UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): July 10, 2008
THE
DOW CHEMICAL COMPANY
(Exact
name of Registrant as specified in its charter)
|
Delaware
(State
or other jurisdiction
of
incorporation)
|
1-3433
Commission
File Number
|
38-1285128
(IRS
Employer
Identification
No.)
|
|
2030
Dow Center, Midland, Michigan
(Address
of principal executive offices)
|
48674
(Zip
code)
|
|
|
|
| |
| |
|
(989)
636-1000
(Registrant’s
telephone number, including area code)
|
|
|
|
N.A.
(Former
name or former address, if changed since last
report)
|
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Item
1.01
|
Entry into a Material
Definitive Agreement
|
On July
10, 2008, The Dow Chemical Company (the “Company”) entered into an Agreement and
Plan of Merger (the “Merger Agreement”) with the Rohm and Haas Company (“Rohm
and Haas”) and Ramses Acquisition Corp., a direct, wholly owned subsidiary of
the Company (“Merger Subsidiary”).
Merger Agreement
The
Merger Agreement provides that, upon the terms and subject to the conditions set
forth therein, Merger Subsidiary will merge with and into Rohm and Haas, with
Rohm and Haas as the surviving corporation of the merger (the
“Merger”). As a result of the Merger, Rohm and Haas will become a
wholly owned subsidiary of the Company. Each outstanding share of
Rohm and Haas common stock will be converted into the right to receive an amount
in cash (the “Merger Consideration”) equal to $78.00. In the event
that the Merger does not close by January 10, 2009 (the “Additional
Consideration Date”), the per share Merger Consideration shall increase by an
amount equal to the excess, if any, of (I) $78.00 multiplied by the product of
(A) 8% and (B) the quotient
obtained by dividing the number of days elapsed from the Additional
Consideration Date to the earlier of the date of the closing of the
Merger and July 10,
2009 by 365, over (II) any dividends or distributions (valued
at the date of the closing
of the Merger using 8%
simple interest per annum from the applicable date of payment)
declared on a share of Rohm and Haas common stock with a record date between
January 10, 2009 and the earlier of July 10, 2009 and the closing of the Merger
and thereafter paid. Each option to purchase shares of common
stock of Rohm and
Haas granted under the
Rohm and Haas stock option
plans and all other equity based compensation awards, whether vested or unvested, will become fully vested and be
converted into the right to receive the Merger Consideration, less any
applicable exercise price.
The
Company and Rohm and Haas have made customary representations, warranties and
covenants in the Merger Agreement. Rohm and Haas has agreed, among
others things, (i) subject to certain
exceptions, to conduct its
business in the ordinary course of business between the execution of the Merger
Agreement and closing of the Merger and not to engage in certain kinds of transactions during
such period, (ii)
not to solicit alternative transactions or, subject to certain exceptions, enter
into discussions concerning, or provide confidential information in connection
with, any alternative transaction, and (iii) subject to certain exceptions, that
Rohm and Haas’ board of directors will recommend that Rohm and Haas’
stockholders vote in favor of the adoption of the Merger Agreement.
Consummation
of the Merger is subject to customary closing conditions, including (i) the
approval of Rohm and Haas’ shareholders, (ii) expiration or termination of the
applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, (iii) issuance by the European Commission of a decision
under Council Regulation (EC) No.
139/2004 of 20 January 2004 on the control of concentrations between
undertakings (published in the Official Journal of the European Union on January
29, 2004 at L 24/1) declaring the Merger compatible with the common
market, (iv) subject to certain exceptions, the expiration or termination of
certain foreign regulatory waiting periods and the receipt of certain foreign
regulatory clearances, and (v) subject to certain exceptions, the accuracy of
the
representations
and warranties and compliance with the covenants of each
party. Consummation of the Merger is not conditioned upon the receipt
by the Company of financing.
The
Merger Agreement contains certain termination rights for both the Company and
Rohm and Haas, and further provides that, upon termination of the Merger
Agreement, under certain circumstances, Rohm and Haas may be obligated to pay
the Company a termination fee equal to $600 million and, in certain
circumstances, the Company may be obligated to pay Rohm and Haas a termination
fee equal to $750 million.
The
Merger Agreement provides that the Company will seek to appoint two individuals
nominated by Rohm and Haas to the board of directors of the Company, effective
as of the closing of the Merger.
The
foregoing summary of the Merger Agreement and the transactions contemplated
thereby does not purport to be complete and is subject to, and qualified in its
entirety by, the full text of the Merger Agreement, which is attached as
Exhibit 2.1 hereto and incorporated herein by reference.
The
Merger Agreement has been included to provide investors and security holders
with information regarding its terms. It is not intended to provide
any other factual information about the Company, Rohm and Haas or Merger
Subsidiary. The representations, warranties and covenants contained
in the Merger Agreement were made only for purposes of that agreement and as of
specific dates; were solely for the benefit of the parties to the Merger
Agreement; may be subject to limitations agreed upon by the contracting parties,
including being qualified by confidential disclosures made for the purposes of
allocating contractual risk between the parties to the Merger Agreement instead
of establishing these matters as facts; and may be subject to standards of
materiality applicable to the contracting parties that differ from those
applicable to investors. Investors are not third-party beneficiaries under the
Merger Agreement and should not rely on the representations, warranties and
covenants or any descriptions thereof as characterizations of the actual state
of facts or condition of the Company, Rohm and Haas or Merger Subsidiary or any
of their respective subsidiaries or affiliates. Moreover, information
concerning the subject matter of the representations, warranties and covenants
may change after the date of the Merger Agreement, which subsequent information
may or may not be fully reflected in the Company’s public
disclosures.
Voting
Agreement
In connection with the Merger Agreement,
certain stockholders of
Rohm and Haas holding, in the aggregate, voting power of approximately 32% of Rohm and Haas’ outstanding common stock have entered
into a voting agreement
(the “Voting
Agreement”) with the Company and Rohm and Haas pursuant to which such
stockholders have
agreed, among other
things, to vote in favor of
the adoption of the Merger
Agreement. In addition, each such stockholder has agreed not
to (i) subject to certain limited exceptions, transfer its shares of common
stock of Rohm and Haas, (ii) solicit alternative transactions or (iii) enter
into discussions concerning, or provide confidential information in connection
with, any alternative transaction. The Voting Agreement
will
terminate
upon the earlier of the receipt of the Rohm and Haas stockholder approval of the
Merger and the termination of the Merger Agreement.
The
foregoing summary of the Voting Agreement does not purport to be complete and is
subject to, and qualified in its entirety by, the full text of the Voting
Agreement, which is attached as Exhibit 10.1 hereto and incorporated herein
by reference.
Financing Commitment
Letters
The
Company has received certain commitments to provide financing for the Merger, as
described below.
Equity
Commitment Letters
On July
7, 2008 and July 8, 2008, respectively, the Company entered into equity commitment letters (the
“Equity Commitment
Letters”) with Berkshire
Hathaway Inc. (“BHI”) and the Kuwait Investment Authority (“KIA” and, together with BHI, the “Commitment Parties”) pursuant to which the
Commitment Parties agreed to acquire 3,000,000 and 1,000,000 shares,
respectively, of cumulative
convertible perpetual preferred stock of the Company, having a liquidation preference $1,000 per share
(the “Convertible Preferred Stock”), for an aggregate consideration of $4.0
billion. These commitments
are conditioned upon the closing of the
Merger and are subject to
other customary conditions
precedent.
Under the Equity Commitment Letters,
each share of the
Convertible Preferred Stock may be converted at any time, at the option of the
holder, into
24.2010 shares of the
Company's common stock, subject to customary antidilution adjustments and
certain other adjustments, which represents an initial conversion price of approximately
$41.32 per
share. The conversion price reflects a premium
of 20% over the average of the daily volume weighted average price per share of
the Company's common stock for the period from July 7, 2008 through July
9, 2008. On or after five years from the date on which the
Convertible Preferred Stock is issued, the Company may, at its option, at any
time or from time to time, cause some or all of the Convertible Preferred Stock
to be converted into shares of the Company's common stock at the then applicable conversion rate
if, for 20 trading days within any period
of 30 consecutive trading days ending on the trading day preceding the date the
Company gives notice of conversion at its option, the closing price of the
Company's common stock
exceeds 130% of the then-applicable conversion price. Dividends on
the Convertible Preferred Stock are payable at the rate of 8.5% per annum, in
either cash, common stock or a combination of both, at the option of the
Company.
Under the Equity Commitment Letters, each Commitment Party has
agreed to be subject to certain standstill provisions and not to transfer,
hypothecate, sell or hedge the Convertible Preferred Stock, any common stock of
the Company received upon conversion of the Convertible Preferred Stock, or its exposure to the common
stock of the Company for a period of five years following the closing of the
Merger, subject to certain
exceptions.
Debt
Commitment Letter
The
Company entered into a debt commitment letter dated July 10, 2008 (the “Debt
Commitment Letter”) with Citigroup Global Markets Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Merrill Lynch Capital Corporation, Morgan
Stanley Senior Funding, Inc. and Morgan Stanley Bank (the “Arrangers”) pursuant
to which the Arrangers committed to lend $13.0 billion to the
Company. These commitments are subject to certain customary
conditions precedent.
On July
10, 2008, the Company issued a press release announcing the execution of the
Merger Agreement. A copy of the press release is attached hereto as
Exhibit 99.1.
|
Item
9.01
|
Financial Statements
and Exhibits
|
| |
(d)
Exhibits |
|
| |
|
|
| |
Exhibit
No.
|
Description
|
| |
|
|
| |
2.1
|
Agreement
and Plan of Merger, dated as of July 10, 2008, among The Dow Chemical
Company, Ramses Acquisition Corp. and Rohm and Haas
Company
|
| |
|
|
| |
10.1
|
Voting
Agreement, dated as of July 10, 2008, by and among Rohm and Haas Company,
The Dow Chemical Company and each of the persons and entities listed on
Schedule I thereto
|
| |
|
|
| |
99.1
|
Press
Release
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: July
10, 2008
| |
The
Dow Chemical Company |
|
| |
|
|
|
|
| |
|
|
|
|
|
|
By:
|
/s/ Charles
J. Kalil |
|
| |
|
Name:
|
Charles
J. Kalil
|
|
| |
|
Title:
|
Executive
Vice President, General
|
|
| |
|
|
Counsel
and Corporate Secretary
|
|
| |
|
EXHIBITS |
| |
|
|
| |
|
|
| |
Exhibit
No.
|
Description
|
| |
|
|
| |
2.1
|
Agreement
and Plan of Merger, dated as of July 10, 2008, among The Dow Chemical
Company, Ramses Acquisition Corp. and Rohm and Haas
Company
|
| |
|
|
| |
10.1
|
Voting
Agreement, dated as of July 10, 2008, by and among Rohm and Haas Company,
The Dow Chemical Company and each of the persons and entities listed on
Schedule I thereto
|
| |
|
|
| |
99.1
|
Press
Release
|