SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): April 1, 2009
THE
DOW CHEMICAL COMPANY
(Exact
name of Registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of incorporation)
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1-3433
Commission
File Number
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38-1285128
(IRS
Employer
Identification
No.)
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2030 Dow Center, Midland,
Michigan
(Address
of principal executive offices)
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48674
(Zip
code)
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(989)
636-1000
(Registrant’s
telephone number, including area code)
N.A.
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry into a Material
Definitive Agreement
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On April
1, 2009, Rohm and Haas Company (“Rohm and Haas”), a wholly-owned subsidiary of
The Dow Chemical Company (the “Company”), entered into a Stock Purchase
Agreement (the “Stock Purchase Agreement”) with K+S Aktiengesellschaft (“K+S”),
whereby K+S will acquire the salt business of Morton International, Inc.
(“MII”), a wholly-owned subsidiary of Rohm and Haas.
The Stock
Purchase Agreement provides that K+S will purchase all of the shares of common
stock of MII and of Rohm and Haas Denmark China Salt Holdings ApS (“Holdco”), a
company formed for the purpose of holding a 45% equity interest in Morton China
National Salt (Shanghai) Salt Co., Ltd., a Chinese joint venture company
(collectively, “Morton Salt”). The purchase price for the transaction
is $1.675 billion in cash, subject to adjustment at closing for working capital
and certain indebtedness, pension and post-retirement benefit obligations of the
Morton Salt business.
Rohm and
Haas and K+S have agreed to customary representations, warranties and covenants
in the Stock Purchase Agreement. Rohm and Haas has agreed, among
other things and subject to certain exceptions, to cause MII to conduct its
business in the ordinary course of business between the date of execution of the
Stock Purchase Agreement and the closing of the transaction, and K+S has agreed
to use its best efforts and take all steps necessary to obtain the required
regulatory approvals, including by making any divestitures required to obtain
such approvals, prior to the termination date for the Stock Purchase Agreement
of January 4, 2010.
MII
currently has outstanding approximately $145 million aggregate principal amount
of 9¼% Credit Sensitive Debentures due June 1, 2020 (the “Credit Sensitive
Debentures”), which are guaranteed by Rohm and Haas. Although the
Credit Sensitive Debentures will remain outstanding as an obligation of MII
following the closing, Rohm and Haas’ guarantee will remain in place and Rohm
and Haas has agreed to make all payments of interest as due and principal at
maturity under the Credit Sensitive Debentures.
Rohm and
Haas has also agreed that, prior to the closing of the transaction, it will
transfer all of the assets of Morton Salt that are not used in the conduct of
its salt business (the “Non-Salt Assets”) to one of its affiliates which will
assume all of the liabilities related to the Non-Salt Assets that arose prior to
the closing. Following the closing, K+S may transfer all of the
assets of MII and its subsidiaries used in the salt business and all related
liabilities to an affiliate and thereafter transfer back to Rohm and Haas for a
nominal sum the equity interests of MII. As a result, after giving
effect to such transfer, Rohm and Haas would be responsible for all liabilities
related to the Non-Salt Assets as well as any other residual liabilities of MII
not transferred or capable of being transferred to K+S pursuant to the Stock
Purchase Agreement.
Rohm and
Haas has agreed, subject to certain limitations, to indemnify K+S in respect of
breaches of its representations, warranties and covenants as well as certain
liabilities arising prior to the closing, including pre-closing environmental
liabilities and the liabilities of MII and its subsidiaries, to the extent they
do not relate to the salt business. Subject to certain exceptions,
Rohm and Haas’ obligation to indemnify K+S for breaches of representations and
warranties survives for 15 months following the closing date and is subject to a
cap of 20% of the purchase price, as may be adjusted. In addition,
Rohm and Haas’ obligation to indemnify K+S for pre-closing environmental
liabilities related to the salt business conducted by Morton Salt survives for
10 years following the closing and is subject to a cap of 25% of the purchase
price, as may be adjusted. Rohm and Haas’ indemnification obligation
for liabilities of Morton Salt to the extent not relating to the salt business
conducted by Morton Salt survives for 30 years following the closing and is
subject to a cap of $1 billion. The Stock Purchase Agreement also
provides that, at closing, the Company will enter into a guarantee in favor of
K+S and its affiliates of
these
indemnity obligations as well as, for a period anticipated to be not greater
than twelve months, certain of Rohm and Haas’ obligations with respect to the
Credit Sensitive Debentures.
The
transaction is subject to customary closing conditions, including receipt of
regulatory approvals in the United States and Canada, and the Stock Purchase
Agreement contains certain termination rights for both Rohm and Haas and K+S,
including the right of either party to terminate if the closing has not occurred
by January 4, 2010.
The
foregoing summary of the Stock Purchase Agreement and the transactions
contemplated thereby does not purport to be complete and is subject to, and
qualified in its entirety by, the full text of the Stock Purchase Agreement,
which is attached as Exhibit 2.1 hereto and incorporated herein by
reference.
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Item
7.01
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Regulation FD
Disclosure
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A copy of
the press release issued by the Company on April 1, 2009 announcing the
execution of the Stock Purchase Agreement is attached hereto as Exhibit
99.1. The attached Exhibit 99.1 is furnished in its entirety pursuant
to this Item 7.01.
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Item
9.01
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Financial Statements
and Exhibits
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(a)
Financial Statements of Businesses Acquired
As
permitted by Form 8-K, historical financial statements of Rohm and Haas in
connection with the Company's acquisition of Rohm and Haas on April 1, 2009 have
not been filed by the Company on Form 8-K. The Company intends to
file such historical financial statements under cover of Form 8-K/A not later
than 71 calendar days after the date that the Form 8-K reporting such
acquisition was required to be filed.
(b) Pro
Forma Financial Information
As
permitted by Form 8-K, pro forma financial information in connection with the
Company's acquisition of Rohm and Haas has not been filed by the Company on Form
8-K. The Company intends to file such pro forma financial information
under cover of Form 8-K/A not later than 71 calendar days after the date that
the Form 8-K reporting such acquisition was required to be filed.
(d) Exhibits
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2.1
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Stock
Purchase Agreement, dated as of April 1, 2009, between Rohm and Haas
Company and K+S Aktiengesellschaft
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: April
6, 2009
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The
Dow Chemical Company |
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By: |
/s/ Charles
J. Kalil |
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Name:
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Charles
J. Kalil |
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Title:
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Executive
Vice President, General Counsel and
Corporate Secretary
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EXHIBITS
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2.1
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Stock
Purchase Agreement, dated as of April 1, 2009, between Rohm and Haas
Company and K+S Aktiengesellschaft
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