ex-10h.htm


    EXHIBIT
10(h)

    
      
        

      

    

     

    THE
DOW CHEMICAL COMPANY

    1994
EXECUTIVE PERFORMANCE PLAN

    


    As
amended and restated on December 10, 2008, effective January 1,
2009.

    


     

    
      	
              1.

            	
              Establishment and Purpose of
      the Plan:  The Dow Chemical Company 1994 Executive
      Performance Plan is hereby established upon the following terms and
      conditions. The purpose of the Plan is to recognize and reward on an
      annual basis the individual and team performance of Executive Officers of
      The Dow Chemical Company toward the overall profitability of the
      Company.

            


    

     

    2.            
Definitions

     

    2.01.   
   Awardee: An Executive Officer
to whom a Performance Award is made.

     

    2.02.        Board of Directors: The Board
of Directors of the Company.

     

    
      	
              2.03.

            	
              Cash: Funds in U.S.
      dollars or such other currency used as a medium of payment for an annual
      Executive Performance Award. Conversion from the U.S. dollar to other
      currencies shall be at the intercompany exchange rate in effect at the
      time of payment.

            


    

     

    
      	
              2.04.

            	
              Change in Control: For
      purposes of this Plan, a “Change of Control” shall be deemed to have
      occurred on: (a) the date that any one person, or more than one person
      acting as a group acquires, ownership of stock of The Dow Chemical Company
      that, together with stock held by such person or group, constitutes more
      than 50% of the total fair market value or total voting power of the stock
      of The Dow Chemical Company, (b) the date that a majority of the members
      of the Board of Directors of The Dow Chemical Company is replaced during
      any 12-month period by directors whose appointment or election is not
      endorsed by a majority of the directors before the date of the appointment
      or election, (c) the date that any one person, or more than one person
      acting as a group, acquires (or has acquired during the 12-month period
      ending on the date of the most recent acquisition by such person or
      persons) ownership of stock of The Dow Chemical Company possessing 30% or
      more of the total voting power of the stock of such corporation, (d) the
      date that any one person, or more than one person acting as a group,
      acquires (or has acquired during the 12-month period ending on the date of
      the most recent acquisition by such person or persons) assets from The Dow
      Chemical Company that has a total gross fair market value equal to or more
      than 40% of the total gross fair market value of all of the assets of The
      Dow Chemical Company immediately before such acquisition or acquisitions,
      provided that the following asset transfers shall not result in a Change
      of Control:  (i)  a transfer of assets to a
      stockholder of The Dow Chemical Company in exchange for or with respect to
      its stock, (ii)  a transfer to a corporation, 50% or more of the
      total value or voting power of which is owned, directly or indirectly, by
      The Dow Chemical Company, (iii) a transfer to a person, or more than one
      person acting as a group, that owns 50% or more of the stock of The Dow
      Chemical Company, or  (iv) a transfer to an entity, at least 50%
      of the total value or voting power of which is owned, directly or
      indirectly, by a person described in clause
  (iii).

            


    

     

    
      	
               
      

            	
              This
      definition of “Change of Control” is intended to conform to the definition
      of a “change in ownership or effective control of a corporation, or a
      change in the ownership of a substantial portion of the assets of a
      corporation” as defined under Section 409A of the Internal Revenue Code of
      1986, as amended, and any subsequent authority issued pursuant thereto,
      and no corporate event shall be considered a Change of Control unless it
      meets such requirements.

            


    

     

    
      	
              2.05.

            	
              Commission: The
      Securities and Exchange Commission.

            


    

     

    
      	
              2.06.

            	
              Committee: The
      Compensation Committee of the Board of Directors, or such other committee
      designated by the Board of Directors, designated to administer the Plan
      under Section 4, which committee shall have at least three members, each
      of which shall be a Disinterested Person and an Outside
      Director.

            


    

     

    
      	
              2.07.

            	
              Common Stock: The Common
      Stock of the Company, par value $2.50 per share, or such other class or
      kind of shares or other securities as may be applicable under Section
      11.

            


    

     

    
      	
              2.08.

            	
              Company: The Dow
      Chemical Company, a Delaware corporation, or any successor to
      substantially all its business.

            


    

     

    
      	
              2.09.

            	
              Elective Deferral: A
      Performance Award that is designated to be received under The Dow Chemical
      Company Elective Deferral Plan (“Elective Deferral Plan”) instead of
      immediately in cash.

            


    

    


    
      
        
           


        

        
          161

          
            

          

        

        
           


        

      

    

    


     

    
      	
              2.10.

            	
              Deferred Stock: A
      Performance Award that is designated to be received in Deferred Stock is
      Common Stock received at a time in the future on a date or dates selected
      by the Committee. The number of shares of Deferred Stock is determined by
      dividing the Performance Award amount by the Fair Market Value of Common
      Stock as of a date to be specified by the Compensation Committee or its
      delegate, which date must be in the year prior to the year for which the
      Performance Award may be earned. Fractional units are paid in Cash. The
      Awardee will receive from the Company Dividend Equivalents on shares of
      Deferred Stock from the date the Performance Award is granted pursuant to
      Section 6.03 until the date the actual shares are issued to the
      Awardee.

            


    

     

    
      	
              2.11.

            	
              Disinterested Person: A
      person described in Rule 16b-3 promulgated by the Securities and Exchange
      Commission under the Exchange Act, or any successor definition adopted by
      the Commission.

            


    

     

    
      	
              2.12.

            	
              Dividend Equivalents: An
      amount equal to any actual dividend paid by the Company on one share of
      Common Stock.

            


    

     

    
      	
              2.13.

            	
              This
      paragraph is intentionally left
blank.

            


    

     

    
      	
              2.14.

            	
              Exchange Act: The
      Securities Exchange Act of 1934, as
amended.

            


    

     

    
      	
              2.15.

            	
              Executive Officer: Any
      person, who, at the time a Performance Award is granted pursuant to
      Section 6.03, is subject to the provisions of Item 402, Regulation S-K, of
      the Exchange Act, and the provisions of Section 162(m) of the Internal
      Revenue Code.

            


    

     

    
      	
              2.16.

            	
              Fair Market Value: As
      applied to a specific date, the closing price of Common Stock, as reported
      on the consolidated transaction reporting system for the New York Stock
      Exchange issues on such date, or if Common Stock was not traded on such
      date, on the next preceding day on which the Common Stock was
      traded.

            


    

     

    
      	
              2.17.

            	
              Internal Revenue Code:
      The Internal Revenue Code of 1986, as
amended.

            


    

     

    
      	
              2.18.

            	
              Negative Discretion:
      Other factors to be applied by the Committee in determining the size of
      the Performance Award if the Performance Goal has been achieved if, in the
      Committee's sole judgment, such application is appropriate in order to act
      within the best interest of the Company and its stockholders. The Negative
      Discretion factors include the Company's performance as measured primarily
      by earnings per common share, the achievement of measurable individual
      performance objectives established by the Committee and communicated to
      the Executive Officer in advance of the period in which the service is to
      be performed, and competitive pay practices. In no event shall any
      discretionary authority granted to the Committee by the Plan be used to
      increase the Performance Award above the Maximum Amount Payable
      established in Section 6.02 of the
Plan.

            


    

     

    
      	
              2.19.

            	
              Net Income: Net income
      available for common stockholders as reported in the Company's audited
      consolidated financial statements, but not including extraordinary items,
      the cumulative effect of accounting changes and the after-tax amount of
      any special or restructuring charges reported by Dow Corning
      Corporation.

            


    

     

    
      	
              2.20.

            	
              Outside Director: A
      person defined in proposed Regulation 1.162-27 (e)(3) promulgated under
      the Internal Revenue Code, or any successor definition
      adopted.

            


    

     

    
      	
              2.21.

            	
              Performance Award: An
      award of Cash, Deferred Cash, Deferred Stock, Dividend Units or any
      combination thereof under the Plan.

            


    

     

    
      	
              2.22.

            	
              Performance Goal: The
      required performance upon which payment of a Performance Award is
      contingent, as described in Section 6 of the Plan. Its accomplishment must
      be determinable by a third party with knowledge of the relevant
      facts.

            


    

     

    
      	
              2.23.

            	
              Plan: The Dow Chemical
      Company 1994 Executive Performance Plan herein set forth, as the same may
      from time to time be amended.

            


    

     

    
      	
              2.24.

            	
              Service: The Internal
      Revenue Service.

            


    

     

    
      	
              3.

            	
              Eligibility:  Any
      Executive Officer of the Company as defined herein is eligible to receive
      an Award under the Plan.

            


    

     

    
      	
              4.  

            	
              Plan
      Administration

            


    

     

    
      	
              4.01.

            	
              Administrator: The Plan
      shall be administered by the
Committee.

            


    

    


    
      
        
           


        

        
          162

          
            

          

        

        
           


        

      

    

    


     

    
      	
              4.02.

            	
              Administrative Powers:
      The Committee, or its delegate shall have the full power to interpret and
      administer the Plan and full authority to act in selecting the Executive
      Officers to whom Performance Awards will be granted, in applying Negative
      Discretion pursuant to Section 6.02 of the Plan, in determining the type
      and amount of Performance Award to be granted to each such Executive
      Officer, the terms and conditions of Performance Awards granted under the
      Plan and the terms of agreements which will be entered into with Awardees.
      The Committee shall have the power to make regulations for carrying out
      the Plan and to make changes in such regulations as they from time to time
      deem proper. Any interpretation by the Committee of the terms and
      provisions of the Plan and the administration thereof, and all action
      taken by the Committee, shall be final, binding and conclusive on the
      Company, its stockholders, employees, Executive Officers, their respective
      legal representatives, successors and assigns and upon all other persons
      claiming under or through any of
them.

            


    

     

    
      	
              4.03.

            	
              Limitation on Liability:
      Members of the Board of Directors and members of the Committee and their
      delegates acting under the Plan shall be fully protected in relying in
      good faith upon the advice of counsel and shall incur no liability except
      for gross negligence or willful misconduct in the performance of their
      duties.

            


    

     

    
      	
              5.  

            	
              Election of the Form of Award:
      Prior to January 1 of any fiscal year, the Executive Officer shall
      select the form of payment for any Performance Award that may be earned
      for that fiscal year's service.  The forms of payment available
      to Awardees are as follows.  For Awardees who are eligible under
      the Elective Deferral Plan, the choices are: cash, or receiving the Award
      through the Elective Deferral Plan.  For Awardees who are not
      eligible for the Elective Deferral Plan, the choices are: cash, or
      receiving Deferred Stock.

            


    

     

    
      	
              6.  

            	
              Performance
      Goal and Determination of Performance
Award

            


    

     

    
      	
              6.01.

            	
              Performance Goal: In
      order for any Executive Officer to earn a Performance Award under the Plan
      for any given fiscal year, Net Income in excess of U.S. $700 million for
      that same fiscal year must be achieved. The amount of the maximum annual
      Performance Award payable for each Executive Officer (the "Maximum Amount
      Payable") is dependent upon the amount of the Company's Net Income for the
      subject fiscal year, increasing only in proportion to increases in Net
      Income. In no event shall a Performance Award under the Plan be payable to
      any Executive Officer in any year in which the Net Income is less than
      $700 million.

            


    

     

    
      	
              6.02.

            	
              Maximum Amount Payable:
      No single individual Performance Award for any single year shall exceed
      two­ tenths of one percent (0.2%) of the Company's Net Income for that
      same fiscal year. In determining the actual size of any individual
      Performance Award, the Committee may reduce the amount of the Performance
      Award below the Maximum Amount Payable through the use of Negative
      Discretion, if in its sole judgment, such reduction is appropriate. The
      Committee may not increase the amount of a Performance Award above the
      Maximum Amount Payable under the Plan through the use of positive
      discretion.

            


    

     

    
      	
              6.03.

            	
              Determination of Performance
      Award: Each year, when the Net Income for the prior fiscal year has
      been calculated, the Committee shall: (1) determine whether the
      Performance Goal for the prior fiscal year has been met and so certify in
      writing in the Committee minutes or elsewhere, (2) establish the
      individual Maximum Amounts Payable under the terms of the Plan, (3) review
      each Executive Officer's performance, (4) apply Negative Discretion as the
      Committee may deem appropriate, (5) calculate the amount of each
      Performance Award to be awarded that year under the Plan and (6) grant any
      such Performance Awards. Executive Officers who leave the employment of
      the Company during the subject fiscal year due to normal or early
      retirement may be paid a pro rata share of the Performance Award earned
      through the date of retirement pursuant to the terms of this Section 6.03
      during the time they were Executive Officers, provided they are not
      otherwise within the forfeiture provisions of Section
  14.

            


    

     

    
      	
              7.  

            	
              Shares Subject to the
      Plan:  Subject to adjustment as provided in Section 11,
      the total number of shares of Common Stock available under the Plan is
      100,000 shares. Shares issued hereunder may consist of authorized and
      unissued shares or treasury shares. If any shares subject to any
      Performance Award granted hereunder are forfeited or such Performance
      Award otherwise terminates without the issuance of such shares or of other
      consideration in lieu of such shares, the shares subject to such
      Performance Award, to the extent of any such forfeiture or termination,
      shall again be available for grant under the
  Plan.

            


    

     

    
      	
              8.  

            	
              Cash:  The
      grant of an Award of cash shall be paid to the Awardee between January 1
      and March 15 of the year following the performance
  year.

            


    

    


    
      
        
           


        

        
          163

          
            

          

        

        
           


        

      

    

    


     

    
      	
              9.  

            	
              Elective Deferral
      Plan:  The grant of an Award through the Elective
      Deferral Plan shall be governed by the terms of the Elective Deferral
      Plan.

            


    

     

    
      	
              10.  

            	
              Deferred Stock Rules and
      Conditions:  The grant of Deferred Stock shall be upon
      the following rules and conditions:

            


    

     

    
      	
              10.01.

            	
              Deferred Stock
      Agreements: Deferred Stock shall be evidenced by Deferred Stock
      agreements. Such agreements shall conform to the requirements of the Plan
      and may contain such other provisions (including provisions for the
      protection of Deferred Stock in the event of mergers, consolidations,
      dissolutions and liquidations affecting either the agreement or the stock
      issued thereunder) as the Committee shall deem
  advisable.

            


    

     

    
      	
              10.02.

            	
              Crediting of Deferred
      Stock: Upon determination of the number of shares of Deferred Stock
      to be granted to an Awardee, the Committee shall direct that the same be
      credited to the Awardee's account on the books of the Company, but that
      issuance and delivery of the same shall be deferred until the date or
      dates provided in Section 10.04 hereof. Prior to issuance and delivery
      hereunder, the Awardee shall have no rights as a stockholder with respect
      to any shares of Deferred Stock credited to his or her
      account.

            


    

     

    
      	
              10.03.

            	
              Payment of Dividend
      Equivalents: During the period that shares of Deferred Stock remain
      credited to the account of an Awardee and before their issuance and
      delivery, the Company shall pay or accrue to the Awardee, on each Common
      Stock dividend record date, a sum of cash equal to what would have been
      received if the shares of Deferred Stock credited to the account had been
      owned, subject to such conditions as the Committee may deem
      appropriate.  Dividend equivalents will be paid as specified in
      the applicable Deferred Stock
agreement.

            


    

     

    
      	
              10.04.

            	
              Delivery: Subject to the
      terms and conditions described herein, the shares of Deferred Stock
      credited to the account of an Awardee shall be issued and delivered to the
      Awardee in one or more installments beginning with such date as the
      Committee may determine, as specified in the applicable Deferred Stock
      agreement.

            


    

     

    
      	
              11.  

            	
              Adjustments Upon Changes in
      Capitalization: In the event of a reorganization, recapitalization,
      stock split, stock dividend, combination of shares, merger, consolidation
      or any other change in the corporate structure of the Company affecting
      Common Stock, or a sale by the Company of all or part of its assets, or
      any distribution to stockholders other than a normal cash dividend, the
      Board of Directors shall make appropriate adjustment in the number and
      kind of shares authorized by the Plan and any adjustments to outstanding
      Awards as it determines appropriate. No fractional shares of Common Stock
      shall be issued pursuant to such adjustment, however, and the Fair Market
      Value of any fractional shares resulting from adjustments pursuant to this
      section shall be paid in cash to the
Awardee.

            


    

     

    
      	
              12.  

            	
              Effective Date and Termination
      of the Plan: The Plan shall be effective as of January 1, 1994,
      subject to approval by the Company's stockholders. The Plan shall remain
      in full force and effect until terminated by the Board of
      Directors.

            


    

     

    
      	
              13.  

            	
              Amendment of the Plan:
      The Board of Directors shall have the power to amend, suspend or
      terminate the Plan at any time except for any amendment requiring
      stockholder approval pursuant to the provisions of the Exchange Act or the
      Internal Revenue Code.

            


    

     

    
      	
              14.  

            	
              Forfeiture: Prior to a
      Performance Award grant pursuant to Section 6.03, Performance Awards may
      be forfeited if the Awardee terminates his or her employment for any
      reason other than death or retirement. Performance Awards may also be
      forfeited if the Committee determines that the Awardee has at any time
      engaged in activity harmful to the interest of or in competition with the
      Company, its subsidiaries or affiliates, except that the Committee shall
      have the authority to provide for the continuation of Performance Awards
      in whole or in part whenever in its judgment it shall determine that such
      continuation is in the best interests of the Company.  After the
      Performance Award grant has been made pursuant to Section 6.03, the award
      is non-forfeitable.

            


    

     

    
      	
              15.  

            	
              Non-Assignability:
      Performance Awards may not be pledged, assigned or transferred for
      any reason during the Awardee's lifetime, and any attempt to pledge,
      assign or transfer shall be void and the relevant Performance Award shall
      be forfeited, other than by will or the laws of descent and distribution
      or pursuant to a qualified domestic relations order as defined by the
      Internal Revenue Code, or Title I of the Employee Retirement Income
      Security Act, or the rules thereunder. The naming of a beneficiary does
      not constitute a transfer.

            


    

    


    
      
        
           


        

        
          164

          
            

          

        

        
           


        

      

    

    


     

    
      	
              16.  

            	
              Beneficiary Upon Awardee's
      Death: An Awardee's Performance Award shall be transferable at his
      or her death to the beneficiary designated by the Awardee on forms
      prescribed by and filed with the Committee, but not including Performance
      Awards for which an election has been made to receive Dividend Units. Upon
      the death of an Awardee, such beneficiary shall succeed to the rights of
      the Awardee. If no such designation of a beneficiary has been made, the
      Performance Awards shall succeed to his or her legal representatives and
      shall be transferable by will or pursuant to the laws of descent and
      distribution. No provision of this Section 16 shall however reduce
      Performance Goal requirements of Section 6. Death of the Awardee prior to
      the end of the performance period may result in a reduced Performance
      Award, based upon a pro rata evaluation by the Committee of the portion of
      the goal achieved prior to the Awardee's death.  Payment will
      occur in the same time and in the same manner as if the awardee had not
      died prior to completion of the performance
  period.

            


    

     

    
      	
              17.  

            	
              General
      Provisions

            


    

     

    
      	
              17.01.

            	
              Nothing
      contained in the Plan, or in any Performance Award granted pursuant to the
      Plan, shall confer upon any Executive Officer any right with respect to
      continuance of employment by the Company, a subsidiary or affiliate, nor
      interfere in any way with the right of the Company, a subsidiary or
      affiliate to terminate the employment of any Executive Officer at any time
      with or without assigning any reason therefore, nor confer any right with
      respect to continuance as an Executive Officer, member of the Executive
      Committee or member of the Board of
Directors.

            


    

     

    
      	
              17.02.

            	
              Appropriate
      provision may be made for all taxes required to be withheld in connection
      with any Performance Award, the maturity thereof and the transfer of
      shares of Common Stock with respect to any federal, state or local
      withholding taxes whether domestic or foreign. In the case of the payment
      of Performance Awards in the form of Common Stock, the Company shall have
      the right to retain the number of shares of Common Stock whose Fair Market
      Value equals the amount to be withheld or to allow the Awardee to pay the
      withholding tax in such stock.

            


    

     

    
      	
              17.03.

            	
              If
      any day on or before which action under the Plan must be taken falls on a
      Saturday, Sunday or legal holiday, such action may be taken on the next
      succeeding day not a Saturday, Sunday or legal
  holiday.

            


    

     

    
      	
              17.04.

            	
              Without
      amending the Plan, Performance Awards may be granted to Executive Officers
      who are foreign nationals or employed outside the United States or both,
      on such terms and conditions different from those specified in the Plan as
      may, in the judgment of the Committee, be necessary or desirable to
      further the purpose of the Plan or to accommodate differences in local
      law, tax policy or custom. Moreover, the Committee may approve such
      supplements to, or amendments, restatements or alternative versions of,
      this Plan as it may consider necessary or appropriate for such purposes
      without thereby affecting the terms of this Plan as in effect for any
      other purpose; and the Secretary or any Assistant Secretary of the Company
      is authorized to certify the approval of any such supplements, amendments,
      restatements or alternative versions as though they were approved by the
      shareholders of the Company provided, however, that no such supplements,
      amendments, restatements or alternative versions shall (a) increase the
      limitations contained in Section 6.02 of this Plan or (b) cause this Plan
      to cease to satisfy any conditions of Rule 16b-3 under the Exchange Act or
      Section 162(m) of the Internal Revenue
Code.

            


    

     

    
      	
              17.05.

            	
              To
      the extent the U.S. federal laws (such as the Securities Exchange Act of
      1934, the Internal Revenue Code of 1986 or the Employee Retirement Income
      Security Act of 1974, all as amended) do not otherwise control, the Plan
      and all determinations made and actions taken pursuant hereto shall be
      governed by the law of Delaware and construed
  accordingly.

            


    

     

    
      	
              17.06.

            	
              The
      Committee may amend any outstanding Performance Awards to the extent it
      deems appropriate consistent with the reporting requirements of the
      Exchange Act and the Internal Revenue Code. Such amendment may be
      unilateral by the Company, except in the case of amendments adverse to the
      Awardee, in which case the Awardee's consent is required to any such
      amendment.

            


    

     

    17.07.     Notwithstanding
any other provision of the Plan to the contrary:

     

     (i) Deferred Stock: Upon
the occurrence of a Change in Control, an Awardee's right to receive the number
of shares of Deferred Stock credited to his or her account shall not be
forfeitable under any circumstances, including but not limited to those
circumstances set forth in Section 14 of the Plan. The Company shall deliver to
the Awardee or his or her beneficiary the shares of Deferred Stock credited to
his or her account on the thirtieth day following the occurrence of a Change in
Control. The Committee shall have no discretion or authority to alter or delay
the amount or form of payment of the Awardee's shares of Deferred
Stock.

    


    
      
        
           


        

        
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    (ii) Elective Deferral: Upon
the occurrence of a Change in Control, an Awardee's rights shall be as described
in the Elective Deferral Plan.

     

    
      	
              18.  

            	
              Rule 16b-3 Transition:
      The Plan is intended to comply with and be subject to Rule 16b-3 of
      the Exchange Act, as in effect prior to May 1, 1991. The Committee may at
      any time elect that the Plan shall be subject to Rule 16b-3 as in effect
      on and after May 1, 1991.

            


    

     

    
      	
              19.  

            	
              Awardees' Rights Unsecured:
      The right of the Awardee or his or her designated beneficiary to
      receive a distribution of Deferred Cash or Deferred Stock hereunder shall
      be an unsecured claim against the general assets of the Company, and
      neither the Awardee nor his or her designated beneficiary shall have any
      rights in or against any amount credited to his or her account or any
      other specific assets of the Company. All amounts credited to an account
      shall constitute general assets of the Company and may be disposed of by
      the Company at such time and for such purposes as it may deem appropriate.
      An account may not be encumbered or assigned by an Awardee or any
      beneficiary.

            


    

     

     

     

     

    166