The Dow Chemical Company 130,434,783 Shares1 Common Stock ($2.50 par value) Underwriting Agreement
Exhibit
1.1
The Dow
Chemical Company
130,434,783
Shares1
Common
Stock
($2.50
par value)
Underwriting
Agreement
May 6,
2009
To the
Representatives
named in Schedule I
hereto of the several
Underwriters named in
Schedule III hereto
Underwriters named in
Schedule III hereto
Ladies
and Gentlemen:
The Dow
Chemical Company, a corporation organized under the laws of the State of
Delaware (the “Company”), proposes to sell to the several underwriters named in
Schedule III hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the number of shares of common
stock, $2.50 par value (“Common Stock”), of the Company set forth in
Schedule I hereto (the “Company Underwritten Securities”), and the persons
named in Schedule II hereto (the “Selling Stockholders”) propose, severally and
not jointly, to sell to the several Underwriters the number of shares of Common
Stock set forth in Schedule II hereto (the “Selling Stockholder Underwritten
Securities” and, together with the Company Underwritten Securities, the
“Underwritten Securities”). The Selling Stockholders also propose to
grant to the Underwriters an option to purchase up to the number of additional
shares of Common Stock set forth in Schedule II hereto to cover
over-allotments, if any (the “Option Securities”; the Option Securities,
together with the Underwritten Securities, being hereinafter called the
“Securities”). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used
herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context
requires. The use of the neuter in this Agreement shall include the
feminine and masculine wherever appropriate. Any reference herein to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after
1
Plus an option to
purchase from the Selling Stockholders, up to 19,565,217 additional Securities
to cover over-allotments.
the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. Certain terms
used herein are defined in Section 20 hereof.
On April
1, 2009, pursuant to an Agreement and Plan of Merger dated July 10, 2008, among
the Company, Rohm and Xxxx Company, a Delaware corporation (“Rohm and Xxxx”) and
Ramses Acquisition Corp. (“Merger Sub”), a direct, wholly owned subsidiary of
the Company, the Company completed the acquisition of Rohm and Xxxx through the
merger of Merger Sub with and into Rohm and Xxxx, with Xxxx and Xxxx as the
surviving corporation and becoming a wholly owned subsidiary of the Company
(such transaction, the “Acquisition”).
The
Selling Stockholders are the owners of Cumulative Perpetual Preferred Stock,
Series B (the “Preferred Securities”), of the Company and have entered into an
agreement, dated May 5, 2009 (the “Purchase Agreement”), with the Company
pursuant to which the Selling Stockholders have agreed, among other things, to
sell (the “Preferred Securities Sale”) a portion of the Preferred Securities in
consideration for shares of Common Stock. The number of shares of
Common Stock to be issued for each Preferred Security shall be determined by
dividing the Original Purchase Price (as such term is defined in the Certificate
of Designations governing such Preferred Securities) of such Preferred Security,
plus accrued and unpaid dividends and any dividends added to the Liquidation
Preference (as such term is defined in the Certificate of Designations governing
such Preferred Securities) to the Closing Date (with respect to the Preferred
Securities purchased by the Company in consideration for the Selling Stockholder
Underwritten Securities) or the Settlement Date (with respect to the Preferred
Securities purchased in consideration for the Option Securities) by the public
offering price per share of Common Stock as set forth on the cover of the Final
Prospectus (as defined below), less the underwriting discount.
1.
Representations and
Warranties. (a) The Company represents and
warrants to, and agrees with, each Underwriter and each Selling Stockholder as
of the Execution Time and as of each Closing Date (as defined in Section 3) as
set forth below in this Section 1.
(i) The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration
statement, as defined in Rule 405 on Form S-3 (File No. 333-140859), including a
related Base Prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, became effective upon
filing and no notice of objection of the Commission to the use of such
Registration Statement or any post-effective amendment thereto pursuant to Rule
40l (g)(2) under the Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose or pursuant to Section 8A of
the Act against the Company or related to the offering has been initiated or, to
the Company’s knowledge, threatened by the Commission. The Company
may have filed with the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Securities, each of which has previously been
furnished to you. The Company will file with the Commission a final
prospectus supplement relating to the Securities in accordance with
2
Rule
424(b). As filed, such final prospectus supplement shall contain all
information required by the Act and the rules thereunder, and, except to the
extent the Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that contained in
the Base Prospectus and any Preliminary Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(ii) On
each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date
and on any date on which Option Securities are purchased, if such date is not
the Closing Date (each, a “Settlement Date”), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on each Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information contained
in or omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto), it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8 hereof.
(iii) At
the Execution Time, (i) the Disclosure Package and (ii) each electronic road
show when taken together as a whole with the Disclosure Package, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(iv) (i)
At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of
the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at
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the time
the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c)) made any offer relating to the Securities in
reliance on the exemption in Rule 163, and (iv) at the Execution Time (with such
date being used as the determination date for purposes of this clause (iv)), the
Company was or is (as the case may be) a “well-known seasoned issuer” as defined
in Rule 405. The Company agrees to pay the fees required by the
Commission relating to the Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r).
(v) (i)
At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time
(with such date being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule
405), without taking account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be considered an Ineligible
Issuer.
(vi) Each
Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any
document incorporated therein by reference and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. If at
any time following issuance of an Issuer Free Writing Prospectus there occurred
or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the
Registration Statement, the Preliminary Prospectus or the Final Prospectus the
Company has promptly notified or will promptly notify the Representatives and
has promptly amended or supplemented or will promptly amend or supplement, at
its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8
hereof.
(vii) The
documents incorporated by reference in the Disclosure Package and the Final
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the Act
or the Exchange Act and the rules and regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement and the Final Prospectus, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder then in effect and will not contain any untrue statement of
a
4
material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(viii) The
Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority to
own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Disclosure Package and the Final Prospectus; the
Company is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not have a material adverse effect on the business, financial
condition or results of operations of the Company and its subsidiaries
considered as a whole (a “Material Adverse Effect”).
(ix) Union
Carbide Corporation (“UCC”) and Rohm and Xxxx are the only subsidiaries of the
Company that qualify as a “significant subsidiary” under Section 1-02(w) of
Regulation S-X. Each of UCC and Rohm and Xxxx has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority to own or lease, as
the case may be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus; each of UCC and
Rohm and Xxxx is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not have a Material Adverse Effect; except as otherwise disclosed
in the Disclosure Package and the Final Prospectus, all of the issued and
outstanding capital stock of each of UCC and Rohm and Xxxx has been duly
authorized and validly issued, is fully paid and non-assessable and (except for
shares necessary to qualify directors or to maintain any minimum number of
shareholders required by law) is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, or claim.
(x) The
Company has outstanding capital stock as set forth in the Disclosure Package and
the Final Prospectus (except for subsequent issuances as described in the
Disclosure Package and the Final Prospectus pursuant to employee benefit plans
or pursuant to the exercise of convertible securities or options and except for
repurchases in connection with open market or repurchase plans or redemptions of
shares of preferred stock). All of the outstanding shares of capital
stock of the Company have been duly authorized and validly issued, fully paid
and non-assessable and conform to the description thereof contained in the
Disclosure Package and the Final Prospectus. The Company Underwritten
Securities have been duly authorized for issuance and sale pursuant to this
Agreement, when issued and delivered by the Company to and paid for by the
Underwriters pursuant to this Agreement, will have been validly issued, fully
paid and non-assessable and conform to the description thereof contained in the
Disclosure Package and the Final Prospectus; and the stockholders of the Company
do not have, and will not have on the Closing Date, any preemptive rights with
respect to the Company Underwritten Securities.
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(xi) This
Agreement has been duly authorized, executed and delivered by the
Company.
(xii) The
Purchase Agreement has been duly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery by each of
the other parties thereto) constitutes the valid and legally binding obligation
of the Company enforceable in accordance with its terms except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting the enforcement of creditors’ rights and
to general equity principles. The Selling Stockholder Underwritten
Securities and the Option Securities (collectively, the “Selling Stockholder
Securities”) have been duly authorized for issuance pursuant to the Purchase
Agreement, when issued and delivered by the Company to the Selling Stockholders
in consideration for the sale of the Preferred Securities as contemplated by the
Purchase Agreement, will have been validly issued, fully paid and non-assessable
and conform to the description thereof contained in the Disclosure Package and
the Final Prospectus; and the stockholders of the Company do not have, and will
not have on the Closing Date, any preemptive rights with respect to the Selling
Stockholder Securities.
(xiii) The
statements in each of the Disclosure Package and the Final Prospectus under the
captions “Description of the Financing Transactions,” Description of the Common
Stock,” “Certain United States Federal Tax Considerations for Non-U.S. Holders,”
“Underwriting” and “Description of Capital Stock,” in each case insofar as such
statements constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present and summarize, in all material respects, the
matters referred to therein.
(xiv) The
issuance and sale of the Securities and the compliance by the Company with all
of the provisions of the Securities and this Agreement and the consummation of
the transactions therein and herein contemplated, will not result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company, UCC or Rohm and Xxxx pursuant to
the terms of any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, UCC or Rohm and Xxxx is a party or
by which the Company, UCC or Rohm and Xxxx is bound or to which any property or
assets of the Company, UCC or Rohm and Xxxx is subject, which would reasonably
be expected to have a Material Adverse Effect or affect the validity of the
Securities or the legal authority of the Company to comply with the Securities
or this Agreement; nor will such action result in any violation of the
provisions of the Restated Articles of Incorporation, as amended, or the Bylaws
of the Company; nor will such action result in a violation of any statute or any
order, rule or regulation of any court or governmental agency or body in the
United States having jurisdiction over the Company, UCC or Rohm and Xxxx or any
of their properties, which would reasonably be expected to have a Material
Adverse Effect or affect the validity of the Securities or the legal authority
of the Company to comply with the Securities or this Agreement.
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(xv) No
consent, approval, authorization, order, registration or qualification of or
with any court or any such regulatory authority or other governmental body in
the United States having jurisdiction over the Company is required for the
issuance and sale of the Securities or the consummation by the Company of the
other transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, registrations or qualifications as have been
obtained under the Act and such as may be required by the securities or Blue Sky
laws of the various states and the securities laws of any jurisdiction outside
the United States in which the Securities are offered.
(xvi) Except
as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto), no action, suit
or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any of its subsidiaries is pending
or, to the Company’s knowledge, threatened that (i) would reasonably be expected
to have a material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii) would
reasonably be expected to have a Material Adverse Effect.
(xvii) Since
the dates as of which information is given in the Disclosure Package and the
Final Prospectus (exclusive of any amendments or supplements thereto after the
date hereof), there has not been (i) any material change in the capital stock
(other than changes pursuant to open market or repurchase plans or employee
benefit plans or changes resulting from the conversion or redemption of
outstanding shares of preferred stock or convertible debt) or long-term debt of
the Company and its consolidated subsidiaries considered as a whole, or (ii) any
material adverse change, in or affecting the business, financial condition or
results of operations of the Company and its consolidated subsidiaries
considered as a whole, otherwise than, in the case of (i) or (ii) above, as set
forth or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendments or supplements thereto after the date
hereof).
(xviii)
Deloitte & Touche LLP, who has audited certain financial statements of the
Company and its consolidated subsidiaries (which do not include Rohm and Xxxx
and its subsidiaries) and delivered their report with respect to the audited
consolidated financial statements and schedules of the Company and its
consolidated subsidiaries (which do not include Rohm and Xxxx and its
subsidiaries) included or incorporated by reference in the Disclosure Package
and the Final Prospectus, are independent registered public accountants with
respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(xix) PricewaterhouseCoopers
LLP, who has audited certain financial statements of Rohm and Xxxx and its
consolidated subsidiaries and delivered their report with respect to the audited
consolidated financial statements of Rohm and Xxxx included or incorporated by
reference in the Disclosure Package and the Final Prospectus, are independent
certified public accountants with respect to Rohm and Xxxx under Rule 101 of the
Code of Professional Conduct of the American Institute of Certified Public
Accountants, and its rulings and interpretations.
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(xx)
The Company’s consolidated historical financial statements and schedules (which
do not include Rohm and Xxxx and its subsidiaries) incorporated by reference in
the Preliminary Prospectus, the Final Prospectus and the Registration Statement
present fairly in all material respects the financial condition, results of
operations and cash flows of the Company as of the dates and for the periods
indicated, comply as to form in all material respects with the applicable
accounting requirements of the Act and have been prepared in conformity with
generally accepted accounting principles in the United States applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption
“Prospectus Supplement Summary — Summary Historical Financial and Other Data of
Dow” and “Selected Historical Financial and Other Data of Dow” in the Disclosure
Package and the Final Prospectus fairly present, in all material respects, the
information set forth therein on a basis consistent with that of the Company’s
audited financial statements incorporated by reference in the Disclosure Package
and the Final Prospectus.
(xxi) The
consolidated historical financial statements of Rohm and Xxxx and its
consolidated subsidiaries incorporated by reference in the Preliminary
Prospectus, the Final Prospectus and the Registration Statement present fairly
in all material respects the financial condition, results of operations and cash
flows of Rohm and Xxxx as of the dates and for the periods indicated, comply as
to form in all material respects with the applicable accounting requirements of
the Act and have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The selected
financial data set forth under the caption “Prospectus Supplement Summary —
Summary Historical Financial and Other Data of Rohm and Xxxx” and “Selected
Historical Financial and Other Data of Rohm and Xxxx Company” in the Disclosure
Package and the Final Prospectus fairly present, in all material respects, the
information set forth therein on a basis consistent with that of the audited
financial statements of Rohm and Xxxx and its consolidated subsidiaries
incorporated by reference in the Disclosure Package and the Final
Prospectus.
(xxii) The
pro forma combined condensed financial information of the Company and its
consolidated subsidiaries and the related notes thereto included in the
Disclosure Package and the Final Prospectus have been prepared in accordance
with the Commission’s rules with respect to pro forma financial information, and
the adjustments used therein are appropriate to give effect to the transactions
and circumstances described therein. The pro forma combined condensed
financial information included in the Disclosure Package and the Final
Prospectus include assumptions that provide a reasonable basis for presenting
the significant effects directly attributable to the transactions and events
described therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma adjustments reflect the proper application
of those adjustments to the historical financial statement amounts in the pro
forma combined condensed financial information included in the Disclosure
Package and the Final Prospectus. The pro forma combined condensed
financial information included in the Disclosure Package and the Final
Prospectus complies as to form in all material respects with the applicable
requirements of Article 11 of Regulation S-X under the Act
8
and the
pro forma adjustments have been properly applied to the historical amounts in
the compilation of that information.
(xxiii) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Disclosure Package and the Final Prospectus, will not be an “investment company”
as defined in the Investment Company Act of 1940, as amended.
(xxiv) No
material, collective labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the Company’s knowledge, is threatened that would
reasonably be expected to have a Material Adverse Effect.
(xxv)
Except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto), the Company and
its subsidiaries are in compliance in all material respects with all applicable
laws (including all applicable laws and regulations relating to the protection
of human health and safety, the environment, or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively “Environmental Laws”)),
ordinances, rules, regulations, and requirements of governmental authorities,
except where (i) the necessity of compliance therewith is contested in good
faith by appropriate proceedings or (ii) noncompliance therewith would not have
a Material Adverse Effect.
(xxvi)
In the ordinary course of its business, the Company periodically reviews the
effect of Environmental Laws on the business, operations and properties of the
Company and its subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). To the Company’s knowledge, no such associated costs
and liabilities would, singly or in the aggregate, have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement
thereto).
(xxvii) Except
as would not reasonably be expected to have a Material Adverse Effect and except
as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto), to the Company’s
knowledge, the Company or its subsidiaries own or possess the right to use all
patents, trademarks, service marks, trade names, copyrights, patentable
inventions, trade secrets and know-how used by the Company or its subsidiaries
in, and material to, the conduct of the Company’s and its subsidiaries’ business
taken as a whole as now conducted or as proposed in the Disclosure Package and
the Final Prospectus to be conducted (collectively, the “Intellectual
Property”). Except as would not otherwise reasonably be expected to
have a Material Adverse Effect and except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto), there are no legal or governmental actions, suits,
proceedings or claims pending or, to the Company’s knowledge, threatened,
against the Company (i) challenging the Company’s rights in or to any
Intellectual Property, (ii) challenging the
9
validity
or scope of any Intellectual Property owned by the Company, or (iii) alleging
that the operation of the Company’s business as now conducted infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of a third party.
(xxviii) There
is and has been no failure in any material respects on the part of the Company
and any of the Company’s directors or officers, in their capacities as such, to
comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 relating to loans and Sections 302 and 906 relating to
certifications.
(xxix)
The Company maintains a system of internal control over financial reporting with
respect to itself and its consolidated subsidiaries sufficient to provide
reasonable assurance that (i) receipts and expenditures of the Company are made
only in accordance with the general or specific authorizations of the management
or directors of the Company; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted
accounting principles in the United States and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any material differences. The management of
the Company concluded that such internal control over financial reporting was
effective as of December 31, 2008 and, other than as may result from the
Acquisition, there have been no changes in the Company’s internal control over
financial reporting since such date that have materially affected, or are
reasonably likely to materially affect, the Company’s internal control over
financial reporting.
(xxx) The
Company maintains “disclosure controls and procedures” (as such term is defined
in Rule 13a-15(e) under the Exchange Act); based on the evaluation of these
disclosure controls and procedures, the Company’s Chief Executive Officer and
Chief Financial Officer concluded that the Company’s disclosure controls and
procedures were effective as of March 31, 2009.
(xxxi) The
Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities; provided however, that no such representation is made with respect
to any action undertaken by the Underwriters or the Selling
Stockholders.
(xxxii) There
are no transfer taxes or other similar fees or charges under Federal law or the
laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by
the Company or sale by the Company of the Securities.
Any
certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities
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shall be
deemed a representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
(b) Each
Selling Stockholder, severally and not jointly, represents and warrants to, and
agrees with, the Company and each Underwriter that:
(i) Such
Selling Stockholder is the record and beneficial owner of the number of
Preferred Securities set forth opposite such Selling Stockholders name in Column
A of Schedule II and on the Closing Date will be the record and beneficial owner
of the number of shares of Common Stock set forth opposite such Selling
Stockholder’s name in Column B of Schedule II hereto and on each Settlement Date
will be the record and beneficial owner of the number of shares of Common
Stock set forth opposite such Selling Stockholder’s name in Column C
of Schedule II hereto (assuming that the Underwriters exercise their option to
purchase the Option Securities in full and that the Company delivers the Option
Securities to the Selling Stockholders in compliance with the Purchase
Agreement), in each case free and clear of all liens, encumbrances, equities and
claims, has validly entered into the Purchase Agreement and has full power and
authority to sell its interest in the Selling Stockholder Securities to be
received in consideration for the sale of its Preferred Securities pursuant to
the Purchase Agreement, and, assuming that each Underwriter acquires its
interest in the Securities it has purchased from such Selling Stockholder
without notice of any adverse claim (within the meaning of Section 8-105 of the
New York Uniform Commercial Code (“UCC”)), each Underwriter that has purchased
such Securities delivered on the Closing Date to The Depository Trust Company or
other securities intermediary by making payment therefor as provided herein, and
that has had such Securities credited to the securities account or accounts of
such Underwriters maintained with The Depository Trust Company or such other
securities intermediary, will have acquired a security entitlement (within the
meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such
Underwriter, and no action based on an adverse claim (within the meaning of
Section 8-105 of the UCC) may be asserted against such Underwriter with respect
to such Securities.
(ii) This
Agreement has been duly authorized, executed and delivered by such Selling
Stockholder. The Purchase Agreement has been duly authorized,
executed and delivered by such Selling Stockholder and (assuming the due
authorization, execution and delivery by the Company) constitutes the valid and
legally binding obligation of such Selling Stockholder enforceable against such
Selling Stockholder in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws of general applicability relating to or affecting the
enforcement of creditors’ rights and to general equity principles.
(iii) Such
Selling Stockholder has not taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities; provided however, that no such representation is made with respect
to any action undertaken by the Underwriters.
11
(iv) No
consent, approval, authorization or order of any court or governmental agency or
body is required for the consummation by such Selling Stockholder of the
transactions contemplated herein (including the Preferred Securities Sale),
except such as may have been obtained under the Act, as may be required by the
rules of the New York Stock Exchange and the Financial Industry Regulatory
Authority, Inc. (“FINRA”) and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been
obtained.
(v) Neither
the sale of the Securities being sold by such Selling Stockholder nor the
consummation of any other of the transactions herein contemplated (including the
Preferred Securities Sale) by such Selling Stockholder or the fulfillment of the
terms hereof by such Selling Stockholder will conflict with, result in a breach
or violation of, or constitute a default under any law or the charter or by-laws
(or comparable governing documents) of such Selling Stockholder or the terms of
any indenture or other agreement or instrument to which such Selling Stockholder
or any of its subsidiaries (if applicable) is a party or bound, or any judgment,
order or decree applicable to such Selling Stockholder or any of its
subsidiaries (if applicable) of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over such Selling
Stockholder or any of its subsidiaries (if applicable), other than in each case
any conflict, breach, violation or default which would not reasonably be
expected to have a material adverse effect on the ability of such Selling
Stockholder to consummate the transactions herein contemplated.
(vi) On
each Effective Date and at the Execution Time, the Registration Statement did
not and will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; the Disclosure Package did not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and warranties
contained in this clause (vi) shall apply only to written information furnished
in writing to the Company or to the Underwriters by or on behalf of such Selling
Stockholder specifically for inclusion in the Registration Statement or the
Final Prospectus (or any supplement thereto), it being understood and agreed
that the only such information furnished by or on behalf of such Selling
Stockholder consists of the information described as such in Section 8(b)
hereof.
Any
certificate signed by any Selling Stockholder (or any officer thereof, if
applicable) and delivered to the Representatives or counsel for the Underwriters
in connection with the offering of the Securities shall be deemed a
representation and warranty by such Selling Stockholder, as to matters covered
thereby, to each Underwriter.
12
2.
Purchase and
Sale. (a) Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company and the
Selling Stockholders agree, severally and not jointly, to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company and the Selling Stockholders, at the purchase price per share
to the Underwriters set forth in Schedule I hereto, the number of Securities set
forth opposite such Underwriter’s name in Schedule III hereto.
(b)
Subject to the terms and conditions of this Agreement and the Purchase Agreement
and in reliance upon the representations and warranties herein set forth, the
Selling Stockholders hereby grant an option to the several Underwriters to
purchase, severally and not jointly, up to the number of Option Securities set
forth in Schedule I hereto at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option
may be exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole
or in part at any time on or before the 30th day after the date of the Final
Prospectus upon written or telefax notice given in accordance with Section 12
hereof by the Representatives to the Company and the Selling Stockholders
setting forth the number of Option Securities as to which the several
Underwriters are exercising the option and the Settlement Date. In
the event that the Underwriters exercise less than their full over-allotment
option, the number of Option Securities to be sold by each Selling Stockholder
listed on Schedule II shall be, as nearly as practicable, in the same proportion
as the maximum number of Option Securities to be sold by each Selling
Stockholder and the number of Option Securities to be sold.
(c)
The number of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3.
Delivery and
Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third
Business Day immediately preceding the Closing Date) shall be made on the date
and at the time specified in Schedule I hereto, or at such time on such
later date not more than three Business Days after the foregoing date as the
Representatives, the Company and the Selling Stockholders shall agree upon,
which date and time may be postponed by agreement among the Representatives, the
Company and the Selling Stockholders or as provided in Section 9 hereof
(such date and time of delivery and payment for the Securities being herein
called the “Closing Date”). Delivery of the Securities shall be made
to the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
respective aggregate purchase prices of the Securities being sold by the Company
and each of the Selling Stockholders to or upon the order of the Company and the
Selling Stockholders by wire transfer payable in same-day funds to the
respective accounts specified by each of the Company and the Selling
Stockholders. Delivery of the Underwritten Securities and the Option
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
The
Company will pay all applicable state transfer taxes, if any, involved in the
transfer to the several Underwriters of the Securities to be purchased by them
from such Selling
13
Stockholder
and the respective Underwriters will pay any additional stock transfer taxes
involved in further transfers.
If the
option provided for in Section 2(b) hereof is exercised after the third
Business Day immediately preceding the Closing Date, the Selling Stockholders
will deliver the Option Securities (at the expense of the Company) to the
Representatives, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date agreed
upon by the Company, the Selling Stockholders and the Representatives (which
shall be within three Business Days after exercise of said option) for the
respective accounts of the several Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Selling Stockholder by wire transfer payable in same-day
funds to the respective accounts specified by each of the Selling
Stockholders. If settlement for the Option Securities occurs after
the Closing Date, the Selling Stockholders will deliver to the Representatives
on the Settlement Date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4.
Offering by
Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the Final
Prospectus.
5.
Agreements. (a) The
Company agrees with the several Underwriters and the Selling Stockholders
that:
(i) Prior
to the termination of the offering of the Securities, the Company will not file
any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the
Company has furnished to the Representatives a copy for their review prior to
filing and will not file any such proposed amendment or supplement to which the
Representatives reasonably object. The Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (i) when
the Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (ii) when,
prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iii) of
any request by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any supplement
to the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the institution
or threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Company will
use its reasonable best efforts to prevent the issuance of any such stop order
or the occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such
14
issuance,
occurrence or notice of objection, to obtain as soon as practicable the
withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration Statement or
a new registration statement and using its reasonable best efforts to have such
amendment or new registration statement declared effective as soon as
practicable.
(ii) If,
at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b),
any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made or the circumstances then prevailing not misleading, the Company
will (i) notify promptly the Representatives so that any use of the Disclosure
Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply
any amendment or supplement to the Representatives in such quantities as the
Representatives may reasonably request.
(iii) If,
at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Disclosure Package or the Final Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under
which they were made at such time not misleading, or if it shall be necessary to
amend the Registration Statement, file a new registration statement or
supplement the Disclosure Package or the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, including in connection
with use or delivery of the Disclosure Package or the Final Prospectus, the
Company promptly will (i) notify the Representatives of any such event,
(ii) prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 5, an amendment or supplement or new
registration statement which will correct such statement or omission or effect
such compliance, (iii) use its reasonable best efforts to have any amendment to
the Registration Statement or new registration statement declared effective as
soon as practicable in order to avoid any disruption in use of the Disclosure
Package or the Final Prospectus and (iv) supply any supplemented Disclosure
Package or Final Prospectus to the Representatives in such quantities as they
may reasonably request.
(iv) As
soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the
Company which will satisfy the provisions of Section 11(a) of the Act and
Rule 158.
(v) The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies of
each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto
15
as the
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the
offering.
(vi) The
Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions in the United States as the
Representatives may designate and will maintain such qualifications in effect so
long as required for the distribution of the Securities; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(vii) The
Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives (such consent not to be unreasonably withheld,
conditioned, or delayed), and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has or shall have obtained, as the case
may be, the prior written consent of the Company, it has not made and will not
make any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company with
the Commission or retained by the Company under Rule 433; provided that the
prior written consent of the parties hereto shall be deemed to have been given
in respect of the Free Writing Prospectuses included in Schedule IV hereto and
any electronic road show. Any such free writing prospectus consented
to by the Representatives or the Company is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company agrees that (x) it
has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending pursuant to reasonable procedures
developed in good faith, and record keeping.
(viii) The
Company will not, without the prior written consent of the Representatives,
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, any other shares of Common Stock or any securities convertible
into, or exercisable, or exchangeable for, shares of Common Stock; or publicly
announce an intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto, provided, however, that the
Company may (A) issue and sell Common Stock pursuant to any employee or director stock option plan, stock ownership
plan, restricted, deferred and performance stock
plans, or dividend reinvestment plan of the Company in effect at the
Execution Time and (B) may issue Common Stock issuable upon the conversion of
securities, including upon conversion of the
Company’s Cumulative
16
Convertible Perpetual Preferred Stock, Series C,
or the exercise of options or warrants
outstanding at the Execution Time. The Company may also issue and sell Common Stock having an
aggregate purchase price of $552 million to The Dow Chemical Company Employees’
Savings Plan (the “Plan”) and register such
Common Stock for resale by the Plan trust. For purposes of
clarification, nothing herein is intended to limit the ability of the Company to
file a registration statement registering, by the holders’ demand or otherwise,
the Preferred Securities or the Company’s Cumulative Convertible Perpetual
Preferred Stock, Series C and the underlying Common Stock so as to permit any
holder thereof to sell such registrable securities.
(ix)
The Company will not take, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities.
(x)
The Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, each Preliminary Prospectus, the
Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or
supplements to any of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for
the Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of the
Securities under the Exchange Act and the listing of the Securities on the New
York Stock Exchange; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such registration and qualification);
(vii) any filings required to be made with FINRA (including filing fees and
the reasonable fees and expenses of counsel for the Underwriters relating to
such filings); (viii) the transportation and other expenses incurred by or
on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company’s accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; and (x) all other costs and expenses
incident to the performance by the Company and the Selling Stockholders of their
obligations hereunder; provided, that the Selling Stockholders agree to pay the
fees and expenses of their respective counsel
and any other fees and expenses of their respective advisors.
17
(xi) Solely
in connection with the consummation of the transactions contemplated by this
Agreement, the Company hereby irrevocably waives, and agrees not to exercise,
any rights of first offer to the Securities that the Company may
have.
(xii) The
Company agrees to make timely delivery to the Selling Stockholders of the
Selling Stockholder Underwritten Securities and the Option Securities, as the
case may be, to be delivered under the Purchase Agreement to enable the Selling
Stockholders to deliver such Securities hereunder.
(b)
Each Selling Stockholder, severally and not jointly, agrees with the several
Underwriters and the Company that:
(i)
Such Selling Stockholder will not take, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(ii) Such
Selling Stockholder will advise you promptly, and if requested by you, will
confirm such advice in writing, so long as delivery of a prospectus relating to
the Securities by an underwriter or dealer may be required under the Act, of any
change in the name of such Selling Stockholder and the number of shares of
Common Stock owned by such Selling Stockholder included under the caption
“Selling Stockholders” in the Registration Statement, the Final Prospectus, any
Preliminary Prospectus or any amendment or supplement thereto.
(iii) Such
Selling Stockholder represents that it has not prepared or had prepared on its
behalf or used or referred to, and agrees that it will not prepare or have
prepared on its behalf or use or refer to, any Free Writing Prospectus, and has
not distributed and will not distribute any written materials in connection with
the offer or sale of the Securities.
6.
Conditions to the
Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders contained
herein as of the Execution Time, the Closing Date and any Settlement Date
pursuant to Section 3 hereof, to the accuracy of the statements of the
Company and the Selling Stockholders made in any certificates pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a)
The Final Prospectus, and any supplement thereto, have been filed in the manner
and within the time period required by Rule 424(b); any other material
required to be filed by the Company pursuant to Rule 433(d) under the Act, shall
have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
18
(b)
The Company shall have requested and caused Xxxxxx X. Xxxxxx, Assistant General
Counsel—Corporate and Financial Law of the Company, to have furnished to the
Representatives his opinion dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with full corporate power
and authority to own, lease, and/or operate its properties and conduct its
business as described in the Disclosure Package and the Final Prospectus, and is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business, except where
the failure to so qualify would not have a Material Adverse Effect;
(ii) each
of UCC and Rohm and Xxxx has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own, lease,
and/or operate its properties and conduct its business as described in the
Disclosure Package and the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or leases
material properties or conducts material business, except where the failure to
so qualify would not have a Material Adverse Effect;
(iii) except
as otherwise set forth in the Disclosure Package and the Final Prospectus, all
the outstanding shares of capital stock of UCC and Rohm and Xxxx have been duly
authorized and validly issued and are fully paid and non-assessable and, except
as otherwise set forth in the Disclosure Package and the Final Prospectus, and
except for shares necessary to qualify directors or to maintain any minimum
number of shareholders required by law, all outstanding shares of capital stock
of UCC and Rohm and Xxxx are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry, any other security
interest, claim, lien or encumbrance;
(iv) all
outstanding shares of capital stock of the Company (including the Securities
being sold hereunder by the Selling Stockholders) have been duly authorized and
validly issued, are fully paid and non-assessable and conform to the description
thereof contained in the Disclosure Package and the Final Prospectus; the
Company’s authorized equity capitalization is as set forth in the Disclosure
Package and the Final Prospectus (except for subsequent issuances pursuant to
employee benefit plans or pursuant to the exercise of convertible securities or
options and except for repurchases in connection with open market or repurchase
plans or redemptions of shares of preferred stock); and, except as set forth in
the Disclosure Package and the Final Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding;
19
(v)
to the knowledge of such counsel, except as disclosed in the
Disclosure Package and the Final Prospectus, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries, that (i) would reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) would reasonably be expected to have a
Material Adverse Effect;
(vi) neither
the issuance of the Securities, the sale of the Securities nor the compliance by
the Company with all of the provisions of this Agreement nor the consummation of
the transactions herein contemplated nor the fulfillment of the terms hereof
will conflict with, result in a breach or violation of, or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to, (A) the charter or by-laws of the Company, UCC or Rohm
and Xxxx, (B) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or its subsidiaries is a party or
bound or to which its or their property is subject, or (C) any statute, law,
rule, regulation, other than of the State of New York, judgment, order or decree
applicable to the Company or its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its subsidiaries or any of its or their
properties, which conflict, breach, violation, lien, charge or encumbrance, in
the case of (B) and (C), would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(vii)
the Company is not required to
register as an investment company under the Investment Company Act of 1940, as
amended; and
(viii) the
documents incorporated by reference in the Disclosure Package and the Final
Prospectus (other than the financial statements and other financial and
statistical information contained therein, as to which such counsel need express
no opinion), when they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects with the
applicable requirements of the Act or the Exchange Act and the rules and
regulations of the Commission thereunder, and nothing has come to his attention
that caused him to believe that any of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In
addition, such counsel shall state that any required filing of the Base
Prospectus, any Preliminary Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b).
Such
counsel shall also state that no facts came to such counsel’s attention that
caused such counsel to believe that (i) the Registration Statement or any
amendment thereto (other than the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel has not been requested to comment), as of the date of the
20
Underwriting
Agreement, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) the Disclosure Package (other
than the financial statements and other financial or statistical data contained
therein or omitted therefrom, as to which such counsel has not been requested to
comment), at the Execution Time, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (iii) the Final Prospectus (other than the financial
statements and other financial or statistical data contained therein or omitted
therefrom, as to which such counsel has not been requested to comment), as of
its date or as of the Closing Date, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
In
rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Michigan, the
corporate law of the State of Delaware or the Federal laws of the United States,
to the extent he deems proper and specified in such opinion, upon the opinion of
other counsel of good standing whom he believes to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent he deems proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus in
this paragraph (b) shall also include any supplements thereto at the Closing
Date.
(c)
The Company shall have requested and caused Shearman & Sterling LLP, special
counsel to the Company, to have furnished to the Representatives their opinion
dated the Closing Date and addressed to the Representatives, to the effect
that:
(i)
this Agreement has been duly authorized, executed and delivered by the
Company;
(ii)
the Purchase Agreement has been duly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery by each of
the other parties thereto) constitutes the valid and legally binding obligation
of the Company enforceable in accordance with its terms except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting the enforcement of creditors’ rights and
to general equity principles;
(iii)
no authorization, approval or other action by, and no notice to or filing with,
any United States federal or New York governmental authority or regulatory body,
is required for the due execution, delivery or performance by the Company of the
Underwriting Agreement or the Purchase Agreement, except as have been obtained
and are in full force and effect under the Act or as may be required under the
securities or blue sky laws of any jurisdiction in the United States in
connection with the offer and sale of the Securities by the
Company;
(iv)
the Company Underwritten Securities have been duly authorized by the Company
and, when issued and delivered as provided in the Underwriting Agreement, the
Company Underwritten Securities will be validly issued, fully paid and
non-
21
assessable,
and the issuance of such Securities will not be subject to preemptive rights
pursuant to the General Corporation Law of the State of Delaware or the
certificate of incorporation or by-laws of the Company;
(v) the
Selling Stockholder Underwritten Securities have been duly authorized by the
Company and, when issued and delivered as provided in the Purchase Agreement,
the Selling Stockholder Underwritten Securities will be validly issued, fully
paid and non-assessable, and the issuance of such Selling Stockholder
Underwritten Securities will not be subject to preemptive rights pursuant to the
General Corporation Law of the State of Delaware or the certificate of
incorporation or by-laws of the Company;
(vi) the
execution and delivery by the Company of the Underwriting Agreement do not, and
the performance by the Company of its obligations thereunder and the
consummation of the transactions contemplated thereby will not result in a
violation of the law of the State of New York (including the rules or
regulations promulgated thereunder or pursuant thereto), that a New York lawyer
exercising customary professional diligence would reasonably be expected to
recognize as being applicable to the Company, the Underwriting Agreement or the
transactions governed thereby;
(vii) the
statements in the Disclosure Package and the Final Prospectus under the captions
“Description of the Financing Transactions,” “Description of the Common Stock”
and “Description of Capital Stock,” in each case, insofar as such statements
constitute summaries of documents referred to therein, fairly summarize in all
material respects the documents referred to therein; and
(viii) the
statements in the Disclosure Package and the Final Prospectus under the caption
“Certain United States Federal Tax Considerations for Non-U.S. Holders,” insofar
as such statements constitute summaries of legal matters referred to therein and
subject to the limitations set forth therein, fairly summarize in all material
respects the legal matters referred to therein.
In
addition, such counsel shall state that (a) to the best of such counsel’s
knowledge based on the telephonic request to the staff of the Commission, the
registration is effective and no proceedings for a stop order with respect
thereto are pending or are threatened and (b) each of the Registration Statement
and the Final Prospectus, excluding the documents incorporated by reference
therein (other than the financial statements and other financial or statistical
data contained therein or omitted therefrom, as to which such counsel expresses
no opinion), appears on its face to be appropriately responsive in all material
respects to the requirements of the Act and the applicable rules and regulations
of the Commission thereunder.
Such
counsel shall also state that no facts came to such counsel’s attention that
caused such counsel to believe that (i) the Registration Statement or any
amendment thereto (other than the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel has not been requested to comment), as of the date of the Underwriting
Agreement, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) the Disclosure Package (other
than the financial statements and other financial
22
or
statistical data contained therein or omitted therefrom, as to which such
counsel has not been requested to comment), at the Execution Time, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iii) the Final
Prospectus (other than the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel has not been requested to comment), as of its date and as of the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(d) The
Selling Stockholders shall have requested and caused counsel for the Selling
Stockholders, to have furnished to the Representatives their opinion dated the
Closing Date and addressed to the Representatives, substantially to the effect
set forth in Exhibit B hereto:
(e) The
Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to
the Representatives, with respect to the issuance and sale of the Securities,
the Registration Statement, the Disclosure Package, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company and each Selling
Stockholder shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(f)
The Company shall have furnished to the Representatives a certificate of
the Company, signed by the Chairman of the Board, the President, the Chief
Financial Officer or the Treasurer of the Company, dated the Closing Date, to
the effect that the signer of such certificate has carefully examined or cause
to be examined the Registration Statement, the Disclosure Package, the Final
Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments
thereto, as well as each electronic road show used in connection with the
offering of the Securities, and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any
notice objecting to its use has been issued and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, threatened;
and
(iii) since
the date of the most recent financial statements of the Company included or
incorporated by reference in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto), there has been no material adverse change
in or affecting the business, financial condition or results of operations of
the Company and its consolidated subsidiaries considered as a whole, whether or
not arising from transactions in the ordinary course of business, except as set
forth or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendments or supplements thereto after the date
hereof).
23
(g) Each
Selling Stockholder shall have furnished to the Representatives a certificate,
signed by an authorized officer (or comparable person) of such Selling
Stockholder, dated the Closing Date, to the effect that the representations and
warranties of such Selling Stockholder in this Agreement are true and correct on
and as of the Closing Date to the same effect as if made on the Closing
Date.
(h) At
the Execution Time and on the Closing Date, Deloitte & Touche LLP shall have
furnished to the Representatives, at the request of the Company, letters, dated
the respective dates of delivery thereof and addressed to the Underwriters, in
form and substance reasonably satisfactory to the Representatives, containing
statements and information of the type customarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Registration Statement, the Disclosure Package and the Final Prospectus; provided that the
letter delivered on the Closing Date shall use a “cut-off’ date no more than
three business days prior to the Closing Date.
(i)
At the Execution Time and on the Closing Date, PricewaterhouseCoopers LLP shall
have furnished to the Representatives, at the request of the Company, letters,
dated the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information of Rohm and Xxxx
contained or incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus; provided that the
letter delivered on the Closing Date shall use a “cut-off’ date no more than
three business days prior to the Closing Date.
(j)
Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any amendment or supplement
thereto), there shall not have been (i) any change or decrease specified in the
letters referred to in paragraphs (h) and (i) of this Section 6 or (ii) any
change, or any development involving an impending prospective change, in or
affecting the business, prospects, financial condition or results of operations
of the Company and its consolidated subsidiaries taken as a whole, whether or
not arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto) the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the reasonable judgment of
the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof),
the Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
(k) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of
any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such rating or of
a possible change in any such rating that does not indicate the direction of the
possible change.
24
(l)
Prior to the Closing Date, the Company and the Selling Stockholders shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein
contained.
(m) The
Securities shall have been listed and admitted and authorized for trading on the
New York Stock Exchange, and satisfactory evidence of such actions shall have
been provided to the Representatives.
(n) At
the Execution Time, the Company shall have furnished to the Representatives a
letter substantially in the form of Exhibit A hereto from each executive
officer and director of the Company addressed to the
Representatives.
If any of
the conditions specified in this Section 6 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the
Company and each Selling Stockholder in writing or by telephone or facsimile
confirmed in writing.
The
documents required to be delivered by this Section 6 shall be delivered at the
office of Xxxxx Xxxxx LLP, counsel for the Underwriters, at 00 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, on the Closing Date.
6A. Conditions to the
Obligations of the Selling Stockholder. The obligations of the
Selling Stockholders to deliver the Selling Stockholder Underwritten Securities
and the Option Securities, as the case may be, and the associated certificates
and opinions, shall be subject to the Company having delivered to the Selling
Stockholders the Securities which the Selling Stockholders are required to
deliver hereunder on such date, in all respects in compliance with the Purchase
Agreement. The Selling Stockholders shall have no liability to the Underwriters
or any other person in the event that they are unable to deliver the Securities
to the Underwriters because the Company has failed to deliver such Securities to
the Selling Stockholders on a timely basis in compliance with the Purchase
Agreement.
7.
Reimbursement of
Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company or any Selling Stockholder to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through the Representatives on demand for all reasonable
and properly documented out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities. If the Company
is required to make any payments to the Underwriters under this Section 7
because of
25
any
Selling Stockholder’s refusal, inability or failure to satisfy any condition to
the obligations of the Underwriters set forth in Section (except to
the extent caused by the Company’s failure to deliver the Selling Stockholder
Underwritten Securities on the Closing Date or Option Securities on the
Settlement Date as required by the Purchase Agreement and as set forth Section
6A above), the Company shall be reimbursed on demand for all amounts so paid. by
the breaching Selling Stockholder.
8.
Indemnification
and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents and affiliates of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Base Prospectus, any Preliminary Prospectus or any other preliminary
prospectus supplement relating to the Securities, the Final Prospectus or any
Issuer Free Writing Prospectus or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each
Selling Stockholder severally agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees, agents and affiliates of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to written
information furnished to the Company or any Underwriter by or on behalf of such
Selling Stockholder specifically for inclusion in the documents referred to in
the foregoing indemnity; it being agreed that the only such information is the
information included in the Registration Statement, any Preliminary Prospectus
or the Final Prospectus under the caption “Selling Stockholders” adjacent to the
name of such Selling Stockholder in the table included therein. This
indemnity agreement will be in addition to any liability which any Selling
Stockholder may otherwise have.
(c) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, each Selling Stockholder, and each person who
controls a Selling Stockholder within the
26
meaning
of either the Act or the Exchange Act, to the same extent as the foregoing
indemnity to each Underwriter contained in clause paragraph (a) above, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company and
the Selling Stockholders acknowledge that the statements set forth under the
heading “Underwriting” (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the second sentence of
the third paragraph (related to concessions and reallowances) and (iii) the
ninth and tenth paragraphs (related to stabilization, syndicate covering
transactions and penalty bids) in any Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus, the
Final Prospectus or any Issuer Free Writing Prospectus.
(d) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled
to participate in any such action and appoint counsel of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (other
than local counsel), approved by the Underwriters in the case of paragraph (a)
of this Section 8, representing the indemnified parties under such paragraph (a)
who are parties to such action), (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may
be
27
sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(e) In
the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company, the Selling Stockholders and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively “Losses”) to which the
Company, one or more of the Selling Stockholders and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholder on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company, the Selling Stockholders and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company, of the Selling
Stockholders and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
and by the Selling Stockholders shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by each of them,
and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company or the
Selling Stockholders, on the one hand, or the Underwriters, on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (e).
28
(f) The
liability of each Selling Stockholder under such Selling Stockholder’s
representations and warranties contained in Section 1 hereof and under the
indemnity and contribution agreements contained in this Section 8 shall be
limited to an amount equal to the initial public offering price of the
Securities sold by such Selling Stockholder to the Underwriters. The
Company and the Selling Stockholders may agree, as among themselves and without
limiting the rights of the Underwriters under this Agreement, as to the
respective amounts of such liability for which they each shall be
responsible.
9.
Default by
an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule III hereto bears to the aggregate
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule III hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter, the Selling Stockholders or
the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine
in order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be
effected. During such time, the Company
shall be entitled to procure another party or parties to purchase such
Securities on such terms; provided that the non-defaulting Underwriters shall
consent to such other party or parties, which consent shall not be unreasonably
withheld, conditioned, or delayed. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company, the Selling Stockholders and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company and the Selling Stockholders
prior to delivery of and payment for the Securities, if at any time prior to
such delivery and payment (i) trading in the Company’s Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such exchange,
(ii) a banking moratorium shall have been declared either by Federal or New
York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by any Preliminary Prospectus or the Final Prospectus
(exclusive of any amendment or supplement thereto).
29
11. Representations and
Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, of each Selling Stockholder or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter, any Selling Stockholder or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Representatives, will be mailed, delivered or telefaxed to
Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: General Counsel and to Xxxxxx Xxxxxxx & Co.
Incorporated (fax no.: (212) 000- 0000), at 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Investment Banking Division; if sent to the Company,
will be mailed, delivered or telefaxed to the Treasurer, The Dow Chemical
Company (fax no. (000) 000-0000) and confirmed to the Treasurer, The Dow
Chemical Company at 0000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000; or, if sent to any
Selling Stockholder, will be mailed, delivered or telefaxed and confirmed to it
at the address set forth in Schedule II hereto.
13. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. No Fiduciary
Duty. The Company and the Selling Stockholders each hereby
acknowledge that (a) the purchase and sale of the Securities pursuant to this
Agreement is an arm’s-length commercial transaction between the Company and the
Selling Stockholders, on the one hand, and the Underwriters and any affiliate
through which it may be acting, on the other, (b) the Underwriters are acting as
principal and not as an agent or fiduciary of the Company or the Selling
Stockholders and (c) the engagement of the Underwriters by the Company and the
Selling Stockholders in connection with the offering and the process leading up
to the offering is as independent contractors and not in any other
capacity. Furthermore, the Company and the Selling Stockholders agree
that they are solely responsible for making their own judgments in connection
with the offering (irrespective of whether any of the Underwriters has advised
or is currently advising the Company or the Selling Stockholders on related or
other matters). The Company and the Selling Stockholders each hereby
agree that it will not claim that the Underwriters have rendered advisory
services of any nature or respect, or owe an agency, fiduciary or similar duty
to them, in connection with such transaction or the process leading
thereto.
15. Integration. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
30
16. Applicable
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
17. Waiver of Jury
Trial. The Company, the Selling Stockholders and the
Underwriters hereby irrevocably waive, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
18. Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
19. Headings. The
section headings used herein are for convenience only and shall not affect the
construction hereof.
20. Definitions. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Base
Prospectus” shall mean the base prospectus referred to in paragraph 1(i)(a)
above contained in the Registration Statement at the Execution
Time.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus
used most recently prior to the Execution Time, (iii) the public offering price,
the number of Underwritten Securities and the number of Option Securities to be
included on the cover page of the Final Prospectus, (iv) the Issuer Free Writing
Prospectuses, if any, identified in Schedule IV hereto, and (v) any other Free
Writing Prospectus that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package.
“Effective
Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes
effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
31
“Final
Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together
with the Base Prospectus.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(i)(a) above which is used prior to the
filing of the Final Prospectus, together with the Base Prospectus.
“Registration
Statement” shall mean the registration statement referred to in
paragraph 1(i)(a) above, including exhibits and financial statements and
any prospectus supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such registration
statement pursuant to Rule 430B, as amended on each Effective Date and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so
amended.
“Rule
158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”,
“Rule 424”, “Rule 430B” and “Rule 433” refer to such rules under the
Act.
“Well-Known
Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule
405.
[Signatures
appear on next page]
32
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company, the Selling
Stockholders and the several Underwriters.
Very truly yours, | ||||
THE DOW CHEMICAL COMPANY | ||||
|
By:
|
/s/ Xxxxxxxx X. Xxxxxxx | ||
Name: | Xxxxxxxx X. Xxxxxxx | |||
Title: | Executive
Vice President and Chief Financial Officer |
XXXXXXX & CO.
INC., ON BEHALF OF THE SEVERAL FUNDS AND ACCOUNTS MANAGED BY IT, |
||||
|
By:
|
/s/ Xxxxxxx Xxxxxxx | ||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Senior Vice President |
Signature
page to Equity Underwriting Agreement
THE FIRST
1945 TRUST
THE
SECOND 1945 TRUST
THE 1955
TRUST
THE 1956
TRUST
by
/s/
Xxxx X. Xxxx
|
|||
Name: | Xxxx X. Xxxx | ||
Title: | Trustee |
/s/
Xxxx Xxxx Xxxx
|
|||
Name: | Xxxx Xxxx Xxxx | ||
Title: | Trustee |
/s/
Xxxxxx Xxxxxxxx Xxxx
|
|||
Name: | Xxxxxx Xxxxxxxx Xxxx | ||
Title: | Trustee |
/s/
Xxxxxxx Xxxxx Xxxx
|
|||
Name: | Xxxxxxx Xxxxx Xxxx | ||
Title: | Trustee |
WACHOVIA
BANK, N.A.,
as Trustee
as Trustee
by
/s/
Xxxxx X. Xxxxx
|
|||
Name: | Xxxxx X. Xxxxx | ||
Title: | S.V.P. |
Signature
page to Equity Underwriting Agreement
1961
TRUST A
by
/s/
Xxxxxx Xxxx Gravagno
|
|||
Name: | Xxxxxx Xxxx Xxxxxxxx | ||
Title: | Trustee |
/s/
Xxxx Xxxx Xxxx
|
|||
Name: | Xxxx Xxxx Xxxx | ||
Title: | Trustee |
/s/
Xxxxxx Xxxxxxxx Xxxx
|
|||
Name: | Xxxxxx Xxxxxxxx Xxxx | ||
Title: | Trustee |
/s/
Xxxxxxx Xxxxx Xxxx
|
|||
Name: | Xxxxxxx Xxxxx Xxxx | ||
Title: | Trustee |
1961
TRUST B
by
/s/
Xxxx X. Xxxx
|
|||
Name: | Xxxx X. Xxxx | ||
Title: | Trustee |
/s/
Xxxxx X. Xxxx
|
|||
Name: | Xxxxx X. Xxxx | ||
Title: | Trustee |
/s/
Xxxxxxx X. Xxxx
|
|||
Name: | Xxxxxxx X. Xxxx | ||
Title: | Trustee |
/s/
Xxxxxxxxx X. Xxxx
|
|||
Name: | Xxxxxxxxx X. Xxxx | ||
Title: | Trustee |
Signature
page to Equity Underwriting Agreement
The
foregoing Agreement is hereby confirmed
and
accepted as of the date first written above.
CITIGROUP
GLOBAL MARKETS INC.
By:
|
/s/ Xxxxxxx X. Xxxx III | ||
Name: | Xxxxxxx X. Xxxx III | ||
Title: | Managing Director |
XXXXXX
XXXXXXX & CO. INCORPORATED
By:
|
/s/ Xxxxxxx X. Xxxx | ||
Name: | Xxxxxxx X. Xxxx | ||
Title: | Managing Director |
For
themselves and the other several Underwriters, if any,
named in Schedule III to the foregoing Agreement.
named in Schedule III to the foregoing Agreement.
Signature
page to Equity Underwriting Agreement
SCHEDULE I
Underwriting
Agreement dated May 6, 2009
Representative(s):
Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated
Title,
Purchase Price and Description of Securities:
Title:
Common Stock, par value $2.50 per share
Number of
Underwritten Securities to be sold by the Company: 66,666,683
Price per
Share to Public (include accrued dividends, if any): $15.00
Price per
Share to the Underwriters: $14.49375
Other
provisions: None
Closing
Date, Time and Location: May 12, 2009 at 10:00 a.m. New York time, at Xxxxx
Xxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Type of
Offering: Non-Delayed
Date
referred to in Section 5(a)(viii) after which the Company may offer or sell
securities issued by the Company without the consent of the
Representative(s): August 4, 2009
S-I-1
SCHEDULE II
SELLING
STOCKHOLDERS
Column
A
|
Column
B
|
Column
C
|
|
Name
of Seller Stockholder
|
Number
of
Cumulative
Perpetual Preferred Securities, Series B Owned |
Number
of
Shares of Selling Stockholder Underwritten Securities |
Number
of
Shares of Option Securities |
Xxxxxxx
Partners LP
|
15,301
|
1,073,728
|
—
|
Xxxxxxx
International LTD
|
50,370
|
3,534,649
|
—
|
Xxxxxxx
Partners Enhanced LP
|
25,087
|
1,760,448
|
—
|
Xxxxxxx
Enhanced LTD
|
123,639
|
8,676,205
|
—
|
Xxxxxxx
Advantage Master LTD
|
196,203
|
3,821,028
|
2,541,427
|
Xxxxxxx
Advantage Plus Master LTD
|
554,599
|
10,800,643
|
7,183,748
|
HFR
MA Strategic Master Trust
|
2,019
|
141,681
|
—
|
Institutional
Benchmarks Series (Master Feeder) Limited
|
2,830
|
198,592
|
—
|
dbX
– Risk Arbitrage 1 Fund
|
1,189
|
83,437
|
—
|
dbX
– Risk Arbitrage 6 Fund
|
2,703
|
189,680
|
—
|
Xxxxxxx
Advantage Select Master Fund Ltd
|
4,434
|
86,383
|
57,434
|
Lyxor/Xxxxxxx
International Fund Limited
|
5,466
|
383,569
|
—
|
Lyxor/Xxxxxxx
Advantage Fund Limited
|
16,160
|
1,134,007
|
—
|
Address
for Communications for the Selling Stockholders listed above
(collectively, the “Xxxxxxx Selling Stockholders”):
Xxxxxxx
& Co. Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxxxxx
Xxxxxxx
Tel: (000)
000-0000
Fax:
(000) 000-0000
|
|||
THE
FIRST 1945 TRUST
Address
for Communications:
|
44,875
|
1,144,637
|
351,196
|
S-II-1
Column
A
|
Column
B
|
Column
C
|
|
Name
of Seller Stockholder
|
Number
of
Cumulative
Perpetual Preferred Securities, Series B Owned |
Number
of
Shares of Selling Stockholder Underwritten Securities |
Number
of
Shares of Option Securities |
Xxxx
Trust Xxxxxx
0000
Xxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attn:
Xx. Xxxxx Xxxx,
Executive Trust Advisor
Tel:
(000) 000-0000
Fax: (000)
000-0000
Wachovia
Bank, N.A., as Trustee
Calibre
0000
Xxxxxx Xxxxxx, XX 0000
Xxxxxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxx and
Xxxx Xxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
|
|
|
THE
SECOND 1945 TRUST
Address
for Communications:
Xxxx
Trust Xxxxxx
0000
Xxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attn:
Xx. Xxxxx Xxxx,
Executive Trust Advisor
Tel:
(000) 000-0000
Fax: (000)
000-0000
Wachovia
Bank, N.A., as Trustee
Calibre
0000
Xxxxxx Xxxxxx, XX 0000
Xxxxxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxx and
Xxxx Xxxxxx
Tel:
(000) 000-0000
Fax: (000)
000-0000
(000) 000-0000
|
528,375
|
13,477,388
|
4,135,108
|
S-II-2
Column
A
|
Column
B
|
Column
C
|
|
Name
of Seller Stockholder
|
Number
of
Cumulative
Perpetual Preferred Securities, Series B Owned |
Number
of
Shares of Selling Stockholder Underwritten Securities |
Number
of
Shares of Option Securities |
THE
1955 TRUST
Address
for Communications:
Xxxx
Trust Xxxxxx
0000
Xxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attn:
Xx. Xxxxx Xxxx,
Executive Trust Advisor
Tel:
(000) 000-0000
Fax: (000)
000-0000
Wachovia
Bank, N.A., as Trustee
Calibre
0000
Xxxxxx Xxxxxx, XX 0000
Xxxxxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxx and
Xxxx Xxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
(000) 000-0000
|
114,250
|
2,914,202
|
894,130
|
THE
1956 TRUST
Address
for Communications:
Xxxx
Trust Xxxxxx
0000
Xxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attn:
Xx. Xxxxx Xxxx,
Executive Trust Advisor
Tel:
(000) 000-0000
Fax: (000)
000-0000
Wachovia
Bank, N.A., as Trustee
Calibre
0000
Xxxxxx Xxxxxx, XX 0000
Xxxxxxxxxxxx,
XX 00000
Attn: Xxxxx
Xxxxx and
|
425,500
|
10,853,331
|
3,330,000
|
S-II-3
Column
A
|
Column
B
|
Column
C
|
|
Name
of Seller Stockholder
|
Number
of
Cumulative
Perpetual Preferred Securities, Series B Owned |
Number
of
Shares of Selling Stockholder Underwritten Securities |
Number
of
Shares of Option Securities |
Xxxx Xxxxxx
Tel:
(000) 000-0000
Fax: (000)
000-0000
(000) 000-0000
|
|
|
|
1961
TRUST A
Address
for Communications:
Xxxx
Trust Xxxxxx
0000
Xxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attn:
Xx. Xxxxx Xxxx,
Executive Trust Advisor
Tel:
(000) 000-0000
Fax: (000)
000-0000
|
68,500
|
1,747,246
|
536,087
|
1961
TRUST B
Address
for Communications:
Xxxx
Trust Xxxxxx
0000
Xxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attn:
Xx. Xxxxx Xxxx,
Executive Trust Advisor
Tel:
(000) 000-0000
Fax: (000)
000-0000
|
68,500
|
1,747,246
|
536,087
|
Total
|
2,250,000
|
63,768,100
|
19,565,217
|
S-II-4
SCHEDULE III
Underwriters
|
Number
of
Underwritten Securities to be Purchased |
|
Citigroup
Global Markets Inc.
|
27,391,305
|
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
27,391,305
|
|
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
|
27,391,305
|
|
HSBC
Securities (USA) Inc.
|
22,173,913
|
|
ABN
AMRO Incorporated
|
4,891,304
|
|
Deutsche
Bank Securities Inc.
|
4,891,304
|
|
Mitsubishi
UFJ Securities (USA), Inc.
|
4,891,304
|
|
Mizuho
Securities USA
|
4,891.304
|
|
Santander
Investment Securities Inc.
|
2,608,695
|
|
Scotia
Capital (USA) Inc.
|
2,608,695
|
|
BNY
Mellon Capital Markets, LLC
|
1,304,349
|
|
Total
|
130,434,783
|
S-III-1
SCHEDULE IV
Schedule
of Free Writing Prospectuses included in the Disclosure Package
Pricing
term sheet, dated May 6, 2009
S-IV-1
Exhibit A
The Dow Chemical
Company
Public Offering of Common
Stock
,
2009
Citigroup
Global Markets Inc.
Xxxxxx
Xxxxxxx & Co. Incorporated
As
Representatives of the several Underwriters,
c/o
|
Citigroup
Global Markets Inc.
|
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
This
letter is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”), between The Dow Chemical Company, a
Delaware corporation (the “Company”), and each of you as representatives of a
group of Underwriters named therein, relating to an underwritten public offering
of Common Stock, $2.50 par value (the “Common Stock”), of the
Company.
In order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, the undersigned will not, without your prior written consent, offer,
sell, contract to sell, pledge or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the undersigned or any affiliate of the
undersigned or any person in privity with the undersigned or any affiliate of
the undersigned), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder with respect to, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock, or publicly announce an intention to effect any such transaction, for a
period of 90 days after the date of the Underwriting Agreement, other than
shares of Common Stock disposed of or transferred
as bona fide gifts, to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, or by operation of law,
pursuant to the “cashless” exercise of any stock option granted as a direct or
indirect result of any employee stock option program of the Company, in each
case approved by you; provided
that any transferee shall agree to be bound by the terms of this letter
agreement.
If for
any reason the Underwriting Agreement shall be terminated prior to the Closing
Date (as defined in the Underwriting Agreement), the agreement set forth above
shall likewise be terminated.
Yours very truly, | ||
|
||
Name: | ||
Address: | ||
Ex.
A-1
Exhibit
B
Form of
Opinion of Internal Counsel to the Xxxxxxx Selling Stockholders
1. The
Underwriting Agreement has been authorized, executed and delivered by or on
behalf of each of the Selling Stockholders and each Selling Stockholder has full
legal right and authority to sell, transfer and deliver in the manner provided
in the Underwriting Agreement the Securities being sold by such Selling
Stockholder hereunder.
2. The
sale of the Securities by each Selling Stockholder and the consummation by each
Selling Stockholder of the transactions contemplated in the Underwriting
Agreement will not (a) violate the certificate of limited partnership or
partnership agreement (or comparable governing documents) or any of the Selling
Stockholders, (b) result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture or other agreement or instrument known
to me to which such Selling Stockholder is a party or by which such Selling
Stockholder is bound, or (c) violate any judgment, order or decree known to me
of any U.S. federal or New York State court or governmental agency or body
having jurisdiction over such Selling Stockholder, except, in the case of
clauses (b) and (c) only, for such breaches, violations or defaults that would
not materially adversely affect the ability of such Selling Stockholder to
perform its obligations under the Underwriting Agreement.
Form of
Opinion of External Counsel to the Xxxxxxx Selling Stockholders
1. The
sale of the Securities by each Selling Stockholder and the consummation by each
Selling Stockholder of the transactions contemplated in the Underwriting
Agreement will not violate any U.S. federal or New York State statute, rule or
regulation (no opinion being given hereby as to any federal or state securities
or antifraud statutes, rules or regulations).
2. No
consent, approval, authorization or order of any U.S. federal or New York State
court or governmental agency or body is required to be obtained or made by any
of the Selling Stockholders for the consummation of the transactions
contemplated by the Underwriting Agreement in connection with the sale of the
Securities to be sold by the Selling Stockholders, except such as have been
obtained and made under the Act and such as may be required under state or
foreign securities or blue sky laws in connection with the purchase and
distribution of such Securities by the Underwriters or the rules of the NYSE and
FINRA.
3. Upon
(i) payment for the Securities to be sold by the Selling Stockholders as
provided in the Underwriting Agreement, (ii) delivery of certificates
representing such Securities, as directed by the Underwriters, to Cede & Co.
(“Cede”) or such other nominee as may be designated by DTC, (iii) registration
of such Securities in the name of Cede or such other nominee by the issuer of
such Securities and (iv) DTC indicating by book entry on its records that such
Securities have been credited to securities accounts of the Underwriters, (A)
under Section 8-501 of the UCC, the Underwriters will acquire a security
entitlement in respect of such Securities, and (B) under Section 8-502 of the
UCC, no action based on any “adverse claim” (as defined in Section 8-102 of the
UCC) to such Securities may be asserted against the Underwriters with respect to
such security entitlement (having assumed for purposes of our opinions in this
paragraph 3 that when such payment, delivery, registration and crediting occur,
(x) such Securities will have been registered in the name of Cede or another
nominee designated
Ex.
B-1
by DTC,
in each case on the Company’s share registry in accordance with its certificate
of incorporation, by-laws and applicable law, (y) DTC will be a “clearing
corporation” within the meaning of Section 8-102 of the UCC and (z) none of the
DTC or the Underwriters have “notice of an adverse claim” (as defined in Section
8-105 of the UCC) to the Securities).
Form of
Opinion of Dechert LLP on behalf of The First 1945 Trust, The Second 1945 Trust,
The 1955 Trust, The 1956 Trust, 1961 Trust A and 1961 Trust B
1. This
Agreement has been duly authorized, executed and delivered by the Selling
Stockholders and each Selling Stockholder has full legal right and authority to
sell, transfer and deliver in the manner provided in this Agreement the
Securities being sold by such Selling Stockholder hereunder.
2. The
Purchase Agreement has been duly authorized, executed and delivered by the
Selling Stockholders and (assuming the due authorization, execution and delivery
by the Company) constitutes the valid and legally binding obligation of the
Selling Stockholders enforceable in accordance with its terms except as the same
may be limited by bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting the enforcement of creditors’
rights and to general equity principles.
3. Upon
payment for the Securities to be sold by each Selling Stockholder pursuant to
this Agreement, delivery of such Securities, as directed by the Underwriters, to
The Depository Trust Company (“DTC”) or to such other nominee as may be
designated by DTC, registration of such Securities in the name of DTC or such
other nominee and the crediting of such Securities on the books of DTC to
securities accounts of the Underwriters (assuming that neither DTC nor any such
Underwriter has notice of any adverse claim within the meaning of Section 8-105
of the New York Uniform Commercial Code (the “UCC”) to such Securities), (A)
under Section 8-501 of the UCC, the Underwriters will acquire a security
entitlement in respect of such Securities and (B) no action based on any
“adverse claim” (within the meaning of Section 8-102 and Section 8-105 of the
UCC) to such Securities may be asserted against the Underwriters with respect to
such security entitlement.
4. To
such counsel’s knowledge, no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation by any
Selling Stockholder of the transactions contemplated herein, except such as may
have been obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals (specified in such
opinion) as have been obtained.
5. To
such counsel’s knowledge, neither the sale of the Securities being sold by any
Selling Stockholder nor the consummation of any other of the transactions herein
contemplated by any Selling Stockholder or the fulfillment of the terms hereof
by any Selling Stockholder will result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (i) any statute, rule,
regulation, judgment, decree or order known to us to be applicable to
any
Ex.
B-2
Selling
Stockholder of any governmental agency or body or any court having jurisdiction
over any Selling Stockholder or (ii) the constituent documents of any Selling
Stockholder.
Ex. B-2