-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GSx/GBV0MXhtFiglBGUzdPLIRn5oE12jp0l05wAUmpKdBdwWnfD0CzSSXRfRP2D9 AO2Btf5M9O82OaVAWqBWNw== 0000950131-02-004500.txt : 20021115 0000950131-02-004500.hdr.sgml : 20021115 20021115153247 ACCESSION NUMBER: 0000950131-02-004500 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20021115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DOW CHEMICAL CO /DE/ CENTRAL INDEX KEY: 0000029915 STANDARD INDUSTRIAL CLASSIFICATION: CHEMICALS & ALLIED PRODUCTS [2800] IRS NUMBER: 381285128 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: 1933 Act SEC FILE NUMBER: 333-91228 FILM NUMBER: 02829867 BUSINESS ADDRESS: STREET 1: 2030 DOW CENTER CITY: MIDLAND STATE: MI ZIP: 48674-2030 BUSINESS PHONE: 5176361000 MAIL ADDRESS: STREET 1: 2030 DOW CENTER CITY: MIDLAND STATE: MI ZIP: 48674-2030 POS AM 1 dposam.txt POST-EFFECTIVE AMENDMENT #1 TO FORM S-3 As filed with the Securities and Exchange Commission on November 15, 2002. Registration No. 333-91228 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- Post-Effective Amendment No. 1 filed pursuant to Rule 462(d) to FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- THE DOW CHEMICAL COMPANY (Exact name of registrant as specified in its charter) Delaware 38-1285128 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 2030 Dow Center Midland, Michigan 48674 (989) 636-1000 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) Tina Van Dam Corporate Secretary The Dow Chemical Company 2030 Dow Center Midland, Michigan 48674 (989) 636-1000 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------- A copy to: Edward S. Best Mayer, Brown, Rowe & Maw 190 South LaSalle Street Chicago, Illinois 60603 (312) 782-0600 --------------- Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] EXPLANATORY NOTE This Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (File No. 333-91228) of The Dow Chemical Company is filed pursuant to Rule 462(d) solely to add certain exhibits not previously filed with respect to the Registration Statement. II-1 PART II -- INFORMATION NOT REQUIRED IN PROSPECTUS Item 16. Exhibits Exhibit Number Description ------ ----------- 1.1 Underwriting Agreement, dated as of November 6, 2002, among The Dow Chemical Company, Salomon Smith Barney Inc., Bank One Capital Markets, Inc., Deutsche Bank Securities Inc., BNY Capital Markets, Inc., Mizuho International plc, SG Cowen Securities Corporation, Tokyo-Mitsubishi International plc and Wachovia Securities, Inc. 4.9 Form of Global Note for 5.75% Notes due 2009 5.2 Opinion of Charles J. Kalil, Assistant General Counsel of Dow 23.4 Consent of Charles J. Kalil (included in Exhibit 5.2) II-2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this post-effective amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the County of Midland, State of Michigan, on November 15, 2002. THE DOW CHEMICAL COMPANY By: /s/ J. Pedro Reinhard --------------------------------------------- J. Pedro Reinhard Director, Executive Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this post-effective amendment to the registration statement has been signed by the following persons in the capacities indicated on November 15, 2002: Director, President and Chief Executive Officer (principal executive officer) * ------------------------- M. D. Parker Director, Executive Vice President and Chief Financial Officer (principal financial officer) * ------------------------- J. P. Reinhard Vice President and Controller (Principal * Accounting Officer) ------------------------- F. H. Brod * Director and Executive Vice President ------------------------- A. A. Allemang * Director ------------------------- J. K. Barton * Director and Vice Chairman of the Board ------------------------- A. J. Carbone * Director ------------------------- J. M. Cook * Director ------------------------- J. C. Danforth * Director ----------------------------- W. D. Davis * Director ----------------------------- B. H. Franklin * Director ----------------------------- J. M. Ringler * Director ----------------------------- H. T. Shapiro * Director and Chairman of the Board ----------------------------- W. S. Stavropoulos * Director ----------------------------- P. G. Stern * By: /s/ J. Pedro Reinhard ----------------------------- J. Pedro Reinhard Attorney-in-Fact EXHIBIT INDEX Exhibit Number Description - ------ ----------- 1.1 Underwriting Agreement, dated as of November 6, 2002, among The Dow Chemical Company, Salomon Smith Barney Inc., Bank One Capital Markets, Inc., Deutsche Bank Securities Inc., BNY Capital Markets, Inc., Mizuho International plc, SG Cowen Securities Corporation, Tokyo-Mitsubishi International plc and Wachovia Securities, Inc. 4.9 Form of Global Note for 5.75% Notes due 2009 5.2 Opinion of Charles J. Kalil, Assistant General Counsel of Dow 23.4 Consent of Charles J. Kalil (included in Exhibit 5.2) EX-1.1 3 dex11.txt UNDERWRITING AGREEMENT Exhibit 1.1 ================================================================================ THE DOW CHEMICAL COMPANY (a Delaware corporation) $500,000,000 5.75% Notes due 2009 UNDERWRITING AGREEMENT Dated: November 6, 2002 ================================================================================ Table of Contents UNDERWRITING AGREEMENT .............................................................. 1 SECTION 1. Representations and Warranties...................................... 2 ------------------------------ (a) Representations and Warranties by the Company....................... 2 (b) Officer's Certificates. ............................................ 3 SECTION 2. Sale and Delivery to Underwriters; Closing. ........................ 3 ------------------------------------------ (a) Securities. ........................................................ 3 (b) Payment. ........................................................... 3 (c) Denominations; Registration......................................... 4 SECTION 3. Covenants of the Company. .......................................... 4 ------------------------ SECTION 3A. Luxembourg Listing ................................................. 6 ------------------ SECTION 4. Payment of Expenses................................................. 7 ------------------- (a) Expenses ........................................................... 7 (b) Termination of Agreement............................................ 7 SECTION 5. Conditions of Underwriters' Obligations............................. 7 --------------------------------------- (a) Effectiveness of Registration Statement............................. 7 (b) [Reserved] (c) Opinion of Charles J. Kalil, Esq ................................... 8 (d) Opinion of Counsel for Underwriters................................. 8 (e) Officers' Certificate............................................... 8 (f) Accountant's Comfort Letter......................................... 8 (g) Maintenance of Rating............................................... 9 (h) Additional Documents................................................ 9 SECTION 6. Indemnification..................................................... 9 --------------- SECTION 7. Contribution........................................................ 10 ------------ SECTION 8. Representations, Warranties and Agreements to Survive Delivery...... 11 --------------------------------------------------------------- SECTION 9. Termination of Agreement............................................ 11 ------------------------ (a) Termination; General................................................ 11 (b) Liabilities......................................................... 12 SECTION 10. Default by One or More of the Underwriters.......................... 12 ------------------------------------------ SECTION 11. Notices............................................................. 12 ------- SECTION 12. Parties............................................................. 13 -------
i SECTION 13. Governing Law and Time.............................................. 13 ---------------------- SECTION 14. Effect of Headings.................................................. 13 ------------------ SCHEDULES Schedule I - Underwriters EXHIBITS Exhibit A - Form of Opinion of Charles J. Kalil
ii THE DOW CHEMICAL COMPANY (a Delaware corporation) $500,000,000 5.75% Notes due 2009 UNDERWRITING AGREEMENT November 6, 2002 Salomon Smith Barney Inc. 388 Greenwich Street New York, New York 10013 As representative of the several underwriter named in Schedule I hereto Ladies and Gentlemen: The Dow Chemical Company, a Delaware corporation (the "Company"), confirms its agreement with the several parties named in Schedule I hereto (collectively, the "Underwriters," which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Salomon Smith Barney Inc. ("Salomon Smith Barney") is acting as representative (the "Representative"), with respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of each Underwriter's respective share of the $500,000,000 aggregate principal amount of the Company's 5.75% Notes due 2009 (the "Securities"). The Securities are to be issued pursuant to an indenture, dated as of April 1, 1992, as supplemented by a supplemental indenture, dated as of January 1, 1994, a second supplemental indenture, dated as of October 1, 1999, and a third supplemental indenture, dated as of May 15, 2001, between the Company and Bank One Trust Company, N.A. (successor in interest to The First National Bank of Chicago), as trustee (the "Trustee"). The term "Indenture," as used herein, includes the Officer's Certificate (as defined in the Indenture) establishing the form and terms of the Securities pursuant to Sections 2.1 and 2.3 of the Indenture. The Company understands that the Underwriters propose to make a public offering of the Securities as soon as they deem advisable after this Agreement has been executed and delivered. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-91228) covering the registration of the Securities under the Securities Act of 1933, as amended (the "1933 Act"), and the offering from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations"). Such registration statement, as amended at the date hereof, including the exhibits thereto and the documents incorporated by reference therein, is herein called the "Registration Statement". Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b) Registration 1 Statement," and after such filing the term "Registration Statement" shall include the Rule 462(b) Registration Statement. Promptly after the execution of this Agreement, the Company will prepare a prospectus meeting the requirements of paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations. Such prospectus, in the form first filed on or after the date hereof pursuant to Rule 424(b) and as it may be supplemented or amended from time to time as contemplated herein, is herein referred to as the "Prospectus". For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, or the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be. SECTION 1. Representations and Warranties. (a) Representations and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, and as of the Closing Time referred to in Section 2(b) hereof, and agrees with each Underwriter, as follows: (i) The Company meets the requirements for use of Form S-3 under the 1933 Act. The Registration Statement, as amended at the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and complies in all other material respects with said Rule. (ii) On the date of the effectiveness of the Registration Statement, on the date hereof, as of the Closing Time, and when either of the preliminary prospectus or the Prospectus is filed with the Commission in accordance with the provisions of Rule 424(b), the Registration Statement, as amended as of any such time, and the Prospectus, as supplemented as of any such time, and the Indenture will comply in all material respects with the applicable requirements of the 1933 Act, the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the 1934 Act and the respective rules thereunder; the Registration Statement, as amended as of any such time, did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and the Prospectus, as supplemented as of any such time, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) 2 that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the 1939 Act or (ii) the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by any Underwriter specifically for use in connection with the preparation of the Registration Statement and the Prospectus (or any supplement thereto). (iii) The Securities have been duly authorized and, at the Closing Time, will have been duly executed by the Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture. (b) Officer's Certificates. Any certificate signed by any officer of the Company delivered to the Underwriters or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby. SECTION 2. Sale and Delivery to Underwriters; Closing. (a) Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at a purchase price of 99.025% of the principal amount of the Securities, plus accrued interest, if any, from November 12, 2002 to the Closing Time, the principal amount of Securities set forth opposite such Underwriter's name on Schedule I hereto, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. (b) Payment. Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the offices of Mayer, Brown, Rowe & Maw, or at such other place as shall be agreed upon by the Underwriters and the Company, at 9:00 A.M. (Eastern time) on the fourth business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Underwriters and the Company (such time and date of payment and delivery being herein called "Closing Time"). Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Underwriters for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them. It is understood that each Underwriter has authorized Salomon Smith Barney, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. Any of the Underwriters, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder. 3 (c) Denominations; Registration. The Securities and certificates for the Securities shall be in such denominations ($1,000 or integral multiples thereof) and registered in such names as the Underwriters may request in writing at least one full business day before the Closing Time. The Securities will be made available for examination and packaging by the Underwriters in The City of New York not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time. SECTION 3. Covenants of the Company. The Company agrees with each Underwriter that: (a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus (except for periodic or current reports filed under the 1934 Act and, subject to Section 3(g) hereof, other than with respect to an offering of other securities) unless the Company has furnished each Underwriter a copy for review prior to filing and given each of you a reasonable opportunity to comment on any such proposed amendment or supplement. Subject to the foregoing sentence, the Company will cause the Prospectus to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to you of such filing. During the period when a prospectus relating to the Securities is required to be delivered under the 1933 Act or filed with the Commission pursuant to Rule 424(b), the Company will promptly advise each Underwriter when the Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), when any amendment of the Registration Statement shall have been filed or become effective, of any request by the Commission for any amendment of the Registration Statement or supplement to the Prospectus or for any additional information, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or of the initiation or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (b) The Company, during the period when a prospectus relating to the Securities is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and will furnish to each of you copies of such documents. In addition, during the period when a prospectus relating to the Securities is required to be delivered under the 1933 Act, not later than the date on which the Company makes any announcement to the general public concerning earnings or concerning any other event which is required to be described, or which the Company proposes to describe, in a document filed pursuant to the 1934 Act, the Company will use its reasonable best efforts to furnish to each of you the information contained in such announcement. The Company also will furnish to each of you during such period copies of all other press releases or announcements to the general public. The Company, during the period when a prospectus relating to the Securities is required to be delivered under the 1933 Act, will notify each of you of any downgrading in the rating of the Securities or any other debt securities of the Company, or the placing of the Company on "creditwatch" or other analogous review, by 4 Standard & Poor's Corporation ("S&P") or Moody's Investors Service, Inc. ("Moody's") as soon as practicable after the Company learns of any such downgrading or review. (c) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the 1933 Act. (d) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and Prospectus as the Underwriters may reasonably request and, if the delivery of a prospectus is required at any time in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the 1934 Act any document incorporated by reference in the Prospectus in order to comply with the 1933 Act or the 1934 Act, to notify the Representative and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance. (e) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Underwriters may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities. (f) The Company shall furnish to each Underwriter such information, documents, certificates of officers of the Company and opinions of counsel for the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus, and any amendments thereof or supplements thereto, the Indenture, the Securities, this Agreement and the performance by the Company and the Underwriters of their respective obligations hereunder and thereunder as the Underwriters may, prior to the termination of this Agreement, reasonably request in connection with their rights and obligations hereunder. (g) During the period from the date of this Agreement to Closing Time, the Company shall not, without the prior consent of the Underwriters, which consent shall not be unreasonably withheld, issue or announce the proposed issuance of any of its debt securities, other than the Securities, with terms substantially similar to the Securities being purchased pursuant to this Agreement. (h) The Company confirms as of the date hereof, and as of the Closing Time, that the Company is in compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing Business with Cuba, and the Company further agrees that, during the period when a prospectus relating to the Securities is required to be delivered under the 1933 Act, if it commences engaging in business with the government of Cuba or with 5 any person or affiliate located in Cuba after the date the Registration Statement becomes or has become effective with the Commission or with the Florida Department of Banking and Finance (the "Department"), whichever date is later, or if the information reported in the Prospectus, if any, concerning the Company's business with Cuba or with any person or affiliate located in Cuba changes in any material way, the Company will provide the Department notice of such business or change, as appropriate, in a form acceptable to the Department. SECTION 3A. Luxembourg Listing. The Company confirms that it has made or caused to be made on its behalf, or promptly following the date hereof will make or cause to be made on its behalf, an application for the Securities to be listed on the Luxembourg Stock Exchange (the "Exchange"). The Company will endeavor promptly to obtain such listing and for such purpose the Company agrees to deliver to the Exchange copies of the Prospectus and such other documents, information and undertakings as may be required for the purpose of obtaining and maintaining such listing. The Company shall use its reasonable best efforts to maintain the listing of the Securities on the Exchange for so long as any Securities are outstanding, unless otherwise agreed to by the Underwriters. Each Underwriter, severally and not jointly, represents and agrees: (a) that: (i) it has not offered or sold and, prior to the expiry of the period of six months from the issue date of the Securities, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent)for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (ii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 of the United Kingdom (the "FSMA")) received by it in connection with the issue of the Securities in circumstances in which Section 21(1)of the FSMA does not apply to us; and (iii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom. (b) Except for registration under the 1933 Act, and qualification of the Securities for offer and sale, and the determination of their eligibility for investment, under the applicable securities laws of such jurisdictions within the United States as the Underwriters may designate in writing to the Company, that no action has been or will be taken by such Underwriter that would permit the offer or sale of the Securities or any interest therein or possession or distribution of the Prospectus or any amendment thereto or any other offering material relating to 6 the Securities in any jurisdiction where action for that purpose is required. Without prejudice to paragraph (a) above, such Underwriter has not and will not directly or indirectly offer, sell or deliver any Securities or distribute the Prospectus or any other offering material relating to the Securities in or from any jurisdiction except under circumstances that will result in compliance with the applicable laws and regulations thereof and will not impose any obligations on the Company, except as provided herein. Subject as provided above, each Underwriter shall, if required by applicable law, furnish to each person to whom it offers, sells or delivers the Securities a copy of the Prospectus. SECTION 4. Payment of Expenses. (a) Expenses. The Company shall, whether or not the sale of the Securities is consummated, pay all expenses incident to the performance of its obligations under this Agreement, including the fees and disbursements of its accountants and counsel, the cost of printing or other production and delivery of the Registration Statement, the Prospectus, all amendments thereof and supplements thereto, the Indenture, this Agreement and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Securities, the costs incurred in compliance with Section 3(e), the fees and disbursements of the Trustee and the fees of any agency that rates the Securities. (b) Termination of Agreement. If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their reasonable and properly documented out-of-pocket expenses, including the fees and disbursements of counsel for the Underwriters incurred in connection with the offering of the Securities. SECTION 5. Conditions of Underwriters' Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained in Section 1 hereof or in certificates of any officer of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions: (a) Effectiveness of Registration Statement. The Registration Statement, including any post-effective amendment thereto as well as any Rule 462(b) Registration Statement, has become effective and at Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. (b) [Reserved] (c) Opinion of Charles J. Kalil, Esq. At Closing Time, the Underwriters shall have received the favorable opinion, dated as of Closing Time, of Charles J. Kalil, Esq, Assistant General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit A hereto. 7 (d) Opinion of Counsel for Underwriters. At Closing Time, the Underwriters shall have received the favorable opinion, dated as of Closing Time, of Mayer, Brown, Rowe & Maw, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, in form and substance satisfactory to the Underwriters. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriters. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. (e) Officers' Certificate. At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus (exclusive of any amendments or supplements thereto after the date hereof), any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus (exclusive of any amendments or supplements thereto after the date hereof), the effect of which is in the judgment of the Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus, and the Underwriters shall have received a certificate of the President, the Chief Financial Officer, the Treasurer or the Controller of the Company, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1(a) hereof are true and correct with the same force and effect as though expressly made at and as of Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. (f) Accountant's Comfort Letter. At the Closing Time, the Underwriters shall have received from Deloitte & Touche LLP a letter dated such date, in form and substance satisfactory to the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus. (g) Maintenance of Rating. At Closing Time, the Securities shall be rated at least A3 by Moody's and A by S&P since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's other debt securities by Moody's or S&P, and neither of such organizations shall have publicly announced that it has under surveillance or review its rating of the Securities or any of the Company's other debt securities. (h) Additional Documents. At Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose 8 of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance in the reasonable judgment of the Underwriters and counsel for the Underwriters. SECTION 6. Indemnification. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person who controls such Underwriter within the meaning of either the 1933 Act or the 1934 Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the 1933 Act, the 1934 Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or in any amendment thereof, or in the Prospectus or any preliminary Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any reasonable and properly documented out-of-pocket legal or other expenses incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by any Underwriter specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Underwriter agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement and each person who controls the Company within the meaning of either the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity from the Company to the Underwriters, but only with reference to written information relating to such Underwriter furnished to the Company by such Underwriter specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which such Underwriter may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 6, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 6. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided, 9 however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the Underwriters in the case of paragraph (a) of this Section 6, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. SECTION 7. Contribution In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in Section 6 is due in accordance with its terms but is for any reason insufficient to hold harmless an indemnified party under such Section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, the Company and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which the Company and the Underwriters may be subject in such proportion so that each Underwriter is responsible for that portion represented by the percentage that the aggregate underwriting discount received by such Underwriter in connection with the Securities from which such losses, claims, damages and liabilities arise bears to the aggregate principal amount of such Securities sold by such Underwriter and the Company is responsible for the balance; provided, however, that (y) in no case shall an Underwriter be responsible for any amount in excess of the commissions received by such Underwriter in connection with the Securities from which such losses, claims, damages and liabilities arise and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be 10 entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of the 1933 Act shall have the same rights to contribution as such Underwriter and each person who controls the Company within the meaning of either the 1933 Act or the1934 Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (y) and (z) of this Section 7. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 7, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation that it may have under this Section 7. SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities to the Underwriters. SECTION 9. Termination of Agreement. (a) Termination; General. The Underwriters may terminate this Agreement, by notice to the Company, at any time at or prior to Closing Time if (i) trading in the Company's Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on the New York Stock Exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities, (iii) there shall have occurred after the date of this Agreement any outbreak or material escalation of hostilities or other calamity or crisis if the effect of any such event specified in this clause (iii) is such as to make it, in the judgment of the Underwriters, inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus, or (iv) if any condition specified in Section 5 hereof shall not have been fulfilled when and as required to be fulfilled. (b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full force and effect. SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at Closing Time to purchase the Securities which it or they are obligated to purchase under this Agreement (the "Defaulted Securities"), the non-defaulting Underwriters shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, 11 however, the Underwriters shall not have completed such arrangements within such 24-hour period, then: (a) if the number of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Securities to be purchased hereunder, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the Securities to be purchased hereunder, then the Company shall be entitled to a further period of 24 hours within which to procure another party or other parties to purchase such Securities on such terms; provided, that the non-defaulting Underwriters shall consent to such other party or parties, which consent shall not be unreasonably withheld. If the Company shall not have completed such arrangements within such additional 24-hour period, then this Agreement shall terminate without liability on the part of any non-defaulting Underwriter(s). No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, either the Underwriters or the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 10. SECTION 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to them at c/o Salomon Smith Barney Inc., 388 Greenwich Street, New York, New York 10013, attention: General Counsel; and notices to the Company shall be directed to it at 2030 Dow Center, Midland, Michigan 48674, attention of the Treasurer. SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase. 12 SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. SECTION 14. Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. [Intentionally left blank] 13 If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters and the Company in accordance with its terms. Very truly yours, THE DOW CHEMICAL COMPANY By /s/ ------------------------------------ Name: J. P. Reinhard Title: Executive Vice President and Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: SALOMON SMITH BARNEY INC. By /s/ ------------------------------------ E. Thomas Massey Director 14 SCHEDULE I - --------------------------------------------------------------------- Principal Underwriter Amount ----------- ------ - -------------------------------------------------------------------- Salomon Smith Barney Inc. ........................... $250,000,000 - --------------------------------------------------------------------- Banc One Capital Markets, Inc. ...................... 100,000,000 - --------------------------------------------------------------------- Deutsch Bank Securities Inc. ........................ 100,000,000 - --------------------------------------------------------------------- BNY Capital Markets, Inc. ........................... 10,000,000 - --------------------------------------------------------------------- Mizuho International plc ............................ 10,000,000 - --------------------------------------------------------------------- SG Cowen Securities Corporation ..................... 10,000,000 - --------------------------------------------------------------------- Tokyo-Mitsubishi International plc .................. 10,000,000 - --------------------------------------------------------------------- Wachovia Securities, Inc. ........................... 10,000,000 - --------------------------------------------------------------------- Total ......................................... $500,000,000 - --------------------------------------------------------------------- EXHIBIT A Form of Opinion of Charles J. Kalil (1) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business; (2) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Securities conform to the description thereof contained in the Prospectus; (3) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters; (4) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the 1939 Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); the Securities have been duly authorized, executed, authenticated and delivered in accordance with the provisions of the Indenture and constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; (5) the Registration Statement has become effective under the 1933 Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the 1933 Act and the 1934 Act and the respective rules thereunder; (6) such counsel has no reason to believe that the Registration Statement at the date of its effectiveness or on the date hereof, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (7) this Agreement has been duly authorized, executed and delivered by the Company; (8) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein except such as have been obtained under the 1933 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Securities as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained; and (9) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or bylaws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound, or any order or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries; In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Michigan, the United States or the corporate law of the State of Delaware, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this Exhibit A include any supplements thereto at the date such opinion is rendered. EX-4.9 4 dex49.txt FORM OF GLOBAL NOTES Exhibit 4.9 UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE "DEPOSITORY") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. REGISTERED REGISTERED THE DOW CHEMICAL COMPANY 5.75% NOTES DUE NOVEMBER 15, 2009 CUSIP NO. 260543 BS 1 ISIN NO. US260543BS19 No. R-1 US$500,000,000 THE DOW CHEMICAL COMPANY, a Delaware corporation (herein called the "Company," which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of FIVE HUNDRED MILLION DOLLARS (US$500,000,000) on November 15, 2009, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, together with such additional amounts (if any) as are described in Section 2 on the reverse of this Note ("Additional Amounts"), thereon semi-annually on each May 15 and November 15, commencing May 15, 2003 and at maturity on said principal sum, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, at the rate per annum specified in the title of this Security, from the May 15 or November 15, as the case may be, next preceding the date of this Security to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Security, or unless no interest has been paid on this Security, in which case from November 12, 2002, until payment of said principal sum has been made or duly provided for. Payments of such principal and interest (and Additional Amounts, if any) shall be made at the office or agency of the Company in Chicago, Illinois, which, subject to the right of the Company to vary or terminate the appointment of such agency, shall initially be at the principal office of Bank One Trust Company, N.A., One Bank One Plaza, Chicago, Illinois 60670-0126; provided, that payment of interest (and Additional Amounts, if any) may be made at the option of the Company by check mailed to the address of the person entitled thereto as such address shall appear on the Security register; provided, further that so long as CEDE & CO. or another nominee of the Depository is the registered owner of this Security payments of principal and interest (and Additional Amounts, if any) will be made in immediately available funds through the Depository's Same-Day Funds Settlement System. Notwithstanding the foregoing, if the date hereof is after May 1 or November 1, as the case may be, and before the following May 15 or November 15, this Security shall bear interest from such May 15 or November 15; provided, that if the Company shall default in the payment of interest due on such May 15 or November 15, then this Security shall bear interest from the next preceding May 15 or November 15, to which interest has been paid or, if no interest has been paid on this Security, from November 12, 2002. The interest (and Additional Amounts, if any) payable on any May 15 or November 15 will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Security is registered at the close of business on the May 1 or November 1, as the case may be, next preceding such May 15 or November 15, and the interest (and Additional Amounts, if any) payable at maturity will be payable to the person to whom the principal hereof shall be payable. Reference is made to the further provisions of this Security set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place. This Security shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof. [Signatures appear on next page] 2 IN WITNESS WHEREOF, THE DOW CHEMICAL COMPANY has caused this instrument to be signed by facsimile by its duly authorized representative. Dated: November 12, 2002 [SEAL] Attest: THE DOW CHEMICAL COMPANY By: ____________________________ By: ___________________________________ Name: Thomas E. Moran Name: Fernando Ruiz Title: Assistant Secretary Title: Vice President and Treasurer 3 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture. Bank One Trust Company, N.A., as Trustee By: ___________________________________ Authorized Signatory 4 THE DOW CHEMICAL COMPANY 5.75% NOTES DUE NOVEMBER 15, 2009 Section 1. General. This Note is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of April 1, 1992, as supplemented by a supplemental indenture dated as of January 1, 1994, a second supplemental indenture dated as of October 1, 1999, and a third supplemental indenture dated as of May 15, 2001 (the "Indenture"), between the Company and Bank One Trust Company, N.A., as successor in interest to The First National Bank of Chicago, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the Securities of the series designated on the face hereof. Section 2. Payment of Additional Amounts. The Company shall pay to any Holder who is a Non-United States person (as defined below) such Additional Amounts as may be necessary in order that every net payment in respect of the principal, premium, if any, or interest, if any, on this Security, after deduction or withholding by the Company or any Paying Agent for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the United States or any political subdivision or taxing authority thereof or therein, shall not be less than the amount provided for herein to be then due and payable before any such deduction or withholding for or on account of any such tax, assessment or governmental charge; provided, however, that the foregoing obligation to pay such Additional Amounts shall not apply to: (a) any tax, assessment or other governmental charge which would not have been so imposed but for: (i) the existence of any present or former connection between such Holder (or a fiduciary, settlor, beneficiary, member or shareholder of, or holder of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the United States, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder of, or holder of a power) being or having been a citizen or resident or treated as a resident thereof or being or having been engaged in a trade or business therein or being or having been present therein or having or having had a permanent establishment therein; or (ii) such Holder's present or former status as a personal holding company or foreign personal holding company or controlled foreign corporation for United States federal income tax purposes or corporation which accumulates 5 earnings to avoid United States federal income tax; (b) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Holder for payment on a date more than 10 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; (c) any estate, inheritance, gift, sales, transfer, personal property or excise tax or any similar tax, assessment or governmental charge; (d) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments in respect of principal of, premium, if any, or interest, if any, on this Security; (e) any tax, assessment or other governmental charge imposed on interest received by a Holder or beneficial owner of this Security who actually or constructively owns 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote within the meaning of Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended; (f) any tax, assessment or other governmental charge imposed as a result of the failure to comply with: (i) certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of this Security, if such compliance is required by statute, or by regulation of the United States Treasury Department, as a precondition to relief or exemption from such tax, assessment or other governmental charge (including backup withholding); or (ii) any other certification, information, documentation, reporting or other similar requirements under United States income tax laws or regulations that would establish entitlement to otherwise applicable relief or exemption from such tax, assessment or other governmental charge; (g) any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of the principal of, premium, if any, or interest, if any, on this Security, if such payment can be made without such withholding by at least one other Paying Agent; (h) any tax, assessment or other governmental charge that is required to be made pursuant to any European Union directive on the taxation of savings income or any law implementing or complying with, or introduced to conform to, any such directive; or 6 (i) any combination of items (a), (b), (c), (d), (e), (f), (g) or (h); nor will such Additional Amounts be paid to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of this Security to the extent a settlor or beneficiary with respect to such fiduciary or a member of such partnership or a beneficial owner of this Security would not have been entitled to payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of this Security. This Security is subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable thereto. Except as specifically provided under this Section 2, the Company shall not be required to make any payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein. As used in this Section 2 and in Section 3 hereof: (a) the term "United States" means the United States of America (including the States and the District of Columbia) and its territories, its possessions and other areas subject to its jurisdiction; (b) the term "United States person" means a beneficial owner of the Securities that is for United States federal income tax purposes: (i) a citizen or resident of the United States; (ii) a corporation or other entity created or organized in or under the laws of the United States or of any political subdivision thereof; (iii) an estate the income of which is subject to United States federal income taxation regardless of its source; or (iv) a trust if (1) a court within the United States is able to exercise primary supervision over the administration of the trust, and (2) one or more United States persons have the authority to control all substantial decisions of the trust; and (c) the term "Non-United States person" means a beneficial owner of the Securities that is, for United States federal income tax purposes: (i) a nonresident alien individual; (ii) a foreign corporation; or (iii) a nonresident alien fiduciary of a foreign estate or trust. Section 3. Redemption; Sinking Fund. (a) Except as provided in paragraphs (b) and (c) 7 below, the Securities are not redeemable prior to maturity. (b) If, as a result of: (i) any change in or amendment to the laws (including any regulations or rulings promulgated thereunder) of the United States or any political subdivision thereof or therein affecting taxation, which becomes effective after November 6, 2002 or which proposal is made after such date; (ii) any change in the official application or interpretation of such laws, including any official proposal for such a change, amendment or change in the application or interpretation of such laws, which change, amendment, application or interpretation is announced or becomes effective after November 6, 2002 or which proposal is made after such date; or (iii) any action taken by any taxing authority of the United States which action is taken or becomes generally known after November 6, 2002, or any commencement of a proceeding in a court of competent jurisdiction in the United States after such date, whether or not such action was taken or such proceeding was brought with respect to the Company; there is, in such case, in the written opinion of independent legal counsel of recognized standing to the Company, a material increase in the probability that the Company has or may become obligated to pay Additional Amounts in accordance with Section 2 hereof, and the Company in its business judgment, determines that such obligation cannot be avoided by the use of reasonable measures available to it, not including assignment of this Security, this Security may be redeemed, as a whole but not in part, at the Company's option at any time thereafter, upon notice to the Trustee and the Holders in accordance with the provisions of the Indenture at a redemption price equal to 100% of the principal amount of this Security to be redeemed together with accrued interest thereon to the date fixed for redemption. (c) All or a portion of the Securities will be redeemable at any time or from time to time at the option of the Company at a redemption price equal to the greater of (i) one hundred percent (100%) of the principal amount of the Securities to be redeemed on the redemption date; and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities being redeemed on such redemption date (not including any portion of any payments of interest accrued to the redemption date), discounted to the redemption date on a semiannual basis at the Treasury Rate (as defined below), plus 30 basis points, as determined by the Reference Treasury Dealer (as defined below), 8 plus, in either case, accrued interest thereon to the redemption date. Notwithstanding the foregoing, installments of interest on Securities that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered holders as of the close of business on the relevant record date according to the Securities and the Indenture. The redemption price will be calculated on the basis of a 360-day year consisting of twelve 30-day months. Notice of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder of the Securities to be redeemed. Once notice of redemption is mailed, the Securities called for redemption will become due and payable on the redemption date and at the applicable redemption price, plus accrued and unpaid interest to the redemption date. "Treasury Rate" means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. "Comparable Treasury Issue" means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Securities. "Comparable Treasury Price" means, with respect to any redemption date, (i) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, (ii) if the Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii) if only one Reference Treasury Dealer Quotation is received, such Quotation. "Reference Treasury Dealer" means (i) Salomon Smith Barney Inc. (or its respective affiliates which are Primary Treasury Dealers) and its successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer(s) selected by the Trustee after consultation with the Company. "Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third business day preceding such redemption 9 date. Unless the Company defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Securities or any portions thereof called for redemption. (d) The Securities will not be subject to any sinking fund. Section 4. Events of Default. If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Section 5. Modifications and Waivers; Obligation of the Company Absolute. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest (and Additional Amounts, if any) on this Security at the times, places and rate, and in the coin or currency, herein prescribed. Section 6. Authorized Denominations. The Securities are issuable in registered form, without coupons, in denominations of $1,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture, and subject to certain limitations therein set forth and to the limitations described below, if applicable, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. Section 7. Registration of Transfer. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security register upon surrender of this Security for registration of transfer at the office or agency of the Company maintained for that purpose in the City of Chicago, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the securities registrar (which shall initially be the Trustee, Bank One Trust Company, N.A., One Bank One Plaza, Chicago, Illinois 10 60670-0126 (Attention: Corporate Trust Department) or at such other address as it may designate as its principal corporate trust office in the City of Chicago), duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. This Security is exchangeable only if (x) the Depository notifies the Company that it is unwilling or unable to continue as Depository for this Security or if at any time the Depository ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (y) the Company in its sole discretion determines that this Security shall be exchangeable for certificated Securities in registered form or (z) an Event of Default, or an event which with the passage of time or the giving of notice would become an Event of Default, with respect to the Securities represented hereby has occurred and is continuing, provided that the definitive Securities so issued in exchange for this permanent Security shall be in denominations of $1,000 and any integral multiple of $1,000 in excess thereof and be of like aggregate principal amount and tenor as the portion of this permanent Security to be exchanged, and provided further that, unless the Company agrees otherwise, Securities of this series in certificated registered form will be issued in exchange for this permanent Security, or any portion hereof, only if such Securities in certificated registered form were requested by written notice to the Trustee or the Securities Registrar by or on behalf of a person who is beneficial owner of an interest hereof given through the Holder hereof. Except as provided above, owners of beneficial interests in this permanent Security will not be entitled to receive physical delivery of Securities in certificated registered form and will not be considered the Holders thereof for any purpose under the Indenture. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Section 8. Owners. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. Section 9. No Recourse Against Certain Persons. No recourse for the payment of the principal or interest (and Additional Amounts, if any) on this Security, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any Supplemental Indenture thereto or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation of either of them, either directly or through the Company or any successor corporation of either of them, whether by virtue of any constitution, statute or rule or law or by the enforcement of any assessment or penalty or otherwise, all such liability being by the acceptance 11 hereof and as a condition of and as part of the consideration for the issue hereof, expressly waived and released. Section 10. Defeasance. The Indenture with respect to any series will be discharged and cancelled except for certain Sections thereof, subject to the terms of the Indenture, upon payment of all of the Securities of such series or upon the irrevocable deposit with the Trustee of cash or U.S. Government Obligations (or a combination thereof) sufficient for such payment in accordance with Article Ten of the Indenture. Section 11. Governing Law; Jurisdiction. The Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York. Section 12. Notices. Notices to Holders shall be published in authorized daily newspapers in The City of New York, in London, and, so long as the Securities are listed on the Luxembourg Stock Exchange, in Luxembourg. Notice may be given by publication in The City of New York in The Wall Street Journal, in London in the Financial Times, and in Luxembourg in the Luxemburger Wort. Any notice given pursuant to these provisions shall be deemed to have been given on the date of publication or, if published more than once, on the date first published. Section 13. Defined Terms. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. 12 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - ___________________________ (Minor) Custodian ___________________________ (Cust) Under Uniform Gifts to Minors Act ____________________________ (State) Additional abbreviations may also be used though not in the above list. 13 FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE __________________________________ ________________________________________________________________________________ PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE _______________________________________ _______________________________________ _______________________________________ the within Security and all rights thereunder, hereby irrevocably constituting and appointing ____________________________________ attorney to transfer said Security on the books of the Company, with full power of substitution in the premises. Dated: __________________________ Signature: ____________________________ NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. 14 EX-5.2 5 dex52.txt OPINION OF CHARLES J. KALIL Exhibit 5.2 November 15, 2002 The Dow Chemical Company 2030 Dow Center Midland, Michigan 48674 Ladies and Gentlemen: I am Assistant General Counsel of The Dow Chemical Company, a Delaware corporation (the "Company"). I have supervised the legal and corporate proceedings of the Company in connection with (a) the registration under the Securities Act of 1933, as amended, pursuant to the Registration Statement on Form S-3 (File No. 333-91228), of up to U.S. $1,500,000,000 of the Company's securities, and (b) the authorization and issuance by the Company of $500,000,000 aggregate principal amount of 5.75% Notes due 2009 (the "Notes") under an Indenture, dated as of April 1, 1992, between the Company and Bank One Trust Company, N.A. (successor in interest to The First National Bank of Chicago), as trustee (the "Trustee"), as supplemented by a supplemental indenture, dated as of January 1, 1994, a second supplemental indenture, dated as of October 1, 1999, and a third supplemental indenture, dated as of May 15, 2001 (as so supplemented, the "Indenture"). In rendering the opinions expressed below, I have supervised the examination of (a) the Restated Certificate of Incorporation of the Company and all amendments thereto; (b) the Bylaws of the Company and all amendments thereto; (c) the Registration Statement; (d) resolutions of the board of directors and the executive committee of the board of directors of the Company; (e) the Indenture; (f) the form of Notes; (g) the officer's certificates establishing the terms of the Notes; and (h) such other documents, corporate records and instruments as I have deemed necessary or advisable for the purpose of this opinion. In such examination, I have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by me as copies, the authenticity and completeness of all original documents reviewed by me in original or copy form and the legal competence of each individual executing any document. As to the Trustee, I have assumed the due authorization, execution and delivery of the Indenture and the validity and enforceability thereof against the Trustee in accordance with the terms of the Indenture. Based on the foregoing, and subject to the qualifications hereinafter set forth, it is my opinion that: (i) the Indenture has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and (ii) the Notes have been duly authorized, executed and delivered by the Company and (assuming due authentication thereof by the Trustee in accordance with the provisions of the Indenture) constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity). I do not express any opinion concerning matters under or involving any law other than the law of the State of Michigan, the law of the State of New York, the General Corporation Law of the State of Delaware (which includes applicable provisions of the Delaware Statutes and the Delaware Constitution and reported judicial decisions interpreting those laws) and applicable federal law of the United States of America. The opinions expressed in this letter are based upon the laws in effect on the date hereof, and I assume no obligation to revise or supplement this opinion should such laws be changed by legislative action, judicial decision, or otherwise. I hereby consent to the filing of this opinion as an exhibit to the Post-Effective Amendment No. 1 to the Registration Statement. Very truly yours, /s/ Charles J. Kalil Assistant General Counsel -----END PRIVACY-ENHANCED MESSAGE-----