Exhibit 1.1
€2,250,000,000
THE DOW CHEMICAL COMPANY
€1,000,000,000 0.500% Notes due 2027
€750,000,000 1.125% Notes due 2032
€500,000,000 1.875% Notes due 2040
Underwriting Agreement
New York, New York
February 18, 2020
Barclays Bank PLC
5 The North Colonnade
Canary Wharf
London E14 4BB
United Kingdom
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
United Kingdom
Merrill Lynch International
2 King Edward Street
London EC1A 1HQ
United Kingdom
And the several underwriters named in Schedule I
Ladies and Gentlemen:
The Dow Chemical Company, a corporation
organized under the laws of the State of Delaware (the “Company”), proposes to sell to the several underwriters named
in Schedule I hereto (the “Underwriters”), for whom Barclays Bank PLC, Deutsche Bank AG, London Branch and Merrill
Lynch International (collectively, the “Representatives”) are acting as representatives, €1,000,000,000 aggregate
principal amount of the Company’s 0.500% Notes due 2027 (the “Notes due 2027”), €750,000,000 aggregate principal
amount of the Company’s 1.125% Notes due 2032 (the “Notes due 2032”) and €500,000,000 aggregate principal
amount of the Company’s 1.875% Notes due 2040 (the “Notes due 2040” and, together with the Notes due 2027 and
the Notes due 2032, the “Securities”), to be issued under an indenture (the “Indenture”) dated as of July
26, 2019, among the Company, Dow Inc., a corporation organized under the laws of the State of Delaware (“Dow”), and
The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”). In connection with the issuance of the
Securities, the Company will enter into a paying agency agreement (the “Paying Agency Agreement”), to be dated as of
February 25, 2020, with The Bank of New York Mellon, London Branch (the “Paying Agent”). Any reference herein to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of Form S-3, which were filed under the Exchange Act
on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 20 hereof.
For purposes of this Agreement, all references
to subsidiaries of the Company refer to those legal entities that are subsidiaries of the Company as of the date of this Agreement,
and all references to subsidiaries of Dow, refer to those legal entities that are subsidiaries of Dow as of the date of this Agreement.
1. Representations
and Warranties by the Company. The Company represents and warrants to, and agrees with, each Underwriter as of the Execution
Time and as of the Closing Date (as defined in Section 3) as set forth below in this Section 1.
(a) The
Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 on Form S-3 (File No. 333-232862-01), including a related Base Prospectus, for registration
under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior
to the Execution Time, became effective upon filing and no notice of objection of the Commission to the use of such Registration
Statement or any post-effective amendment thereto pursuant to Rule 40l(g)(2) under the Act has been received by the Company. No
order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose
or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or, to the Company’s
knowledge, threatened by the Commission. The Company may have filed with the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which
has previously been furnished to you. The Company will file with the Commission a final prospectus supplement relating to the Securities
in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Act and
the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement,
at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On
each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date
and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the applicable requirements
of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no representation or warranty as to (i) that part
of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) of the Trustee under the Trust Indenture
Act or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein, it being understood and agreed that the only such information furnished
by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(c) At
the Execution Time, (i) the Disclosure Package and (ii) each Issuer Free Writing Prospectus listed on Schedule II(a) or (b), when
taken together as a whole with the Disclosure Package, does not contain any untrue statement of any material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package or an Issuer Free
Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on
behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(d) (i)
At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption
in Rule 163, and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)),
the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Company agrees
to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard
to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i)
At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being
used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined
in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that
the Company be considered an Ineligible Issuer.
(f) Each
Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to Section 5(b) hereof does not include any
information that conflicts with the information contained in the Registration Statement, including any document incorporated therein
by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such
Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary
Prospectus or the Final Prospectus, the Company has promptly notified or will promptly notify the Representatives and has promptly
amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8(b) hereof.
(g) The
documents incorporated by reference in the Disclosure Package and the Final Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement and the Final Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder then in effect and will not contain any untrue statement of a 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.
(h) The
Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware,
with power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described
in the Disclosure Package and the Final Prospectus; the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not have
a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries considered
as a whole (a “Material Adverse Effect”).
(i) Each
of the Company’s subsidiaries that qualify as a “significant subsidiary” under Section 1-02(w) of Regulation
S-X (a “Significant Subsidiary”) has been duly organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; each Significant Subsidiary
is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not have a Material Adverse Effect; except as otherwise disclosed in the Disclosure
Package and the Final Prospectus, all of the issued and outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and (except for shares necessary to qualify directors or to maintain
any minimum number of shareholders required by law) is owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, or claim.
(j) The
Company has outstanding capital stock as set forth in the Disclosure Package and the Final Prospectus (except for subsequent issuances
as described in the Disclosure Package and the Final Prospectus pursuant to employee benefit plans or pursuant to the exercise
of convertible securities or options and except for repurchases in connection with open market or repurchase plans or redemptions
of shares of preferred stock). All of the outstanding shares of capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable.
(k) This
Agreement has been duly authorized, executed and delivered by the Company.
(l) The
Paying Agency Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming
due authorization, execution and delivery by the Paying Agent), will constitute a valid and legally binding agreement of the Company,
enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws
of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
(m) The
Securities have been duly authorized, and, when issued and delivered pursuant to this Agreement, the Securities will have been
duly executed, issued and delivered and (assuming the due authentication thereof by the Trustee) will constitute valid and legally
binding obligations of the Company, will be entitled to the benefits provided by the Indenture and will be enforceable in accordance
with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability
relating to or affecting the enforcement of creditors’ rights and to general equity principles.
(n) The
Indenture has been duly authorized, executed and delivered by the Company and (assuming due authorization, execution and delivery
by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms except
as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting
the enforcement of creditors’ rights and to general equity principles; the Indenture has been duly qualified under the Trust
Indenture Act.
(o) The
Indenture conforms, and the Securities will conform, in all material respects, to the descriptions thereof contained in the Disclosure
Package and the Final Prospectus.
(p) The
statements in each of the Disclosure Package and the Final Prospectus under the captions “Description of the Notes,”
“Description of Debt Securities of The Dow Chemical Company,” “Description of Guarantees of Debt Securities of
The Dow Chemical Company” and “Material United States Federal Tax Consequences,” in each case insofar as such
statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present and summarize,
in all material respects, the matters referred to therein.
(q) The
issuance and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture,
this Agreement and the Paying Agency Agreement and the consummation of the transactions therein and herein contemplated, will not
result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any Significant Subsidiary
pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company
or any Significant Subsidiary is a party or by which the Company or any Significant Subsidiary is bound or to which any property
or assets of the Company or any Significant Subsidiary is subject, which would reasonably be expected to have a Material Adverse
Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the Indenture,
this Agreement or the Paying Agency Agreement; nor will such action result in any violation of the provisions of the Restated Articles
of Incorporation, as amended, or the Bylaws of the Company; nor will such action result in a violation of any statute or any order,
rule or regulation of any court or governmental agency or body in the United States having jurisdiction over the Company, any Significant
Subsidiary or any of their properties, which would reasonably be expected to have a Material Adverse Effect or affect the validity
of the Securities or the legal authority of the Company to comply with the Securities, the Indenture, this Agreement or the Paying
Agency Agreement.
(r) No
consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or
other governmental body in the United States having jurisdiction over the Company is required for the issuance and sale of the
Securities or the consummation by the Company of the other transactions contemplated by this Agreement, the Paying Agency Agreement
or the Indenture, except such consents, approvals, authorizations, orders, registrations or qualifications as have been obtained
under the Act and the Trust Indenture Act and such as may be required by the securities or Blue Sky laws of the various states
and the securities laws of any jurisdiction outside the United States in which the Securities are offered.
(s) Except
as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto),
no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries is pending or, to the Company’s knowledge, threatened that (i) would reasonably be expected
to have a material adverse effect on the performance of this Agreement, the Indenture, the Paying Agency Agreement or the Securities
or the consummation of any of the transactions contemplated hereby or thereby or (ii) would reasonably be expected to have a Material
Adverse Effect.
(t) Since
the dates as of which information is given in the Disclosure Package and the Final Prospectus (exclusive of any amendments or supplements
thereto after the date hereof), there has not been (i) any material change in the capital stock (other than changes pursuant to
open market or repurchase plans or employee benefit plans or changes resulting from the conversion or redemption of outstanding
shares of preferred stock or convertible debt) or long-term debt of the Company and its consolidated subsidiaries considered as
a whole, or (ii) any material adverse change, in or affecting the business, financial condition or results of operations of the
Company and its consolidated subsidiaries considered as a whole, otherwise than, in the case of (i) or (ii) above, as set forth
or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendments or supplements thereto after the
date hereof).
(u) Deloitte
& Touche LLP, who has audited certain financial statements of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements and schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Disclosure Package and the Final Prospectus, are independent registered public accountants
with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.
(v) The
Company’s consolidated financial statements and schedules incorporated by reference in the Preliminary Prospectus, the Final
Prospectus and the Registration Statement present fairly in all material respects the financial condition, results of operations
and cash flows of the Company as of the dates and for the periods indicated, comply as to form in all material respects with the
applicable accounting requirements of the Act and have been prepared in conformity with generally accepted accounting principles
in the United States applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The pro
forma financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus comply as to
form with the applicable accounting requirements of Regulation S-X. The pro forma financial statements included or incorporated
by reference in the Disclosure Package and the Final Prospectus include assumptions that provide a reasonable basis for presenting
the significant effects directly attributable to the transactions described therein, the related pro forma adjustments give appropriate
effect to those assumptions, the pro forma adjustments reflect the proper application of those adjustments to the historical financial
statement amounts in the pro forma financial statements included or incorporated by reference in the Disclosure Package and the
Final Prospectus; and the pro forma adjustments have been properly applied, and separately identified, to the historical amounts
in the compilation of those statements.
(w) The
Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof
as described in the Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in
the Investment Company Act of 1940, as amended.
(x) No
material, collective labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Company’s
knowledge, is threatened that would reasonably be expected to have a Material Adverse Effect.
(y) Except
as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto),
the Company and its subsidiaries are in compliance in all material respects with all applicable laws (including all applicable
laws and regulations relating to the protection of human health and safety, the environment, or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively “Environmental Laws”)), ordinances, rules, regulations, and requirements
of governmental authorities, except where (i) the necessity of compliance therewith is contested in good faith by appropriate proceedings
or (ii) noncompliance therewith would not have a Material Adverse Effect.
(z) In
the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations
and properties of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential
liabilities to third parties). To the Company’s knowledge, no such associated costs and liabilities would, singly or in the
aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto).
(aa) Except as would not reasonably
be expected to have a Material Adverse Effect and except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto), to the Company’s knowledge, the Company and its subsidiaries
own or possess the right to use all patents, trademarks, service marks, trade names, copyrights, patentable inventions, trade secrets
and know-how used by the Company or its subsidiaries in, and material to, the conduct of the Company’s and its subsidiaries’
business taken as a whole as now conducted (collectively, the “Intellectual Property”). Except as would not otherwise
reasonably be expected to have a Material Adverse Effect and except as set forth in or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement thereto), there are no legal or governmental actions, suits, proceedings
or claims pending or, to the Company’s knowledge, threatened, against the Company (i) challenging the Company’s rights
in or to any Intellectual Property, (ii) challenging the validity or scope of any Intellectual Property owned by the Company, or
(iii) alleging that the operation of the Company’s business as now conducted infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of a third party.
(bb) The Company maintains a system
of internal control over financial reporting with respect to itself and its consolidated subsidiaries sufficient to provide reasonable
assurance that (i) receipts and expenditures of the Company are made only in accordance with the general or specific authorizations
of the management or directors of the Company; (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles in the United States and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any material
differences. The management of the Company concluded that such internal control over financial reporting was effective as of December
31, 2019 and there have been no changes in the Company’s internal control over financial reporting since such date that have
materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
(cc) The Company maintains “disclosure
controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); based on the evaluation of these
disclosure controls and procedures, the Company’s Chief Executive Officer and Chief Financial Officer concluded that the
Company’s disclosure controls and procedures were effective as of December 31, 2019.
(dd) (i) Neither the Company nor any
of their affiliates nor any person acting on their behalf (other than the Underwriters, as to whom the Company makes no representation)
has taken, directly or indirectly, any action designed to cause or that constituted or that might reasonably be expected to cause
or constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities; provided, however, that no such representation is made with respect
to any action undertaken by the Underwriters; (ii) the Company has not issued and will not issue, without the prior consent of
the Representatives, on behalf of the Underwriters, any press or other public announcement referring specifically to the proposed
issue of, or the terms of, the Securities unless the announcement adequately discloses that stabilizing action may take place in
relation to the Securities (but only to the extent required by laws, regulators or guidelines (including the United Kingdom’s
Financial Conduct Authority Handbook) applicable to the Company, the Underwriters, the Representatives or any other entity undertaking
stabilization in connection with the issue of the Securities) and the Company confirms the appointment of Merrill Lynch International
as the central point responsible for adequate public disclosure of information, and handling any request from a competent authority,
in accordance with Article 6(5) of Commission Delegated Regulation (EU) 2016/1052 of March 8, 2016 with regard to regulatory technical
standards for the conditions applicable to buy-back programs and stabilization measures. For the purposes of this Section, all
references to Regulations or Directives include, in relation to the UK, those Regulations or Directives as they form part of UK
domestic law by virtue of the European Union (Withdrawal) Act 2018 or have been implemented in UK domestic law, as appropriate.
(ee) Neither the Company nor any of
its subsidiaries, nor, to the Company’s knowledge, any director, officer or employee of the Company or any of its subsidiaries,
is an individual or entity (“Person”) that is, or is controlled by a Person that is, the subject of any sanctions administered
or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), the United Nations Security Council
(UN), the European Union (EU), or Her Majesty’s Treasury (UK HMT) (collectively, “Sanctions”), nor is the Company
located, organized or resident nor are any of its facilities permanently located in a country or territory that is the subject
of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria) in violation of Sanctions. The Company
will not, knowingly, use the proceeds of the offering to fund or facilitate any activities or business of or with any Person or
in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions.
Any certificate signed by any officer
of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Representations
and Warranties of the Underwriters. Each Underwriter represents and warrants that:
(a) it
has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (as amended,
the “FSMA”) received by it in connection with the issue or sale of the Securities in circumstances in which Section
21(1) of the FSMA does not apply to the Company;
(b) it
has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom; and
(c) it
has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail
investor in the European Economic Area or the United Kingdom. For the purposes of this provision: the expression “retail
investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1)
of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97 (as
amended, the “IDD”), where that customer would not qualify as a professional client as defined in point (10) of Article
4(1) of MiFID II.
For the purposes of this Section, all
references to Regulations or Directives include, in relation to the UK, those Regulations or Directives as they form part of UK
domestic law by virtue of the European Union (Withdrawal) Act 2018 or have been implemented in UK domestic law, as appropriate.
3. Purchase
and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company,
at 99.042% of the principal amount thereof with respect to the Notes due 2027, 98.788% of the principal amount thereof with respect
to the Notes due 2032 and 97.981% of the principal amount thereof with respect to the Notes due 2040, in each case, plus accrued
interest from February 25, 2020, the principal amount of the Securities set forth opposite such Underwriter’s name in Schedule
I hereto, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 9 hereof.
4. Delivery
and Payment. Delivery of and payment for the Securities shall be made at 10:00 a.m., London time, on February 25, 2020 or at
such time on such later date not more than three Business Days after the foregoing date as the Representatives and the Company
shall mutually agree upon, which date and time may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing
Date”) against delivery of the Securities, represented by one or more global certificates (the “Global Certificates”),
duly executed and registered in the name of a nominee for a depositary common to Euroclear Bank SA/NV (“Euroclear”)
or, as the case may be, Clearstream Banking S.A. (“Clearstream”), to the Representatives for the respective accounts
of the several Underwriters.
Against delivery of the Global Certificates,
the Representatives will, on the Closing Date, give instructions to The Bank of New York Mellon, London Branch in its capacity
as common depositary for the Securities to arrange for payment to the Company on the Closing Date of the purchase price for the
Securities as aforesaid.
It is understood
that the Representatives have been authorized, for their own accounts and for the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for, the Securities that the Underwriters have agreed to purchase.
The Representatives may (but shall not be obligated to) make payment for any Securities to be purchased by any Underwriter whose
funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any of its obligations under this Agreement.
5. Offering
by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set
forth in the Final Prospectus.
6. Agreements.
The Company agrees with the several Underwriters 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 (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished
to the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which
the Representatives reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto
to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to
the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus
or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities
for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its reasonable
best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of
the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as practicable the withdrawal
of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration
Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement
declared effective as soon as practicable.
(b) The
Company will prepare (or cause to be prepared) a final term sheet, containing a description of the final terms of the Securities
and the offering thereof, in the form approved by the Representatives and attached as Schedule III hereto and file such term sheet
pursuant to Rule 433(d) within the time required by such Rule.
(c) If,
at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure
Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company
will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented;
(ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement
to the Representatives in such quantities as the Representatives may reasonably request.
(d) If,
at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Disclosure Package or
the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading,
or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Disclosure
Package or the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection
with use or delivery of the Disclosure Package or the Final Prospectus, the Company promptly will (i) notify the Representatives
of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance,
(iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared
effective as soon as practicable in order to avoid any disruption in use of the Disclosure Package or the Final Prospectus and
(iv) supply any supplemented Disclosure Package or Final Prospectus to the Representatives in such quantities as they may reasonably
request.
(e) As
soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement
or statements of the Company which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The
Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and
each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all documents relating to the offering.
(g) The
Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions in the
United States as the Representatives may designate and will maintain such qualifications in effect so long as required for the
distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The
Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives (such consent not to
be unreasonably withheld, conditioned or delayed), and each Underwriter, severally and not jointly, agrees with the Company that,
unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not
make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained
by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet
prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed
to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto. Any such free writing prospectus
consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending pursuant
to reasonable procedures developed in good faith, and record keeping.
(i) None
of the Company, its affiliates, or any person acting on its or their behalf will, without the prior written consent of the Representatives
(such consent not to be unreasonably withheld, conditioned, or delayed), offer, sell, contract to sell, pledge, or otherwise dispose
of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether
by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of
the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company (other than the Securities)
or publicly announce an intention to effect any such transaction, until the Closing Date; provided that the foregoing shall
not preclude the Company from continuing to offer, sell, contract to sell, pledge, or otherwise dispose of debt securities of the
Company in the ordinary course pursuant to its Dow InterNotes program or its commercial paper program.
(j) The
Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities; (ii) the Company will not issue, without the prior consent of the Representatives,
on behalf of the Underwriters, any press or other public announcement referring specifically to the proposed issue of, or the terms
of, the Securities unless the announcement adequately discloses that stabilizing action may take place in relation to the Securities
(but only to the extent required by laws, regulators or guidelines (including the United Kingdom’s Financial Conduct Authority
Handbook) applicable to the Company, the Underwriters, the Representatives or any other entity undertaking stabilization in connection
with the issue of the Securities).
(k) The
Company will use its commercially reasonable efforts to obtain the listing of the Securities on the New York Stock Exchange. The
Company will cooperate with the Underwriters in arranging for the Securities to be eligible for clearance and settlement through
the facilities of Euroclear and Clearstream.
(l) In
connection with the issuance of the Securities, the Company hereby authorizes one or more of the Underwriters (each a “Stabilizing
Manager” and, together, the “Stabilizing Managers”) (or any person acting on behalf of the Stabilizing Managers)
to over-allot securities or effect transactions with a view to supporting the market price of the Securities at a level higher
than that which might otherwise prevail in accordance with applicable laws and regulations. However, the Company acknowledges and
agrees that there may not necessarily occur any stabilization action. The Company hereby acknowledges and agrees that any loss
or profit sustained as a consequence of any such over-allotment or stabilization shall be for the account of the Stabilizing Manager.
In addition, the Company confirms the appointment of Merrill Lynch International as the central point responsible for adequate
public disclosure of information, and handling any request from a competent authority, in accordance with Article 6(5) of Commission
Delegated Regulation (EU) 2016/1052 of March 8, 2016 with regard to regulatory technical standards for the conditions applicable
to buy-back programs and stabilization measures. For the purposes of this Section, all references to Regulations or Directives
include, in relation to the UK, those Regulations or Directives as they form part of UK domestic law by virtue of the European
Union (Withdrawal) Act 2018 or have been implemented in UK domestic law, as appropriate.
(m) The
Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary
Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii)
the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus,
and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing (if any), authentication, issuance and delivery of the Global
Certificates, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the
printing (or reproduction) and delivery of this Agreement, the Indenture, the Side Letter (as defined below), the Paying Agency
Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with
the offering of the Securities; (v) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in
connection with approval of the Securities by Euroclear and Clearstream; (vi) any registration of the Securities under the Exchange
Act and the listing of the Securities on the New York Stock Exchange; (vii) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration and qualification); (viii) any filings required to be made
with FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings);
(ix) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations
to prospective purchasers of the Securities; (x) the fees and expenses of the Company’s accountants and the fees and expenses
of counsel (including local and special counsel) for the Company; (xi) the fees and expenses of the Trustee and its counsel (if
any) and (xii) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
7. Conditions
to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the Company contained herein and the representations and warranties
of Dow contained in the letter, dated as of the date hereof (“Side Letter”), of Dow, addressed to you, in each case,
as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The
Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b);
the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to
Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings
by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall
have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The
Company shall have requested and caused Shearman & Sterling LLP, external counsel of the Company to have furnished to the Representatives
their opinion dated the Closing Date and addressed to the Underwriters, to the effect that:
(i) assuming
that the Company and Dow have duly authorized, executed and delivered the Indenture and assuming due authorization, execution,
and delivery by the Trustee, the Indenture is a legal, valid and binding obligation of the Company and Dow, enforceable against
the Company and Dow in accordance with its terms and has been duly qualified under the Trust Indenture Act;
(ii) assuming
that the Company has duly authorized and executed the Securities and, when authenticated by the Trustee in accordance with the
Indenture and delivered and paid for as provided in the Underwriting Agreement, the Securities will be the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the
Indenture;
(iii) assuming
that the Company has duly authorized and executed the Paying Agency Agreement and assuming due authorization, execution and delivery
by the Paying Agent, the Paying Agency Agreement is a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms;
(iv) no
authorization, approval or other action by, and no notice to or filing with, any United States federal or New York governmental
authority or regulatory body, is required for the due execution, delivery or performance by (1) the Company of the Underwriting
Agreement, the Indenture, the Paying Agency Agreement and the issuance and sale of the Securities and (2) Dow of the Indenture,
except as may be required under the Act and the Trust Indenture Act, in connection with the offer and sale of the Securities by
the Company;
(v) the
execution and delivery by the Company of the Underwriting Agreement, the Indenture and the Paying Agency Agreement, the issuance
of the Securities and the execution and delivery by Dow of the Indenture do not, and the performance by the Company and Dow of
their respective obligations thereunder and the consummation of the transactions contemplated thereby will not result in a violation
of the law of the State of New York (including the rules or regulations promulgated thereunder or pursuant thereto), that a New
York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Company,
Dow, the Underwriting Agreement, the Indenture, the Paying Agency Agreement or the transactions governed thereby;
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 New York, the corporate law
of the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company
and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto
at the Closing Date.
(c) The
Company shall have requested and caused Jonathan P. Wendt, Managing Counsel and Director, Office of the Corporate Secretary of
the Company to have furnished to the Representatives his opinion dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) the
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease, and/or operate its properties and conduct its business as described in the
Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts
material business, except where the failure to so qualify would not have a Material Adverse Effect;
(ii) the
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own, lease, and/or operate its properties and conduct its business as described in the
Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts
material business, except where the failure to so qualify would not have a Material Adverse Effect;
(iii) Dow
is validly existing as a corporation in good standing under the laws of the State of Delaware;
(iv) each
Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full corporate power and authority to own, lease, and/or operate its properties
and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business
as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein
it owns or leases material properties or conducts material business, except where the failure to so qualify would not have a Material
Adverse Effect;
(v) each
of this Agreement, the Indenture, the Paying Agency Agreement and the Securities have been duly authorized, executed and delivered
by the Company;
(vi) each
of the Indenture has been duly authorized, executed and delivered by Dow;
(vii) except
as otherwise set forth in the Disclosure Package and the Final Prospectus, all the outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise
set forth in the Disclosure Package and the Final Prospectus, and except for shares necessary to qualify directors or to maintain
any minimum number of shareholders required by law, all outstanding shares of capital stock of each Significant Subsidiary are
owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(viii) the
Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus (except for
subsequent issuances pursuant to employee benefit plans or pursuant to the exercise of convertible securities or options and except
for repurchases in connection with open market or repurchase plans or redemptions of shares of preferred stock);
(ix) to
the knowledge of such counsel, except as disclosed in, or contemplated in, the Disclosure Package and the Final Prospectus, there
is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries, that (i) would reasonably be expected to have a material adverse effect
on the performance of this Agreement, the Indenture, the Paying Agency Agreement, or the consummation of any of the transactions
contemplated hereby or thereby or (ii) would reasonably be expected to have a Material Adverse Effect;
(x) none
of the execution and delivery of this Agreement, the Indenture, the Paying Agency Agreement, the issuance and sale of the Securities,
nor the consummation of any other of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or its subsidiaries pursuant to, (i) the charter or by-laws of the Company or each Significant Subsidiary,
(ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property
is subject, or (iii) any statute, law, rule, regulation, other than of the State of New York, judgment, order or decree applicable
to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or any of their properties, which conflict, breach, violation,
lien, charge or encumbrance, in the case of (ii) and (iii), would, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the
Securities, the Indenture, the Paying Agency Agreement or this Agreement in any material respect;
(xi) neither
the Company nor Dow is and, after giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Disclosure Package and the Final Prospectus, will be an “investment company” as defined
in the Investment Company Act of 1940, as amended;
(xii) the
Registration Statement, including any Rule 462(b) Registration Statement, became effective under the Act and any required filing
of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule 424(b);on the Closing Date, the Commission’s website
did not indicate the existence of a stop order suspending the effectiveness of the Registration Statement;
(xiii) the
Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information
contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder;
(xiv) the
documents incorporated by reference in the Disclosure Package and the Final Prospectus (other than the financial statements and
other financial and statistical information contained therein, as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the applicable
requirements of the Act or the Exchange Act and the rules and regulations of the Commission thereunder, and nothing has come to
his attention that caused him to believe that any of such documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(xv) the
statements in the Disclosure Package and the Final Prospectus under the captions “Description of the Notes,” “Description
of Debt Securities of The Dow Chemical Company” and “Description of Guarantees of Debt Securities of The Dow Chemical
Company,” in each case, insofar as such statements constitute summaries of documents referred to therein, fairly summarize
in all material respects the documents referred to therein; and
(xvi) the
statements in the Disclosure Package and the Final Prospectus under the caption “Material United States Federal Tax Consequences,”
insofar as such statements constitute summaries of legal matters referred to therein and subject to the limitations set forth therein,
fairly summarize in all material respects the legal matters referred to therein.
In addition, such counsel shall state that no
facts came to such counsel’s attention that caused such counsel to believe that (i) the Registration Statement (other than
the financial statements and other financial or statistical data contained therein or omitted therefrom and the Trustee’s
Statement of Eligibility (Form T-1), as to which such counsel has not been requested to comment), as of the Effective Date, contained
an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) the Disclosure Package (other than the financial statements and other financial or statistical
data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), at the Execution Time,
contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading or (iii) the Final Prospectus (other than
the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel
has not been requested to comment), as of its date and as of the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may
rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Michigan, the corporate law
of the State of Delaware or the federal laws of the United States, to the extent he deems proper and specified in such opinion,
upon the opinion of other counsel of good standing whom he believes to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent he deems proper, on certificates of responsible officers of the Company
and public officials. References to the Final Prospectus in this paragraph (c) shall also include any supplements thereto
at the Closing Date.
(d) The
Representatives shall have received from Mayer Brown LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Indenture, the Registration
Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(e) The
Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the President,
the Chief Financial Officer or the Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate
has carefully examined (or caused to be examined) the Registration Statement, the Disclosure Package, the Final Prospectus, any
Issuer Free Writing Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in
connection with the offering of the Securities, and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no
proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since
the date of the most recent financial statements of the Company included or incorporated by reference in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in or affecting the business,
financial condition or results of operations of the Company and its consolidated subsidiaries considered as a whole, whether or
not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendments or supplements thereto after the date hereof).
(f) The
Company shall have furnished to the Representatives a certificate of Dow, signed by the Chairman of the Board, the President, the
Chief Financial Officer or the Treasurer of the Company, dated the Closing Date, to the effect the representations and warranties
of Dow in the Side Letter are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date
and that Dow has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(g) At
the Execution Time and on the Closing Date, Deloitte & Touche LLP shall have furnished to the Representatives, at the request
of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided that
the letter delivered on the Closing Date shall use a “cut-off’ date no more than three business days prior to the Closing
Date.
(h) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change,
or any development involving an impending prospective change, in or affecting the business, financial position, results of operations
or properties of the Company and its consolidated subsidiaries taken as a whole, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case
referred to above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any
“nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange
Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(j) The
Securities shall be eligible for clearance and settlement through Euroclear and Clearstream.
(k) Prior
to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents
as the Representatives may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities
as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained.
If any of the conditions specified in
this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or
by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at
the office of Mayer Brown LLP, counsel for the Underwriters, at 71 South Wacker Drive, Chicago, Illinois 60606, on the Closing
Date.
8. Reimbursement
of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section
10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all reasonable and properly documented out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the
Securities.
9. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, affiliates and agents of each
Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act, the Trust Indenture Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus
supplement relating to the Securities, the Final Prospectus or any Issuer Free Writing Prospectus or the information contained
in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which
they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity to each Underwriter contained in paragraph (a) above, but only with reference
to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth under the heading
“Underwriting. (Conflicts of Interest)” in (i) the list of Underwriters and their respective participation in
the sale of the Securities, (ii) the first two sentences of the third paragraph (related to concessions and reallowances)
and (iii) the paragraphs related to stabilization and syndicate covering transactions in any Preliminary Prospectus and the
Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate in any such action and appoint counsel of
the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with
a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party (it being
understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (other
than local counsel), approved by the Underwriters in the case of paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action), (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of
the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual
or potential parties to such claim or action) unless such settlement, compromise or consent includes (i) an unconditional release
of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) In
the event that the indemnity provided in paragraph(a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the
same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other
from the offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the
statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among
other things, whether an untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information provided by the Company on the one hand, or the Underwriters, on the other, the intent of
the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding the provisions of this paragraph (d), no Underwriter shall be required to contribute any amount in excess
of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed
to the public. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter,
and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
10. Default
by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its
or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the
aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such non-defaulting Underwriters
do not purchase all the Securities, this Agreement will, subject to the immediately following sentence, terminate without liability
to any non-defaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9,
the Closing Date shall be postponed for such period, not less than one but not exceeding five Business Days, as the Representatives
shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. During such time, the Company shall be entitled to procure another party or parties to purchase
such Securities on such terms; provided that the non-defaulting Underwriters shall consent to such other party or parties, which
consent shall not be unreasonably withheld, conditioned, or delayed. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any non-defaulting Underwriter for damages occasioned by its default hereunder.
11. Termination.
This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on
such exchange, (ii) a banking moratorium shall have been declared either by U.S. federal or New York State authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or
war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus
or the Final Prospectus (exclusive of any amendment or supplement thereto).
12. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the Company or any of indemnified persons referred to
in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 9 and 10 hereof shall
survive the termination or cancellation of this Agreement.
13. Notices.
All communications hereunder will be in writing and effective only on receipt, and, (i) if sent to the Representatives, will be
mailed, delivered, telefaxed or e-mailed to:
Barclays Bank PLC
5 The North Colonnade
Canary Wharf
London E14 4BB
United Kingdom
Attn: Debt Syndicate
Tel: +44 (0) 20 7773 9098
Merrill Lynch International
2 King Edward Street
London EC1A 1HQ
United Kingdom
Attention: Syndicate Desk
Tel: +44 (0)207 995 3966
Facsimile: +44 (0) 207 996 0048
Email: dcm_london@baml.com
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
United Kingdom
Attention: Syndicate Desk
Tel: +44-20-7545 4361
Facsimile: +44-20-7545 4455
with a copy to:
Mayer Brown LLP
71 South Wacker Drive,
Chicago, Illinois 60606
Facsimile: (312) 701-7711
Attention: Edward S. Best
and (ii) if sent to the Company, will be mailed, delivered,
telefaxed or e-mailed to:
The Dow Chemical Company
2211 H.H. Dow Way
Midland, Michigan 48674
Facsimile: (989) 633-7375
Attention: Treasurer
with a copy to:
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
Facsimile: (646) 848-7333
Attention: Richard Alsop
14. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the indemnified
persons referred to in Section 8 hereof, and their respective successors and no other person will have any right or obligation
hereunder.
15. No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through
which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company
and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering
is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for
making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently
advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered
advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such
transaction or the process leading thereto.
16. Integration.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters,
or any of them, with respect to the subject matter hereof.
17. Applicable
Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
18. Waiver
of Jury Trial. The Company and the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
19. Counterparts.
This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together
shall constitute one and the same agreement.
20. Headings.
The section headings used herein are for convenience only and shall not affect the construction hereof.
21. Recognition
of U.S. Special Resolution Regimes.
(a) In
the event that any Initial Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime,
the transfer from such Initial Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will be
effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and
any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In
the event that any Initial Purchaser that is a Covered Entity or a BHC Act Affiliate of such Initial Purchaser becomes subject
to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such
Initial Purchaser are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S.
Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) As
used in this Section 22:
“BHC Act Affiliate” has the meaning assigned
to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned
to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each
of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street
Reform and Consumer Protection Act and the regulations promulgated thereunder.
22. Stabilization.
If an Underwriter (or persons acting on its behalf), in connection with the distribution of the Securities, offers Securities in
excess of the aggregate principal amount to be issued or effects transactions with a view to supporting the market price of the
Securities at levels other than those which might otherwise prevail in the open market, such person(s) shall not in doing so be
deemed to act as an agent of the Company. The Company will not as a result of any action taken by an Underwriter (or persons acting
on its behalf) under this clause be obliged to issue Securities in excess of the aggregate amount of Securities to be issued under
this Agreement, nor shall the Company be liable for any loss, or entitled to any profit, arising from any excess offers or stabilization.
23. Agreement
Among Managers. By executing this Agreement, each of the Underwriters hereby agrees to be bound by the provisions of the ICMA
Agreement Among Managers Version 1: Fixed-Price Non Equity-Related Issues – with or without Selling Group – 5. Version
1 - New York Law Schedule for Non Equity-Related Issues Governed by New York Law (the “AAM”), save that clause 3 of
the AAM shall be deemed to be deleted in its entirety and replaced with Section 9 of this Agreement and, in the event of any conflict
between the provisions of the AAM and this Agreement, the terms of this Agreement shall prevail. For the purposes of the AAM, “Managers”
means the Underwriters and the “Lead Managers” means the Representatives, “Settlement Lead Manager” and
“Stabilizing Manager” means Merrill Lynch International and “Subscription Agreement” means the Underwriting
Agreement.
Notwithstanding anything contained in
the AAM, each Underwriter agrees to pay the portion of the Underwriters’ expenses represented by such Underwriter’s
pro rata share (based on the proportion that the principal amount of Securities set forth opposite each Underwriter’s name
in Schedule I bears to the aggregate principal amount of Securities set forth opposite the names of all Underwriters) of the Securities
(with respect to each Underwriter, the “Pro Rata Expenses”).
24. MiFID
Product Governance. All references in this Section to Regulations or Directives include, in relation to the UK, those Regulations
or Directives as they form part of UK domestic law by virtue of the European Union (Withdrawal) Act 2018 or have been implemented
in UK domestic law, as appropriate. Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance
rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities
of manufacturers under the Product Governance Rules:
(a) each
of the Representatives (each a “Manufacturer” and together “the Manufacturers”) acknowledges to each other
Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of
the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related
information set out in the Prospectus, electronic roadshow, Bloomberg announcement, and the Final Term Sheet in connection with
the Securities; and
(b) the
Company and the Underwriters (other than the Representatives) note the application of the Product Governance Rules and acknowledge
the target market and distribution channels identified as applying to the Securities by the Manufacturers and the related information
set out in the Final Prospectus, electronic roadshow, Bloomberg announcement, and final term sheet in connection with the Securities.
25. Contractual
Recognition of Bail-in. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements,
or understanding among the parties hereto, each counterparty hereunder to a BRRD Party under this Agreement acknowledges and accepts
that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution
Authority, and acknowledges, accepts and agrees to be bound by:
(a) the
effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the BRRD Party
to it under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the
reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the
conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant BRRD
Party or another person, and the issue to or conferral on it of such shares, securities or obligations;
(iii) the
cancellation of the BRRD Liability; and/or
(iv) the
amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including
by suspending payment for a temporary period; and
(b) the
variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise
of Bail-in Powers by the Relevant Resolution Authority.
For the purposes
of this Agreement:
“Bail-in Powers”
means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the applicable Bail-in
Legislation.
“BRRD”
means Directive 2014/59/EU, as amended by Directive (EU) 2019/879, establishing a framework for the recovery and resolution of
credit institutions and investment firms.
“BRRD Party”
means any Underwriter subject to Bail-in Powers.
“BRRD Liability”
means a liability arising under this Agreement in respect of which the Bail-in Powers in the applicable Bail-in Legislation may
be exercised.
“Bail-in Legislation”
means in relation to the United Kingdom and any member state of the European Economic Area which has implemented, or which at any
time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation
Schedule from time to time.
“EU Bail-in
Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association
(or any successor person) from time to time at http://www.lma.eu.com/documents-guidelines/eubail-legislation-schedule.
“Relevant
Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the relevant
BRRD Party.
26. Anti-Boycott
Laws. Each of the Underwriters agrees and confirms that it does not seek and is not entitled to the benefit of the representation
and covenants given in Section 1(ff) to the extent that those provisions would result in a violation of (i) Council Regulation
(EC) 2271/1996 and/or any associated and applicable national law, instrument or regulation related thereto, (ii) Section 7 of the
German Foreign Trade Ordinance (Außenwirtschaftsverordnung –AWV) or (iii) any other applicable and similar anti-boycott
law, instrument or regulation applicable in the United Kingdom.
27. Judgement
Currency. The Company agrees to indemnify each Underwriter against any loss incurred by such Underwriter as a result of any
judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency
(the “Judgment Currency”) other than the Euro and as a result of any variation as between (i) the rate of exchange
at which the Euro amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such Underwriter is able to purchase Euros with the amount of the Judgment Currency actually received by such
Underwriter. The foregoing indemnity shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.
The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase
of, or conversion into, the relevant currency.
28. Definitions.
The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities
Act of 1933, as amended and the rules and regulations of the Commission promulgated thereunder.
“Base Prospectus” shall mean
the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Execution Time.
“Business Day” shall mean
any day, other than a Saturday or Sunday, (1) on which commercial banks and foreign exchange markets settle payments and are open
for general business (including dealing in foreign exchange and foreign currency deposits) in The City of New York and London and
(2) on which the Trans-European Automated Real-Time Gross Settlement Express Transfer system (the TARGET system), or any successor
thereto, is open for the settlement of payment in euros.
“Commission” shall mean the
Securities and Exchange Commission.
“Disclosure Package” shall
mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer
Free Writing Prospectuses, if any, identified in Schedule II(a) hereto, (iv) the final term sheet prepared and filed pursuant to
Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean
each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective
on or prior to the Closing Date.
“Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean
the date and time that this Agreement is executed and delivered by the parties hereto.
“Final Prospectus” shall
mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time,
together with the Base Prospectus.
“Free Writing Prospectus”
shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus”
shall mean an issuer free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus”
shall mean any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above which is used prior
to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement”
shall mean the registration statement referred to in Section 1(a) of this Agreement, including exhibits and financial statements
and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part
of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
“Rule 158”, “Rule 163”,
“Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule
430B” and “Rule 433” refer to such rules under the Act.
“Trust Indenture Act” shall
mean the Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer”
shall mean a well-known seasoned issuer, as defined in Rule 405.
[Signature Pages
to Follow]
If the foregoing is in accordance with
your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
THE DOW CHEMICAL COMPANY |
| |
|
|
|
| |
|
|
|
| |
By: |
/s/ Gary J. McGuire |
| |
|
Name: |
Gary J. McGuire |
| |
|
Title: |
Vice President & Treasurer |
Signature page to Underwriting Agreement
The foregoing Agreement is hereby confirmed
and accepted as of the date first written above.
BARCLAYS BANK PLC
| By: |
/s/ Rajvir Duggal |
|
| |
Name: |
Rajvir Duggal |
|
| |
Title: |
Vice President |
DEUTSCHE BANK AG, LONDON BRANCH
| By: |
/s/ Benzion Smilchensky |
|
| |
Name: |
Benzion Smilchensky |
|
| |
Title: |
Managing Director |
| By: |
/s/ John C. McCabe |
|
| |
Name: |
John C. McCabe |
|
| |
Title: |
Managing Director |
MERRILL LYNCH INTERNATIONAL
| By: |
/s/ Angus Reynolds |
|
| |
Name: |
Angus Reynolds |
|
| |
Title: |
Managing Director |
CITIGROUP GLOBAL MARKETS LIMITED
| By: |
/s/ Adrien Belanger |
|
| |
Name: |
Adrien Belanger |
|
| |
Title: |
Delegated Signatory |
BY: HSBC
BANK PLC
| By: |
/s/ Karl Allen |
|
| |
Name: |
Karl Allen |
|
| |
Title: |
Director |
MIZUHO INTERNATIONAL PLC
| By: |
/s/ Guy Reid |
|
| |
Name: |
Guy Reid |
|
| |
Title: |
Managing Director |
SMBC NIKKO CAPITAL MARKETS LIMITED
| By: |
/s/ Steve Apted |
|
| |
Name: |
Steve Apted |
|
| |
Title: |
Authorised Signatory |
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
| By: |
/s/ Gonzalo Cid-Luna |
|
| |
Name: |
Gonzalo Cid-Luna |
|
| |
Title: |
Authorised Signatory |
| By: |
/s/ Leticia Arroyo |
|
| |
Name: |
Leticia Arroyo |
|
| |
Title: |
Authorised Signatory |
BNP PARIBAS
| By: |
/s/ Hugh Pryse-Davies |
|
| |
Name: |
Hugh Pryse-Davies |
|
| |
Title: |
Authorised Signatory |
| By: |
/s/ Maya Mehta |
|
| |
Name: |
Maya Mehta |
|
| |
Title: |
Authorised Signatory |
ING BANK N.V., BELGIAN BRANCH
| By: |
/s/ Patrick Wuytens |
|
| |
Name: |
Patrick Wuytens |
|
| |
Title: |
Managing Director |
| By: |
/s/ Kris Devos |
|
| |
Name: |
Kris Devos |
|
| |
Title: |
Global Head of Bond Syndicate DCM |
J.P. MORGAN SECURITIES PLC
| By: |
/s/ N.J. Darrant |
|
| |
Name: |
N.J. Darrant |
|
| |
Title: |
Executive Director |
WELLS FARGO SECURITIES INTERNATIONAL
LIMITED
| By: |
/s/ Matt Carter |
|
| |
Name: |
Matt Carter |
|
| |
Title: |
Head of International Debt Capital Markets & Syndicate |
CRÉDIT AGRICOLE CORPORATE
AND INVESTMENT BANK
| By: |
/s/ Jean-Luc LaMarque |
|
| |
Name: |
Jean-Luc LaMarque |
|
| |
Title: |
Global Head of Syndicate, Credit Trading & Sales |
| By: |
/s/ Pierre Blandin |
|
| |
Name: |
Pierre Blandin |
|
| |
Title: |
Authorised Signatory |
MUFG SECURITIES EMEA PLC
| By: |
/s/ Corina Painter |
|
| |
Name: |
Corina Painter |
|
| |
Title: |
Director |
BANCO SANTANDER, S.A.
| By: |
/s/ Matthias D’Haene |
|
| |
Name: |
Matthias D’Haene |
|
| |
Title: |
Executive Director |
| By: |
/s/ Nasri Touati |
|
| |
Name: |
Nasri Touati |
|
| |
Title: |
Associate Authorised Signatory |
STANDARD CHARTERED BANK
| By: |
/s/ Rajan Bagri |
|
| |
Name: |
Rajan Bagri |
|
| |
Title: |
Head, FIG DCM – Europe & Americas |
SCHEDULE I
UNDERWRITERS
|
Underwriters |
Aggregate
Principal Amount of Notes due 2027 to be Purchased |
Aggregate
Principal Amount of Notes due 2032 to be Purchased |
Aggregate
Principal Amount of Notes due 2040 to be
Purchased |
| Barclays Bank PLC |
€170,000,000 |
€127,500,000 |
€85,000,000 |
| Deutsche Bank AG, London Branch |
€170,000,000 |
€127,500,000 |
€85,000,000 |
| Merrill Lynch International |
€170,000,000 |
€127,500,000 |
€85,000,000 |
| Citigroup Global Markets Limited |
€60,000,000 |
€45,000,000 |
€30,000,000 |
| HSBC Bank plc |
€60,000,000 |
€45,000,000 |
€30,000,000 |
| Mizuho International plc |
€60,000,000 |
€45,000,000 |
€30,000,000 |
| SMBC Nikko Capital Markets Limited |
€60,000,000 |
€45,000,000 |
€30,000,000 |
| Banco Bilbao Vizcaya Argentaria, S.A. |
€34,000,000 |
€25,500,000 |
€17,000,000 |
| BNP Paribas |
€34,000,000 |
€25,500,000 |
€17,000,000 |
| ING Bank N.V., Belgian Branch |
€34,000,000 |
€25,500,000 |
€17,000,000 |
| J.P. Morgan Securities plc |
€34,000,000 |
€25,500,000 |
€17,000,000 |
| Wells Fargo Securities International Limited |
€34,000,000 |
€25,500,000 |
€17,000,000 |
| Crédit Agricole Corporate and Investment Bank |
€20,000,000 |
€15,000,000 |
€10,000,000 |
| MUFG Securities EMEA plc |
€20,000,000 |
€15,000,000 |
€10,000,000 |
| Banco Santander, S.A. |
€20,000,000 |
€15,000,000 |
€10,000,000 |
| Standard Chartered Bank |
€20,000,000 |
€15,000,000 |
€10,000,000 |
| |
|
|
|
| Total |
€1,000,000,000 |
€750,000,000 |
€500,000,000 |
SCHEDULE II
(a) Schedule of Free Writing Prospectuses included in the
Disclosure Package (exclusive of the final term sheet prepared and filed pursuant to Section 5(b))
[None.]
(b) Schedule of Issuer Free Writing Prospectuses Not Included
in Disclosure Package
Electronic (Netroadshow) road show of the Company relating
to the offering of the Securities dated February 2020.
SCHEDULE III
Supplementing the Preliminary Prospectus
Supplement dated February 18, 2020
(To Prospectus dated July 26, 2019)
€2,250,000,000
The Dow Chemical Company
€1,000,000,000 0.500% Notes due 2027
€750,000,000 1.125% Notes due 2032
€500,000,000 1.875% Notes due 2040
Final Term Sheet
February 18, 2020
| Issuer: |
The Dow Chemical Company |
| Legal Entity Identifier: |
ZQUIP1CSZO8LXRBSOU78 |
| Anticipated Ratings (Moody’s/S&P/Fitch):*+ |
|
| Ranking: |
Senior Unsecured |
| Offering Format: |
SEC Registered |
| Expected Listing: |
The Issuer intends to apply to list the Notes on the New York Stock Exchange |
| Trade Date: |
February 18, 2020 |
| Settlement Date (T+5):** |
February 25, 2020 |
| Denominations: |
€100,000 and integral multiples of €1,000 in excess thereof |
| Joint Book-Running Managers: |
Barclays Bank PLC
Deutsche Bank AG, London Branch
Merrill Lynch International
Citigroup Global Markets Limited
HSBC Bank plc
Mizuho International plc
SMBC Nikko Capital Markets Limited |
| Senior Co-Managers: |
Banco Bilbao Vizcaya Argentaria, S.A.
BNP Paribas
ING Bank N.V., Belgian Branch
J.P. Morgan Securities plc
Wells Fargo Securities International Limited
Crédit Agricole Corporate and Investment Bank
MUFG Securities EMEA plc
Banco Santander, S.A.
Standard Chartered Bank |
| OID Tax Consequences to U.S. Holders: |
Because the first accrual period on the Notes is longer
than one year, the Notes will be considered to be issued with “original issue discount” (“OID”) for U.S.
federal income tax purposes. As a result, any U.S. Holder of the Notes will not be taxed on the payment or accrual of stated
interest, and instead will be taxed under the rules governing OID. Under such rules, a U.S. Holder will be required to include
in income interest on the Notes under a constant yield method. The U.S. federal income tax treatment to non-U.S. Holders
generally will not be affected.
|
| |
2027 Notes |
2032 Notes |
2040 Notes |
| Principal Amount: |
€1,000,000,000 |
€750,000,000 |
€500,000,000 |
| Maturity Date: |
March 15, 2027 |
March 15, 2032 |
March 15, 2040 |
| Coupon (Interest Rate): |
0.500% |
1.125% |
1.875% |
| Price to Public: |
99.442% |
99.263% |
98.731% |
| Yield to Maturity: |
0.581% |
1.191% |
1.952% |
| Spread to Benchmark Bund: |
114.9 bps |
163.3 bps |
207.1 bps |
| Benchmark Bund: |
DBR 0.250% due February 15, 2027 |
DBR 0.000% due August 15, 2029 |
DBR 4.250% due July 4, 2039 |
| Benchmark Bund Price and Yield: |
105.850%; -0.568% |
104.290%; -0.442% |
185.670%; -0.119% |
| Spread to Mid Swaps: |
80 bps |
115 bps |
165 bps |
| Mid Swaps Yield: |
-0.219% |
0.041% |
0.302% |
| Interest Payment Date: |
Annually on March 15, commencing March 15, 2021 |
Annually on March 15, commencing March 15, 2021 |
Annually on March 15, commencing March 15, 2021 |
| Day Count Convention: |
ACTUAL/ACTUAL (ICMA) |
ACTUAL/ACTUAL (ICMA) |
ACTUAL/ACTUAL (ICMA) |
| Make-Whole Call: |
Prior to December 15, 2026 (three months prior to the maturity date), at a discount rate of Comparable Government Bond Rate plus 20 basis points |
Prior to December 15, 2031 (three months prior to the maturity date), at a discount rate of Comparable Government Bond Rate plus 25 basis points |
Prior to September 15, 2039 (six months prior to the maturity date), at a discount rate of Comparable Government Bond Rate plus 35 basis points |
| Par Call: |
On or after December 15, 2026 |
On or after December 15, 2031 |
On or after September 15, 2039 |
| CUSIP/Common Code/ISIN: |
260543CZ4/212248584 /XS2122485845 |
260543DA8/212248606/XS2122486066 |
260543DB6/212293369/XS2122933695 |
| Stabilization: |
FCA/ICMA |
FCA/ICMA |
FCA/ICMA |
| |
|
|
|
*Note: A securities rating is not
a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
**It is expected that delivery of
the notes will be made against payment therefor on or about February 25, 2020, which is the fifth business day following the date
hereof (such settlement cycle being referred to as “T+5”). Under Rule 15c6-1 under the Exchange Act, trades in the
secondary market generally are required to settle in two business days unless the parties to any such trade expressly agree otherwise.
Accordingly, purchasers who wish to trade the notes on any date prior to the second business day before
delivery will be required, by virtue of the fact that the notes initially will settle in T+5, to specify an alternative
settlement cycle at the time of any such trade to prevent failed settlement. Purchasers of the notes who wish to trade the notes
on the date of pricing should consult their own advisors.
+ Ratings Redacted
for EDGAR filing.
The issuer has filed a registration
statement (including a prospectus) with the SEC for the offerings to which this communication relates. Before you invest, you should
read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information
about the issuer, the guarantor and these offerings. You may get these documents for free by visiting EDGAR on the SEC web site
at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in these offerings will arrange to send
you the prospectus if you request it by calling Barclays Bank PLC toll-free at 1-888-603-5847, Deutsche Bank AG, London Branch
toll-free at 1-800-503-4611 and Merrill Lynch International toll-free at 1-800-294-1322.
MiFID II professionals/ECPs-only
/ No PRIIPs KID – Manufacturer target market (MiFID II product governance) is eligible counterparties and professional
clients only (all distribution channels). No PRIIPs key information document (KID) has been prepared as the Notes are not available
to retail investors in the EEA and in the United Kingdom.
This pricing
term sheet is not a prospectus for the purposes of the European Union’s Regulation (EU) 2017/1129.
This pricing
term sheet and any other document or materials relating to the issue of the Notes offered hereby is for distribution only to persons
who (i) have professional experience in matters relating to investments and who fall within the definition of investment professionals
(as defined in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Financial
Promotion Order”)); (ii) fall within Article 49(2)(a) to (d) of the Financial Promotion Order (“high net worth companies,
unincorporated associations etc.”); (iii) are outside the United Kingdom; or (iv) are any other persons in the United Kingdom
to whom an invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services
and Markets Act 2000) in connection with the issue or sale of any securities may otherwise lawfully be communicated or caused to
be communicated (all such persons together being referred to as “relevant persons”). In the United Kingdom, the Notes
offered hereby are only available to, and any investment or investment activity to which this pricing term sheet relates will be
engaged in only with, relevant persons. This document is directed only at relevant persons and any person in the United Kingdom
that is not a relevant person should not act or rely on this pricing term sheet or any of its contents.
Relevant stabilization regulation
including FCA/ICMA will apply.
Any disclaimer or other notices appear that may appear below are applicable to this communication and should be disregarded. Such
disclaimers or other notices we have automatically generated as a result of this communications being sent by Bloomberg or another
email system.
