Exhibit 4.4
THE DOW CHEMICAL COMPANY
SUPPLEMENTAL INDENTURE NO. 3
$1,000,000,000 5 1/4% Notes due 2004
THIS SUPPLEMENTAL INDENTURE NO. 3, dated as of May 15, 2001 (the
"Supplemental Indenture"), between THE DOW CHEMICAL COMPANY, a Delaware
corporation (the "Company"), and BANK ONE TRUST COMPANY, NA, a national banking
association, as successor in interest to The First National Bank of Chicago, as
trustee (the "Trustee").
RECITALS OF THE COMPANY:
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture, dated as of April 1, 1992, as supplemented by a first supplemental
indenture thereto, dated as of January 1, 1994, and a second supplemental
indenture thereto, dated as of October 1, 1999 (as supplemented by this
Supplemental Indenture, the "Indenture"), providing for the issuance from time
to time of one or more Series of Securities;
WHEREAS, Article Eight of the Indenture provides for various matters with
respect to any Series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture;
WHEREAS, Section 8.1(e) of the Indenture provides that the Company and the
Trustee may enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any Series as permitted by Sections 2.1 and
2.3 of the Indenture; and
WHEREAS, all the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the issuance of the Series of
Securities provided for herein, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective Holders of
the Securities of each such Series as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 Relation to Indenture. This Supplemental Indenture constitutes
an integral part of the Indenture.
SECTION 1.2 Definitions. For all purposes of this Supplemental Indenture,
the following terms shall have the respective meanings set forth in this
Section.
"Additional Interest" shall have the meaning set forth in the form of
the Securities included as Exhibit A hereto.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial
interest therein, the rules and procedures of the Depositary for such
Global Security, Euroclear and Clearstream, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg.
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the
transfer of such Security is restricted by applicable law) that does not
include the Global Securities Legend.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System.
"Exchange Securities" means the Securities of the Company issued in
exchange for Initial Securities pursuant to the Indenture and this
Supplemental Indenture in connection with the Registered Exchange Offer.
"Global Securities Legend" means the legend set forth under that
caption in Exhibit A to this Supplemental Indenture.
"IAI" means an institutional "accredited investor" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"IAI Securities" means all Initial Securities held by an IAI.
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., Banc of America
Securities LLC, Bear, Xxxxxxx & Co. Inc., Banc One Capital Markets, Inc.,
RBC Dominion Securities
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Corporation, The Xxxxxxxx Capital Group, L.P. and the other initial
purchasers listed on Schedule I to the Purchase Agreement.
"Initial Securities" means the Rule 144A Securities, the Regulation S
Securities and the IAI Securities.
"Participant" means members of, or participants in, the Depositary.
"Private Exchange" means an offer by the Company, pursuant to the
Registration Agreement, to issue and deliver to certain purchasers, in
exchange for the Initial Securities held by such purchasers as part of
their initial distribution, a like aggregate principal amount of Private
Exchange Securities.
"Private Exchange Securities" means the Securities of the Company
issued in exchange for Initial Securities pursuant to the Indenture and
this Supplemental Indenture in connection with the Private Exchange
pursuant to the Registration Agreement.
"Purchase Agreement" means the Purchase Agreement dated May 8, 2001,
among the Company and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by the Company, pursuant
to the Registration Agreement, to certain Holders of Initial Securities,
to issue and deliver to such Holders, in exchange for their Initial
Securities, a like aggregate principal amount of Exchange Securities
registered under the Securities Act.
"Registration Agreement" means the Registration Rights Agreement
dated May 15, 2001, among the Company and the Initial Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered and
sold outside the United States in reliance on Regulation S.
"Restricted Period" with respect to any Securities means the period
of 40 consecutive days beginning on and including the later of (i) the day
on which such Securities are first offered to persons other than
distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S and (ii) the Original Issue Date with respect to
such Securities.
"Restricted Securities Legend" means the legend set forth in Section
2.4(e)(i) herein.
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"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered and sold
to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities" means the 5 1/4% Notes due May 14, 2004.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depositary) or any successor person thereto,
who will initially be the Trustee.
"Shelf Registration Statement" means a registration statement filed
by the Company in connection with the offer and sale of the Initial
Securities or Private Exchange Securities pursuant to Section 2(b) of the
Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities and any
other Securities that bear or are required to bear the Restricted
Securities Legend.
SECTION 1.3 Rules of Construction. For all purposes of this Supplemental
Indenture:
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture;
(c) the terms "herein", "hereof', "hereunder" and other words of
similar import refer to this Supplemental Indenture; and
(d) in the event of a conflict with the definition of terms in the
Indenture, the definitions in this Supplemental Indenture shall control.
ARTICLE TWO
THE SECURITIES
SECTION 2.1 Title of the Securities. There shall be a Series of Securities
designated the 5 1/4% Notes due 2004.
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SECTION 2.2 Limitation on Aggregate Principal Amount. The Securities will
be initially issued in an aggregate principal amount of $1,000,000,000 (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Sections 2.8, 2.9,
2.11, 8.5 or 12.3 of the Indenture or pursuant to and in accordance with the
terms of the Registration Agreement); provided, that the Company may, without
the consent of holders of the Securities, issue additional Securities having the
same ranking and the same interest rate, maturity and other terms as the
Securities, which additional Securities will constitute a single Series of
Securities under the Indenture.
SECTION 2.3 Form and Dating.
(a) General. The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Securities shall constitute, and
are hereby expressly made, a part of this Supplemental Indenture, and the
Company and the Trustee, by their execution and delivery of this Supplemental
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Security conflicts with the express
provisions of this Supplemental Indenture, the provisions of this Supplemental
Indenture shall govern and be controlling.
The Initial Securities issued on the date hereof will be (i) offered and
sold by the Company pursuant to the Purchase Agreement and (ii) resold initially
only to (A) QIBs in reliance on Rule 144A and (B) Persons other than U.S.
Persons (as defined in Regulation S) in reliance on Regulation S. Such Initial
Securities may thereafter be transferred to, among others, QIBs, purchasers in
reliance on Regulation S and, except as set forth below, IAIs in accordance with
Rule 501.
The Company hereby designates The Depository Trust Company as the initial
Depositary for the Global Securities.
In the event the Securities are listed on the Luxembourg Stock Exchange,
the Company shall maintain an office or agency in Luxembourg where the
Securities may be presented for registration of transfer or for exchange, an
office or agency in Luxembourg where the Securities may be presented for payment
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and the Indenture may be served. The Company initially
appoints Credit Agricole Indosuez Luxembourg as Paying Agent and transfer agent
in Luxembourg, at 00 Xxxxx Xxxxxxxx, X-0000 Xxxxxxxxxx; Attention: Corporate
Trust Department.
(b) Global Securities. The Rule 144A Securities shall be issued initially
in the form of one or more permanent global Securities in definitive, fully
registered form (collectively, the "Rule
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144A Global Security") and the Regulation S Securities shall be issued initially
in the form of one or more global Securities (collectively, the "Regulation S
Global Security"), in each case without interest coupons and bearing the Global
Securities Legend and Restricted Securities Legend, which shall be deposited on
behalf of the purchasers of the Securities represented thereby with the
Securities Custodian, and registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Company and authenticated by the Trustee
as provided in the Indenture. One or more global securities in definitive, fully
registered form without interest coupons and bearing the Global Securities
Legend and the Restricted Securities Legend (collectively, the "IAI Global
Security") shall also be issued on the date of this Indenture, deposited with
the Securities Custodian, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Company and authenticated by the
Trustee as provided in this Indenture to accommodate transfers of beneficial
interests in the Securities to IAIs subsequent to the initial distribution.
Beneficial ownership interests in the Regulation S Global Security shall not be
exchangeable for interests in the Rule 144A Global Security, the IAI Global
Security or any other Security without a Restricted Securities Legend until the
expiration of the Restricted Period. The Rule 144A Global Security, the IAI
Global Security and the Regulation S Global Security are each referred to herein
as a "Global Security" and are collectively referred to herein as "Global
Securities." The aggregate principal amount of the Global Securities may from
time to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee as hereinafter provided.
(c) Book-Entry Provisions. This Section 2.3(c) shall apply only to a
Global Security deposited with or on behalf of the Depositary. The Company shall
execute and the Trustee shall, in accordance with this Section 2.3(c) and
pursuant to an order of the Company, authenticate and deliver initially one or
more Global Securities that (a) shall be registered in the name of the
Depositary for such Global Security or Global Securities or the nominee of such
Depositary and (b) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions or held by the Trustee as Securities
Custodian.
Participants shall have no rights under the Indenture with respect to any
Global Security held on their behalf by the Depositary or by the Trustee as
Securities Custodian or under such Global Security, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Participants, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(d) Definitive Securities. Except as provided in Section 2.5, owners of
beneficial interests in Global Securities will not be entitled to receive
physical delivery of certificated Securities.
SECTION 2.4 Transfer and Exchange.
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(a) Transfer and Exchange of Definitive Securities. When Definitive
Securities are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided,
however, that the Definitive Securities surrendered for transfer or
exchange:
(A) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(B) are accompanied by the following additional information and
documents, as applicable:
(x) if such Definitive Securities are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect
(in the form set forth on the reverse side of the Initial Security);
or
(y) if such Definitive Securities are being transferred to the
Company, a certification to that effect (in the form set forth on
the reverse side of the Initial Security); or
(C) if such Definitive Securities are being transferred pursuant
to an exemption from registration in accordance with Rule 144 under
the Securities Act or in reliance upon another exemption from the
registration requirements of the Securities Act, (i) a certification
to that effect (in the form set forth on the reverse side of the
Initial Security) and (ii) if the Company so requests, an opinion of
counsel or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the legend set forth in
Section 2.4(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a Beneficial
Interest in a Global Security. A Definitive Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Registrar, together with:
(i) certification (in the form set forth on the reverse side of the
Initial Security) that such Definitive Security is being transferred (A)
to a QIB in accordance with Rule 144A,
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(B) to an IAI that has furnished to the Trustee a signed letter
substantially in the form of Exhibit B or (C) outside the United States in
an offshore transaction within the meaning of Regulation S and in
compliance with Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an adjustment on its books and records
with respect to such Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee
shall cancel such Definitive Security and cause, or direct the Securities
Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian,
the aggregate principal amount of Securities represented by the Global
Security to be increased by the aggregate principal amount of the
Definitive Security to be exchanged and shall credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the Global Security equal to the principal amount
of the Definitive Security so canceled. If no Global Securities are then
outstanding and the Global Security has not been previously exchanged for
certificated securities pursuant to Section 2.5, the Company shall issue
and the Trustee shall authenticate, upon written order of the Company in
the form of an Officers' Certificate, a new Global Security in the
appropriate principal amount.
(c) Transfer and Exchange of Global Securities.
(i) The transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depositary, in accordance
with this Supplemental Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Security shall
deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global
Security or another Global Security and such account shall be credited in
accordance with such order with a beneficial interest in the applicable
Global Security and the account of the Person making the transfer shall be
debited by an amount equal to the beneficial interest in the Global
Security being transferred. Transfers by an owner of a beneficial interest
in a Rule 144A Global Security or an IAI Global Security to a transferee
who takes delivery of such interest through a Regulation S Global
Security, whether before or after the expiration of the Restricted Period,
shall be made only upon receipt by the Trustee of a certification from the
transferor to the effect that such transfer is being made in accordance
with Regulation S or (if available) Rule 144 under the Securities Act and
that, if such transfer is being made prior to the expiration of the
Restricted Period, the interest transferred shall be held immediately
thereafter through Euroclear or Clearstream. In the case of a transfer of
a beneficial interest in either a Regulation S Global Security or a Rule
144A Global Security for an interest in an IAI Global Security, the
transferee must furnish a signed letter substantially in the form of
Exhibit B to the Trustee.
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(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Security to a beneficial interest in another Global
Security, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the Global Security to which
such interest is being transferred in an amount equal to the principal
amount of the interest to be so transferred, and the Registrar shall
reflect on its books and records the date and a corresponding decrease in
the principal amount of Global Security from which such interest is being
transferred.
(iii) Notwithstanding any other provisions of this Supplemental
Indenture (other than the provisions set forth in Section 2.5), a Global
Security may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary.
(iv) In the event that a Global Security is exchanged for Definitive
Securities pursuant to Section 2.5 prior to the consummation of the
Registered Exchange Offer or the effectiveness of the Shelf Registration
Statement with respect to such Securities, such Securities may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.4 (including the
certification requirements set forth on the reverse of the Initial
Securities intended to ensure that such transfers comply with Rule 144A,
Regulation S or such other applicable exemption from registration under
the Securities Act, as the case may be) and such other procedures as may
from time to time be adopted by the Company.
(d) Restrictions on Transfer of Regulation S Global Security.
(i) Prior to the expiration of the Restricted Period, interests in a
Regulation S Global Security may only be held through Euroclear or
Clearstream. During the Restricted Period, beneficial ownership interests
in a Regulation S Global Security may only be sold, pledged or transferred
through Euroclear or Clearstream in accordance with the Applicable
Procedures and only (A) to the Company, (B) so long as such security is
eligible for resale pursuant to Rule 144A, to a person whom the selling
holder reasonably believes is a QIB that purchases for its own account or
for the account of a QIB to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, (C) in an offshore
transaction in accordance with Regulation S, (D) pursuant to an exemption
from registration under the Securities Act provided by Rule 144 (if
applicable) under the Securities Act, (E) to an IAI purchasing for its own
account, or for the account of such an IAI, in a minimum principal amount
of Securities of $250,000 or (F) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to the
expiration of the Restricted Period, transfers by an owner of a beneficial
interest in a Regulation S Global Security to a transferee who takes
delivery of such interest through a Rule 144A Global Security or a IAI
Global Security shall be made only in accordance with the Applicable
Procedures and upon receipt
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by the Trustee of a written certification from the transferor of the
beneficial interest in the form provided on the reverse of the Initial
Security to the effect that such transfer is being made to (i) a person
whom the transferor reasonably believes is a QIB within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A or (ii)
an IAI purchasing for its own account, or for the account of such an IAI,
in a minimum principal amount of the Securities of $250,000. Such written
certification shall no longer be required after the expiration of the
Restricted Period. In the case of a transfer of a beneficial interest in a
Regulation S Global Security for an interest in a IAI Global Security, the
transferee must furnish a signed letter substantially in the form of
Exhibit B to the Trustee.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in a Regulation S Global Security shall be
transferable in accordance with applicable law and the other terms of the
Indenture.
(e) Legends for Securities
(i) Except as permitted by the following paragraphs (ii), (iii), (iv)
or (vi), each Security certificate evidencing the Global Securities and
the Definitive Securities (and all Securities issued in exchange therefor
or in substitution thereof) shall bear a legend in substantially the
following form (each defined term in the legend being defined as such for
purposes of the legend only):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
EITHER THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE
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SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY AND THE TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Security evidencing a Global Security offered and sold to QIBs
pursuant to Rule 144A shall bear a legend in substantially the following
form:
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION
AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Security that
is a Definitive Security, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Security that
does not bear the legends set forth above and rescind any restriction on
the transfer of such Transfer Restricted Security if the Holder certifies
in
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writing to the Registrar that its request for such exchange was made in
reliance on Rule 144 (such certification to be in the form set forth on
the reverse of the Initial Security).
(iii) After a transfer of any Initial Securities or Private Exchange
Securities during the period of the effectiveness of a Shelf Registration
Statement with respect to such Initial Securities or Private Exchange
Securities, as the case may be, all requirements pertaining to the
Restricted Securities Legend on such Initial Securities or such Private
Exchange Securities shall cease to apply and the requirements that any
such Initial Securities or such Private Exchange Securities be issued in
global form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Exchange Securities in exchange for their
Initial Securities, all requirements pertaining to Initial Securities that
Initial Securities be issued in global form shall continue to apply, and
Exchange Securities in global form without the Restricted Securities
Legend shall be available to Holders that exchange such Initial Securities
in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to the
Initial Securities pursuant to which Holders of such Initial Securities
are offered Private Exchange Securities in exchange for their Initial
Securities, all requirements pertaining to such Initial Securities that
Initial Securities be issued in global form shall continue to apply, and
Private Exchange Securities in global form with the Restricted Securities
Legend shall be available to Holders that exchange such Initial Securities
in such Private Exchange.
(vi) Upon a sale or transfer after the expiration of the Restricted
Period of any Initial Security acquired pursuant to Regulation S, all
requirements that such Initial Security bear the Restricted Securities
Legend shall cease to apply and the requirements requiring any such
Initial Security be issued in global form shall continue to apply.
(f) Cancellation or Adjustment of Global Security. At such time as all
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancellation or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Securities.
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(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate, Definitive Securities
and Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge
payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon exchange or
transfer pursuant to Sections 8.5 or 12.3 of the Indenture).
(iii) Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent or the Registrar
may deem and treat the person in whose name a Security is registered as
the absolute owner of such Security for the purpose of receiving payment
of principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the
Company, the Trustee, the Paying Agent or the Registrar shall be affected
by notice to the contrary.
(iv) The Company shall not be required to make and the Registrar need
not register transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion
thereof not to be redeemed) or any Securities for a period of 15 days
before the mailing of a notice of redemption of Securities to be redeemed.
(v) All Securities issued upon any transfer or exchange pursuant to
the terms of this Supplemental Indenture shall evidence the same debt and
shall be entitled to the same benefits under the Indenture as the
Securities surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in
the Depositary or any other Person with respect to the accuracy of the
records of the Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Securities or with
respect to the delivery to any participant, member, beneficial owner or
other Person (other than the Depositary) of any notice (including any
notice of redemption or repurchase) or the payment of any amount, under or
with respect to such Securities. All notices and communications to be
given to the Holders and all payments to be made to Holders under the
Securities shall be given or made only to the registered Holders (which
shall be the Depositary or its nominee in the case of a Global Security).
The rights of beneficial owners in any Global Security shall be exercised
only through the Depositary subject to the applicable rules and procedures
of the Depositary. The Trustee may rely and shall be fully protected in
relying upon information furnished by the Depositary with respect to its
members, participants and any beneficial owners.
13
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Supplemental Indenture or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depositary participants, members or beneficial
owners in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this
Supplemental Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
14
SECTION 2.5 Definitive Securities.
(a) A Global Security deposited with the Depositary or with the Trustee as
Securities Custodian pursuant to Section 2.3 shall be transferred to the
beneficial owners thereof in the form of Definitive Securities in an aggregate
principal amount equal to the principal amount of such Global Security, in
exchange for such Global Security, only if such transfer complies with Section
2.4 and (i) the Company notifies the Trustee that the Depositary is no longer
willing or able to act as a depositary or clearing system for the Securities or
the Depositary ceases to be a "clearing agency" registered under the Exchange
Act, and a successor depositary or clearing system is not appointed by the
Company within 90 days of such notice or cessation, (ii) the Company, in its
sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Securities under the Indenture, or (iii) upon the
occurrence and continuation of an Event of Default.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.5 shall be surrendered by the Depositary to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of Definitive Securities of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section 2.5 shall be executed,
authenticated and delivered only in denominations of $1,000 of principal amount
and any integral multiple thereof and registered in such names as the Depositary
shall direct. Any certificated Initial Security in the form of a Definitive
Security delivered in exchange for an interest in the Global Security shall,
except as otherwise provided by Section 2.4, bear the Restricted Securities
Legend.
(c) The registered Holder of a Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under the Indenture or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 2.5(a)(i), (ii) or (iii), the Company will promptly make available to
the Trustee a reasonable supply of Definitive Securities in fully registered
form without interest coupons.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 Ratification. The Indenture, as supplemented and amended by
this Supplemental Indenture, is in all respects hereby adopted, ratified and
confirmed.
SECTION 3.2 Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which when so executed shall be deemed an
original, and all such counterparts shall together constitute but one and the
same instrument.
15
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
[signature page follows]
16
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 3 to be duly executed as of the day and year first above written.
THE DOW CHEMICAL COMPANY
By: /s/ X.X. Xxxxxxx
----------------------------------
Name: X.X. Xxxxxxx
Title: Vice President and Treasurer
BANK ONE TRUST COMPANY, NA,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Officer
EXHIBIT A
Form of 5 1/4% Notes due 2004
[global securities legend]
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE DOW CHEMICAL COMPANY
5 1/4% NOTES DUE MAY 14, 2004
CUSIP NO. [260543 BM 4 -- for 144A]
[U26054 AT 0 -- for Reg. S]
[260543 BN 2 -- for IAI]
ISIN NO. [US260543 BM 49 -- for 144A]
[USU26054 AT 00 -- for Reg. S]
[US260543 BN 22 -- for IAI]
No. US$
THE DOW CHEMICAL COMPANY, a Delaware corporation (herein called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum set forth above or such other
principal sum set forth on the Schedule attached hereto (which shall not exceed
US$400,000,000) on May 14, 2004, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest (which term shall include any
additional interest required to be paid upon the occurrence of a Registration
Default (as defined below)), together with such additional amounts (if any) as
are described in Section 2 on the reverse of this Note ("Additional Amounts"),
thereon semi-annually on each May 14 and November 14, commencing November 14,
2001 and at maturity on said principal sum, in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, from May 14 and November 14, as the case
may be, next preceding the date of this Security to which interest has been
paid, unless the date hereof is a date to which interest has been paid, in which
case from the date of this Security, or unless no interest has been paid on this
Security, in which case from May 15, 2001, until payment
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of said principal sum has been made or duly provided for, at the rate per annum
specified in the title of this Security; provided, that in the event (each such
event in clauses (i) through (v) below being referred to as a "Registration
Default") that: (i) the Exchange Offer Registration Statement is not filed with
the Commission on or prior to the 90th calendar day after the Closing Date, (ii)
the Exchange Offer Registration Statement is not declared effective on or prior
to the 180th calendar day after the Closing Date, (iii) the Exchange Offer is
not consummated on or prior to the 210th calendar day following the Closing
Date, or (iv) if required, a Shelf Registration Statement with respect to the
Registrable Securities is not filed with the Commission on or prior to the 30th
calendar day after such filing obligation arises or is not declared effective on
or prior to the 45th calendar day after the filing thereof, or (v) the Election
Periods exceed, in the aggregate, 90 days during any 365 day period (each, a
"Registration Default"), then, additional interest shall accrue on the
Securities affected thereby over and above the interest rate set forth in the
title to the Securities from and including the next day following each such
Registration Default, in each case at a rate equal to 0.25% per annum; provided,
that the aggregate additional interest will in no event exceed 0.25% per annum.
Additional interest attributable to a Registration Default shall cease to accrue
once such Registration Default is cured.
The Company shall notify the Trustee within three Business Days after the
occurrence of a Registration Default, and additional interest shall be paid by
depositing with the Trustee, in trust for the benefit of the Holders entitled to
receive the additional interest, on or before the applicable semiannual interest
payment date, immediately available funds in sums sufficient to pay the
additional interest then due. The additional interest due shall be payable on
each interest payment date to the record Holder entitled to receive the interest
payment to be paid on such date as set forth in the Indenture. For so long as
the Securities are listed on the Luxembourg Stock Exchange, the Company shall
also publish a notice of the requirement to pay additional interest in
accordance with Section 12 on the reverse hereof.
Payments of such principal and interest (and Additional Amounts, if any)
shall be made at the office or agency of the Company in Chicago, Illinois,
which, subject to the right of the Company to vary or terminate the appointment
of such agency, shall initially be at the principal office of Bank One Trust
Company, NA, Xxx Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0126; provided, that
payment of interest (and Additional Amounts, if any) may be made at the option
of the Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Security register; provided, further that so
long as CEDE & CO. or another nominee of the Depository is the registered owner
of this Security payments of principal and interest (and Additional Amounts, if
any) will be made in immediately available funds through the Depository's
Same-Day Funds `Settlement System. Notwithstanding the foregoing, if the date
hereof is after May 1 or November 1, as the case may be, and before the
following May 14 or November 14, this Security shall bear interest from such May
14 or November 14; provided, that if the Company shall default in the payment of
interest due on such May 14 or November 14, then this Security shall bear
interest from the next preceding May 14 or November 14, to which interest has
been paid or, if no interest has been paid on this Security, from May 15, 2001.
The interest (and Additional Amounts, if any) payable on any May 14 or November
14 will, subject to certain exceptions provided in the Indenture referred to on
the reverse
A-2
hereof, be paid to the person in whose name this Security is registered at the
close of business on the May 1 or November 1, as the case may be, next preceding
such May 14 or November 14, and the interest (and Additional Amounts, if any)
payable at maturity will be payable to the person to whom the principal hereof
shall be payable.
Reference is made to the further provisions of this Security set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
[Signatures appear on next page]
A-3
IN WITNESS WHEREOF, THE DOW CHEMICAL COMPANY has caused this instrument to
be signed by facsimile by its duly authorized representative.
Dated: ___________, 2001
[SEAL]
Attest: THE DOW CHEMICAL COMPANY
By: _________________________________ By: _________________________________
Name: Name:
Title: Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within- mentioned Indenture.
BANK ONE TRUST COMPANY, NA,
as Trustee
By:_______________________________________
Authorized Signatory
A-5
THE DOW CHEMICAL COMPANY
5 1/4% NOTES DUE MAY 14, 2004
Section 1. General. This Note is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of April 1, 1992, as
supplemented by a supplemental indenture dated as of January 1, 1994, a second
supplemental indenture dated as of October 1, 1999 and a third supplemental
indenture dated as of May 15, 2001 (the "Indenture"), between the Company and
Bank One Trust Company, NA, as successor in interest to The First National Bank
of Chicago, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the Securities of the series designated on the face hereof.
Section 2. Payment of Additional Amounts. The Company shall pay to any
Holder who is a Non-United States person (as defined below) such Additional
Amounts as may be necessary in order that every net payment in respect of the
principal, premium, if any, or interest, if any, on this Security, after
deduction or withholding by the Company or any Paying Agent for or on account of
any present or future tax, assessment or governmental charge imposed upon or as
a result of such payment by the United States or any political subdivision or
taxing authority thereof or therein, shall not be less than the amount provided
for herein to be then due and payable before any such deduction or withholding
for or on account of any such tax, assessment or governmental charge; provided,
however, that the foregoing obligation to pay such Additional Amounts shall not
apply to:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for:
(i) the existence of any present or former connection between
such Holder (or a fiduciary, settlor, beneficiary, member or
shareholder of, or holder of a power over, such Holder, if such
Holder is an estate, trust, partnership or corporation) and the
United States, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder of, or holder of
a power) being or having been a citizen or resident or treated as a
resident thereof or being or having been engaged in a trade or
business therein or being or having been present therein or having or
having had a permanent establishment therein; or
(ii) such Xxxxxx's present or former status as a personal
holding company or foreign personal holding company or controlled
foreign corporation for United States federal income tax purposes or
corporation which accumulates earnings to avoid United States federal
income tax;
A-6
(b) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder for payment on
a date more than 10 days after the date on which such payment became due
and payable or the date on which payment thereof is duly provided for,
whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property
or excise tax or any similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments in respect of principal of,
premium, if any, or interest, if any, on this Security;
(e) any tax, assessment or other governmental charge imposed on
interest received by a Holder or beneficial owner of this Security who
actually or constructively owns 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote within the
meaning of Section 871(h)(3) of the United States Internal Revenue Code of
1986, as amended;
(f) any tax, assessment or other governmental charge imposed as a
result of the failure to comply with:
(i) certification, information, documentation, reporting or
other similar requirements concerning the nationality, residence,
identity or connection with the United States of the Holder or
beneficial owner of this Security, if such compliance is required by
statute, or by regulation of the United States Treasury Department,
as a precondition to relief or exemption from such tax, assessment or
other governmental charge (including backup withholding); or
(ii) any other certification, information, documentation,
reporting or other similar requirements under United States income
tax laws or regulations that would establish entitlement to otherwise
applicable relief or exemption from such tax, assessment or other
governmental charge;
(g) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of the principal of,
premium, if any, or interest, if any, on this Security, if such payment
can be made without such withholding by at least one other Paying Agent;
(h) any tax, assessment or other governmental charge that is required
to be made pursuant to any European Union directive on the taxation of
savings income or any law implementing or complying with, or introduced to
conform to, any such directive; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g) or
(h);
A-7
nor will such Additional Amounts be paid to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of this Security to the
extent a settlor or beneficiary with respect to such fiduciary or a member of
such partnership or a beneficial owner of this Security would not have been
entitled to payment of such Additional Amounts had such beneficiary, settlor,
member or beneficial owner been the holder of this Note. This Security is
subject in all cases to any tax, fiscal or other law or regulation or
administrative or judicial interpretation applicable thereto. Except as
specifically provided under this Section 2, the Company shall not be required to
make any payment with respect to any tax, assessment or governmental charge
imposed by any government or a political subdivision or taxing authority thereof
or therein.
As used in this Section 2 and in Section 3hereof:
(a) the term "United States" means the United States of America
(including the States and the District of Columbia) and its territories,
its possessions and other areas subject to its jurisdiction;
(b) the term "United States person" means a beneficial owner of the
Notes that is for United States federal income tax purposes:
(i) a citizen or resident of the United States;
(ii) a corporation or other entity created or organized in or
under the laws of the United States or of any political subdivision
thereof;
(iii) an estate the income of which is subject to United States
federal income taxation regardless of its source; or
(iv) a trust if (1) a court within the United States is able to
exercise primary supervision over the administration of the trust,
and (2) one or more United States persons have the authority to
control all substantial decisions of the trust; and
(c) the term "Non-United States person" means a beneficial owner of
the Notes that is, for United States federal income tax purposes:
(i) a nonresident alien individual;
(ii) a foreign corporation; or
(iii) a nonresident alien fiduciary of a foreign estate or
trust.
Section 3. Redemption; Sinking Fund. (a) Except as provided in the next
succeeding paragraph, the Securities are not redeemable prior to maturity.
A-8
(b) If, as a result of:
(i) any change in or amendment to the laws (including any
regulations or rulings promulgated thereunder) of the United States
or any political subdivision thereof or therein affecting taxation,
which becomes effective after May 8, 2001 or which proposal is made
after such date;
(ii) any change in the official application or interpretation of
such laws, including any official proposal for such a change,
amendment or change in the application or interpretation of such
laws, which change, amendment, application or interpretation is
announced or becomes effective after May 8, 2001 or which proposal is
made after such date; or
(iii) any action taken by any taxing authority of the United
States which action is taken or becomes generally known after May 8,
2001, or any commencement of a proceeding in a court of competent
jurisdiction in the United States after such date, whether or not
such action was taken or such proceeding was brought with respect to
the Company;
there is, in such case, in the written opinion of independent legal
counsel of recognized standing to the Company, a material increase in the
probability that the Company has or may become obligated to pay Additional
Amounts in accordance with Section 2 hereof, and the Company in its
business judgment, determines that such obligation cannot be avoided by
the use of reasonable measures available to it, not including assignment
of this Security, this Security may be redeemed, as a whole but not in
part, at the Company's option at any time thereafter, upon notice to the
Trustee and the Holders in accordance with the provisions of the Indenture
at a redemption price equal to 100% of the principal amount of this
Security to be redeemed together with accrued interest thereon to the date
fixed for redemption.
(c) The Securities will not be subject to any sinking fund.
Section 4. Events of Default. If an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
Section 5. Modifications and Waivers; Obligation of the Company Absolute.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and
A-9
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest (and Additional
Amounts, if any) on this Security at the times, places and rate, and in the coin
or currency, herein prescribed.
Section 6. Authorized Denominations. The Securities are issuable in
registered form, without coupons, in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture, and subject
to certain limitations therein set forth and to the limitations described below,
if applicable, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
Section 7. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Security
is registrable in the Security register upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained for
that purpose in the City of Chicago, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
securities registrar (which shall initially be the Trustee, Bank One Trust
Company, NA, One Bank Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0126 (Attention:
Corporate Trust Department) or at such other address as it may designate as its
principal corporate trust office in the City of Chicago), duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
This Security is exchangeable for a Definitive Security only if (i) the
Company notifies the Trustee that the Depositary is no longer willing or able to
act as a depositary or clearing system for the Securities or the Depositary
ceases to be a "clearing agency" registered under the Exchange Act, and a
successor depositary or clearing system is not appointed by the Company within
90 days of such notice or cessation, (ii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
Definitive Securities under the Indenture, or (iii) upon the occurrence and
continuation of an Event of Default, provided that the definitive Notes so
issued in exchange for this permanent Note shall be in denominations of $1,000
and any integral multiple of $1,000 in excess thereof and be of like aggregate
principal amount and tenor as the portion of this permanent Note to be
exchanged, and provided further that, unless the Company agrees otherwise, Notes
of this Series in Definitive form will be issued in exchange for this permanent
Note, or any portion hereof, only if such Notes in certificated registered form
were requested by written notice to the Trustee or the Securities Registrar by
or on behalf of a person who is beneficial owner of an interest hereof given
through the Holder hereof. Except as provided above, owners of beneficial
A-10
interests in this permanent Note will not be entitled to receive physical
delivery of Notes in Definitive form and will not be considered the Holders
thereof for any purpose under the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Section 8. Owners. Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security is overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
Section 9. No Recourse Against Certain Persons. No recourse for the
payment of the principal or interest (and Additional Amounts, if any) on this
Security, or for any claim based hereon or otherwise in respect hereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
the Indenture or any Supplemental Indenture thereto or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation of either of
them, either directly or through the Company or any successor corporation of
either of them, whether by virtue of any constitution, statute or rule or law or
by the enforcement of any assessment or penalty or otherwise, all such liability
being by the acceptance hereof and as a condition of and as part of the
consideration for the issue hereof, expressly waived and released.
Section 10. Defeasance. The Indenture with respect to any series will be
discharged and cancelled except for certain Sections thereof, subject to the
terms of the Indenture, upon payment of all of the Securities of such series or
upon the irrevocable deposit with the Trustee of cash or U.S. Government
Obligations (or a combination thereof) sufficient for such payment in accordance
with Article Ten of the Indenture.
Section 11. Governing Law; Jurisdiction. The Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York.
Section 12. Notices. Notices to Holders shall be published in authorized
daily newspapers in The City of New York, in London, and, so long as the Notes
are listed on the Luxembourg Stock Exchange, in Luxembourg. Notice may be given
by publication in The City of New York in The Wall Street Journal, in London in
the Financial Times, and in Luxembourg in the Luxemburger Wort. Any notice given
pursuant to these provisions shall be deemed to have been given on the date of
publication or, if published more than once, on the date first published.
Section 13. Defined Terms. All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture. All terms used in this Security
A-11
which are defined in the Registration Agreement shall have the meanings assigned
to them in the Registration Agreement.
Section 14. Holders' Compliance with Registration Agreement. Each Holder
of a Security, by acceptance hereof, acknowledges and agrees to the provisions
of the Registration Agreement, including, without limitation, the obligations of
the Holders with respect to a registration and the indemnification of the
Company to the extent provided therein.
The Company will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security.
A-12
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____________ principal amount of Securities
held in (check applicable space) ___ book-entry or ___ definitive form by
_________________________ (the "Transferor").
The Transferor (check one box below):
|_| has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated above);
or
|_| has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act of 1933, the undersigned confirms that such
Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) |_| to the Company; or
(2) |_| pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) |_| inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account of
a qualified institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(4) |_| outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933; or
(5) |_| to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933)
that has furnished to the Trustee a signed letter containing
certain representations and agreements; or
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(6) |_| pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Prior to the expiration of the period referred to in Rule 144(k), unless
one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any Person other than
the registered holder thereof; provided, however, that if box (4), (5) or (6) is
checked, the Trustee may require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other information
satisfactory to the Company and the Trustee to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933.
_____________________________________
[INSERT NAME OF TRANSFEROR]
Dated: ______________________________ By:___________________________________
A-14
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Book-Entry Security have been
made:
Signature of
Amount of increase in Principal Amount of this Authorized
Amount of decrease in Principal Amount of Book-Entry Security signatory
Date of Principal Amount of this Book-Entry following such decrease of Trustee or
Exchange this Book-Entry Security Security (or increase) Security Custodian
-------- ------------------------ --------------------- ----------------------- ------------------
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _____________________________________agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date: ______________________ Your Signature: ___________________________________
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
A-16
EXHIBIT B
FORM OF TRANSFEREE LETTER OF REPRESENTATIONS
The Dow Chemical Company
In care of
Bank One Trust Company, NA
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000-0000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $___________
principal amount of the 5 1/4% Notes due 2004 (the "Securities") of The Dow
Chemical Company (the "Company").
Upon transfer, the Securities would be registered in the name of the new
beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We, and any accounts for which we are acting, are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing the Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which the Company or any
affiliate of the Company was the
B-1
owner of such Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a registration
statement that has been declared effective under the Securities Act, (c) in a
transaction complying with the requirements of Rule 144A under the Securities
Act ("Rule 144A"), to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) in an offshore transaction
within the meaning of, and in compliance with, Regulation S under the Securities
Act, (e) to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing for its
own account or for the account of such an institutional "accredited investor",
in each case in a minimum principal amount of Securities of $250,000, or (f)
pursuant to any other available exemption from the registration requirements of
the Securities Act, subject in each of the foregoing cases to any requirement of
law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and in
compliance with any applicable state securities laws. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination Date.
If any resale or other transfer of the Securities is proposed to be made
pursuant to clause (e) above prior to the Resale Restriction Termination Date,
the transferor shall deliver a letter from the transferee substantially in the
form of this letter to the Company and the Trustee, which shall provide, among
other things, that the transferee is an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
and that it is acquiring such Securities for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to the offer, sale or
other transfer prior to the Resale Restriction Termination Date of the
Securities pursuant to clause (d), (e) or (f) above to require the delivery of
an opinion of counsel, certifications or other information satisfactory to the
Company and the Trustee.
TRANSFEREE:_________________________________
By:_________________________________________
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