As filed with the Securities and Exchange Commission on May 1, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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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
incorporation or organization) No.)
2030 Dow Center
Midland, Michigan 48674
(517) 636-1000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Tina Van Dam
Assistant Secretary
The Dow Chemical Company
2030 Dow Center
Midland, Michigan 48674
(517) 636-1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Edward S. Best
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
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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. [_]
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CALCULATION OF REGISTRATION FEE
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Amount of
Title of each class of Amount to be Registration
Securities to be Registered Registered(1) Fee(2)(3)
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Common Stock, $2.50 par value per share............ $1,740,000,000 $435,000
Preferred Stock, $1.00 par value per share.........
Debt Securities....................................
Warrants to Purchase Common Stock..................
Warrants to Purchase Preferred Stock...............
Warrants to Purchase Debt Securities...............
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(1) If any Debt Securities are issued at an original issue discount, then
the principal amount of Debt Securities registered hereby shall be such
greater principal amount as shall result in an aggregate initial
offering price not to exceed $1,740,000,000 less the aggregate dollar
amount of all securities previously issued hereunder.
(2) Pursuant to Rule 457(o) under the Securities Act of 1933, the
registration fee is calculated on the maximum offering price of all
securities listed, and the table does not specify information by each
class about the amount to be registered.
(3) Pursuant to Rule 429 under the Securities Act of 1933, $260,000,000 of
securities are being carried forward from registration statement on
Form S-3 (No. 333-88617) for inclusion in the prospectus contained in
this registration statement.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ The information in this prospectus is not complete and may be changed. Dow +
+ may not sell the securities until the registration statement filed with the +
+ Securities and Exchange Commission is effective. This prospectus is not an +
+ offer to sell these securities and Dow is not soliciting an offer to buy +
+ these securities in any State where the offer or sale is not permitted. +
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 1, 2001
PROSPECTUS
The Dow Chemical Company
By this prospectus, Dow may offer from time to time a total of up to
$2,000,000,000 of securities, which may include:
o common stock
o preferred stock
o warrants to purchase common stock
o warrants to purchase preferred stock
o debt securities
o warrants to purchase debt securities
Dow will provide you with the specific terms and the public offering
prices of these securities in supplements to this prospectus. You should
read this prospectus and the prospectus supplements carefully before you
invest. This prospectus may not be used to offer and sell securities unless
accompanied by a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful and complete. Any representation to the
contrary is a criminal offense.
This prospectus is dated , 2001
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Dow filed with
the Securities and Exchange Commission under the shelf registration
process. Dow may sell common stock, preferred stock, debt securities,
warrants to purchase common stock, warrants to purchase preferred stock and
warrants to purchase debt securities. The total sales of all securities
sold under this prospectus, however, may not exceed $2,000,000,000. This
prospectus provides you with a general description of the securities Dow
may offer. Each time Dow sells securities, Dow will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More
Information."
THE DOW CHEMICAL COMPANY
Dow is a leading science and technology company that provides innovative
chemical, plastic and agricultural products and services to many essential
consumer markets. Dow serves customers in more than 170 countries and a
wide range of markets that are important to human progress, including food,
transportation, health and medicine, personal and home care, and building
and construction, among others. Dow has 171 manufacturing sites in 35
countries and supplies more than 2,500 products. Dow's corporate offices
are located at 2030 Dow Center, Midland, Michigan 48674, and Dow's
telephone number is (517) 636-1000.
Additional information concerning Dow and its subsidiaries is included
in the documents filed with the Securities and Exchange Commission and
incorporated in this prospectus by reference. See the discussion under the
heading "Where You Can Find More Information."
USE OF PROCEEDS
Dow will use the net proceeds from the sale of the securities for
general corporate purposes.
DESCRIPTION OF CAPITAL STOCK
The following summary of common stock and preferred stock of Dow does
not purport to be complete and is subject to, and qualified in its entirety
by reference to, the relevant provisions of Delaware law, and by Dow's
certificate of incorporation and bylaws, which are incorporated by
reference as exhibits to the registration statement of which this
prospectus is a part.
Dow is authorized to issue 1,750,000,000 shares of all classes of stock,
1,500,000,000 of which are shares of common stock, par value $2.50 per
share, and 250,000,000 of which are shares of preferred stock. As of March
31, 2001, there were 981,377,562 shares of common stock issued and no
shares of preferred stock issued or outstanding. All issued and outstanding
shares of common stock are fully paid and non-assessable. Any additional
shares of common stock and preferred stock that Dow issues will be fully
paid and non-assessable. Neither Dow's common stockholders nor preferred
stockholders have preemptive rights.
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Common Stock
General
Dow's certificate of incorporation provides that, subject to all of the
rights of holders of preferred stock provided for by the board of directors
or by Delaware corporate law, the holders of common stock will have full
voting rights on all matters requiring stockholder action, with each share
of common stock being entitled to one vote and having equal rights of
participation in the dividends and assets of Dow.
Board of Directors
Dow's certificate of incorporation divides Dow's board of directors into
three classes of directors that are as nearly equal in number as possible
with three-year terms. As a result, approximately one-third of Dow's board
of directors is elected each year. A quorum of directors consists of a
majority of Dow's entire board of directors then holding office.
Number, Filling of Vacancies and Removal of Directors
Dow's certificate of incorporation and bylaws provide that its board of
directors may not have less than six or more than twenty-one members. The
actual number of directors is determined by a vote of a majority of Dow's
entire board of directors. Currently, Dow has fifteen members on its board
of directors. Vacancies on Dow's board of directors and any newly created
directorships are filled by a vote of the majority of the other directors
then in office. Directors elected to fill a vacancy or a new position hold
office until the next annual meeting of stockholders. Directors can be
removed only for cause and only by the vote of stockholders holding 80% of
the voting power of Dow's outstanding stock entitled to vote generally in
the election of directors, voting together as a single class.
Dividends
Delaware corporate law generally provides that a corporation, subject to
restrictions in its certificate of incorporation, including preferred
stockholders' rights to receive dividends prior to common stockholders, may
declare and pay dividends out of:
. surplus; or
. net profits for the fiscal year in which the dividend is declared
and/or the preceding fiscal year, if there is no surplus.
Dividends may not be paid out of net profits so long as the capital of the
corporation is less than the aggregate amount of capital represented by the
issued and outstanding stock of all classes having a preference on the
distribution of assets. Dividends on Dow common stock are not cumulative.
Dow's certificate of incorporation does not contain any additional
restrictions on the declaration or payment of dividends.
Special Meetings of Stockholders
Dow's bylaws provide that a special stockholders' meeting for any
purpose may be called only by the board of directors by a resolution
adopted by a majority of the entire board:
. upon motion of a director; or
. upon written request of stockholders holding at least 50% of the voting
power of the shares of capital stock outstanding and entitled to vote
generally in the election of directors.
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Stockholder notices requesting a special meeting must be given to Dow's
secretary. The notice must include, as to each matter the stockholder
proposes to bring before the meeting:
. the name and address of the stockholder;
. the class or series and number of shares of capital stock that are
beneficially owned by the stockholder;
. a brief description of the business to be brought before the meeting,
including the text of any proposed amendment to the certificate of
incorporation or bylaws;
. a description of all arrangements or understandings between the
stockholder and any other persons related to the business proposal;
. any material business interests of the stockholder in the business
proposal; and
. a representation that the stockholder intends to appear in person or by
proxy at the meeting to bring the business before the meeting.
Advance Notice Provisions for Stockholder Proposals Other than Election of
Directors
Dow's bylaws provide that a stockholder may bring business before an
annual stockholders' meeting if the stockholder is a stockholder on the
record date of giving notice and on the record date of the meeting and
gives notice to Dow's secretary of business that is proper to be brought at
the meeting under Delaware corporate law:
. no earlier than 120 days or later than 60 days before the anniversary
date of the first mailing of proxy materials for the last annual
meeting; or
. if the annual meeting is more than 30 days before or after the
anniversary date of the last annual meeting, Dow must receive the
stockholder's notice no later than the close of business on the 10th
day after the earlier of the date on which notice of the annual meeting
date was mailed or publicly disclosed.
The notice must include the same information required to be included in
a stockholder's notice in connection with requesting a special meeting. See
the section of this prospectus captioned "Special Meetings of
Stockholders."
Advance Notice Provisions for Stockholder Nominations of Directors at an
Annual Meeting
Dow's bylaws provide that a stockholder may nominate a person for
election to the board of directors at an annual stockholders' meeting if
the stockholder gives notice to Dow's secretary:
. no more than 120 days and no less than 60 days before the anniversary
date of the first mailing of proxy materials for the last annual
meeting; or
. if the annual meeting is more than 30 days before or after the
anniversary date of the last annual meeting, Dow must receive the
stockholder's notice no later than the close of business on the 10th
day after the earlier of the day on which notice of the annual meeting
date was mailed or publicly disclosed.
The notice must include the following:
. a description of all arrangements or understandings between the
stockholder and the nominee and any other person pursuant to which the
nomination is made;
. the information regarding the nominee that would have been required to
be included in a proxy statement filed under the proxy rules of the
Securities and Exchange Commission if the nominee had been nominated by
the board of directors;
. the consent of the nominee to serve as a director if he or she is
elected; and
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. the information required to be included in a stockholder's notice in
connection with requesting a special meeting. See the section of this
prospectus captioned "Special Meetings of Stockholders."
Advance Notice Provisions for Stockholder Nominations of Directors at a
Special Meeting
Dow's bylaws provide that a stockholder may nominate a person for
election to the board of directors at a special meeting of stockholders if
the stockholder gives Dow's secretary notice of the nomination no later
than the close of business on the seventh day after notice of the special
meeting is first given to stockholders.
In addition to the information required to be included in a
stockholder's notice in connection with a special meeting, the notice must
include the same information that would be required to nominate a person
for election as a director at an annual meeting. See the section of this
prospectus captioned "Advance Notice Provisions for Stockholder Nominations
of Directors at an Annual Meeting."
Stockholder Action by Written Consent
Under Delaware corporate law, unless otherwise provided in a
corporation's certificate of incorporation, any action required or
permitted to be taken at an annual or special stockholders' meeting may be
taken by written consent, without a meeting, prior notice or a vote. The
written consent must be signed by holders of outstanding stock having the
minimum number of votes necessary to authorize or take such action at a
meeting at which all shares entitled to vote on the matter were present and
voted. Dow's certificate of incorporation, however, provides that any
action required or permitted to be taken by the stockholders must be taken
at a duly called annual or special stockholders' meeting and may not be
taken by written consent.
Transactions with Interested Stockholders and a Merger or Sale of Assets
Delaware corporate law requires the approval of the board of directors
and a majority of a corporation's outstanding stock entitled to vote to
authorize a merger or consolidation unless the company's certificate of
incorporation requires a greater percentage. Unless required by a
corporation's certificate of incorporation, stockholder approval, however,
is not required in certain cases, such as where:
. either no shares of common stock of the surviving corporation and no
shares, securities or obligations convertible into common stock are to
be issued or delivered in the merger; or
. the authorized and unissued shares or the treasury shares of common
stock of the surviving corporation to be issued or delivered in the
merger, plus those initially issuable upon conversion of any other
shares, securities or obligations to be issued or delivered in the
merger;
do not exceed 20% of the shares of common stock of the corporation
outstanding immediately prior to the effective date of the merger. A sale
of all or substantially all of a Delaware corporation's assets or a
voluntary dissolution of a Delaware corporation requires the vote of a
majority of the board of directors and a majority of the corporation's
outstanding shares entitled to vote on the matter unless the company's
certificate of incorporation requires a greater percentage. Dow's
certificate of incorporation does not require a greater percentage, except
as described below.
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Delaware corporate law generally defines an interested stockholder as a
person, other than the corporation and any direct or indirect majority
owned subsidiary of the corporation:
. who is the direct or indirect owner of 15% or more of the outstanding
voting stock of the corporation; or
. is an affiliate or associate of the corporation and was the direct or
indirect owner of 15% or more of the outstanding voting stock of the
corporation at any time within the three-year period immediately prior
to the date it asked for determination of its status as an interested
stockholder; and
. the affiliates and associates of that person.
Delaware corporate law prohibits an interested stockholder from engaging
in a business combination with the Delaware corporation for three years
following the time of becoming an interested stockholder. This three-year
waiting period does not apply when:
. prior to the time of becoming an interested stockholder, the board of
directors approves either the business combination or the transaction
that resulted in the stockholder becoming an interested stockholder;
. as a result of becoming an interested stockholder, the stockholder
owned, excluding shares owned by directors who are also officers and
certain employee stock plans, at least 85% of the outstanding voting
stock of the corporation at the time the transaction began; or
. at or after the time of becoming an interested stockholder, the
business combination is approved by the board of directors and
authorized at a meeting of stockholders by a vote of at least
two-thirds of the outstanding voting stock that is not owned by the
interested stockholder.
These restrictions also do not apply in certain other circumstances,
including business combinations with an interested stockholder that are
proposed after a public announcement of and prior to the consummation or
abandonment of:
. certain mergers or consolidations;
. sales of 50% or more of the aggregate market value of a corporation's
assets or outstanding voting stock; or
. tender offers or exchange offers for 50% or more of a corporation's
voting stock.
Delaware corporate law allows a corporation to specify in its
certificate of incorporation or bylaws that it will not be governed by the
section relating to transactions with interested stockholders. Dow has not
made that election in its certificate of incorporation or bylaws.
Dow's certificate of incorporation provides that, in addition to the
vote required pursuant to Delaware corporate law, the vote of stockholders
owning at least 80% of the voting power of the shares of capital stock
entitled to vote generally in the election of directors, voting together as
a single class, is required to approve any of the following business
combination transactions:
. a merger or consolidation of Dow or a subsidiary of which Dow
ultimately owns 50% or more of the capital stock with:
-- an interested stockholder; or
-- any other individual or entity that, after the merger or
consolidation, would be an affiliate or associate of an interested
stockholder;
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. a sale, lease, exchange, mortgage, pledge, transfer or other
disposition, in one or more transactions with or on behalf of an
interested stockholder or an affiliate or associate of an interested
stockholder, of any assets of Dow or any subsidiary of Dow that
constitutes 5% or more of Dow's total consolidated assets as of the end
of the most recent quarter;
. the issuance or transfer by Dow or any of its subsidiaries of any
securities of Dow or its subsidiaries in one or more transactions to,
or proposed by or on behalf of, an interested stockholder or an
affiliate or associate of an interested stockholder in exchange for
cash, securities or other property constituting not less than 5% of
Dow's consolidated total assets as of the end of the most recent
quarter;
. the adoption of a plan or proposal for liquidation or dissolution of
Dow or any spin-off or split-up of any kind of Dow or any subsidiary of
Dow that is proposed by or on behalf of an interested stockholder or an
affiliate or associate of an interested stockholder; or
. any reclassification of securities or recapitalization of Dow, or any
merger or consolidation of Dow with a subsidiary of Dow or other
transaction that has the direct or indirect effect of increasing the
percentage of the outstanding shares of:
-- any class of equity securities of Dow or any subsidiary of Dow; or
-- any class of securities of Dow or any subsidiary that are convertible
into equity securities of Dow or any subsidiary that are owned
directly or indirectly by an interested stockholder and all of its
affiliates and associates.
However, the vote of only a majority of the stockholders entitled to
vote generally in the election of directors, voting together as a single
class, is required to approve a business combination transaction that:
. has been approved by a majority of continuing directors, even if they
constitute less than a quorum; or
. meets certain price and consideration conditions and procedures.
A "continuing director" is:
-- any member of the board of directors who is not an interested
stockholder involved in a business combination described above or an
affiliate, associate, employee, agent or nominee of an interested
stockholder or relative of any of the foregoing persons, and was a
member of the board before the interested stockholder became an
interested stockholder; or
-- a successor of a director described above who is recommended or
elected to succeed a director described above by the vote of a
majority of such directors then on the board.
Dow's certificate of incorporation defines an interested stockholder as
any person or entity other than Dow, any subsidiary of Dow or any employee
benefit plan of Dow or a subsidiary of Dow, that:
. is, or was at any time within the two-year period prior to the date in
question, the direct or indirect beneficial owner of 10% or more of the
voting power of the then-outstanding voting stock of Dow;
. is an affiliate of Dow and, at any time within the two-year period
immediately prior to the date in question, was the direct or indirect
beneficial owner of 10% or more of the voting power of the outstanding
voting stock of Dow; or
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. is an assignee of, or has otherwise succeeded to, any shares of voting
stock of Dow of which an interested stockholder was the direct or
indirect beneficial owner, at any time within the two-year period
immediately prior to the date in question, if such assignment or
succession occurred in the course of a transaction or series of
transactions not involving a public offering under the Securities Act
of 1933.
For purposes of determining whether a person is an interested
stockholder, the outstanding voting stock of Dow includes unissued shares
of voting stock of Dow beneficially owned by the interested stockholder but
not other shares of voting stock of Dow that may be issuable pursuant to an
agreement, arrangement or understanding or upon the exercise of conversion
rights, warrants or options, or otherwise, to any person who is not an
interested stockholder.
Preferred Stock
Dow's board of directors is authorized, subject to Delaware corporate
law and without a vote of its stockholders, to issue shares of preferred
stock from time to time in one or more series and to determine the voting
rights, designations, preferences and relative, participating, optional or
other special rights and qualifications, limitations and restrictions of
any series of preferred stock. The prospectus supplement relating to an
offering of shares of Dow's preferred stock will describe the terms of the
series of preferred stock Dow is offering.
DESCRIPTION OF DEBT SECURITIES
The following description of the debt securities summarizes the material
terms and provisions of the debt securities to which a prospectus
supplement may relate. Each time Dow offers debt securities, the prospectus
supplement related to that offering will describe the terms of the debt
securities Dow is offering.
The debt securities will be issued under an indenture, dated as of April 1,
1992, as supplemented by a supplemental indenture, dated as of January 1,
1994, and a second supplemental indenture dated as of October 1, 1999,
between Dow and Bank One Trust Company, NA (successor in interest to The
First National Bank of Chicago), as trustee. The indenture as supplemented
by the supplemental indentures is referred to in this section as the
"indenture." The following summary of the debt securities and the indenture
does not purport to be complete and is subject to the provisions of the
indenture, including the defined terms. Whenever Dow refers to particular
sections, articles or defined terms of the indenture, those sections,
articles or defined terms are incorporated by reference in this prospectus
and prospectus supplement. You should review the indenture that is filed as
exhibits to the registration statement for additional information.
General
Dow may issue debt securities from time to time in one or more series
without limitation as to aggregate principal amount. The indenture does not
limit the amount of other indebtedness or securities which Dow may issue.
The debt securities will be unsecured obligations and will rank equally
with all of Dow's other unsecured and unsubordinated indebtedness.
The prospectus supplement will describe the following terms of the debt
securities Dow is offering:
. the title of the debt securities or the series in which the debt
securities will be included;
. any limit on the aggregate principal amount of the debt securities of
that series;
. whether the debt securities may be issued as registered securities or
bearer securities or both, whether any of the debt securities may be
issued initially in temporary global form and whether any of the debt
securities may be issued in permanent global form;
. the price or prices at which the debt securities will be issued;
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. the date or dates on which the principal amount of the debt securities is
payable;
. the interest rate or rates, or the formula by which the interest rate
or rates will be determined, if any, and the dates from which any
interest will accrue;
. the interest payment dates on which any interest will be payable, the
regular record date for any interest payable on any debt securities
that are registered securities on any interest payment date, and the
extent to which, or the manner in which, any interest payable on a
global security on an interest payment date will be paid if different
from the manner described below under the section of this prospectus
captioned "Global Securities";
. any mandatory or optional sinking fund or analogous provisions;
. each office or agency where the principal of and any premium and
interest on the debt securities will be payable and each office or
agency where the debt securities may be presented for registration of
transfer or exchange;
. the date, if any, after which and the price or prices at which the debt
securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, in whole or in part, and the other detailed
terms and provisions of any optional or mandatory redemption
provisions;
. the denominations in which Dow may issue any debt securities which are
registered securities, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Dow may issue
any debt securities which are bearer securities, if other than
denominations of $5,000;
. the currency or currencies of payment of principal of and any premium and
interest on the debt securities;
. any index used to determine the amount of payments of principal of and
any premium and interest on the debt securities;
. any additional covenants applicable to the debt securities; and
. any other terms and provisions of the debt securities not inconsistent
with the terms and provisions of the indenture.
The prospectus supplement also will describe any special provisions for
the payment of additional amounts with respect to the debt securities.
If the purchase price of any of the debt securities is denominated in
one or more foreign currencies or currency units or if the principal of, or
any premium and interest on, any series of debt securities is payable in
one or more foreign currencies or currency units, the restrictions,
elections, general tax considerations, specific terms and other information
with respect to such debt securities and such foreign currency or currency
units will be set forth in the related prospectus supplement.
Some of the debt securities may be issued as original issue discount
securities (bearing no interest or bearing interest at a rate which at the
time of issuance is below market rates) to be sold at a substantial
discount below their principal amount. The prospectus supplement will
describe the federal income tax considerations and other special
considerations which apply to any original issue discount securities.
Denominations, Registration and Transfer
The debt securities may be issued as registered securities, bearer
securities or both. Debt securities may be issued in the form of one or
more global securities, as described below under the section of this
prospectus captioned "Global Securities." Unless otherwise provided in the
prospectus supplement, registered securities denominated in U.S. dollars
will be issued only in denominations of $1,000 or any integral multiple
thereof and bearer securities denominated in U.S. dollars will be issued
only in denominations of $5,000 with coupons attached. A global security
will be issued in a denomination equal to the aggregate principal amount of
outstanding debt securities represented by that global security. The
prospectus supplement relating to debt securities denominated in a foreign
or composite currency will specify the denominations in which the debt
securities will be issued.
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During the "restricted period" as defined in Treasury Regulation Section
1.163-5(c)(2)(i)(D)(7), no bearer security will be mailed or otherwise
delivered to any location in the United States and a bearer security may be
delivered during such restricted period only if the person entitled to
receive the bearer security furnishes proper written certification that the
bearer security is owned by:
. a person that is not a U.S. person;
. a qualifying foreign branch of a U.S. financial institution; or
. a U.S. person who acquired the obligation through the qualifying foreign
branch of a U.S. financial institution and holds the obligation through
that qualifying foreign branch of a U.S. financial institution on the
date of certification; or
. a financial institution for resale during the restricted period but not
for resale directly or indirectly to a U.S. person or to a person within
the United States or its possessions.
Registered securities of any series may be exchanged for other
registered securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. In addition, if
debt securities of any series may be issued as both registered securities
and as bearer securities, at the option of the holder upon written request,
and subject to the terms of the indenture, bearer securities (with all
unmatured coupons, except as provided below, and all matured coupons in
default attached) of such series may be exchanged for registered securities
of the same series of any authorized denominations and of a like aggregate
principal amount and tenor. Unless otherwise indicated in the prospectus
supplement, any bearer security surrendered in exchange for a registered
security between a record date and the relevant date for payment of
interest will be surrendered without the coupon relating to the date for
payment of interest attached, and interest may be paid only to the holder
of such coupon when due in accordance with the terms of the indenture.
Except as indicated in the prospectus supplement, bearer securities will
not be issued in exchange for registered securities.
Debt securities may be presented for exchange as described in the
previous paragraph, and registered securities, other than a global
security, may be presented for registration of transfer, with the form of
transfer duly executed, at the office of the security registrar designated
by Dow or at the office of any transfer agent designated by Dow for that
purpose, without service charge and upon payment of any taxes and other
governmental charges as described in the indenture. The transfer or
exchange will be effected when the security registrar or the transfer agent
is satisfied with the documents of title and identity of the person making
the request. Dow has initially appointed the trustee as the security
registrar under the indenture. If a prospectus supplement refers to any
transfer agent initially designated by Dow with respect to any series of
debt securities, Dow may at any time cancel the designation of the transfer
agent or approve a change in the location through which such transfer agent
acts, except that:
. if debt securities of a series may be issued only as registered
securities, Dow will be required to maintain a transfer agent in each
place of payment for such series; and
-12-
. if debt securities of a series are issuable as bearer securities, Dow
will be required to maintain (in addition to the security registrar) a
transfer agent in a place of payment for such series located outside
the United States.
Dow may at any time designate additional transfer agents with respect to
any series of debt securities.
In the event of any redemption in part, Dow will not be required to:
. issue, register the transfer of or exchange debt securities of any
series during a period beginning at the opening of business 15 days
before the date of the mailing of a notice of redemption of debt
securities of that series selected to be redeemed and ending at the
close of business on:
-- if debt securities of the series may be issued only as registered
securities, the day of mailing of the relevant notice of redemption;
and
-- if debt securities of the series may be issued as bearer securities,
the day of the first publication of the notice of redemption or, if
debt securities of the series also may be issued as registered
securities and there is no publication, the mailing of the relevant
notice of redemption;
. register the transfer of or exchange any registered security or portion
of any registered security called for redemption, except the unredeemed
portion of any registered security being redeemed in part; or
. exchange any bearer security called for redemption, except to exchange
the bearer security for a registered security of that series and like
tenor which is immediately surrendered for redemption.
Payments and Paying Agents
Unless otherwise indicated in the prospectus supplement, Dow will pay
the principal of and any premium and interest on registered securities
other than a global security at the office of one or more paying agents
designated by Dow. At Dow's option, however, Dow may pay any interest by
check mailed to the address of the payee entitled to the interest at the
address which appears in the security register. Unless otherwise indicated
in the prospectus supplement, payment of any installment of interest on
registered securities will be made to the person in whose name the
registered security is registered at the close of business on the record
date for such interest payment.
Unless otherwise indicated in the prospectus supplement, Dow may pay the
principal of and any premium and interest on bearer securities, subject to
applicable laws and regulations, at the offices of one or more paying
agents outside the United States designated by Dow. At Dow's option,
however, Dow may pay any interest by check or by wire transfer to an
account maintained by the payee outside the United States. Unless otherwise
indicated in the prospectus supplement, payment of interest on bearer
securities on any interest payment date will be made only upon surrender of
the coupon relating to such interest payment date. No payment with respect
to any bearer security will be made at any office or agency of Dow in the
United States by check mailed to any address in the United States or by
transfer to an account maintained in the United States. Payments will not
be made in respect of bearer securities or coupons related to such bearer
securities upon presentation to or any other demand for payment from Dow or
its paying agents within the United States. Dow will pay the principal of
and any premium and interest on bearer securities denominated and payable
in U.S. dollars, however, at the office of Dow's paying agent in the United
States if, and only if:
. payment of the full amount in U.S. dollars at all offices or agencies
outside the United States is illegal or effectively precluded by exchange
controls or other similar restrictions; and
-13-
. Dow has delivered to the trustee an opinion of counsel to that effect.
Unless otherwise indicated in the prospectus supplement, the principal
office of the trustee in New York City will be Dow's sole paying agent for
payments with respect to debt securities which may be issued only as
registered securities. Any paying agent outside the United States and any
other paying agent in the United States initially designated by Dow for the
debt securities will be named in the prospectus supplement. Dow may at any
time designate additional paying agents, or cancel the designation of any
paying agent or approve a change in the office through which any paying
agent acts, except that:
. if debt securities of a series may be issued only as registered
securities, Dow will be required to maintain a paying agent in each
place of payment for such series; and
. if debt securities of a series may be issued as bearer securities, Dow
will be required to maintain:
-- a paying agent in each place of payment for such series in the United
States for payments with respect to any registered securities of such
series and for payments with respect to bearer securities of such
series in the circumstances described above;
-- a paying agent in each place of payment located outside the United
States where debt securities of such series and any coupons related
to the debt securities may be presented and surrendered for payment,
provided that if the debt securities of such series are listed on The
International Stock Exchange, London or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and
such stock exchange so requires, Dow will maintain a paying agent in
London or Luxembourg City or any other required city located outside
the United States for debt securities of such series; and
-- a paying agent in each place of payment located outside the United
States where, subject to applicable laws and regulations, registered
securities of such series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon Dow may
be served.
All amounts paid by Dow to a paying agent for the payment of principal
of and any premium and interest on any debt security that remain unclaimed
at the end of two years after the principal, premium or interest has become
due and payable will be repaid to Dow and after such repayment the holder
of the debt security or any coupon related to the debt security may look
only to Dow for the payment of principal of and any premium and interest on
any such debt security.
Global Securities
The debt securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on
behalf of, a depositary identified in the prospectus supplement. Global
securities may be issued in either registered or bearer form and in either
temporary or permanent form. Unless and until it is exchanged for debt
securities in definitive form, a temporary global security in registered
form may not be transferred except as a whole by:
. the depositary for such global security to a nominee of such depositary;
. a nominee of the depositary for such global security to such depositary
or another nominee of such depositary; or
. the depository for such global security or any such nominee to a
successor of such depositary or a nominee of such successor.
Unless otherwise indicated in the prospectus supplement, registered debt
securities issued in global form will be represented by one or more global
securities deposited with, or on behalf of, The Depository Trust Company,
New York, New York, which we refer to as DTC, or other depositary Dow
appoints and registered in the name of the depository or its nominee. The
debt securities will not be issued in definitive form unless otherwise
provided in the prospectus supplement.
-14-
DTC will act as securities depository for the securities. The debt
securities will be issued as fully-registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One fully-registered global
security will be issued with respect to each $200 million of principal
amount and an additional certificate will be issued with respect to any
remaining principal amount of debt securities.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934. DTC holds securities that its
participants deposit with DTC. DTC also facilitates the settlement among
participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
participants' accounts, thereby eliminating the need for physical movement
of securities certificates. Direct participants include securities brokers
and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is owned by a number of its direct participants
and by the New York Stock Exchange, Inc., the American Stock Exchange,
Inc., and the National Association of Securities Dealers, Inc. Access to
the DTC system is also available to indirect participants such as
securities brokers and dealers, banks, and trust companies that clear
through or maintain a custodial relationship with a direct participant,
either directly or indirectly. The rules applicable to DTC and its
participants are on file with the SEC.
Purchases of debt securities under the DTC system must be made by or
through direct participants, which will receive a credit for the debt
securities on DTC's records. The ownership interest of each actual
purchaser of each debt security is in turn to be recorded on the direct and
indirect participants' records. These beneficial owners will not receive
written confirmation from DTC of their purchase, but beneficial owners are
expected to receive a written confirmation providing details of the
transaction, as well as periodic statements of their holdings, from the
direct or indirect participants through which the beneficial owner entered
into the transaction. Transfers of ownership interests in the debt
securities are to be accomplished by entries made on the books of
participants acting on behalf of beneficial owners. Beneficial owners will
not receive certificates representing their ownership interests in debt
securities, except in the event that use of the book-entry system for the
debt securities is discontinued.
To facilitate subsequent transfers, all debt securities deposited by
participants with DTC are registered in the name of DTC's partnership
nominee, Cede & Co. The deposit of debt securities with DTC and their
registration in the name of Cede & Co. will effect no change in beneficial
ownership. DTC has no knowledge of the actual beneficial owners of the debt
securities; DTC's records reflect only the identity of the direct
participants to whose accounts the debt securities are credited, which may
or may not be the beneficial owners. The participants will remain
responsible for keeping account of their holdings on behalf of their
customers.
-15-
Delivery of notices and other communications by DTC to direct
participants, by direct participants to indirect participants, and by
direct participants and indirect participants to beneficial owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the debt
securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each direct participant in
such issue to be redeemed.
Neither DTC nor Cede & Co will consent or vote with respect to debt
securities. Under its usual procedures, DTC mails an omnibus proxy to Dow
as soon as possible after the record date. The omnibus proxy assigns Cede &
Co.'s consenting or voting rights to those direct participants to whose
accounts the debt securities are credited on the record date (identified in
a listing attached to the omnibus proxy).
Principal and interest payments, if any, on the debt securities will be
made to Cede & Co., as nominee of DTC. DTC's practice is to credit direct
participants' accounts, upon DTC's receipt of funds and corresponding
detail information from Dow or the trustee, on the applicable payable date
in accordance with their respective holdings shown on DTC's records.
Payments by participants to beneficial owners will be governed by standing
instructions and customary practices, as is the case with securities held
for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of that participant and not of DTC,
the trustee or Dow, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal and interest to
Cede & Co. is Dow's responsibility or the trustee's, disbursement of
payments to direct participants shall be the responsibility of DTC, and
disbursement of payments to beneficial owners is the responsibility of
direct and indirect participants.
A beneficial owner must give notice to elect to have its debt securities
purchased or tendered, through its participant, to a tender agent, and
shall effect delivery of debt securities by causing the direct participants
to transfer the participant's interest in the debt securities, on DTC's
records, to a tender agent. The requirement for physical delivery of debt
securities in connection with an optional tender or a mandatory purchase
will be deemed satisfied when the ownership rights in the debt securities
are transferred by direct participants on DTC's records and followed by a
book-entry credit of tendered debt securities to the tender agent's
account.
DTC may discontinue providing its services as securities depository with
respect to the debt securities at any time by giving reasonable notice to
Dow or the trustee. Under these circumstances, in the event Dow does not
appoint a successor securities depository, debt security certificates will
be printed and delivered.
Dow may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor securities depository). In that event, debt
security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Dow believes to be reliable, but
Dow takes no responsibility for their accuracy.
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Limitations on Issuance of Bearer Securities
Bearer securities may not be offered, sold, resold or delivered during
the "restricted period" as defined in Treasury Regulation Section 1.163-
5(c)(2)(i)(D)(7) in the United States or its possessions or to U.S. persons
other than to a qualifying foreign branch of a institution, and any
underwriters, participating in the offering of debt securities must agree
that they will not:
. offer any bearer securities for sale or resale in the United States or
its possessions or to United States persons, other than a qualifying
foreign branch of a U.S. financial institution); nor
. deliver bearer securities within the United States.
Bearer securities and any coupons related to bearer securities will bear
a legend substantially to the following effect: "Any United States person
who holds this obligation will be subject to limitations under the United
States income tax laws, including the limitations provided in Section
165(j) and 1287(a) of the Internal Revenue Code". Under Sections 165(j) and
1287(a) of the Internal Revenue Code, holders that are U.S. persons, with
certain exceptions, will not be entitled to deduct any loss on bearer
securities and must treat as ordinary income any gain realized on the sale
or other disposition (including the receipt of principal) of bearer
securities.
The term "qualifying foreign branch of a United States financial
institution" means a branch located outside the United States of a U.S.
securities clearing organization, bank or other financial institution that
holds customers' securities in the ordinary course of its trade or business
and that provides a certificate within a reasonable time, or a blanket
certificate in the year the debt security is issued or either of the
preceding two calendar years, stating that it agrees to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code and its regulations.
The term "U.S. person" means a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in or under
the laws of the United States or of any political subdivision of the United
States, and an estate or trust the income of which is subject to U.S.
federal income taxation regardless of its source.
The term "United States" means the United States of America, including
the states and the District of Columbia.
The term "possessions" includes Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
Certain Covenants of Dow
Limitations on Liens
Subject to the exceptions described below and those set forth under
"Exempted Indebtedness," Dow may not, and may not permit any restricted
subsidiary to create or permit to exist any lien on any principal property,
additions to principal property or shares of capital stock of any
restricted subsidiary without equally and ratably securing the debt
securities. This restriction will not apply to certain permitted liens,
including:
. liens on principal property existing at the time of its acquisition and
certain purchase money mortgages;
. liens existing on the date of the indenture;
. liens on property or shares of capital stock, or arising out of any
indebtedness of any corporation existing at the time the corporation
becomes or is merged into Dow or a restricted subsidiary;
. liens which secure debt owing to Dow or a subsidiary by a restricted
subsidiary;
-17-
. liens in connection with the issuance of tax-exempt industrial
development or pollution control bonds or other similar bonds issued
pursuant to Section 103(b) of the Internal Revenue Code to finance all
or any part of the purchase price of or the cost of construction,
equipping or improving property, provided that those liens are limited
to the property acquired or constructed or the improvement and to
substantially unimproved real property on which such construction or
improvement is located; provided further, that Dow and restricted
subsidiaries may further secure all or any part of such purchase price
or the cost of construction of such improvements and personal property
by an interest on additional property of Dow and restricted
subsidiaries only to the extent necessary for the construction,
maintenance and operation of, and access to, such property so acquired
or constructed or such improvement;
. liens arising from assignments of money due under contracts with the
United States or any State, or any department, agency or political
subdivision of the United States or any State;
. liens in favor of any customer arising in respect of certain payments
made by or on behalf of a customer for goods produced for or services
rendered to customers in the ordinary course of business not exceeding
the amount of those payments;
. any extension, renewal or replacement of any lien referred to in any of
the previous clauses; and
. certain statutory liens, liens for taxes and certain other liens.
Limitation on Sale and Lease-Back Transactions
Subject to the exceptions set forth below under the section of this
prospectus captioned "Exempted Indebtedness," sale and lease-back
transactions by Dow or any restricted subsidiary of any principal property
are prohibited (except for temporary leases for a term, including any
renewal thereof, of not more than three years and except for leases between
Dow and a subsidiary or between subsidiaries) unless the net proceeds of
such sale and leaseback transaction are at least equal to the fair value of
the property.
Exempted Indebtedness
Dow or any restricted subsidiary may create or assume liens or enter
into sale and lease-back transactions not otherwise permitted under the
limitations on liens and sale and lease-back transactions described above,
so long as at that time and after giving effect to the lien or sale and
lease-back transaction, the sum of:
(1) the aggregate outstanding indebtedness of Dow and its consolidated
subsidiaries incurred after the date of the indenture and secured by
such liens relating to principal property; plus
(2) the aggregate discounted value of the obligations for rental payments
in respect to such sale and lease-back transactions relating to
principal property does
not exceed 10% of consolidated net tangible assets.
There are no covenants or provisions contained in the indenture which
protect holders of debt securities in the event of a highly leveraged
transaction.
Certain Definitions
The following are the meanings of terms that are important in
understanding the covenants previously described:
. ""consolidated net tangible assets" means the total assets of Dow and
its consolidated subsidiaries as shown on or reflected in its balance
sheet, less:
-- all current liabilities, excluding current liabilities which could be
classified as long-term debt under generally accepted accounting
principles and current liabilities which are by their terms
extendible or renewable at the obligor's option to a time more than
12 months after the time as of which the amount of current
liabilities is being computed;
-18-
-- advances to entities accounted for on the equity method of accounting;
and
-- intangible assets.
. "intangible assets" means the aggregate value, net of any applicable
reserves, as shown on or reflected in Dow's balance sheet, of:
- all trade names, trademarks, licenses, patents, copyrights and
goodwill;
- organizational and development costs;
- deferred charges, other than prepaid items such as insurance, taxes,
interest, commissions, rents and similar items and tangible assets
being amortized; and
- amortized debt discount and expense, less unamortized premium.
. ""principal property" means any manufacturing facility having a gross
book value in excess of 1% of consolidated net tangible assets that is
owned by Dow or any restricted subsidiary and located within the United
States, excluding its territories and possessions and Puerto Rico,
other than any facility or portion of a facility which Dow's board of
directors reasonably determines is not material to the business
conducted by Dow and its subsidiaries as a whole.
. "restricted subsidiary" means any subsidiary:
-- of which substantially all of the property of is located, and
substantially all of the business is carried on, within the United
States, excluding its territories and possessions and Puerto Rico;
and
-- which owns or operates one or more principal properties; provided,
however, restricted subsidiary shall not include a subsidiary which
is primarily engaged in the business of a finance or insurance
company, and branches of such finance or insurance company.
. "subsidiary" means each corporation of which more than 50% of the
outstanding voting stock is owned, directly or indirectly, by Dow or
one or more of its subsidiaries, or by Dow and one or more of its
subsidiaries.
Consolidation, Merger and Sale of Assets
Dow may not merge or consolidate or sell or convey all or substantially
all of its assets unless:
. the successor corporation is Dow or is a domestic corporation which
assumes Dow's obligations on the debt securities and under the
indenture; and
. after giving effect to such transaction, Dow or the successor
corporation would not be in default under the indenture.
Events of Default
With respect to any series of debt securities, any one of the following
events will constitute an event of default under the indenture:
(1) default by Dow for 30 days in the payment of any installment of
interest on the debt securities of such series;
(2) default by Dow in the payment of any principal on the debt securities
of such series;
(3) default by Dow in the payment of any sinking fund installment;
-19-
(4) default by Dow in the performance of any of the covenants or
warranties contained in the indenture for the benefit of the debt
securities of such series which is not remedied within a period of 90
days after receipt of written notice by Dow from the trustee or by
Dow and the trustee for the holders of not less than 25% in principal
amount of the debt securities of such series then outstanding;
(5) certain events of bankruptcy, insolvency or reorganization of Dow; or
(6) any other event of default established in accordance with the
indenture with respect to any series of debt securities.
No event of default described in clauses (1), (2), (3), (4) or (6) above
with respect to a particular series of debt securities necessarily
constitutes an event of default with respect to any other series of debt
securities.
The indenture provides that if an event of default under clauses (1),
(2), (3), (4) or (6) above (but only if the event of default under clause
(4) or (6) is with respect to less than all series of debt securities then
outstanding) shall have occurred and be continuing, either the trustee or
the holders of not less than 25% in aggregate principal amount of the then
outstanding debt securities of the series affected by such event of
default, each such series treated as a separate class, may declare the
principal of all the debt securities of each such series, together with
accrued interest, to be due and payable immediately. If an Event of Default
under clause (4), (5) or (6) above (but only if the event of default under
clause (4) or (6) is with respect to all of the series of debt securities
then outstanding) shall have occurred and be continuing, either the trustee
or the holders of not less than 25% in the aggregate principal amount of
all the debt securities then outstanding, treated as one class, may declare
the principal of all the debt securities, together with accrued interest,
to be due and payable immediately. Upon certain conditions, such
declaration (including a declaration caused by a default in the payment of
principal or interest, the payment for which has subsequently been
provided) may be annulled by the holders of a majority in principal amount
of the debt securities of the series then outstanding, each such series
treated as a separate class, or all debt securities treated as one class,
as the case may be, as were entitled to declare such default. In addition,
past defaults may be waived by the holders of a majority in principal
amount of the debt securities of the series then outstanding, each series
treated as a separate class, or all debt securities treated as one class,
as the case may be, as were entitled to declare such default, except a
default in the payment of the principal of or interest on the debt
securities or in respect of a covenant or provision of the indenture which
cannot be modified or amended without the approval of the holder of each
debt security so affected.
-20-
The indenture contains a provision entitling the trustee, subject to the
duty of the trustee during default to act with the required standard of
care, to be indemnified by the holders of debt securities before exercising
any right or power under the indenture at the request of the holders of the
debt securities. The indenture also provides that the holders of a majority
in principal amount of the outstanding debt securities of all series
affected, each series treated as a separate class, may direct the time,
method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the trustee,
with respect to the debt securities of such series.
The indenture requires Dow to file annually with the trustee a
certificate as to the absence of any default or specifying any default that
exists.
Satisfaction and Discharge of Indenture
The indenture with respect to any series, except for certain specified
surviving obligations, including Dow's obligation to pay the principal of
and interest on the debt securities of such series, will be discharged and
canceled upon the satisfaction of certain conditions, including:
. payment of all the debt securities of such series; or
. the deposit with the trustee of cash or U.S. government obligations or a
combination of cash or U.S. government obligations sufficient for such
payment or redemption in accordance with the indenture and the terms of
the debt securities of such series.
Modification and Waiver
Dow and the trustee may modify and amend the indenture with the consent
of the holders of more than 50% of the principal amount of the outstanding
debt securities of each series which is affected. No supplemental indenture
may:
. extend the final maturity of, reduce the rate or extend the time of
payment of interest on, reduce the principal amount of, or reduce any
amount payable on any redemption of, any debt securities without the
consent of the holder of each debt security affected; or
. reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is required for
any supplemental indenture, without the consent of the holders of all
outstanding debt securities.
Governing Law
The indenture and the debt securities are governed by and construed in
accordance with the laws of the State of New York.
Information About the Trustee
Dow maintains banking relationships in the ordinary course of business
with the trustee. The trustee's principal corporate trust office is located
at 1 Bank One Plaza, Chicago, Illinois 60670-0126. The trustee's principal
office in New York City is located at 14 Wall Street, Eighth Floor, New
York, New York 10005.
DESCRIPTION OF WARRANTS TO PURCHASE
COMMON STOCK OR PREFERRED STOCK
Dow may issue, alone or together with common stock or preferred stock,
stock warrants for the purchase of common stock or preferred stock. The
stock warrants will be issued under a stock warrant agreement to be entered
into between Dow and a bank or trust company, as stock warrant agent, at
the time of issue. A copy of the form of the stock warrant agreement and
the stock warrant certificate for both common stock and preferred stock is
filed as an exhibit to the registration statement of which this prospectus
is a part. The following summary of the material provisions of the stock
warrant agreement and the stock warrant certificate does not purport to be
complete and is subject to, and qualified in its entirety by reference to,
all the provisions of the stock warrant agreement and the stock warrant
certificate, including the defined terms.
-21-
General
A prospectus supplement will describe the terms of the stock warrants
offered, the stock warrant agreement relating to the stock warrants and the
stock warrant certificates representing the stock warrants, including the
following:
. the offering price, if any;
. the designation and terms of the common stock or preferred stock that may
be purchased upon exercise of the stock warrants;
. if applicable, the date on and after which the stock warrants and the
related securities will be separately transferable;
. the number of shares of common stock or preferred stock that may be
purchased upon exercise of one stock warrant and the initial price at
which such shares may be purchased upon exercise;
. the date on which the right to exercise the stock warrants will begin
and the date on which such right will expire;
. a discussion of material U.S. federal income tax considerations;
. the call provisions, if any;
. the currency, currencies or currency units in which the offering price,
if any, and exercise price are payable;
. the antidilution provisions of the stock warrants; and
. any other terms of the stock warrants.
The shares of common stock or preferred stock to be issued upon exercise
of the stock warrants will, when issued in accordance with the stock
warrant agreement, be fully paid and nonassessable.
Exercise of Stock Warrants
Stock warrants may be exercised by surrendering to the stock warrant
agent the stock warrant certificate with the form of election to purchase
on the reverse side of the certificate duly completed and signed by the
warrant holder, or its duly authorized agent, with such signature
guaranteed by a bank or trust company, by a broker or dealer which is a
member of the National Association of Securities Dealers, Inc. or by a
member of a national securities exchange. The form of election should
indicate the warrant holder's election to exercise all or a portion of the
stock warrants evidenced by the certificate. Surrendered stock warrant
certificates must be accompanied by payment of the aggregate exercise price
of the stock warrants to be exercised, as set forth in the prospectus
supplement. The payment should be made in U.S. dollars, unless otherwise
provided in the prospectus supplement. Upon the stock warrant agent's
receipt of the surrendered stock warrant certificates and payment of the
aggregate exercise price of the stock warrants, the stock warrant agent
will request that the transfer agent issue and deliver to or upon the
written order of the exercising warrant holder, a certificate stating the
number of shares of common stock or preferred stock purchased. If less than
all of the stock warrants evidenced by any stock warrant certificate are
exercised, the stock warrant agent will deliver to the exercising warrant
holder a new stock warrant certificate representing the unexercised stock
warrants.
No Rights as Stockholders
Holders of stock warrants, by virtue of being such holders, will not be
entitled to vote, consent, receive dividends, receive notice as shareholder
with respect to any meeting of stockholders for election of directors of
Dow or any other matter, or exercise any rights whatsoever as stockholders
of Dow.
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DESCRIPTION OF DEBT WARRANTS
Dow may issue, alone or together with debt securities, debt warrants for
the purchase of debt securities. The debt warrants will be issued under
debt warrant agreements to be entered into between Dow and a bank or trust
company, as debt warrant agent, at the time of issue. A copy of the form of
the debt warrant agreement and debt warrant certificate is incorporated by
reference as an exhibit to the registration statement of which this
prospectus forms a part. The following summary of certain provisions of the
debt warrant agreement and the debt warrant certificates does not purport
to be complete and is subject to, and qualified in its entirety by
reference to, all the provisions of the debt warrant agreement and the debt
warrant certificates, including the defined terms.
General
A prospectus supplement will describe the terms of the debt warrants
offered, the debt warrant agreement relating to the debt warrants and the
debt warrant certificates representing the debt warrants, including the
following:
. the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants and the
procedures and conditions relating to the exercise of the debt
warrants;
. the designation and terms of any related debt securities with which the
debt warrants are issued and the number of debt warrants issued with
each debt security;
. the date, if any, on and after which the debt warrants and the related
debt securities may be separately transferred;
. the principal amount of debt securities purchasable upon exercise of
debt warrants and the price at which such principal amount of debt
securities may be purchased upon exercise;
. the date on which the right to exercise the debt warrants shall
commence and the date on which the right shall expire;
. if the debt securities purchasable upon exercise of the debt warrants
are original issue discount debt securities, a discussion of the
material Federal income tax considerations applicable to the debt
securities; and
. whether the debt warrants represented by the debt warrant certificates
will be issued in registered or bearer form, and, if registered, where
they may be transferred and registered.
Debt warrant certificates may be exchanged for new debt warrant
certificates of different denominations and debt warrants may be exercised
at the corporate trust office of the debt warrant agent or any other office
indicated in the prospectus supplement.
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No Rights as Holders of Debt Securities
Prior to the exercise of their debt warrants, holders of debt warrants
will not have any of the rights of holders of the debt securities
purchasable upon such exercise (except to the extent that consent of
holders of debt warrants may be required for certain modifications of the
terms of the indenture and a series of debt securities issuable upon
exercise of the debt warrants). In addition, holders of debt warrants will
not be entitled to payments of principal of (and premium, if any) or
interest, if any, on the debt securities purchasable upon exercise.
Exercise of Debt Warrants
Each debt warrant will entitle the holder to purchase for cash the
principal amount of debt securities at the exercise price set forth or to
be determined as set forth in the prospectus supplement. Debt warrants may
be exercised at any time up to the close of business on the expiration date
set forth in the prospectus supplement. After the close of business on the
expiration date, unexercised debt warrants will become void.
Debt warrants may be exercised in the manner set forth in the prospectus
supplement. Upon receipt of payment and the properly completed and duly
executed warrant certificate at the corporate trust office of the debt
warrant agent or any other office indicated in the prospectus supplement,
Dow will, as soon as practicable, forward the debt securities purchased
upon such exercise. If less than all of the debt warrants represented by
the debt warrant certificate are exercised, a new debt warrant certificate
will be issued for the remaining amount of debt warrants.
PLAN OF DISTRIBUTION
Dow may sell the securities:
. directly to purchasers, or
. through agents, underwriters, or dealers, or
. through a combination of any of these methods of sale.
Dow may distribute the securities from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to the prevailing
market prices or at negotiated prices.
Dow may determine the price or other terms of the securities offered
under this prospectus by use of an electronic auction. Dow will describe
how any auction will determine the price or any other terms, how potential
investors may participate in the auction and the nature of the
underwriters' obligations in the related supplement to this prospectus.
Dow may designate agents to solicit offers to purchase the securities
from time to time. These agents may be deemed to be underwriters, as
defined in the Securities Act of 1933, involved in the offer or sale of the
securities. The prospectus supplement will name the agents and any
commissions Dow pays them. Agents may be entitled to indemnification by Dow
against certain liabilities, including liabilities under the Securities Act
of 1933, under agreements between Dow and the agents, and the agents or
their affiliates may extend credit to or engage in transactions with or
perform services for Dow in the ordinary course of business. Unless
otherwise indicated in the prospectus supplement, any agent will be acting
on a reasonable efforts basis for the period of its appointment.
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If Dow uses any underwriters in the sale, Dow will enter into an
underwriting agreement with them at the time of sale and the names of the
underwriters and the terms of the transaction will be set forth in the
prospectus supplement that the underwriters use to make resales of the
securities. The underwriters may be entitled under the relevant
underwriting agreement to indemnification by Dow against certain
liabilities, including liabilities under the Securities Act of 1933, and
the underwriters or their affiliates may extend credit to or engage in
transactions with or perform services for Dow in the ordinary course of
business.
If Dow uses dealers in the sale of the securities, Dow will sell the
securities to those dealers, as principal. The dealers may then resell the
securities to the public at varying prices to be determined by them at the
time of resale. Dealers may be entitled to indemnification by Dow against
certain liabilities, including liabilities under the Securities Act of
1933, and the dealers or their affiliates may extend credit to or engage in
transactions with or perform services for Dow in the ordinary course of
business.
Shares of Dow common stock are principally traded on the New York Stock
Exchange. Shares of Dow common stock also are listed on the Chicago,
Pacific, Amsterdam, Berlin, Brussels, Dusseldorf, Frankfurt, Hamburg,
Hannover, London, Paris, Switzerland and Tokyo exchanges and are traded on
the Toronto, Boston, Cincinnati and Philadelphia Exchanges. Other than the
common stock, Dow does not propose to list the offered securities on a
securities exchange, and any underwriters or dealers will not be obligated
to make a market in the offered securities. Dow may elect to list any
series of offered securities on an exchange, and in the case of the common
stock, on any additional exchange, but, unless otherwise specified in the
applicable prospectus supplement, Dow will not be obligated to do so. Dow
can give no assurance as to the liquidity of the trading market for any of
the offered securities.
LEGAL MATTERS
Certain legal matters in connection with the securities offered by this
prospectus will be passed upon for Dow by Charles J. Kalil, Dow's Assistant
General Counsel and for any underwriters or agents by Mayer, Brown & Platt,
Chicago, Illinois. As of April 30, 2001, Mr. Kalil beneficially owned 9,070
shares of Dow common stock, and held options to purchase 63,800 shares of
Dow common stock, of which options to purchase 44,200 shares of Dow common
stock were exercisable. The opinions of Mr. Kalil and Mayer, Brown & Platt
may be conditioned upon and may be subject to certain assumptions
regarding, future action required to be taken by Dow and any
underwriter(s), dealer(s) or agent(s) in connection with the issuance and
sale of any securities. The opinions of Mr. Kalil and Mayer, Brown & Platt
and with respect to securities may be subject to other conditions and
assumptions, as indicated in the prospectus supplement. Mayer, Brown &
Platt from time to time represents Dow in connection with certain matters.
EXPERTS
The Dow consolidated financial statements and related financial
statement schedules incorporated by reference in this registration
statement from Dow's Annual Report on Form 10-K and Dow's Current Report on
Form 8-K dated April 4, 2001, each for the year ended December 31, 2000
have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their report, which is incorporated herein by reference, and have been
so incorporated in reliance upon the report of such firm, given upon their
authority as experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION
Dow files reports, proxy statements and other information with the
Securities and Exchange Commission under the Securities Exchange Act of
1934. You may read and copy that information at the following locations of
the Securities and Exchange Commission:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
1-800-SEC-0330 Chicago, Illinois
60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the Securities and Exchange Commission, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates.
The Securities and Exchange Commission also maintains an Internet world
wide web site that contains reports, proxy statements and other information
about issuers, including Dow, that file electronically with the Securities
and Exchange Commission. The address of that site is http://www.sec.gov.
You can also inspect reports, proxy statements and other information
about Dow at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
The Securities and Exchange Commission allows Dow to "incorporate by
reference" information into this prospectus. This means that Dow can
disclose important information to you by referring you to another document
filed separately with the Securities and Exchange Commission. The
information incorporated by reference is considered to be a part of this
prospectus, except for any information that is superseded by information
that is included directly in this document.
This prospectus incorporates by reference the documents listed below
that Dow has previously filed with the Securities and Exchange Commission.
The documents contain important information about Dow and Dow's financial
condition.
Dow's Filings with the Commission Period
-------------------------------------------- ------------------------------
Annual Report on Form 10-K.................. Year ended December 31, 2000
Current Reports on Form 8-K................. February 5, 2001
February 6, 2001
February 6, 2001
February 20, 2001 (as amended)
April 4, 2001
April 16, 2001
April 26, 2001
Dow also incorporates by reference any future filings it makes with the
Securities and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 (1) after the date of the filing of
this registration statement and before its effectiveness and (2) until Dow
has sold all of the securities to which this prospectus relates or the
offering is otherwise terminated. Dow's subsequent filings with the
Securities and Exchange Commission will automatically update and supersede
information in this prospectus.
-26-
You may obtain a copy of any of the documents incorporated by reference
in this document at no cost by writing to or telephoning Dow at the
following address and telephone number:
Office of the Corporate Secretary
The Dow Chemical Company
2030 Dow Center
Midland, Michigan 48674
Telephone: 517-636-1792
Dow has not authorized anyone to give any information or make any
representation about Dow that is different from, or in addition to, that
contained in this prospectus or in any of the materials that have been
incorporated into this document. Therefore, if anyone does give you
information of this sort, you should not rely on it. This prospectus is an
offer to sell or buy only the securities described in this document, but
only under circumstances and in jurisdictions where it is lawful to do so.
The information contained in this document speaks only as of the date of
this document unless the information specifically indicates that another
date applies.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities registered hereby:
SEC registration fee.......................................... $ 435,000
Printing and engraving costs.................................. $ 30,000
Legal fees and expenses....................................... $ 25,000
Accounting fees and expenses.................................. $ 35,000
Trustee fees and expenses..................................... $ 10,000
Rating agency fees............................................ $ 500,000
Miscellaneous................................................. $ 215,000
----------
Total....................................................... $1,250,000
==========
Item 15. Indemnification of Officers and Directors.
Under Article VI of its Restated Certificate of Incorporation, as
amended, Dow may indemnify its directors, officers, employees and agents to
such extent as is permitted by the laws of the State of Delaware and as
Dow's bylaws may from time to time provide. Section 145 of the General
Corporation Law of the State of Delaware empowers Dow to indemnify, subject
to the standards and limitations therein prescribed, any person in
connection with any action, suit or proceeding brought or threatened by
reason of the fact that such person is or was a director, officer, employee
or agent of Dow or is or was serving in such capacity with respect to
another corporation or other enterprise at the request of Dow. Under
Section VI of Dow's bylaws, Dow is required to indemnify its directors,
officers and employees to the full extent permitted by Delaware law
whenever such a person is, or is threatened to be made, a defendant in any
threatened, pending or completed legal proceeding. Section VI also gives
Dow discretion to indemnify directors, officers, employees and agents in
any threatened, pending or completed legal proceedings to which they are,
or are threatened to be made, a party. Any indemnification of a director,
officer, employee or agent of Dow must be approved by Dow's board of
directors. Dow maintains a directors' and officers' liability insurance
policy that indemnifies Dow's directors and officers against certain losses
in connection with claims made against them for certain wrongful acts.
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Item 16. Exhibits.
A list of exhibits filed herewith or incorporated by reference is
contained in the Exhibit Index which is incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post- effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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(5) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, pursuant to the provisions referred
to in Item 15, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final adjudication
of such issue.
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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 registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the County of Midland, State of Michigan, on
May 1, 2001.
The Dow Chemical Company
/s/ J. Pedro Reinhard
-------------------------------------
J. Pedro Reinhard
Executive Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on May 1, 2001.
*
-------------------------------------
M.D. Parker
Director, President and Chief Executive Officer
(principal executive officer)
/s/ J. Pedro Reinhard
-------------------------------------
Director and Executive Vice
President and Chief Financial
Officer (principal financial
officer)
/s/ F.H. Brod
-------------------------------------
F.H. Brod
Vice President and Controller (principal accounting officer)
*
-------------------------------------
A.A. Allemang
Director and Executive Vice President
*
-------------------------------------
J.K. Barton
Director
*
-------------------------------------
A.J. Carbone
Director and Vice Chairman of the Board
*
-------------------------------------
J.M. Cook
Director
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*
-------------------------------------
J.C. Danforth
Director
*
-------------------------------------
W.D. Davis
Director
*
-------------------------------------
B.H. Franklin
Director
*
-------------------------------------
A.D. Gilmour
Director
*
-------------------------------------
W. H. Joyce
Director and Vice Chairman of the Board
*
-------------------------------------
J.M. Ringler
Director
*
-------------------------------------
H.T. Shapiro
Director
*
-------------------------------------
W.S. Stavropoulos
Director and Chairman of the Board
*
-------------------------------------
P.G. Stern
Director
* /s/ J. Pedro Reinhard
-------------------------------------
By: J. Pedro Reinhard
Attorney-in-Fact
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EXHIBIT INDEX
Exhibit
Number Description
------- -----------
1.1 Form of Underwriting Agreement (to be filed on Form 8-K).
3.1 Restated Certificate of Incorporation of The Dow Chemical
Company. (Filed as Exhibit 3(i) to Dow's Annual Report on
Form 10-K for the year ended December 31, 2000 (File
No. 1-3433), and incorporated by reference herein.)
3.2 Bylaws of The Dow Chemical Company. (Filed as Exhibit
3(ii) to Dow's Annual Report on Form 10-K for the year
ended December 31, 2000 (File No. 1-3433), and
incorporated by reference herein.)
4.1 Indenture, dated as of April 1, 1992, between The Dow
Chemical Company and The First National Bank of Chicago, as
trustee (Filed as Exhibit 4.1 to Dow's Registration
Statement on Form S-3 (No. 33-88617), and incorporated by
reference herein.).
4.2 Supplemental Indenture, dated as of January 1, 1994, between
the Dow Chemical Company and The First National Bank of
Chicago, as trustee (Filed as Exhibit 4.2 to Dow's
Registration Statement on Form S-3 (No. 33-88617), and
incorporated by reference herein.).
4.3 Second Supplemental Indenture, dated as of October 1, 1999,
between the Dow Chemical Company and Bank One Trust Company,
NA (formerly The First National Bank of Chicago), as trustee
(Filed as Exhibit 4.3 to Dow's Registration Statement on
Form S-3 (No. 33-88617), and incorporated by reference
herein.).
4.4 Form of Common Stock Warrant Agreement (to be filed on
Form 8-K).
4.5 Form of Preferred Stock Warrant Agreement (to be filed on
Form 8-K).
4.6 Form of Debt Securities. (Filed as Exhibit 4.2 to Dow's
Registration Statement on Form S-3 (No. 33-32714), and
incorporated by reference herein.)
4.7 Form of Debt Warrant Agreement. (Filed as Exhibit 4.3 to
Dow's Registration Statement on Form S-3 (No. 33-44369),
and incorporated by reference herein.)
5.1 Opinion of Charles J. Kalil, Assistant General Counsel of Dow.
23.1 Consent of Deloitte & Touche LLP, independent auditors of
The Dow Chemical Company
23.2 Consent of Charles J. Kalil (included in Exhibit 5.1).
24.1 Power of Attorney.
25.1 Statement of Eligibility on Form T-1 of Bank One Trust
Company, NA.
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