Exhibit 1.1
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THE DOW CHEMICAL COMPANY
(a Delaware corporation)
$500,000,000
5.75% Notes due 2009
UNDERWRITING AGREEMENT
Dated: November 6, 2002
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Table of Contents
UNDERWRITING AGREEMENT .............................................................. 1
SECTION 1. Representations and Warranties...................................... 2
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(a) Representations and Warranties by the Company....................... 2
(b) Officer's Certificates. ............................................ 3
SECTION 2. Sale and Delivery to Underwriters; Closing. ........................ 3
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(a) Securities. ........................................................ 3
(b) Payment. ........................................................... 3
(c) Denominations; Registration......................................... 4
SECTION 3. Covenants of the Company. .......................................... 4
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SECTION ▇▇. ▇▇▇▇▇▇▇▇▇▇ Listing ................................................. 6
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SECTION 4. Payment of Expenses................................................. 7
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(a) Expenses ........................................................... 7
(b) Termination of Agreement............................................ 7
SECTION 5. Conditions of Underwriters' Obligations............................. 7
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(a) Effectiveness of Registration Statement............................. 7
(b) [Reserved]
(c) Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq ................................... 8
(d) Opinion of Counsel for Underwriters................................. 8
(e) Officers' Certificate............................................... 8
(f) Accountant's Comfort Letter......................................... 8
(g) Maintenance of Rating............................................... 9
(h) Additional Documents................................................ 9
SECTION 6. Indemnification..................................................... 9
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SECTION 7. Contribution........................................................ 10
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery...... 11
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SECTION 9. Termination of Agreement............................................ 11
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(a) Termination; General................................................ 11
(b) Liabilities......................................................... 12
SECTION 10. Default by One or More of the Underwriters.......................... 12
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SECTION 11. Notices............................................................. 12
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SECTION 12. Parties............................................................. 13
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SECTION 13. Governing Law and Time.............................................. 13
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SECTION 14. Effect of Headings.................................................. 13
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SCHEDULES
Schedule I - Underwriters
EXHIBITS
Exhibit A - Form of Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇
THE DOW CHEMICAL COMPANY
(a Delaware corporation)
$500,000,000
5.75% Notes due 2009
UNDERWRITING AGREEMENT
November 6, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As representative of the several underwriter named in Schedule I hereto
Ladies and Gentlemen:
The Dow Chemical Company, a Delaware corporation (the "Company"),
confirms its agreement with the several parties named in Schedule I hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc. ("▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇") is acting as representative (the
"Representative"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of each
Underwriter's respective share of the $500,000,000 aggregate principal amount of
the Company's 5.75% Notes due 2009 (the "Securities"). The Securities are to be
issued pursuant to 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, between the Company and Bank One Trust Company, N.A.
(successor in interest to The First National Bank of Chicago), as trustee (the
"Trustee"). The term "Indenture," as used herein, includes the Officer's
Certificate (as defined in the Indenture) establishing the form and terms of the
Securities pursuant to Sections 2.1 and 2.3 of the Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as they deem advisable after this Agreement
has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-91228) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement, as amended at the date hereof,
including the exhibits thereto and the documents incorporated by reference
therein, is herein called the "Registration Statement". Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration
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Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. Promptly after the execution of
this Agreement, the Company will prepare a prospectus meeting the requirements
of paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations. Such
prospectus, in the form first filed on or after the date hereof pursuant to Rule
424(b) and as it may be supplemented or amended from time to time as
contemplated herein, is herein referred to as the "Prospectus". For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, and as of the
Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. The Registration Statement, as amended at the date
of this Agreement, meets the requirements set forth in Rule
415(a)(1)(x) under the 1933 Act and complies in all other material
respects with said Rule.
(ii) On the date of the effectiveness of the Registration
Statement, on the date hereof, as of the Closing Time, and when either
of the preliminary prospectus or the Prospectus is filed with the
Commission in accordance with the provisions of Rule 424(b), the
Registration Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable requirements of the
1933 Act, the Trust Indenture Act of 1939, as amended (the "1939 Act"),
and the 1934 Act and the respective rules thereunder; the Registration
Statement, as amended as of any such time, did not or 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 the Prospectus, as supplemented
as of any such time, will not contain 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 (i)
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that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) of the Trustee under
the 1939 Act or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by any Underwriter specifically for use in connection with the
preparation of the Registration Statement and the Prospectus (or any
supplement thereto).
(iii) The Securities have been duly authorized and, at the Closing
Time, will have been duly executed by the Company and, when authenticated,
issued and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided in
this Agreement, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company delivered to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
a purchase price of 99.025% of the principal amount of the Securities, plus
accrued interest, if any, from November 12, 2002 to the Closing Time, the
principal amount of Securities set forth opposite such Underwriter's name on
Schedule I hereto, plus any additional principal amount of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Mayer, Brown,
▇▇▇▇ & Maw, or at such other place as shall be agreed upon by the Underwriters
and the Company, at 9:00 A.M. (Eastern time) on the fourth business day after
the date hereof (unless postponed in accordance with the provisions of Section
10), or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriters and the Company (such time and date of
payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriters for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Any of the Underwriters,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations
hereunder.
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(c) Denominations; Registration. The Securities and certificates for the
Securities shall be in such denominations ($1,000 or integral multiples thereof)
and registered in such names as the Underwriters may request in writing at least
one full business day before the Closing Time. The Securities will be made
available for examination and packaging by the Underwriters in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time.
SECTION 3. Covenants of the Company. The Company agrees with each Underwriter
that:
(a) Prior to the termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement or supplement to the
Prospectus (except for periodic or current reports filed under the 1934 Act and,
subject to Section 3(g) hereof, other than with respect to an offering of other
securities) unless the Company has furnished each Underwriter a copy for review
prior to filing and given each of you a reasonable opportunity to comment on any
such proposed amendment or supplement. Subject to the foregoing sentence, the
Company will cause the Prospectus to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to you of such filing. During the period when
a prospectus relating to the Securities is required to be delivered under the
1933 Act or filed with the Commission pursuant to Rule 424(b), the Company will
promptly advise each Underwriter when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule 424(b), when
any amendment of the Registration Statement shall have been filed or become
effective, of any request by the Commission for any amendment of the
Registration Statement or supplement to the Prospectus or for any additional
information, of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and 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 of the initiation 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 and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) The Company, during the period when a prospectus relating to the
Securities is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act and will furnish to each of you copies
of such documents. In addition, during the period when a prospectus relating to
the Securities is required to be delivered under the 1933 Act, not later than
the date on which the Company makes any announcement to the general public
concerning earnings or concerning any other event which is required to be
described, or which the Company proposes to describe, in a document filed
pursuant to the 1934 Act, the Company will use its reasonable best efforts to
furnish to each of you the information contained in such announcement. The
Company also will furnish to each of you during such period copies of all other
press releases or announcements to the general public. The Company, during the
period when a prospectus relating to the Securities is required to be delivered
under the 1933 Act, will notify each of you of any downgrading in the rating of
the Securities or any other debt securities of the Company, or the placing of
the Company on "creditwatch" or other analogous review, by
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Standard & Poor's Corporation ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") as soon as practicable after the Company learns of any such
downgrading or review.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Underwriters an earnings statement or statements
of the Company and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the 1933 Act.
(d) The Company will furnish to each Underwriter and counsel for the
Underwriters, without charge, copies of the Registration Statement (including
exhibits thereto) and Prospectus as the Underwriters may reasonably request and,
if the delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an 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 when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the 1934 Act
any document incorporated by reference in the Prospectus in order to comply with
the 1933 Act or the 1934 Act, to notify the Representative and upon their
request to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the Underwriters
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance.
(e) The Company will arrange for the qualification of the Securities for
sale under the laws of such jurisdictions as the Underwriters may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities.
(f) The Company shall furnish to each Underwriter such information,
documents, certificates of officers of the Company and opinions of counsel for
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments thereof or
supplements thereto, the Indenture, the Securities, this Agreement and the
performance by the Company and the Underwriters of their respective obligations
hereunder and thereunder as the Underwriters may, prior to the termination of
this Agreement, reasonably request in connection with their rights and
obligations hereunder.
(g) During the period from the date of this Agreement to Closing Time, the
Company shall not, without the prior consent of the Underwriters, which consent
shall not be unreasonably withheld, issue or announce the proposed issuance of
any of its debt securities, other than the Securities, with terms substantially
similar to the Securities being purchased pursuant to this Agreement.
(h) The Company confirms as of the date hereof, and as of the Closing Time,
that the Company is in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that, during the period when a prospectus
relating to the Securities is required to be delivered under the 1933 Act, if it
commences engaging in business with the government of Cuba or with
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any person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever date is
later, or if the information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate located in Cuba
changes in any material way, the Company will provide the Department notice of
such business or change, as appropriate, in a form acceptable to the Department.
SECTION ▇▇. ▇▇▇▇▇▇▇▇▇▇ Listing. The Company confirms that it has made or caused
to be made on its behalf, or promptly following the date hereof will make or
cause to be made on its behalf, an application for the Securities to be listed
on the Luxembourg Stock Exchange (the "Exchange"). The Company will endeavor
promptly to obtain such listing and for such purpose the Company agrees to
deliver to the Exchange copies of the Prospectus and such other documents,
information and undertakings as may be required for the purpose of obtaining and
maintaining such listing. The Company shall use its reasonable best efforts to
maintain the listing of the Securities on the Exchange for so long as any
Securities are outstanding, unless otherwise agreed to by the Underwriters.
Each Underwriter, severally and not jointly, represents and agrees:
(a) that:
(i) it has not offered or sold and, prior to the expiry of the
period of six months from the issue date of the Securities, will not offer
or sell any Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent)for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995;
(ii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or inducement to
engage investment activity (within the meaning of Section 21 of the
Financial Services and Markets ▇▇▇ ▇▇▇▇ of the United Kingdom (the "FSMA"))
received by it in connection with the issue of the Securities in
circumstances in which Section 21(1)of the FSMA does not apply to us; and
(iii) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to any
Securities in, from or otherwise involving the United Kingdom.
(b) Except for registration under the 1933 Act, and qualification of the
Securities for offer and sale, and the determination of their eligibility for
investment, under the applicable securities laws of such jurisdictions within
the United States as the Underwriters may designate in writing to the Company,
that no action has been or will be taken by such Underwriter that would permit
the offer or sale of the Securities or any interest therein or possession or
distribution of the Prospectus or any amendment thereto or any other offering
material relating to
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the Securities in any jurisdiction where action for that purpose is required.
Without prejudice to paragraph (a) above, such Underwriter has not and will not
directly or indirectly offer, sell or deliver any Securities or distribute the
Prospectus or any other offering material relating to the Securities in or from
any jurisdiction except under circumstances that will result in compliance with
the applicable laws and regulations thereof and will not impose any obligations
on the Company, except as provided herein. Subject as provided above, each
Underwriter shall, if required by applicable law, furnish to each person to whom
it offers, sells or delivers the Securities a copy of the Prospectus.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company shall, whether or not the sale of the Securities
is consummated, pay all expenses incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the
Securities, the costs incurred in compliance with Section 3(e), the fees and
disbursements of the Trustee and the fees of any agency that rates the
Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their reasonable
and properly documented out-of-pocket expenses, including the fees and
disbursements of counsel for the Underwriters incurred in connection with the
offering of the Securities.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any post-effective amendment thereto as well as any Rule 462(b)
Registration Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters.
(b) [Reserved]
(c) Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. At Closing Time, the Underwriters
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq, Assistant General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth
in Exhibit A hereto.
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(d) Opinion of Counsel for Underwriters. At Closing Time, the Underwriters
shall have received the favorable opinion, dated as of Closing Time, of Mayer,
Brown, ▇▇▇▇ & Maw, counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, in form and
substance satisfactory to the Underwriters. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Underwriters. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus (exclusive of any amendments or supplements thereto
after the date hereof), any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus (exclusive of any amendments or supplements thereto after the
date hereof), the effect of which is in the judgment of the Underwriters so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus, and the Underwriters shall have received
a certificate of the President, the Chief Financial Officer, the Treasurer or
the Controller of the Company, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(f) Accountant's Comfort Letter. At the Closing Time, the Underwriters
shall have received from Deloitte & Touche LLP a letter dated such date, in form
and substance satisfactory to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(g) Maintenance of Rating. At Closing Time, the Securities shall be rated
at least A3 by Moody's and A by S&P since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to the Securities
or any of the Company's other debt securities by Moody's or S&P, and neither of
such organizations shall have publicly announced that it has under surveillance
or review its rating of the Securities or any of the Company's other debt
securities.
(h) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose
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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;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form and
substance in the reasonable judgment of the Underwriters and counsel for the
Underwriters.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person who controls such Underwriter within the meaning of either the 1933
Act or the 1934 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 1933
Act, the 1934 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 or in any amendment thereof, or in the Prospectus or any
preliminary 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 not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any reasonable and properly documented out-of-pocket
legal or other expenses 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 any Underwriter specifically for use in connection with the
preparation thereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter 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 1933
Act or the 1934 Act, to the same extent as the foregoing indemnity from the
Company to the Underwriters, but only with reference to written information
relating to such Underwriter furnished to the Company by such Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 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 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 6. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
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however, that if the defendants in 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, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriters in the case of paragraph (a) of
this Section 6, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) 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 commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii). No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim 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.
SECTION 7. Contribution
In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in Section 6 is due in accordance with
its terms but is for any reason insufficient to hold harmless an indemnified
party under such Section in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and the Underwriters
may be subject in such proportion so that each Underwriter is responsible for
that portion represented by the percentage that the aggregate underwriting
discount received by such Underwriter in connection with the Securities from
which such losses, claims, damages and liabilities arise bears to the aggregate
principal amount of such Securities sold by such Underwriter and the Company is
responsible for the balance; provided, however, that (y) in no case shall an
Underwriter be responsible for any amount in excess of the commissions received
by such Underwriter in connection with the Securities from which such losses,
claims, damages and liabilities arise and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
10
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter and each person who controls the Company within
the meaning of either the 1933 Act or the1934 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 clauses (y) and (z) of this Section 7. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 7,
notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation that it may
have under this Section 7.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time if (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 the New York Stock Exchange, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities, (iii) there shall
have occurred after the date of this Agreement any outbreak or material
escalation of hostilities or other calamity or crisis if the effect of any such
event specified in this clause (iii) is such as to make it, in the judgment of
the Underwriters, inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus, or (iv) if any condition specified in Section 5 hereof shall not
have been fulfilled when and as required to be fulfilled.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time to purchase the Securities which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the non-defaulting Underwriters shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if,
11
however, the Underwriters shall not have completed such arrangements within such
24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder, each of
the non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, then the Company
shall be entitled to a further period of 24 hours within which to procure
another party or other 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. If the Company
shall not have completed such arrangements within such additional 24-hour
period, then this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter(s).
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Underwriters or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to them at c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: General Counsel; and notices to the Company
shall be directed to it at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention
of the Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
12
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
[Intentionally left blank]
13
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
THE DOW CHEMICAL COMPANY
By /s/
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By /s/
------------------------------------
E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director
14
SCHEDULE I
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Principal
Underwriter Amount
----------- ------
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▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ........................... $250,000,000
---------------------------------------------------------------------
Banc One Capital Markets, Inc. ...................... 100,000,000
---------------------------------------------------------------------
Deutsch Bank Securities Inc. ........................ 100,000,000
---------------------------------------------------------------------
BNY Capital Markets, Inc. ........................... 10,000,000
---------------------------------------------------------------------
Mizuho International plc ............................ 10,000,000
---------------------------------------------------------------------
▇▇ ▇▇▇▇▇ Securities Corporation ..................... 10,000,000
---------------------------------------------------------------------
Tokyo-Mitsubishi International plc .................. 10,000,000
---------------------------------------------------------------------
Wachovia Securities, Inc. ........................... 10,000,000
---------------------------------------------------------------------
Total ......................................... $500,000,000
---------------------------------------------------------------------
EXHIBIT A
Form of Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(1) the Company 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 its properties and conduct its business as described
in the 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;
(2) the Company's authorized equity capitalization is as set forth in the
Prospectus; and the Securities conform to the description thereof
contained in the Prospectus;
(3) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries, of a character required to be disclosed in
the Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or
filed as required; and the statements included or incorporated in the
Prospectus describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such matters;
(4) the Indenture has been duly authorized, executed and delivered, has
been duly qualified under the 1939 Act, and constitutes a legal, valid
and binding instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect);
the Securities have been duly authorized, executed, authenticated and
delivered in accordance with the provisions of the Indenture and
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(5) the Registration Statement has become effective under the 1933 Act;
any required filing of the 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); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the 1933 Act and
the 1934 Act and the respective rules thereunder;
(6) such counsel has no reason to believe that the Registration Statement
at the date of its effectiveness or on the date hereof, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(7) this Agreement has been duly authorized, executed and delivered by the
Company;
(8) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein except such as have been obtained
under the 1933 Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the sale of the Securities as
contemplated by this Agreement and such other approvals (specified in
such opinion) as have been obtained; and
(9) neither the execution and delivery of the Indenture, the issue and
sale of the Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach of, or constitute a
default under, the charter or bylaws of the Company or the terms of
any indenture or other agreement or instrument known to such counsel
and to which the Company or any of its subsidiaries is a party or
bound, or any order or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries;
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 United States or the corporate law of the State of Delaware, to
the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are satisfactory
to counsel for the Underwriter and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and public
officials. References to the Prospectus in this Exhibit A include any
supplements thereto at the date such opinion is rendered.