UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): May 11, 2009
THE
DOW CHEMICAL COMPANY
(Exact
name of Registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of incorporation)
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1-3433
Commission
File Number
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38-1285128
(IRS
Employer
Identification
No.)
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2030 Dow Center, Midland,
Michigan
(Address
of principal executive offices)
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48674
(Zip
code)
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(989)
636-1000
(Registrant’s
telephone number, including area code)
N.A.
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
3.03
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Material Modification
to Rights of Security
Holders
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The
information included in Item 8.01 below regarding the Perpetual Preferred Stock
(as defined below) is incorporated by reference into this Item
3.03.
On May
12, 2009, The Dow Chemical Company (the “Company”) completed
its offering of 66,666,683 shares of common stock. As previously disclosed,
certain trusts established by members of the Haas family (the “Haas Trusts”) and
funds managed by Paulson & Co. Inc. (“Paulson”), as selling
stockholders, also sold 83,333,317 shares of the Company’s common stock
(including over-allotment shares) in the offering. The Company intends to use
the net proceeds from its sale of the 66,666,683 shares of approximately $965
million to pay a portion of its borrowings under the Term Loan Agreement, dated
as of September 8, 2008, and as amended by the First Amendment, dated as of
March 4, 2009 (the “Term Loan
Agreement”).
On May
13, 2009, the Company completed its $6 billion offering of senior notes,
consisting of $1,750,000,000 principal amount of 7.60% Notes due 2014 (the
“2014 Notes”),
$1,903,032,000 principal amount of 8.55% Notes due 2019 (the “2019 Notes”) and
$1,000,000,000 principal amount of 9.40% Notes due 2039 (the “2039 Notes”). The
Haas Trusts and Paulson, as selling noteholders, also sold $1,346,968,000
aggregate principal amount of the 2019 Notes in the offering. The Company
intends to use its net proceeds of approximately $4.6 billion to repay certain
portions of existing indebtedness, including a portion of the Company’s
borrowings under the Term Loan Agreement. The forms of the 2014
Notes, the 2019 Notes and the 2039 Notes are attached as Exhibits 4.1, 4.2, and
4.3, respectively, to this Current Report on Form 8-K and are incorporated by
reference into this Report and the Company’s registration statement on Form S-3
(File No. 333-140859) (the “Registration
Statement”).
The
shares of the Company’s common stock and the 2019 Notes sold by the Haas Trusts
and Paulson in the offerings described above were issued to such parties
pursuant to the purchase agreement, dated May 5, 2009 (the “Purchase Agreement”),
among the Company, the Haas Trusts and Paulson, in consideration for the
Company’s repurchase of all of their shares of cumulative perpetual preferred
stock, series B, having an initial liquidation preference of $1,000 per share
(the “Perpetual
Preferred Stock”) at par plus accrued and unpaid dividends. As
of May 13, 2009, all outstanding shares of the Perpetual Preferred Stock have
been canceled. The material terms of the Purchase Agreement were
previously disclosed in Item 1.01 of the Company’s Current Report on Form 8-K
filed on May 11, 2009, and are incorporated by reference herein.
Additionally,
on May 13, 2009, the Company sold 36,698,005 shares of the Company’s common
stock for an aggregate purchase price of $552,528,833.08 to the employee stock
ownership plan component (the “ESOP”) of The Dow
Chemical Company Employees’ Savings Plan (the “Dow 401(k) Plan”),
pursuant to a stock purchase agreement (the “Stock Purchase
Agreement”), dated May 11, 2009, between the Company and Fidelity
Management Trust Services (“Fidelity”), as
trustee of a trust established under the Dow 401(k) Plan. In
connection with the acquisition by the Company of Rohm and Haas Company (“Rohm and Haas”),
which closed on April 1, 2009, the Rohm and Haas Employee Stock Ownership and
Savings Plan (the “ROH
ESOP”) received cash proceeds (the “Merger Proceeds”) in
respect of the unallocated shares of Rohm and Haas common stock that were held
in the suspense account under the ROH ESOP trust at the closing. The
ROH ESOP was then merged into the ESOP under the Dow 401(k)
Plan. Under the provisions of the Dow 401(k) Plan, Fidelity was
required to use the Merger Proceeds to purchase shares of the Company’s common
stock (unless it would violate the Employee Retirement Income Security Act of
1974, as amended (“ERISA”) to do
so). An independent fiduciary/investment manager was appointed as the
fiduciary and investment manager of the Dow 401(k)
Plan for
the sole purpose of purchasing the Company’s common stock on behalf of the Dow
401(k) Plan in accordance with the requirements of ERISA. In order to
effectuate the purchase of the Company’s common stock, the independent
fiduciary/investment manager directed Fidelity to purchase the Company’s common
stock on behalf of the Dow 401(k) Plan using the Merger Proceeds pursuant to the
Stock Purchase Agreement. The shares of common stock purchased by the
ESOP trust, which were treasury shares of the Company, are registered under
the Securities Act of 1933, as amended, with the Securities and Exchange
Commission, pursuant to the Registration Statement. Those shares will be
allocated to eligible participants in the Dow 401(k) Plan from time to time in
accordance with the terms of the plan.
The
number of shares of the Company’s outstanding common stock for accounting
purposes and the calculation of the Company’s earnings per share will not be
affected by the initial issuance of such shares to the ESOP trust. The shares
will be counted as outstanding for accounting purposes only if and when they are
allocated to participants in the Dow 401(k) Plan. The fair market
value of the shares at the time of allocation will be accounted for as
compensation expense.
A copy of
the Stock Purchase Agreement is attached as Exhibit 1.1 to this Current Report
on Form 8-K and is incorporated by reference into this Report and the
Registration Statement.
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Item
9.01
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Financial Statements
and Exhibits
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(d) Exhibits
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1.1
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Plan
Stock Purchase Agreement, dated May 11,
2009
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4.1
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Form
of 7.60% Notes due 2014
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4.2
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Form
of 8.55% Notes due 2019
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4.3
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Form
of 9.40% Notes due 2039
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: May
14, 2009
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The
Dow Chemical Company |
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By: |
/s/ William H.
Weideman |
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Name:
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William H.
Weideman |
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Title:
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Vice President and
Controller |
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1.1
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Plan
Stock Purchase Agreement, dated May 11,
2009
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4.1
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Form
of 7.60% Notes due 2014
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4.2
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Form
of 8.55% Notes due 2019
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4.3
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Form
of 9.40% Notes due 2039
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