7.2 Discretionary Vesting................................. 8
ARTICLE VIII
ADMINISTRATION.................................................. 9
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8.1 Plan Administration................................... 9
8.2 Discretionary Authority of Plan Administrator......... 9
8.3 Employment of Advisors................................ 10
8.4 Delegation to Officers or Employees................... 10
ARTICLE IX
CLAIMS AND APPEALS.............................................. 11
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ARTICLE X
AMENDMENT....................................................... 13
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ARTICLE XI
MISCELLANEOUS PROVISIONS........................................ 14
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11.1 Indemnification for Liability......................... 14
11.2 Not an Employment Contract............................ 15
11.4 Construction of Plan.................................. 15
11.5 Severability.......................................... 15
11.6 Fiscal Records and Reports............................ 15
11.7 Headings.............................................. 16
11.8 No Vested Interest.................................... 16
11.9 Limit on Liability.................................... 16
11.10 Anti-Alienation....................................... 16
DOW CORNING CORPORATION
RESTATED SUPPLEMENTAL BENEFIT PLAN
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ARTICLE I
BACKGROUND AND PURPOSE
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1.1 Background. On April 1, 1983, Dow Corning Corporation established
this Supplemental Benefit Plan. As a result of changes in the Internal Revenue
Code and the Employee Retirement Income Security Act of 1974, Dow Corning
Corporation now finds it necessary to amend and restate this Plan. Dow Corning
Corporation hereby adopts this First Amendment and Restatement to the
Supplemental Benefit Plan effective as indicated herein.
1.2 Purpose. The purpose of this Plan is to provide additional
retirement income to certain Eligible Employees whose benefit under the Dow
Corning Corporation Employees' Retirement Plan is limited as a result of Section
401(a)(17) or Section 415 of the Internal Revenue Code of 1986. In addition,
each Plan is designed to provide additional retirement income to those Employees
who receive compensation which is not included in the definition of compensation
for calculation of a retirement benefit under the Dow Corning Corporation
Employees' Retirement Plan.
ARTICLE II
DEFINITIONS
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The following words and phrases as used herein shall have the
following meanings, unless a different meaning is plainly required by the
context. Pronouns shall be interpreted so that the masculine pronoun shall
include in the feminine and the singular shall include the plural:
2.1 "Board" means the Board of Directors of Dow Corning Corporation.
2.2 "Code" means the Internal Revenue Code of 1986, as amended.
2.3 "Corporation" means Dow Corning Corporation and any other
business organization which succeeds to its business and elects to continue this
Plan, or any other related entity which adopts this Plan with the consent of the
Board.
2.4 "Effective Date" means April 1, 1983.
2.5 "Restatement Effective Date" means January 1, 1989.
2.6 "Eligible Employee" means any Employee who meets the requirements
of Section 3.1.
2.7 "Employee" means any person who meets the definition of
"Employee" contained in the ERP.
2.8 "ERISA" means the Employee Retirement Income Security Act of 1974
and all amendments thereto.
2.9 "ERP" means the Dow Corning Corporation Employees' Retirement
Plan, together with any and all amendments and supplements thereto.
2.10 "Participant" means any Eligible Employee who has met the
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conditions for participation set forth in Article III.
2.11 "Plan" means the Dow Corning Corporation Restated Supplemental
Benefit Plan as set forth herein, together with any and all amendments and
supplements hereto.
2.12 "Plan Administrator" means the Corporation or any individual or
entity designated by the Corporation.
2.13 "Plan Year" means each twelve (12) month period commencing on
January 1st and ending on the following December 31st.
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ARTICLE III
ELIGIBILITY AND PARTICIPATION
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Eligibility and Participation. The following Employees shall
participate in this Plan:
a. For the period from April 1, 1983 to December 31, 1988, all
Employees whose benefit under the ERP is limited by the provisions of Section
415 of the Code or whose retirement benefit is less than the retirement benefit
they should receive because certain compensation they received is not included
in the definition of compensation for the calculation of a retirement benefit
contained in the ERP;
b. For the period after December 31, 1988, all Employees whose
benefit under the ERP is limited by the provisions of Section 401(a)(17) or
Section 415 of the Code, as well as those Employees whose retirement benefit is
less than the retirement benefit they should receive because certain
compensation they received is not included in the definition of compensation for
the calculation of a retirement benefit contained in the ERP;
c. Those Employees designated by the Corporation to receive
additional benefits as part of an early retirement agreement, or some other type
of retirement agreement.
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ARTICLE IV
BENEFITS OFFERED UNDER THIS PLAN
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The benefits offered under this Plan are those listed on Schedule A
attached hereto and incorporated herein by reference. The Corporation reserves
the right to amend Schedule A at any time.
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ARTICLE V
FUNDING
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5.1 Funding from General Assets. All contributions to this Plan
shall be from the general assets of the Corporation. Funds invested hereunder
shall continue for all purposes to be part of the general funds of the
Corporation, and no person other than the Corporation shall, by virtue of the
provisions of this Plan, have any interest in such funds. To the extent that
any person acquires a right to receive payments from the Corporation under this
Plan, such right shall be no greater than the right of any unsecured general
creditor of the Corporation.
5.2 Trust or Escrow Arrangement. The Corporation, in its sole
discretion, may establish a Grantor Trust or other form of escrow for purposes
of setting aside amounts for Participants under this Plan. Establishment of a
Grantor Trust shall not result in any amounts being made available to the
Participant or otherwise set aside for the Participant in a funded plan within
the meaning of Part 3 of ERISA. Such amounts shall continue to represent the
general assets of the Corporation and shall be subject to the claims of the
Corporation's general creditors.
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ARTICLE VI
DISTRIBUTION PROCEDURES
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The distribution of benefits under this Plan shall be pursuant to the
provisions set forth on Schedule B attached hereto and incorporated herein by
reference. The Corporation reserves the right to amend Schedule B at any time.
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ARTICLE VII
VESTING
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7.1 General Vesting. The vesting provisions for each Participant
under this Plan shall be identical to those vesting provisions applicable to
said Participant under the ERP.
7.2 Discretionary Vesting. The Corporation, by its Board, or any
person or persons to whom the Board may delegate authority, may change the
vesting requirements for this Plan as they pertain to individual Participants,
on a case by case basis.
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ARTICLE VIII
ADMINISTRATION
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8.1 Plan Administration. The Plan Administrator shall have the
authority to control and manage the operation and administration of the Plan and
to construe and interpret its terms. The Plan Administrator shall decide all
questions of eligibility to participate under the Plan and shall determine the
amount, manner and time of payment of any benefit under the Plan and, in the
exercise of its discretion hereunder, the decisions of the Plan Administrator
shall be final and binding on all parties. The Plan Administrator may delegate
responsibilities for the operation and administration of the Plan. The Plan
Administrator shall have the authority to determine the Plan's policies.
8.2 Discretionary Authority of Plan Administrator. The Plan
Administrator shall have any and all power and authority (including discretion
with respect to the exercise of that power and authority) which shall be
necessary, properly advisable, desirable or convenient to enable it to carry out
its duties under the Plan. By way of illustration and not limitation, the Plan
Administrator is empowered and authorized to make rules and regulations in
respect of the Plan not inconsistent with the Plan, the Code or ERISA; to
determine, consistently therewith, all questions that may arise as to the
eligibility, benefits, status and right of any person claiming benefits under
the Plan, including (without limitation) Participants, former Participants,
surviving spouses of Participants and beneficiaries; and subject to and
consistent with ERISA, to construe and interpret the Plan and correct any
defect, supply any omissions or reconcile any inconsistencies in the Plan, such
action to be final and conclusive on all persons claiming benefits under the
Plan.
8.3 Employment of Advisors. The Corporation shall have the authority
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to employ such legal, accounting, and financial counsel and advisers, as it
shall deem necessary in connection with the performance of its duties under the
Plan, and to act in accordance with the advice of such counsel and advisers.
Except as otherwise provided in the Plan, the fees and expenses of such counsel
and advisers shall be paid by the Corporation.
8.4 Delegation to Officers or Employees. The Corporation shall have
the power to delegate its duties under this Plan to officers or employees of the
Corporation and to other persons, all of whom, if employees of the Corporation,
shall serve without compensation other than their regular renumeration from the
Corporation.
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ARTICLE IX
CLAIMS AND APPEALS
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If any Participant shall dispute the correctness or applicability to
such Participant of a calculation of the Participants benefits under this Plan
or the applicability of any rule, procedure or regulation as applied to such
Participant, or if any Employee shall dispute or question a determination
concerning such Employee's right to participate under the Plan, such person
shall be entitled to make a written claim for review and determination of such
questions to the Plan Administrator. If a claim is wholly or partially denied,
the Plan Administrator shall, within a reasonable period of time, but not later
than ninety (90) days after receipt of the claim, provide to the claimant
written notice setting forth in a manner calculated to be understood by the
claimant:
(a) The specific reason or reasons for denial;
(b) Specific reference to the pertinent Plan provisions on which
the denial is based;
(c) A description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why such
material or information is necessary; and
(d) An explanation of the Plan's claim review procedure.
A Participant whose claim for benefits under the Plan has been denied,
or his duly authorized representative, may request a review upon written
application to the Plan Administrator, may review pertinent documents, and may
submit issues and comments in writing. The claimant's written request for
review must be submitted to the Plan Administrator within sixty (60) days after
receipt by the claimant of written notification of the
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denial of a claim. A decision by the Plan Administrator shall be made promptly,
and not later than sixty (60) days after the Plan Administrator's receipt of a
request for review, unless special circumstances require an extension of time
for proceeding, in which case a decision shall be rendered as soon as possible,
but not later than one hundred twenty (120) days after receipt of the request
for review. The decision on review shall be in writing and shall include
specific reasons for the decision, specific reference to the pertinent Plan
provision on which the decision is based, and be written in a manner calculated
to be understood by the claimant.
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ARTICLE X
AMENDMENT
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The Corporation reserves the right to amend, modify or terminate this
Plan. This Plan may also be amended by an individual or individuals designated
by the Board as having authority to amend this Plan. This Plan may be
terminated at any time by the Corporation. The Corporation makes no promise to
continue the Plan in the future.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
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11.1 Indemnification for Liability. The Corporation shall, to the full
extent permitted by applicable state and federal law, indemnify any board
member, officer or employee of the Corporation who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative or investigative)
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner which he
reasonably believed to be solely in the interest of the Participants and
beneficiaries of the Plan, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful;
provided further that:
(a) A person who discharges his duties with respect to the Plan
in a manner which he believes to be solely in the interest of its Participants
and beneficiaries shall be deemed to have acted in a manner which he reasonably
believes to be in (or not opposed to) the best interest of the Corporation;
(b) This indemnification shall continue as to a person who has
ceased to be a director, officer, or employee and shall inure to the benefit of
the heirs, executors and administrators of such person;
(c) The Corporation may retain such accountants, counsel or
other specialists as it deems necessary or desirable in connection with the
administration of the Plan and any beneficiary of this indemnity shall be
entitled to rely conclusively upon, and shall be fully protected and indemnified
in any action taken in good faith reliance upon any
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opinions or reports furnished to it in writing by such accountants, counsel or
other specialists.
11.2 Not an Employment Contract. The establishment of the Plan, the
creation of any account, or the payment of any benefit does not create in any
Employee, Participant or other party a right to continuing employment with the
Corporation.
11.3 No Liability for Elections. The Corporation shall not be liable
for any Participant's election under the Plan, nor shall the Corporation be
deemed to have made any representations as to the value with respect to any
Participant of any benefits offered under the Plan.
11.4 Construction of Plan. This Plan shall be construed, administered
and governed in all respects under applicable federal law, and to the extent
that federal law is inapplicable, under the laws of the State of Michigan.
11.5 Severability. Should any part of the Plan subsequently be
invalidated by a court of competent jurisdiction, the remainder thereof shall be
given effect to the maximum extent possible.
11.6 Fiscal Records and Reports. The fiscal records of the Plan are to
be maintained on the basis of the Plan Year. The Plan Administrator shall
exercise such authority and responsibility as it deems appropriate in order to
comply with the terms of the Plan relating to Participant records which are
maintained under this Plan.
11.7 Headings. The headings contained in the Plan are for reference
only, and they do not in any manner limit or expand the terms and provisions of
the Plan.
11.8 No Vested Interest. Except for the right to receive any benefit
payable under the Plan, no person shall have any right, title or interest in or
to the assets of the Corporation because of the Plan.
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11.9 Limit on Liability. Nothing contained in the Plan shall impose
on the Corporation, or any board members, officers or employees of the
Corporation any liability for the payment of benefits under this Plan other than
liabilities resulting from willful neglect or fraud. The liability of the
Corporation for benefits shall be limited to the benefits provided under the
Plan. Persons entitled to benefits under the Plan shall look only to the
Corporation for payment.
11.10 Anti-Alienation. To the extent permitted by law, the right of
any Participant or any beneficiary to any benefit or to any payment hereunder
shall not be subject in any manner to attachment or other legal process for the
debts of such Participant or beneficiary; and any such benefit or payment shall
not be subject to anticipation, alienation, sale, transfer, assignment, or
encumbrance.
IN WITNESS WHEREOF, the Corporation has caused this First Amendment
and Restatement of this Plan to be executed in its name and behalf effective
January 1, 1989.
DOW CORNING CORPORATION
______________________________
By: Richard A. Hazleton
Its: Chairman of the Board and
Chief Executive Officer
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DOW CORNING CORPORATION
RESTATED SUPPLEMENTAL BENEFIT PLAN
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SCHEDULE A
The benefits payable under this Plan shall equal the total retirement
benefit calculated for each Participant by the Corporation, less the amount of
the retirement benefit the Participant is eligible to receive under the ERP.
The calculation of the total retirement benefit payable to a Participant shall
include, but not be limited to, the following factors:
a. The Participant's target bonus as compared to the target bonus
for said Participant which is included in the calculation of the ERP benefit;
b. The actual compensation of a Participant as compared to the
maximum compensation for calculation of a retirement benefit set forth in
Section 401(a)(17) of the Code;
c. The total retirement benefit otherwise payable to a Participant
under the ERP as opposed to the maximum retirement benefit allowed by Section
415 (b) of the Code; and
d. The amount of any additional retirement benefits determined by
the Corporation to be payable to a Participant as a result of any early
retirement, or other type retirement incentive plan which cannot be paid out of
the ERP.
DOW CORNING CORPORATION
RESTATED SUPPLEMENTAL BENEFIT PLAN
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SCHEDULE B
The options and modes of distribution offered under this Plan shall be
identical to those offered under the ERP. Participant's selection of option or
mode of payment under this Plan must be identical to the option or mode the
Participant selected under the ERP.