Securities Exchange Act of 1934
Rule 13e-4 - Issuer Tender Offers
September 2, 2015
Response of the Office of Mergers and Acquisitions
Division of Corporation Finance
The Dow Chemical Company — Exchange Offer
Incoming letter dated September 2, 2015
Via Facsimile & U.S. Mail
Richard B. Alsop, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York, 10022
Dear Mr. Alsop:
We are responding to your letter dated September 2, 2015, addressed to Michele M. Anderson and David L. Orlic, as supplemented by telephone conversations with us, in regard to The Dow Chemical Company's request for no-action relief. To avoid having to recite or summarize the facts set forth in your letter, our response letter is attached to the enclosed copy of your letter. Unless otherwise noted, capitalized terms in this response letter have the same meaning as in your letter.
On the basis of the representations and the facts presented in your letter, the staff of the Division of Corporation Finance will not recommend that the Commission take enforcement action under Rules 13e-4(d)(1), 13e-4(e)(3), 13e-4(f)(1)(ii) or 14e-1(b) under the Securities Exchange Act of 1934 if TDCC conducts the Exchange Offer in the manner described in your letter. In issuing this no-action position, we considered the following facts, among others:
- TDCC will be disclosing a specified dollar value of Splitco Common Stock (which will be converted into the right to receive Olin Common Stock in the Merger based on a specified merger exchange ratio) that tendering TDCC security holders will receive in exchange for a fixed dollar value of tendered TDCC Common Stock (subject to an upper limit on the exchange ratio);
- The formula for determining the number of shares of Splitco Common Stock to be received in exchange for shares of TDCC Common Stock will be disclosed in the tender offer materials disseminated to security holders, the formula will remain fixed throughout the duration of the Exchange Offer and, if there is a change in the formula, the Exchange Offer will remain open for at least 10 business days thereafter;
- The Exchange Offer will be extended for two business days if the final exchange ratio is fixed at the upper limit (as described in your letter), thereby providing TDCC security holders with up to two additional business days during which to tender or withdraw their shares;
- TDCC will publish on a website maintained for the Exchange Offer the daily indicative calculated per-share values and exchange ratios and will provide a toll-free number that TDCC security holders can use to obtain Exchange Offer pricing-related information;
- TDCC Common Stock is listed on The New York Stock Exchange and Olin Common Stock is listed on The New York Stock Exchange, thereby providing security holders with readily observable trading prices and TDCC with trading information to be used in calculating indicative exchange ratios;
- TDCC will publish the final exchange ratio (including whether the upper limit to the exchange ratio is in effect) on the Exchange Offer website and in a press release no later than 4:30 p.m., New York City time, on the final trading day - which is the date preceding the Expiration Date - of the Exchange Offer, and TDCC will file an amendment to its Schedule TO on the same date setting forth the same information; and
- TDCC will make available forms of notice of guaranteed delivery and notice of withdrawal both in printed materials and on the Exchange Offer website, will permit tenders and withdrawals to be made until 8:00 a.m., New York City time, on the expiration date of the Exchange Offer, and will disclose the procedures for making tenders and withdrawals, including the times and methods by which tenders and withdrawals must be made, in the tender offer materials.
The foregoing no-action positions are based solely on the representations and the facts presented in your letter, as supplemented by telephone conversations with the Commission staff. This relief is strictly limited to the application of the rules listed above to the Exchange Offer. TDCC should discontinue the Exchange Offer pending further consultations with the staff if any of the facts or representations set forth in your letter change.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Sections 9(a), 10(b) and 14(e) of the Exchange Act and Rules 10b-5 and 14e-3 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal securities laws rests with the participants in the Exchange Offer. The Division of Corporation Finance expresses no view with respect to any other questions that the Exchange Offer may raise, including, but not limited to, the adequacy of the disclosure concerning, and the applicability of any other federal or state laws to, the Exchange Offer.
For the Division of Corporation Finance,
/s/ Michele M. Anderson
Michele M. Anderson
Associate Director, Legal
The Incoming Letter is in Acrobat format.