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Delaware
(State
or other jurisdiction
of
incorporation)
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1-3433
Commission
File Number
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38-1285128
(IRS
Employer
Identification
No.)
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2030
Dow Center, Midland, Michigan
(Address
of principal executive offices)
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48674
(Zip
code)
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(989)
636-1000
(Registrant’s
telephone number, including area code)
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|||
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N.A.
(Former
name or former address, if changed since last
report)
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Item
1.01
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Entry into a Material
Definitive Agreement
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·
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a
Commitment to Close with Rohm and Haas (the “Commitment to Close”);
and
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·
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an
Investment Agreement with certain trusts for the benefit of charitable
beneficiaries and certain Haas family members (the “Haas Family Trusts”)
and Paulson & Co. Inc., on behalf of the several funds and accounts
managed by it (“Paulson”), each of whom is a significant shareholder of
Rohm and Haas (the “Investment
Agreement”).
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·
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the
Company will pay cumulative dividends on the Perpetual Preferred Stock,
quarterly in arrears, at a rate of 7% per annum in cash (“Cash Dividends”)
and 8% per annum either (at the Company’s option) in cash or as an
increase in the liquidation preference of the Perpetual Preferred Stock,
plus 3% penalty dividends (payable as an increase in the liquidation
preference of the Perpetual Preferred Stock) if any Cash Dividends are not
timely declared and paid;
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·
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the
Perpetual Preferred Stock will rank senior to the Company’s outstanding
common stock and any other junior capital stock (collectively, the “Junior
Stock”) with respect to the payment of dividends and distributions in
liquidation; at any time when dividends on the Perpetual Preferred Stock
have not been paid in full, the Company will not, and will cause its
subsidiaries not to, declare or pay any dividend in excess of $0.01 per
share on Junior Stock, make any distributions relating to Junior Stock,
redeem, purchase, acquire or make a liquidation payment relating to Junior
Stock, or make any guarantee payment with respect to Junior Stock, in each
case subject to certain exceptions set out in the Perpetual Preferred
Certificate;
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·
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the
Perpetual Preferred Stock is redeemable (i) at the option of the holders
upon a change of control of the Company or at any time after the 60th
anniversary of issuance and (ii) at the option of the Company at any time
after the 5th
anniversary of issuance, in each case, on the terms and at the prices set
out in the Perpetual Preferred Certificate (which provide that the Company
will covenant for the benefit of certain of its existing debt holders that
it will not redeem the Perpetual Preferred Stock at its option unless it
has received proceeds from the sale of securities that have equal or
greater equity-like characteristics during the 180 days prior to the date
of redemption); and
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·
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the
Perpetual Preferred Stock does not have voting rights except under certain
circumstances as described in the Perpetual Preferred Certificate,
including: the right to vote (together with the holders of any
other preferred stock of the Company with similar voting rights) to elect
two directors of the board of directors of the Company in the event of
certain dividend arrearages; the right to vote as a class with respect to
the issuance of senior capital stock of the Company or certain adverse
changes to the Company’s organizational documents; and as required by
Delaware law.
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·
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prior
to June 1, 2009, the Company will pay cumulative dividends on the
Convertible Preferred Stock, quarterly in arrears, at a rate of 7% per
annum in cash (“Cash Dividends”) and 8% per annum either (at the Company’s
option) in cash or as an increase in the liquidation preference of the
Convertible Preferred Stock, plus 3% penalty dividends (payable as an
increase in the liquidation preference of the Convertible Preferred Stock)
if any Cash Dividends are not timely declared and
paid;
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·
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if
the Company has an effective shelf registration statement relating to the
common stock underlying the Convertible Preferred Stock prior to June 1,
2009, the Convertible Preferred Stock will automatically convert into such
common stock at the time of such effectiveness, at a conversion price per
share of common stock equal to 95% of the average of the volume weighted
average prices per share of the Company’s common stock for each of the 10
full trading days immediately prior to the conversion date (the “Early
Conversion Price”);
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·
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prior
to June 1, 2009, if the Convertible Preferred Stock has not yet
automatically converted because the Company does not have an effective
shelf registration statement as described above, the Convertible Preferred
Stock will be convertible into common stock of the Company at the option
of the holders at any time following 10 full trading days after issuance,
at the Early Conversion Price;
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·
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on
and after June 1, 2009, if the Convertible Preferred Stock is still
outstanding, the Company will pay cumulative dividends on the Convertible
Preferred Stock, quarterly in arrears, at a rate of 12% per annum in cash,
plus 3% penalty dividends (payable as an increase in the liquidation
preference of the Convertible Preferred Stock) if any such dividends are
not timely declared and paid;
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·
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on
and after June 1, 2009, if the Convertible Preferred Stock is still
outstanding, the Convertible Preferred Stock will become convertible into
common stock of the Company at the option of the holders at a conversion
price per share of common stock equal to 110% of the lowest one-day volume
weighted average price per share of the Company’s common stock during the
period beginning on the date of the Closing and ending on June 1,
2009;
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·
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the
Convertible Preferred Stock will rank senior to the Company’s Junior Stock
with respect to the payment of dividends and distributions in liquidation;
at any time when dividends on the Convertible Preferred Stock have not
been paid in full, the Company will not, and will cause its subsidiaries
not to, declare or pay any dividend in excess of $0.01 per share on Junior
Stock, make any distributions relating to Junior Stock, redeem, purchase,
acquire or make a liquidation payment relating to Junior Stock, or make
any guarantee payment with respect to Junior Stock, in each case subject
to certain exceptions set out in the Convertible Preferred
Certificate;
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·
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the
Convertible Preferred Stock is redeemable (i) at the option of the holders
upon a change of control of the Company or at any time after the 60th
anniversary of issuance and (ii) at the option of the Company at any time
after the 5th
anniversary of issuance, in each case, on the terms and at the prices set
out in the Convertible Preferred Certificate (which provide that the
Company will covenant for the benefit of certain of its existing debt
holders that it will not redeem the Convertible Preferred Stock at
its
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option
unless it has received proceeds from the sale of securities that have
equal or greater equity-like characteristics during the 180 days prior to
the date of redemption); and
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·
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the
Convertible Preferred Stock does not have voting rights except under
certain circumstances as described in the Convertible Preferred
Certificate, including: the right to vote (together with the
holders of any other preferred stock of the Company with similar voting
rights) to elect two directors of the board of directors of the Company in
the event of certain dividend arrearages; the right to vote as a class
with respect to the issuance of senior capital stock of the Company or
certain adverse changes to the Company’s organizational documents; and as
required by Delaware law.
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Item
3.02
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Unregistered Sales of
Equity Securities
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Item
3.03
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Material Modification
to Rights of Security
Holders
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Item
9.01
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Financial Statements
and Exhibits
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(d)
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Exhibits
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Exhibit
No.
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Description
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10.1
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Commitment
to Close, dated March 9, 2009, among The Dow Chemical Company, Ramses
Acquisition Corp. and Rohm and Haas
Company
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10.2
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Investment
Agreement, dated March 9, 2009 among The Dow Chemical Company, Paulson
& Co. Inc. and The Haas Family
Trusts
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10.3
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Letter
Agreement, dated March 9, 2009, among The Dow Chemical Company, Ramses
Acquisition Corp. and the Haas Family
Trusts
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10.4
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Letter
Agreement, dated March 9, 2009, among The Dow Chemical Company, Ramses
Acquisition Corp. and Paulson & Co.
Inc.
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| The Dow Chemical Company | ||||
| By: | /s/ William H. Weideman | |||
| Name: | William H. Weideman | |||
| Title: | Vice President and Controller | |||