Investment
Agreement

     

    dated
October 27, 2008

     

    between

     

    the
dow chemical company

     

    and

     

    the
kuwait investment authority

     

     

     

     

     

    
 

     

    
      

      

    

    
      
        
        

      

      
        
        

        
        

      

      
        
        

      

    

    


    Table
of Contents

    Page

     

    
      	
               Recitals:

            	
              1

            


    

     

    ARTICLE
I

     

    Purchase;
Closing

     

    
      	
              1.1

            	
              Purchase 

            	
              1

            


    

    
      	
              1.2

            	
              Closing 

            	
              1

            


    

     

    ARTICLE
II

     

    Representations
and Warranties

     

    
      	
              2.1

            	
              Representations and Warranties of
      the Company 

            	
              3

            


    

    
      	
              2.2

            	
              Representations and Warranties of
      the Investor 

            	
              6

            


    

     

    ARTICLE
III

     

    Covenants

     

    
      	
              3.1

            	
              Commercially Reasonable Efforts
      to Close 

            	
              7

            


    

    
      	
              3.2

            	
              Expenses 

            	
              8

            


    

    
      	
              3.3

            	
              Confidentiality 

            	
              8

            


    

    
      	
              3.4

            	
              Sufficiency of Outstanding Common
      Stock 

            	
              8

            


    

    
      	
              3.5

            	
              Certain
      Adjustments 

            	
              8

            


    

    
      	
              3.6

            	
              Payments Free of
      Tax 

            	
              9

            


    

    
      	
              3.7

            	
              Reporting Statements and
      Information Returns 

            	
              9

            


    

    
      	
              3.8

            	
              Tax
Matters

            	
              9

            


    

     

    ARTICLE
IV

     

    Additional
Agreements

     

    
      	
              4.1

            	
              Standstill
      Agreement 

            	
              9

            


    

    
      	
              4.2

            	
              Lock-up
      Agreement 

            	
              10

            


    

    
      	
              4.3

            	
              Legend 

            	
              11

            


    

    
      	
              4.4

            	
              Payment of Dividends upon
      Conversion of Convertible Preferred Stock 

            	
              11

            


    

    
      	
              4.5

            	
              Repurchase of Convertible
      Preferred Shares 

            	
              12

            


    

    
      	
              4.6

            	
              Certain
      Notices 

            	
              12

            


    

     

    ARTICLE
V

     

    Miscellaneous

     

    
      	
              5.1

            	
              Survival 

            	
              13

            


    

    
      	
              5.2

            	
              Termination 

            	
              13

            


    

    
      	
              5.3

            	
              Amendment 

            	
              13

            


    

    
      	
              5.4

            	
              Waiver of
      Conditions 

            	
              13

            


    

    
      	
              5.5

            	
              Counterparts and
      Facsimile 

            	
              13

            


    

    
      	
              5.6

            	
              Governing Law; Submission to
      Jurisdiction, Etc.

            	
              14

            


    

    
      	
              5.7

            	
              Sovereign
      Waiver 

            	
              14

            


    

    
      	
              5.8

            	
              Notices 

            	
              14

            


    

     

    
      
        
        

      

      
        - ii -

        
          

        

      

      
        
        

      

    

     

    
      	
              5.9

            	
              Entire Agreement,
      Etc 

            	
              15

            


    

    
      	
              5.10

            	
              Definitions of “subsidiary” and
      “Affiliate” 

            	
              16

            


    

    
      	
              5.11

            	
              Captions 

            	
              16

            


    

    
      	
              5.12

            	
              Severability 

            	
              16

            


    

    
      	
              5.13

            	
              No Third Party
      Beneficiaries 

            	
              16

            


    

    
      	
              5.14

            	
              Miscellaneous 

            	
              16

            


    

     

    


    Annex A                      Form
of Certificate of Designations

     

     

     

     

     

    
      
        
        

      

      
        - iii -

        
          

        

      

      
        
        

      

    

     

    INDEX
OF DEFINED TERMS

     

    
      	
              Term

            	
              Location
      of

              Definition

            
	 	 
	
              Affiliate                                                                                                  

            	
              5.10(b)

            
	
              Agreement                                                                                                  

            	
              Preamble

            
	
              Bankruptcy
      Exceptions                                                                                                  

            	
              2.1(c)

            
	
              Capitalization
      Date                                                                                                  

            	
              2.1(b)

            
	
              Certificate
      of
      Designations                                                                                                  

            	
              1.1

            
	
              Closing                                                                                                  

            	
              1.2(a)

            
	
              Closing
      Date                                                                                                  

            	
              1.2(a)

            
	
              Code                                                                                                  

            	
              1.2(d)(iii)

            
	
              Commission                                                                                                  

            	
              2.1

            
	
              Common
      Stock                                                                                                  

            	
              1.1

            
	
              Company                                                                                                  

            	
              Preamble

            
	
              control                                                                                                  

            	
              5.10(b)

            
	
              Convertible
      Preferred
      Stock                                                                                                  

            	
              1.1

            
	
              De
      Minimis
      Adjustment                                                                                                  

            	
              4.6

            
	
              Dividend
      Payment
      Date                                                                                                  

            	
              4.4(b)

            
	
              Dollars                                                                                                  

            	
              5.14

            
	
              Equity
      Commitment
      Letter                                                                                                  

            	
              Recitals

            
	
              Exchange
      Act                                                                                                  

            	
              2.1

            
	
              Furnished
      Form                                                                                                  

            	
              3.6

            
	
              Governmental
      Entities                                                                                                  

            	
              1.2(c)

            
	
              Hedging
      Transaction                                                                                                  

            	
              4.2

            
	
              Initial
      Date                                                                                                  

            	
              1.2(a)

            
	
              Investor                                                                                                  

            	
              Preamble

            
	Investor
      Controlled Claim	3.8
	
              Lock-up
      Securities                                                                                                  

            	
              4.2

            
	
              Make-Whole
      Acquisition                                                                                                  

            	
              Certificate
      of Designations

            
	
              Past
      Due
      Dividends                                                                                                  

            	
              Certificate
      of Designations

            
	
              Payment                                                                                                  

            	
              4.4(a)

            
	
              Regulations                                                                                                  

            	
              2.2(g)

            
	
              Restricted
      Securities                                                                                                  

            	
              4.4(a)

            
	
              SEC
      Reports                                                                                                  

            	
              2.1

            
	
              Securities                                                                                                  

            	
              2.2(e)

            
	
              Significant
      Subsidiary                                                                                                  

            	
              2.1(a)

            
	
              Subsequent
      Date                                                                                                  

            	
              1.2(a)

            
	
              subsidiary                                                                                                  

            	
              5.10(a)

            
	Tax
      Proceeding	3.8
	
              Trading
      Day                                                                                                  

            	
              Certificate
      of Designations

            
	
              VWAP                                                                                                  

            	
              Certificate
      of Designations

            


    

    
 

    
      
        
        

      

      
        - iv -

        
          

        

      

      
        
        

      

    

    


    Investment
Agreement, dated October 27, 2008 (this “Agreement”), between The Dow
Chemical Company, a Delaware corporation (the “Company”), and the Kuwait
Investment Authority, organized and existing under the laws of Kuwait pursuant
to the Amiri Decree No. 47 of 1982 of the State of Kuwait, acting for and
on behalf of the Government of the State of Kuwait (the “Investor”).

     

    Recitals:

     

    WHEREAS, pursuant to an equity
commitment letter, dated July 8, 2008, between the Investor and the Company
(the “Equity Commitment
Letter”), the Investor has committed to purchase from the Company
1,000,000 shares of cumulative convertible perpetual preferred stock of the
Company;

     

    WHEREAS, the Investor and the
Company wish to specify the definitive terms and conditions of such shares of
cumulative convertible perpetual preferred stock; and

     

    WHEREAS, the Investor and the
Company wish to enter into a definitive agreement regarding the purchase of such
shares of cumulative convertible perpetual preferred stock.

     

    NOW, THEREFORE, in consideration
of the premises, and of the representations, warranties, covenants and
agreements set forth herein, the parties agree as follows:

     

    ARTICLE
I

     

    Purchase;
Closing

     

    1.1           Purchase.  On
the terms and subject to the conditions set forth herein, the Investor agrees
that upon the furnishing of a written notice to it by the Company as set forth
in Section 1.2(a) it will purchase from the Company an aggregate of
1,000,000 shares of the Company’s Cumulative Convertible Perpetual Preferred
Stock, Series A (the “Convertible Preferred Stock”)
convertible into shares of the common stock of the Company, par value $2.50 per
share (the “Common
Stock”), and having the powers, preferences and rights, and the
qualifications, limitations and restrictions, as specified in the Certificate of
Designations in the exact form attached hereto as Annex A (the
“Certificate of
Designations”), at a price per share of $1,000 (an aggregate price of
$1,000,000,000).

     

    1.2           Closing.

     

    (a)           The
closing of the purchase (the “Closing”) will take place at
the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New
York at 10 a.m. New York time on any date prior to July 8, 2009
specified by the Company to the Investor on at least three (3) business
days written notice (the “Closing Date”); provided, however, that once
notice of a closing date (the “Initial Date”) has been given
by the Company hereunder, the Company may by subsequent written notice on one or
more occasions change the closing date to a different date (a “Subsequent Date”), provided that notice of such
change is delivered at least one (1) business day before a Subsequent
Date.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)           Subject
to the satisfaction or waiver of the conditions to the Closing set forth in
Sections 1.2(c) and (d), at the Closing, the Company will deliver to the
Investor certificates representing the Convertible Preferred Stock in exchange
for payment therefor by wire transfer of immediately available United States
funds to such bank account as shall have been designated therefor by the Company
at least three (3) business days before the Closing Date.

     

    (c)           The
respective obligation of each of the Investor and the Company to consummate the
Closing is subject to the fulfillment or written waiver by the Investor and the
Company prior to the Closing of the following
conditions:  (i) any approvals or authorizations of, filings and
registrations with, and notifications to, all governmental or regulatory
authorities (collectively, “Governmental Entities”)
required for the purchase and sale of the Convertible Preferred Stock hereunder
shall have been obtained or made and shall be in full force and effect and all
waiting periods required by law shall have expired; (ii) no provision of
any applicable law or regulation and no judgment, injunction, order or decree
shall prohibit the purchase and sale of the Convertible Preferred Stock
hereunder, and no Governmental Entity shall have instituted an investigation or
proceeding that could result in such a judgment, injunction order or decree; and
(iii) the merger of Ramses Acquisition Corp., a wholly owned subsidiary of
the Company, with and into Rohm and Haas Company shall have been consummated or
shall be consummated substantially simultaneously with the purchase and sale of
the shares of Convertible Preferred Stock.

     

    (d)           The
obligation of the Company to consummate the Closing is also subject to the
fulfillment or waiver prior to the Closing of each of the following
conditions:

     

    (i)           the
representations and warranties of the Investor set forth in this Agreement shall
be true and correct in all material respects as though made on and as of the
Closing Date (except that representations and warranties that by their terms
speak as of an earlier date shall be true and correct as of such date) and the
Investor shall have performed in all material respects all obligations required
to be performed by it under this Agreement at or prior to the Closing; provided, that any representation
and warranty of the Investor shall be true and correct in all material respects
if the failure of such representation and warranty to be true and correct would
not result in a material adverse effect on the ability of the Investor to
consummate the transactions contemplated by this Agreement;

     

    (ii)           the
Company shall have received a certificate dated as of the Closing Date signed on
behalf of the Investor by a senior officer certifying compliance with
Section 1.2(d)(i); and

     

    (iii)           The
Company shall have received two duly completed, signed and executed IRS Forms
W-8EXP setting forth that the Investor is a “foreign government” within the
meaning of section 892 of the Internal Revenue Code (the “Code”) and an integral part
of the Government of the State of Kuwait and that the payments in respect of the
Convertible Preferred Stock are within the scope of the exemption granted by
section 892 of the Code.

     

    
      
        
        

      

      
        - 2
-

        
          

        

      

      
        
        

      

    

     

    (e)           The
obligation of the Investor to consummate the Closing is also subject to the
fulfillment or waiver prior to the Closing of each of the following
conditions:

     

    (i)           the
representations and warranties of the Company set forth in this Agreement shall
be true and correct in all material respects (and, in the case of
Section 2.1(b), in all respects) as though made on and as of the Closing
Date (except that representations and warranties that by their terms speak as of
an earlier date shall be true and correct as of such date) and the Company shall
have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing; provided, that any
representation and warranty of the Company shall be true and correct in all
material respects if the failure of such representation and warranty to be true
and correct would not result in a material adverse effect on the ability of the
Company to consummate the transactions contemplated by this
Agreement;

     

    (ii)           the
Investor shall have received from the general counsel or an assistant general
counsel of the Company, or from Shearman & Sterling LLP, special counsel to
the Company, legal opinions addressed to the Investor, dated as of the Closing
Date, covering, (A) the Company’s due organization and valid existence,
(B) the Company’s power to perform its obligations under this Agreement,
(C) the Company’s due authorization, execution and delivery of this
Agreement, (D) the Convertible Preferred Stock being duly authorized and
validly issued, (E) the Common Stock deliverable upon conversion of the
Convertible Preferred Stock to be validly issued, fully paid and non-assessable
upon such delivery, and (F) the execution, delivery and performance by the
Company of this Agreement not violating any laws covered by the opinion, in form
and substance reasonably acceptable to the Investor;

     

    (iii)           the
Company shall have duly adopted and filed the Certificate of Designations with
the Secretary of State of the State of Delaware and the Certificate of
Designations shall have become effective; and

     

    (iv)           the
Investor shall have received a certificate dated as of the Closing Date signed
on behalf of the Company by a senior officer certifying compliance with
Section 1.2(e)(i).

     

    ARTICLE
II

     

    Representations
and Warranties

     

    2.1           Representations and
Warranties of the Company.  Except
as previously disclosed in its Annual Report on Form 10-K for the year
ended December 31, 2007 or its other reports and forms filed with the
Securities and Exchange Commission (the “Commission”) under
Sections 12, 13, 14 or 15(d) of the Securities Exchange Act of 1934 (the
“Exchange Act”),
subsequent to January 1, 2008 (the “SEC Reports”) and prior to
the date of this Agreement, the Company represents and warrants to the Investor
that as of the date hereof (or such other date so specified):

     

    
      
        
        

      

      
        - 3
-

        
          

        

      

      
        
        

      

    

     

    (a)           Organization, Authority and
Significant Subsidiaries.  The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as currently conducted;
and each subsidiary of the Company that is a “significant subsidiary” within the
meaning of Rule 1-01(w) of Regulation S-X under the Securities Act and
the Exchange Act (individually a “Significant Subsidiary” and
collectively the “Significant
Subsidiaries”) has been duly organized and is validly existing in good
standing under the laws of its jurisdiction of organization.

     

    (b)           Capitalization.  As
of September 30, 2008 (the “Capitalization Date”)
(1) the Company had 1,500,000,000 authorized shares of Common Stock;
(2) the Company had 923,779,819 issued and outstanding shares of Common
Stock; (3) the Company held 57,597,743 shares of Common Stock in its
treasury; (4) the Company had granted stock options for a total of
54,646,133 shares of Common Stock, deferred and restricted stock for a total of
8,491,171 shares of Common Stock, performance deferred stock for a total of
2,987,991 shares of Common Stock and maintained a balance in its employee stock
purchase plan of 3,895,738 shares of Common Stock; (5) the Company had
250,000,000 authorized shares of preferred stock and no preferred stock
outstanding; (6) all of the issued and outstanding shares of Common Stock
had been duly and validly authorized and issued and were fully paid and
non-assessable; and (7) all of the issued shares of capital stock of each
Significant Subsidiary had been duly and validly authorized and issued, were
fully paid and non-assessable, and were owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.  Except as set forth above or in connection with an aggregate
of 4,000,000 Shares of Convertible Preferred Stock to be issued to the Investor
and to the Kuwait Investment Authority, as of the date of this Agreement,
(A) there are no shares of Common Stock or preferred stock reserved for
issuance, (B) the Company does not have outstanding any securities
providing the holder the right to acquire Common Stock or preferred stock, and
(C) the Company does not have any commitment to authorize, issue or sell
any Common Stock or preferred stock.

     

    (c)           Authorization;
Enforceability.  The
Company has the requisite power and authority to enter into this Agreement and
to carry out its obligations hereunder.  The execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company.  This Agreement
constitutes the valid and binding obligations of the Company enforceable against
the Company in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and general equitable principles,
regardless of whether such enforceability is considered in a proceeding at law
or in equity (“Bankruptcy
Exceptions”).

     

    (d)           No
Conflict.

     

    (1)           Neither
the execution, delivery and performance by the Company of this Agreement, nor
the consummation of the transactions contemplated hereby, nor 

     

     

    
      
        
        

      

      
        - 4
-

        
          

        

      

      
        
        

      

    

     

    compliance
by the Company with any of the provisions hereof, will (1) violate,
conflict with, or result in a breach of any provision of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration of,
or result in the creation of, any lien, security interest, charge or encumbrance
upon any of the properties or assets of the Company or any Significant
Subsidiary under any of the terms, conditions or provisions of (A) its
certificate of incorporation or by-laws or (B) any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation to which the Company or any Significant Subsidiary is a party or by
which it may be bound, or to which the Company or any Significant Subsidiary or
any of the properties or assets of the Company or any Significant Subsidiary may
be subject, or (2) subject to compliance with the statutes and regulations
referred to in the next paragraph, violate any statute, rule or regulation or
any judgment, ruling, order, writ, injunction or decree applicable to the
Company or any Significant Subsidiary or any of their respective properties or
assets except, in the case of clauses (1)(B) and (2), for those occurrences
that would not reasonably be expected to have a material adverse effect on the
ability of the Company to consummate the transactions contemplated by this
Agreement.

     

    (2)           Other
than in connection or in compliance with the provisions of the Securities Act
and the securities or blue sky laws of the various states, no notice to, filing
with, review by, or authorization, consent or approval of, any Governmental
Entity is necessary for the consummation by the Company of the transactions
contemplated by this Agreement.

     

    (e)           Company Financial
Statements.

     

    (1)           The
consolidated financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the SEC Reports, present
fairly in all material respects the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated therein and
the consolidated results of their operations for the periods specified therein;
and except as stated therein, such financial statements were prepared in
conformity with generally accepted accounting principles in the United States
applied on a consistent basis (except as may be noted therein).

     

    (2)           Deloitte
& Touche LLP, who have certified certain financial statements of the Company
and its subsidiaries, are independent public accountants as required by the Act
and the rules and regulations of the Commission.

     

    (f)           Authorization of Convertible
Preferred Stock.  As
of the Closing Date, the shares of Convertible Preferred Stock will (A) be
duly authorized by all necessary corporate action on the part of the Company,
(B) be validly issued, and (C) not have been issued in violation of
any preemptive or other similar right.

     

    (g)           Authorization of Common
Stock Issuable upon Conversion of Convertible Preferred Stock.  The
Common Stock issuable upon conversion of the Convertible

     

    
      
        
        

      

      
        - 5
-

        
          

        

      

      
        
        

      

    

     

    Preferred
Stock has been duly authorized and reserved and, when issued and delivered upon
conversion of the Convertible Preferred Stock in accordance with the terms of
the Certificate of Designations, will be validly issued, fully paid and
nonassessable, and the issuance of such Common Stock will not be subject to any
preemptive or similar rights.

     

    (h)           Reports.  Since
December 31, 2007 through the date of this Agreement, the Company has
complied in all material respects with the filing requirements of
Sections 13(a), 14(a) and 15(d) of the Exchange Act.  The SEC
Reports, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the
Exchange Act, and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make such statements, in light of the circumstances in which they were made, not
misleading.

     

    2.2           Representations and
Warranties of the Investor.  The
Investor hereby represents and warrants to the Company that as of the date
hereof:

     

    (a)           Organization and
Authority.  The
Investor has been duly organized and is validly existing under the laws of
Kuwait, with requisite power and authority to own its properties and conduct its
business as currently conducted.

     

    (b)           Authorization;
Enforceability.  The
Investor has the requisite power and authority to enter into this Agreement and
to carry out its obligations hereunder.  The execution, delivery and
performance of this Agreement by the Investor and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Investor.  This Agreement
constitutes the valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms except as may be limited by the
Bankruptcy Exceptions.

     

    (c)           No
Conflict.  Neither
the execution, delivery and performance by the Investor of this Agreement, nor
the consummation of the transactions contemplated hereby, nor compliance by the
Investor with any of the provisions hereof, will (l) violate, conflict
with, or result in a breach of any provision of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, or result in the termination of, or accelerate the performance required
by, or result in a right of termination or acceleration of, or result in the
creation of, any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Investor under any of the terms, conditions or
provisions of (A) its certificate of incorporation or by-laws or
(B) any note, bond, mortgage, indenture, deed of trust, license, lease,
agreement or other instrument or obligation to which the Investor is a party or
by which it may be bound, or to which the Investor or any of the properties or
assets of the Investor may be subject, or (2) subject to compliance with
the statutes and regulations referred to in the next paragraph, violate any
statute, rule or regulation or any judgment, ruling, order, writ, injunction or
decree applicable to the Investor or any of its respective properties or assets
except, in the case of clauses (1)(B) and (2), for those occurrences that
would not reasonably be expected to have a material adverse effect on the
ability of the Investor to consummate the transactions contemplated by this
Agreement.

     

    
      
        
        

      

      
        - 6
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    (d)           No Consent. 
Other
than in connection or in compliance with the provisions of the Securities Act
and the securities or blue sky laws of the various states, no notice to, filing
with, review by, or authorization, consent or approval of any Governmental
Entity is necessary for the consummation by the Investor of the transactions
contemplated by this Agreement.  The Investor has the present
intention to hold all shares of Convertible Preferred Stock in a manner that is
consistent with the investment exception to the Hart Scott Rodino Antitrust
Improvements Act of 1976.

     

    (e)           Purchase for
Investment.  The
Investor acknowledges that the shares of Convertible Preferred Stock and the
shares of Common Stock into which they are convertible (the “Securities”) have not been
registered under the Securities Act or under any state securities
laws.  The Investor (1) is acquiring the Securities pursuant to
an exemption from registration under the Securities Act solely for investment
with no present intention to distribute any of the Securities to any person in
violation of the Securities Act, (2) will not sell or otherwise dispose of
any of the Securities, except in compliance with the registration requirements
or exemption provisions of the Securities Act and any other applicable
securities laws, (3) has such knowledge and experience in financial and
business matters and in investments of this type that it is capable of
evaluating the merits and risks of its investment in the Securities and of
making an informed investment decision, and has conducted an
independent  review and analysis of the business and affairs of the
Company that it considers sufficient and reasonable for purposes of its making
its investment in the Securities, and (4) is an Accredited Investor (as
that term is defined by Rule 501 of the Securities Act).

     

    (f)           Financial
Capability.  The
Investor has or will have available funds to purchase the Convertible Preferred
Stock to be purchased by it on the terms and conditions contemplated by this
Agreement.

     

    ARTICLE
III

     

    Covenants

     

    3.1           Commercially Reasonable
Efforts to
Close.  (a)  If
notice of the Closing is given by the Company to the Investor pursuant to
Section 1.2(a), the Investor agrees to use its commercially reasonable
efforts in good faith to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit consummation of the transactions contemplated
hereby as promptly as practicable and otherwise to enable consummation of the
transactions contemplated hereby and shall

     

    
      
        
        

      

      
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    cooperate
fully with the other parties hereto to that end, including in relation to the
satisfaction of the conditions to Closing set forth in Sections 1.2(c), (d)
and (e) and cooperating in seeking to obtain any consent required from
Governmental Entities.

     

    (b)           The
Company agrees, upon request, to furnish the Investor with all information
concerning itself, its subsidiaries, directors, officers and stockholders and
such other matters as may be reasonably necessary in connection with any
statement, filing, notice or application made by or on behalf of the Investor or
any of its subsidiaries under the Hart Scott Rodino Antitrust Improvements Act
of 1976 or to any Governmental Entity in connection with the purchase and sale
of the Convertible Preferred Stock hereunder and any conversion of the
Convertible Preferred Stock.

     

    3.2           Expenses.  The
Company will bear and pay the reasonable costs and expenses incurred by the
Investor in connection with the transactions contemplated under this
Agreement.

     

    3.3           Confidentiality.  The
Investor will treat as confidential all information provided to it by or on
behalf of the Company in connection with the matters contemplated hereby and
expressly designated by the Company as being confidential information of the
Company; provided that
nothing in this Agreement shall prevent the Investor from disclosing any such
information (i) pursuant to the order of any court or administrative agency
or in any pending legal or administrative proceeding, or otherwise as required
by applicable law or compulsory legal process, (ii) upon the request or
demand of any regulatory authority having jurisdiction over it, (iii) to
the extent that such information becomes available other than by reason of
disclosure by it in violation of this Section, (iv) to its affiliates and
to its and their respective employees, legal counsel, independent auditors and
other experts or agents who are informed of the confidential nature of such
information, (v) to the extent that such information is received by the
Investor from a third party that is not to its knowledge subject to
confidentiality obligations to the Company, (vi) to the extent that such
information is independently developed by the Investor and (vii) in
connection with any filings and public disclosures the Investor is required by
law, in the opinion of the Investor’s counsel, to make.

     

    3.4           Sufficiency of Outstanding
Common Stock.  During
the period from the date of this Agreement until the date of conversion of all
of the shares of Convertible Preferred Stock, the Company shall at all times
have reserved for issuance a sufficient number of shares of authorized and
unissued Common Stock for the conversion of shares of Convertible Preferred
Stock into shares of Common Stock.

     

    3.5           Certain
Adjustments.  If
any occurrence since the date of the Equity Commitment Letter until the Closing
would have resulted in an adjustment to the Conversion Rate (as defined in the
Certificate of Designations) pursuant to Section 11(a) of the Certificate
of Designations if the Convertible Preferred Stock had been issued and
outstanding since the date of the Equity Commitment Letter, the Company shall
adjust the Conversion Rate, effective as of the Closing, in the same manner as
would have been required by Section 11(a) of the Certificate of
Designations if the Convertible Preferred Stock had been issued and outstanding
since the date of the Equity Commitment Letter.

     

    
      
        
        

      

      
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    3.6           Payments Free of
Tax.  So long
as (1) the Company shall have received from the Investor a duly completed and
executed IRS Form W-8EXP as required by Section
1.2(d)(iii) herein (the “Furnished Form”); (2) such
Furnished Form has not expired, has not become obsolete and has not otherwise
been superseded (or, if the Furnished Form has
expired, become obsolete or otherwise been superseded, the Investor has
furnished a duly completed and executed IRS form exempting payments made to, and
beneficially owned by, the Investor with
respect to the Convertible Preferred Stock from United States nonresident
withholding and backup withholding); and (3) the Company does not know
and does not have any reason to know that such Furnished Form or successor form is incorrect or incomplete,
then, as long as it is
permitted to do so under applicable law, the Company shall, and shall
cause its paying agent to, pay to the Investor any amount distributed in respect
of the Convertible Preferred Stock (a) free and clear of United States
nonresident withholding and (b) without any backup withholding.  The Company hereby acknowledges as of the
date hereof that it is not aware of any facts or circumstances that would
require it to withhold from any payment to the Investor in respect of the
Convertible Preferred Stock upon receipt of
the Furnished Form and,
therefore, currently does not intend to withhold from any such payment made to
the Investor.  In the event the Company believes that it is required
to withhold from any payment to the Investor in respect of the Convertible
Preferred Stock, the Company shall, at least 10 business days prior to the time
the Company withholds on any such payment, notify the Investor of such belief
and shall give the Investor an opportunity to demonstrate to the Company that no
such withholding is required.

     

    3.7           Reporting Statements and
Information Returns.  The
Company shall be authorized to file any reporting statements and information
returns with any taxing authority that the Company is required to file, as
determined by the Company in its sole discretion.

     

    3.8           Tax
Matters.  If the
Company receives notice of any claim, audit, examination, or other proposed
change or adjustment by any taxing authority, as well as any notice of
assessment and any notice and demand for payment, concerning the withholding of
taxes on payments to the Investor made with respect to the Convertible Preferred
Stock (a “Tax
Proceeding”), the Company shall promptly inform the Investor in writing
of such Tax Proceeding.  The Company shall have the right, at its own
expense, to control the prosecution, defense and settlement of any Tax
Proceeding, except that the Investor shall have the right, at its own expense,
to control the prosecution, defense and settlement of that portion of any Tax
Proceeding that relates to the determination of the qualification of the
Investor as a “foreign government” within the meaning of section 892 of the Code
and as an integral part of the Government of the State of Kuwait (the “Investor Controlled
Claim”).  The party that is not controlling a Tax Proceeding or
part thereof shall have the right to participate, at its own expense, in such
Tax Proceeding or Investor Controlled Claim and the
controlling party shall not settle any such Tax Proceeding or Investor
Controlled Claim without the consent of the noncontrolling party, which consent
shall not be unreasonably withheld, conditioned or
delayed.  The Investor shall indemnify the Company on an
after-tax basis for any amount of United States federal tax, including any
interest thereon, penalties in respect thereof and
other additions to such tax, that the Company, its paying agent or any of
their respective affiliates has not withheld, or failed to withhold in a timely
manner, in respect of payments to the Investor in accordance with applicable
law; provided that if the Investor is not reasonably able to contest or defend
an Investor Controlled Claim as a result of the Company’s failure to timely
notify the Investor of the related Tax Proceeding in accordance with under this
Section 3.8, the Investor shall not be liable to the Company under this Section
3.8 to the extent the Investor’s position in such Investor Controlled Claim is
actually prejudiced as a result of such failure.  For purposes of this
Section 3.8, an indemnity payment is made on an “after-tax basis” if the
Company, its paying agent and each of their respective affiliates are in the
same position after receiving the indemnity payment as they would have been if
they had timely withheld in full and remitted the amount required to be withheld
and had made the payment to the Investor net of and reduced by the amount that
was required to be withheld.  The Investor shall pay the amount for
which it is required to indemnify the Company, the paying agent and their
respective affiliates within 10 business days of receiving a written notice
from the Company stating the fact, the due date
for payment and the amount of the liability of the relevant party to a taxing authority for payment of U.S.
withholding tax or backup withholding in respect of a prior payment to the
Investor; provided that, in the case of a tax that is the subject of a Tax
Proceeding, the Investor shall pay such amount of tax no later than two days
before the due date for payment of such amount to the relevant taxing authority
as determined pursuant to a determination within the meaning of section 1313(a)
of the Code.

     

    ARTICLE
IV

     

    Additional
Agreements 

     

    4.1           Standstill
Agreement.  The
Investor agrees that without the prior approval of the Company the Investor will
not, directly or indirectly, through its subsidiaries or any other persons, or
in concert with any person, or as a “group” (as defined in Section 13 of
the Exchange Act) with any person:

     

    (a)           purchase,
offer to purchase, or agree to purchase or otherwise acquire “beneficial
ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act) of any Common Stock, excluding any shares of Common Stock acquired pursuant
to a conversion of the Convertible Preferred Stock or as a dividend on such
Convertible Preferred Stock;

     

    
      
        
        

      

      
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    (b)           make,
or in any way participate in, any solicitation of proxies to vote, or seek to
advise or influence any person with respect to the voting of, any voting
securities of the Company or any of its subsidiaries, or seek or propose to
influence, advise, change or control the management, board of directors,
policies, affairs or strategy of the Company by way of any public communication
or other communications to securityholders intended for such purpose (in each
case other than pursuant to the exercise of its rights set forth in
Section 13 of the Certificate of Designations);

     

    (c)           make
a proposal for, or offer of (with or without conditions) any acquisition of or
extraordinary transaction involving, the Company or any of the Company’s
subsidiaries or any of their respective securities or assets; or

     

    (d)           enter
into any discussions, negotiations, arrangements, or understandings with or form
a group with, any other person in connection with such other person’s taking,
planning to take, or seeking to take any of the actions described in
clauses (a) through (c) of this Section 4.1 (other than the actions
described in clause (b) of this Section 4.1 pursuant to the exercise
of its rights set forth in Section 13 of the Certificate of Designations)
or otherwise act, alone or in concert with others, to seek to control or (other
than pursuant to the exercise of its rights set forth in Section 13 of the
Certificate of Designations) influence the management or policies of the
Company, board of directors of the Company or policies of the Company, including
any of the Company’s subsidiaries.

     

    The
Investor’s obligations under this Section 4.1 shall terminate on the later
of (x) the third anniversary of the Closing Date and (y) the date on
which the Investor owns less than 2% of the outstanding Common Stock (treating
shares of Convertible Preferred Stock and other convertible, exchangeable or
other equity-related securities of the Company that are beneficially owned by
the Investor as fully converted into the underlying Common Stock); provided, that in no event shall
the Investor’s obligations under this Section 4.1 remain in effect later
than the seventh anniversary of the Closing Date.

     

    4.2           Lock-up
Agreement.  Until
the earlier of (i) the fifth anniversary of the Closing Date or
(ii) the announcement of a Make-Whole Acquisition involving the Company,
the Investor shall not, without the prior written consent of the Company,
directly or indirectly (x) offer, transfer, hypothecate, sell, contract to
sell (including any short sale), grant any option to purchase or otherwise
dispose of the Convertible Preferred Stock, any Common Stock received upon
conversion of the Convertible Preferred Stock or its economic exposure to the
Common Stock (“Lock-up
Securities”), (y) enter into any Hedging Transaction (as defined
below) involving Lock-up Securities, or (z) publicly announce any intention
to do any of the foregoing.  The foregoing restrictions shall not
apply to any transfer by the Investor of any Common Stock received in the
form of dividends on the Convertible Preferred Stock or received in lieu of cash
for Past Due Dividends in the event of Conversion at the Option of the Holder
pursuant to Section 7 of the Certificate of Designations.  “Hedging Transaction”, with
respect to any Lock-Up Security, means any short sale (whether or not against
the box) or any purchase, sale or grant of any right (including any put or call
option, swap or other derivative transaction whether settled in cash or
securities) to obtain a “short” or “put equivalent position” with respect to the
Common Stock, or any other agreement or transaction that reduces, in whole or in
part,

     

    
      
        
        

      

      
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    directly
or indirectly, the economic consequence of ownership of such Lock-Up
Security.  For the avoidance of doubt, a Hedging Transaction shall not
include a transaction that is deemed to reduce the economic consequence of
ownership of a Lock-Up Security only because the Investor is acquired by, or
merges with or into, or transfers all or substantially all of its assets to,
another person pursuant to such transaction.

     

    4.3           Legend.  The
Investor agrees that all certificates or other instruments representing
Convertible Preferred Stock and any Common Stock issued upon conversion of the
Convertible Preferred Stock will bear a legend substantially to the following
effect:

     

    “THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER
THE SECURITIES ACT.

     

    THIS
INSTRUMENT IS ISSUED PURSUANT TO AND IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER AND OTHER PROVISIONS OF AN INVESTMENT AGREEMENT, DATED AS OF OCTOBER
27, 2008, BETWEEN THE COMPANY AND THE INVESTOR REFERRED TO THEREIN, A COPY OF
WHICH IS ON FILE WITH THE ISSUER.  THE SECURITIES REPRESENTED BY THIS
INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH
SAID AGREEMENT.  ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH
SAID AGREEMENT WILL BE VOID.

     

    IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE COMPANY AND THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES, OPINIONS OF COUNSEL AND OTHER
INFORMATION AS MAY BE REASONABLY REQUESTED TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.”

     

    4.4           Payment of Dividends upon
Conversion of Convertible Preferred Stock.  In
addition to any rights under the Certificate of Designations, for as long as the
Investor holds the Convertible Preferred Stock:

     

    (a)           In
the event of any conversion by the Investor of Convertible Preferred Stock into
Common Stock pursuant to Section 7 or Section 9 of the Certificate of
Designations, upon delivery of the shares of Common Stock or other property
deliverable upon such conversion, the Company shall also either declare and
deliver as a dividend or pay cash, shares of Common Stock, or any combination
thereof, in the Company’s discretion, in each case equal in value to the amount
of any Past Due Dividends that are in arrears on such Convertible Preferred
Stock (the “Payment”);
provided, that if such shares of
Common Stock delivered by the Company would at the time that the Investor
desires to transfer such shares be “restricted securities” within the meaning of
Rule 144(a)(3) of the Securities Act of 1933, as amended (“Restricted Securities”), then
the Company will provide that resales of such shares of Common Stock are covered
by an effective registration statement; and provided, further, that any shares of
Common

     

    
      
        
        

      

      
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    Stock
shall be valued for such purpose at 97% of the average of the VWAP per share of
Common Stock over each of the five (5) consecutive Trading Days ending on
the Trading Day immediately prior to the date on which such shares are
delivered; provided,
further, that nothing under the last sentence of Section 4(d) of the
Certificate of Designations or Section 8(a)(v) of the Certificate of
Designations shall require the Investor to surrender the Payment in connection
with such conversion.

     

    (b)           In
the event of the conversion of Convertible Preferred Stock into Common Stock at
the Option of the Company pursuant to Section 10 of the Certificate of
Designations, upon delivery of the shares of Common Stock that are deliverable
upon such conversion, the Company shall also either declare and deliver as a
dividend or pay cash, shares of Common Stock, or any combination thereof, in the
Company’s discretion, in each case equal to the product of (x) the dividend
that the Company would have been obligated to pay on the next succeeding
Dividend Payment Date (the “Dividend Payment Date,” as
defined in the Certificate of Designations) in respect of such Convertible
Preferred Stock, multiplied by (y) a fraction, the numerator of which is
the number of days that, as of the date of such payment, have elapsed since the
most recent Dividend Payment Date (regardless of whether any dividend was
actually paid on such Dividend Payment Date) and the denominator of which shall
be 90; provided, that if such shares of
Common Stock delivered by the Company would at the time that the Investor
desires to transfer such shares be Restricted Securities, then the Company will
provide that resales of such shares of Common Stock are covered by an effective
registration statement; provided, further, that any shares of
Common Stock shall be valued for such purpose at 97% of the average of the VWAP
per share of Common Stock over each of the five (5) consecutive Trading
Days ending on the Trading Day immediately prior to the date on which such
shares are delivered; and provided, further, that if the
Conversion Date (as defined in the Certificate of Designations) is after the
close of business on a Dividend Record Date (as defined in the Certificate of
Designations) but prior to the corresponding Dividend Payment Date, the
Investor’s entitlement to receive any dividend pursuant to Section 4(d) of
the Certificate of Designations shall be deemed to be satisfied in full by the
Company’s compliance with the foregoing provisions of this Section 4.4(b),
and the Investor shall have no obligation to surrender any such dividend under
the last sentence of Section 4(d) of the Certificate of Designations or
under Section 8(a)(v) of the Certificate of Designations.

     

    4.5           Repurchase of Convertible
Preferred Shares.  Subject
to the provisions of Section 6 of the Certificate of Designations, for so
long as the Investor holds Convertible Preferred Stock, the Company agrees not
to purchase Convertible Preferred Stock from any other holder thereof unless the
Company makes a simultaneous and equivalent offer to the Investor to acquire the
same proportion of the Investor’s Convertible Preferred Stock as the Company is
acquiring from such other holder.

     

    4.6           Certain
Notices.  For
as long as the Investor holds the Convertible Preferred Stock, in the event of
an occurrence that would have resulted in an adjustment of the Conversion Rate
under the Certificate of Designations but for the fact that the adjustment would
require an increase or decrease of less than one percent (a “De Minimis Adjustment”), the
Company shall provide notice to the Investor of such De Minimis Adjustment on
the same terms

     

    
      
        
        

      

      
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    as are
set out in Section 11(g) of the Certificate of Designations; provided,
however that, for the avoidance of doubt, nothing under this Section 4.6
shall affect the provisions of Section 11(b) of the Certificate of
Designations.

     

    ARTICLE
V

     

    Miscellaneous

     

    5.1           Survival.  The
representations and warranties of the Company and the Investor contained in this
Agreement shall survive the Closing.  The agreements and covenants
contained in this Agreement shall survive the Closing to the extent contemplated
by the provisions thereof.  Neither the period of survival nor the
liability of a party hereto with respect to its representations and warranties
shall be reduced by any investigation made at any time by or on behalf of the
other party hereto.  Notwithstanding Section 5.2, if this
Agreement is terminated or abandoned, the provisions of Sections 3.2 and
3.3 and this Article V shall survive such termination or
abandonment.

     

    5.2           Termination.  This
Agreement may be terminated at any time prior to the Closing:

     

    (a)           by either
the Investor or the Company if the Closing shall not have occurred by
July 7, 2009;

     

    (b)           by either
the Investor or the Company in the event that any Governmental Entity shall have
issued an order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have become final
and nonappealable; or

     

    (c)           by the
mutual written consent of the Investor and the Company.

     

    In the
event of termination of this Agreement as provided in this Section 5.2,
this Agreement shall forthwith become void and there shall be no liability on
the part of either party hereto except that nothing herein shall relieve either
party from liability for any breach of this Agreement.

     

    5.3           Amendment.  No
amendment of any provision of this Agreement will be effective with respect to
any party unless made in writing and signed by an officer of a duly authorized
representative of such party.

     

    5.4           Waiver of
Conditions.  The
conditions to each party’s obligation to consummate the Purchase are for the
sole benefit of such party and may be waived by such party in whole or in part
to the extent permitted by applicable law.  No waiver will be
effective unless it is in a writing signed by a duly authorized officer of the
waiving party that makes express reference to the provision or provisions
subject to such waiver.

     

    5.5           Counterparts and
Facsimile.  For
the convenience of the parties hereto, this Agreement may be executed in any
number of separate counterparts, each such counterpart being deemed to be an
original instrument, and all such counterparts will together constitute
the

     

    
      
        
        

      

      
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    same
agreement.  Executed signature pages to this Agreement may be
delivered by facsimile and such facsimiles will be deemed as sufficient as if
actual signature pages had been delivered.

     

    5.6           Governing Law; Submission to
Jurisdiction, Etc.

     

    (a)  This
Agreement shall be construed and enforced in accordance with, and the rights of
the parties shall be governed by, the law of the State of New York excluding
choice-of-law principles of the law of such State that would permit the
application of the laws of a jurisdiction other than such State.

     

    (b)           The
Company and the Investor irrevocably submit to the non-exclusive jurisdiction of
any New York State or federal court sitting in the Borough of Manhattan, The
City of New York, over any suit, action or proceeding arising out of or relating
to this Agreement.  To the fullest extent permitted by applicable law,
the Company and the Investor irrevocably waive and agree not to assert, by way
of motion, as a defense or otherwise, any claim that it is not subject to the
jurisdiction of any such court, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.

     

    (c)           The
parties hereto hereby waive trial by jury in any action brought on or with
respect to this Agreement, or any other document executed in connection herewith
or therewith.

     

    (d)           The
Investor agrees that service of process in any suit, action or proceeding
described in the preceding paragraph may be made upon it by registered
or certified mail, return receipt requested, postage prepaid, confirmed by
facsimile, and otherwise in accordance with the notice provisions set out
in Section 5.8(a) of this Agreement.

     

    5.7           Sovereign
Waiver.  To
the extent permitted by applicable law, if the Investor has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, including arbitration, from jurisdiction of any court or arbitral
tribunal, or from set-off or any legal process (whether service or notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise) with respect to itself or any of its
property, the Investor hereby irrevocably waives and agrees not to plead or
claim such immunity in respect of its obligations under this Agreement. The
Investor agrees that the waivers set forth above shall have the fullest extent
permitted under the Foreign Sovereign Immunities Act of 1976 of the United
States of America and are intended to be irrevocable and not subject to
withdrawal for purposes of such Act.

     

    5.8           Notices.  Any
notice, request, instruction or other document to be given hereunder by any
party to the other will be in writing and will be deemed to have been
duly

     

    
      
        
        

      

      
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    given
(a) on the date of delivery if delivered personally, or by facsimile, upon
confirmation of receipt, (b) on the second business day following the date
of dispatch if delivered by a recognized next day courier service, or
(c) on the fifth business day following the date of mailing if delivered by
registered or certified mail, return receipt requested, postage
prepaid.  All notices hereunder shall be delivered as set forth below,
or pursuant to such other instructions as may be designated in writing by the
party to receive such notice.

     

    (a)           If
to the Investor:

     

    Kuwait
Investment Authority

    Ministries
Complex, Block 3

    Safat,
Kuwait  13001


     

    Attention: 
Bader M. Al-Sa’ad

    Farouk A.
Bastaki

    Facsimile:  (965)
244-8364

     

    with a
copy to:

     

    Gibson,
Dunn & Crutcher LLP

    200 Park Avenue

    New York, New York  10166

     

    Attention:  Steven
D. Guynn

    Jeffrey M. Trinklein

    Facsimile:  (212)
351-6377

     

    (b)           If
to the Company:

     

    The Dow
Chemical Company

    2030 Dow
Center

    Midland,
MI  48674

     

    Attention:  Treasurer

    Facsimile:  (989) 636-8280

     

    with a
copy to:

     

    Shearman
& Sterling LLP

    599
Lexington Avenue

    New York,
New York  10022-6069

     

    Attention:  Joel
S. Klaperman, Esq.

    Facsimile:  (646) 848-8021

     

    5.9           Entire Agreement,
Etc.  This
Agreement constitutes the entire agreement, and supersedes all other prior
agreements, understandings, representations and warranties, both written and
oral, between the parties, with respect to the subject matter hereof
(including,

     

    
      
        
        

      

      
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    without
limitation, the Equity Commitment Letter; provided however, that Section 4
of the Equity Commitment Letter shall remain effective until immediately
following the Closing, at which time such Section 4 shall also be
superceded by this Agreement), and is not assignable by operation of law or
otherwise (any attempted assignment in contravention hereof being null and
void).

     

    5.10           Definitions of “subsidiary”
and “Affiliate”.  (a)  The
term “subsidiary” means
with respect to any person, any corporation, association or other entity of
which such person owns or controls more than 50% of the outstanding voting
securities directly or indirectly.

     

    (b)           The
term “Affiliate” means,
with respect to any person, any person directly or indirectly controlling,
controlled by or under common control with, such other person.  For
purposes of this definition, “control” when used with
respect to any person, means the possession, directly or indirectly, of the
power to cause the direction of management and/or policies of such person,
whether through the ownership of voting securities by contract or
otherwise.

     

    5.11           Captions.  When
a reference is made in this Agreement to “Recitals,” “Articles,” “Sections” or
“Annexes,” such reference shall be to a Recital, Article or Section of, or Annex
to, this Agreement unless otherwise indicated and any such reference is for
convenience of reference only, does not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions
hereof.

     

    5.12           Severability.  If
any provision of this Agreement or the application thereof to any person
(including the officers and directors of the Investor and the Company) or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof, or the application of
such provision to persons or circumstances other than those as to which it has
been held invalid or unenforceable, will remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby, so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination,
the parties shall negotiate in good faith in an effort to agree upon a suitable
and equitable substitute provision to effect the original intent of the
parties.

     

    5.13           No Third Party
Beneficiaries.  Nothing
contained in this Agreement, expressed or implied, is intended to confer upon
any person or entity other than the Company and the Investor, any benefit, right
or remedy under this Agreement.

     

    5.14           Miscellaneous.  The
terms defined in the singular have a comparable meaning when used in the plural,
and vice versa.  The table of contents and headings contained in this
Agreement are for reference purposes only and are not part of this
Agreement.  All references to “$” or “dollars” mean the lawful
currency of the United States of America.  Except as expressly stated
in this Agreement, all references to any statute, rule or regulation are to the
statute, rule or regulation as amended, modified, supplemented or replaced from
time to time (and, in the case of statutes, include any rules and regulations
promulgated under the statute) and to any section of any statute, rule or
regulation include any successor to the section.  Whenever this
Agreement requires a calculation of the number or percentage of shares of Common
Stock

     

    
      
        
        

      

      
        - 16
-

        
          

        

      

      
        
        

      

    

     

    “beneficially
owned” by the Investor or another person, the number of shares of Common Stock
underlying any Convertible Preferred Stock beneficially owned by such person are
to be included as if such Convertible Preferred Stock was being fully converted
as of that time.

     

    *           *           *

     

    


     

     

     

     

     

     

    
      
        
        

      

      
        - 17
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    In Witness
Whereof, this Agreement has been duly executed and delivered by the duly
authorized officers of the parties hereto as of the date first herein above
written.

     

    
      
        	 	THE DOW CHEMICAL
      COMPANY	 
	 	 	 	 	 
	 	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Fernando
      Ruiz 	 
	 	 	Name: 	Fernando
      Ruiz	 
	 	 	Title: 	Corporate
      Vice President and Treasurer	 
	 	 	 	 	 


      

    

     

    
       

    

    
       

    

    
      
        	 	
                KUWAIT INVESTMENT
      AUTHORITY

                
                  Acting
      for and on behalf of the Government of the State of Kuwait
      

                

              	 
	 	 	 	 	 
	 	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Bader
      M. Al-Sa’ad	 
	 	 	Name: 	Bader
      M. Al-Sa’ad	 
	 	 	Title: 	Managing
      Director	 
	 	 	 	 	 


      

    

     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Annex A

     

    CERTIFICATE
OF DESIGNATIONS

     

    OF

     

    CUMULATIVE
CONVERTIBLE PERPETUAL PREFERRED STOCK, SERIES A

     

    OF

     

    THE DOW
CHEMICAL COMPANY

     

    ____________________________

     

    pursuant
to Section 151 of the

     

    General
Corporation Law of the State of Delaware

     

    ____________________________

     

    The Dow
Chemical Company, a Delaware corporation (the “Company”), hereby certifies
that:

     

    1.  The
Restated Certificate of Incorporation of the Company (the “Certificate of
Incorporation”) fixes the total number of shares of all classes of capital stock
that the Company shall have the authority to issue at one billion five hundred
million (1,500,000,000) shares of common stock, par value $2.50 per share, and
two hundred fifty million (250,000,000) shares of preferred stock, par value
$1.00 per share.

     

    2.  The
Certificate of Incorporation expressly grants to the Board of Directors of the
Company (the “Board of Directors”) authority to provide for the issuance of the
shares of preferred stock in series, and to establish from time to time the
number of shares to be included in each such series and to fix the designations,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.

     

    3.  Pursuant
to the authority conferred upon the Board of Directors by the Certificate of
Incorporation, the Board of Directors, by action duly taken on October 8,
2008, adopted resolutions (i) authorizing the issuance and sale of up to
4,000,000 shares of the Company’s preferred stock, (ii) authorizing the
Executive Committee of the Board of Directors to approve the final form of the
Certificate of Designations of Cumulative Convertible Perpetual Preferred Stock,
Series A substantially in the form approved by the Board of Directors, with such
changes, subject to certain exceptions, as the Executive Committee of the Board
of Directors may approve, and (iii) establishing the number of shares to be
included in this series of Cumulative Convertible Perpetual Preferred Stock,
Series A, and the Executive Committee of the Board of Directors, by action duly
taken on October 25, 2008, adopted resolutions (i) approving this final
form of the Certificate of Designations of Cumulative Convertible Perpetual
Preferred Stock, Series A and (ii) fixing the designations, powers,
preferences and rights of the shares of this Cumulative Convertible Perpetual
Preferred Stock, Series A and the qualifications, limitations or restrictions
thereof as follows:

     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

     

    Section 1.  Designation.

     

    The
designation of the series of preferred stock shall be “Cumulative Convertible
Perpetual Preferred Stock, Series A” (the “Convertible Preferred
Stock”).  Each share of Convertible Preferred Stock shall be identical
in all respects to every other share of Convertible Preferred
Stock.  Convertible Preferred Stock will rank equally with Parity
Stock, if any, will rank senior to Junior Stock, if any, and will rank junior to
Senior Stock, if any.

     

    Section 2.  Number of Shares.

     

    The
number of authorized shares of Convertible Preferred Stock shall be
4,000,000.  That number from time to time may be decreased (but not
below the number of shares of Convertible Preferred Stock then outstanding) by
further resolution duly adopted by the Board of Directors, or any duly
authorized committee thereof and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State of Delaware stating that
such reduction has been so authorized.  The Company shall not have the
authority to issue fractional shares of Convertible Preferred
Stock.

     

    Section 3.  Definitions.  As
used herein with respect to Convertible Preferred Stock:

     

    “Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person.  For the purposes of this definition, “control” when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.

     

    “Appraisal Procedure”
means a procedure whereby two independent appraisers, one chosen by the Company
and one by the Holder (or if there is more than one Holder, a majority in
interest of Holders), shall mutually agree upon the determinations then the
subject of appraisal.  Each party shall deliver a notice to the other
appointing its appraiser within 15 days after the Appraisal Procedure is
invoked.  If within 30 days after appointment of the two
appraisers they are unable to agree upon the amount in question, a third
independent appraiser shall be chosen within 10 days thereafter by the
mutual consent of such first two appraisers or, if such two first appraisers
fail to agree upon the appointment of a third appraiser, such appointment shall
be made by the American Arbitration Association, or any organization successor
thereto, from a panel of arbitrators having experience in appraisal of the
subject matter to be appraised.  The decision of the third appraiser
so appointed and chosen shall be given within 30 days after the selection
of such third appraiser.  If three appraisers shall be appointed and
the determination of one appraiser is disparate from the middle determination by
more than twice the amount by which the other determination is disparate from
the middle determination, then the determination of such appraiser shall be
excluded, the remaining two determinations shall be averaged and such average
shall be binding and conclusive upon the Company and the Holder; otherwise, the
average of all three determinations shall be binding upon the Company and the
Holder.  The costs of conducting any Appraisal Procedure shall be
borne equally by the Company and the Holder.

     

    
      
        
        

      

      
        A-2

        
          

        

      

      
        
        

      

    

     

    “Base Price” has the
meaning set forth in Section 9(j).

     

    “Board of Directors”
has the meaning set forth in the recitals above.

     

    “Business Day” means
any weekday that is not a legal holiday in New York, New York and is not a day
on which banking institutions in New York, New York are authorized or required
by law or regulation to be closed.

     

    “Closing Price” of the
Common Stock on any date of determination means the closing sale price or, if no
closing sale price is reported, the last reported sale price, of the shares of
the Common Stock on the New York Stock Exchange on such date.  If the
Common Stock is not traded on the New York Stock Exchange on any date of
determination, the Closing Price of the Common Stock on such date of
determination means the closing sale price as reported in the composite
transactions for the principal U.S. national or regional securities exchange
(which, for the avoidance of doubt, may include the Nasdaq Stock Market) on
which the Common Stock is so listed or quoted, or, if no closing sale price is
reported, the last reported sale price on the principal U.S. national or
regional securities exchange (which, for the avoidance of doubt, may include the
Nasdaq Stock Market) on which the Common Stock is so listed or quoted, or if the
Common Stock is not so listed or quoted on a U.S. national or regional
securities exchange, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by Pink Sheets LLC or similar organization,
or, if that bid price is not available, the market price of the Common Stock on
that date as determined by a nationally recognized investment banking firm
(unaffiliated with the Company) retained by the Company for this
purpose.  For the purposes of determining the Closing Price of the
Common Stock on the “trading day” preceding, on or following the occurrence of
an event, (i) that trading day shall be deemed to commence immediately
after the regular scheduled closing time of trading on the New York Stock
Exchange or, if trading is closed at an earlier time, such earlier time and
(ii) that trading day shall end at the next regular scheduled closing time,
or if trading is closed at an earlier time, such earlier time (for the avoidance
of doubt, and as an example, if the Closing Price is to be determined as of the
last trading day preceding a specified event and the closing time of trading on
a particular day is 4:00 p.m. and the specified event occurs at
5:00 p.m. on that day, the Closing Price would be determined by reference
to such 4:00 p.m. closing price).

     

    “Common Stock” means
the common stock of the Company, par value $2.50 per share, or any other shares
of the capital stock of the Company into which such shares of common stock shall
be reclassified or changed.

     

    “Constituent Person”
has the meaning set forth in Section 12(a).

     

    “Conversion Agent”
means the Transfer Agent acting in its capacity as conversion agent for the
Convertible Preferred Stock, and its successors and assigns.

     

    “Conversion at the Option of
the Company Date” has the meaning set forth in
Section 10(c).

     

    “Conversion Date” has
the meaning set forth in Section 8(a).

     

    “Conversion Price” at
any time means, for each share of Convertible Preferred Stock, a dollar amount
equal to $1,000 divided by the then applicable Conversion Rate.

     

    
      
        
        

      

      
        A-3

        
          

        

      

      
        
        

      

    

     

    “Conversion Rate”
means for each share of Convertible Preferred Stock, 24.2010 shares of Common
Stock, subject to adjustment as set forth herein.

     

    “Convertible Preferred
Stock” shall have the meaning set forth in Section 1.

     

    “Current Market Price”
per share of Common Stock as of a Record Date for any issuance, distribution or
other action means the average of the VWAP per share of Common Stock over each
of the five consecutive Trading Days ending on the Trading Day before the
Ex-Date with respect to such issuance, distribution, or other action,
appropriately adjusted to take into account the occurrence during such period of
any event described in Section 11.

     

    “Dividend Payment
Date” shall have the meaning set forth in Section 4(a).

     

    “Dividend Period”
shall have the meaning set forth in Section 4(a).

     

    “Dividend Record Date”
shall have the meaning set forth in Section 4(a).

     

    “Dividend Threshold
Amount” shall have the meaning set forth in
Section 11(a)(iv).

     

    “Ex-Date” when used
with respect to any issuance or distribution, means the first date on which the
shares of Common Stock or other securities trade without the right to receive
such issuance or distribution.

     

    “Exchange Act” means
the Securities Exchange Act of 1934, as amended.

     

    “Exchange Property”
has the meaning set forth in Section 12(a).

     

    “Expiration Date” has
the meaning set forth in Section 11(a)(v).

     

    “Expiration Time” has
the meaning set forth in Section 11(a)(v).

     

    “Fair Market Value”
means, with respect to any security or other property, the fair market value of
such security or other property as determined by the Board of Directors, acting
in good faith.  If the Holders of a majority of the shares of
Convertible Preferred Stock at the time outstanding object in writing to the
Board of Directors’ calculation of fair market value within 10 days of
receipt of written notice thereof and such Holders and the Company are unable to
agree on fair market value during the 10-day period following the delivery of
such Holders’ objection, the Appraisal Procedure may be invoked by either party
to determine Fair Market Value by delivering written notification thereof not
later than the 30th day after delivery of such Holders’ objection.

     

    “Holder” means the
Person in whose name the shares of the Convertible Preferred Stock are
registered, which may be treated by the Company, Transfer Agent, Registrar,
paying agent and Conversion Agent as the absolute owner of the shares of
Convertible Preferred Stock for the purpose of making payment and settling
conversions and for all other purposes.

     

    “Issue Date” means the
date of initial issuance of the Convertible Preferred Stock.

     

    
      
        
        

      

      
        A-4

        
          

        

      

      
        
        

      

    

     

    “Junior Stock” means
the Common Stock and any other class or series of stock of the Company, other
than Parity Stock, now existing or hereafter authorized not expressly ranking
senior to the Convertible Preferred Stock with respect to the payment of
dividends or the distribution of assets in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Company.

     

    “Make-Whole
Acquisition” means the occurrence, prior to any Conversion Date, of one
of the following:

     

    (i)         a
“person” or “group” within the meaning of Section 13(d) of the Exchange Act
files a Schedule TO or any schedule, form or report under the Exchange Act
disclosing that such person or group has become the direct or indirect ultimate
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of
common equity of the Company representing more than 50% of the voting power of
the outstanding common equity of the Company; or

     

    (ii)         consummation
of any consolidation or merger of the Company or similar transaction or any
sale, lease or other transfer in one transaction or a series of transactions of
all or substantially all of the property and assets of the Company to any Person
other than one of the Company’s subsidiaries, in each case pursuant to which the
Common Stock will be converted into cash, securities or other property, other
than pursuant to a transaction in which the Persons that “beneficially owned”
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
voting shares of the Company immediately prior to such transaction beneficially
own, directly or indirectly, voting shares representing a majority of the total
voting power of all outstanding classes of voting shares of the continuing or
surviving Person immediately after the transaction; provided, however, that a Make-Whole
Acquisition will not be deemed to have occurred if at least 90% of the
consideration received by holders of Common Stock in the transaction or
transactions consists of shares of common stock or depositary receipts in
respect of common stock that are (or upon issuance will be) traded on a U.S.
national securities exchange or securities exchange in the European Economic
Area.

     

    “Make-Whole Acquisition
Conversion” has the meaning set forth in Section 9(a).

     

    “Make-Whole Acquisition
Conversion Period” has the meaning set forth in
Section 9(a).

     

    “Make-Whole Acquisition
Effective Date” has the meaning set forth in
Section 9(a).

     

    “Make-Whole Acquisition Stock
Price” means the consideration paid per share of Common Stock in a
Make-Whole Acquisition.  Except in the case of a Make-Whole
Acquisition referred to in clause (i) of the definition thereof, if such
consideration consists only of cash, the Make-Whole Acquisition Stock Price
shall equal the amount of cash paid per share of Common Stock.  If
(i) such consideration consists of any property other than cash, or
(ii) in the case of a Make-Whole Acquisition referred to in clause (i)
of the definition thereof, the Make-Whole Acquisition Stock Price shall be the
average of the VWAP per share of Common Stock over each of the five consecutive
Trading Days ending on the Trading Day immediately prior to the Make-Whole
Acquisition Effective Date.

     

    “Make-Whole Shares”
has the meaning set forth in Section 9(a).

     

    
      
        
        

      

      
        A-5

        
          

        

      

      
        
        

      

    

     

    “Market Disruption
Event” means any of the following events:

     

    (i)    any
suspension of, or limitation imposed on, trading of the Common Stock by any
exchange or quotation system on which the Closing Price is determined pursuant
to the definition of the term “Closing Price” (the “Relevant Exchange”)
during the one-hour period prior to the close of trading for the regular trading
session on the Relevant Exchange (or for purposes of determining the VWAP per
share of Common Stock, any period or periods aggregating one half-hour or longer
during the regular trading session on the relevant day) and whether by reason of
movements in price exceeding limits permitted by the Relevant Exchange as to
securities generally, or otherwise relating to the Common Stock or options
contracts relating to the Common Stock on the Relevant Exchange; or

     

    (ii)    any event
(other than an event described in clause (iii)) that disrupts or impairs
(as determined by the Company in its reasonable discretion) the ability of
market participants during the one-hour period prior to the close of trading for
the regular trading session on the Relevant Exchange (or for purposes of
determining the VWAP per share of Common Stock, any period or periods
aggregating one half-hour or longer during the regular trading session on the
relevant day) in general to effect transactions in, or obtain market values for,
the Common Stock on the Relevant Exchange or to effect transactions in, or
obtain market values for, options contracts relating to the Common Stock on the
Relevant Exchange.

     

    “Nonpayment” has the
meaning set forth in Section 13(b)(i).

     

    “Notice of Conversion at the Option of the
Company” has the meaning set forth in Section 10(c).

     

    “Officer’s
Certificate” means a certificate signed by the Chief Executive Officer,
any Executive Vice President, the Chief Financial Officer, the Controller or the
Treasurer.

     

    “Parity Stock” means
any class or series of stock of the Company hereafter authorized that expressly
ranks equally with the Convertible Preferred Stock with respect to the payment
of dividends and in the distribution of assets in the event of any liquidation,
dissolution or winding up of the affairs of the Company.

     

    “Past Due Dividends”
has the meaning set forth in Section 4(b).

     

    “Person” means a legal
person, including any individual, corporation, estate, partnership, joint
venture, association, joint-stock company, limited liability company or
trust.

     

    “Preferred Stock
Director” has the meaning set forth in
Section 13(b)(i).

     

    “Purchased Shares” has
the meaning set forth in Section 11(a)(v).

     

    “Record Date” means,
with respect to any dividend, distribution or other transaction or event in
which the holders of the Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash, securities
or other property, the date fixed for determination of holders of the Common
Stock entitled to receive such cash, securities or other

     

    
      
        
        

      

      
        A-6

        
          

        

      

      
        
        

      

    

     

    property
(whether such date is fixed by the Board of Directors or by statute, contract or
otherwise).

     

    “Registrar” means the
Transfer Agent acting in its capacity as registrar for the Convertible Preferred
Stock, and its successors and assigns.

     

    “Relevant Date” has
the meaning set forth in Section 11(a)(iv).

     

    “Relevant Exchange”
has the meaning set forth in the definition of the term “Market Disruption
Event.”

     

    “Reorganization Event”
has the meaning set forth in Section 12(a).

     

    “Restricted
Securities” has the meaning set forth in Rule 144(a)(3) of the
Securities Act of 1933, as amended.

     

    “Senior Stock” means
any class or series of stock of the Company hereafter authorized which expressly
ranks senior to the Convertible Preferred Stock and has preference or priority
over the Convertible Preferred Stock as to the payment of dividends or in the
distribution of assets on any voluntary or involuntary liquidation, dissolution
or winding up of the Company.

     

    “Trading Day” means a
Business Day on which the Relevant Exchange is scheduled to be open for business
and on which there has not occurred a Market Disruption Event.

     

    “Transfer Agent” means
BNY Mellon Shareowner Services acting as Transfer Agent, Registrar, paying agent
and Conversion Agent for the Convertible Preferred Stock, and its successors and
assigns.

     

    “VWAP” per share of
Common Stock on any Trading Day means the per share volume-weighted average
price as displayed under the heading Bloomberg VWAP on Bloomberg (or, if
Bloomberg ceases to publish such price, any successor service reasonably chosen
by the Company) page “DOW.N<Equity> VAP” (or its equivalent successor if
such page is not available) in respect of the period from the open of trading on
the relevant Trading Day until the close of trading on such Trading Day (or if
such volume-weighted average price is unavailable, the market price of one share
of Common Stock on such Trading Day determined, using a volume-weighted average
method, by a nationally recognized investment banking firm (unaffiliated with
the Company) retained for this purpose by the Company).

     

    Section 4.  Dividends.

     

    (a) Rate.  Holders shall
be entitled to receive, if, as and when declared by the Board of Directors, or
any duly authorized committee thereof, but only out of assets legally available
therefor, cumulative cash dividends payable quarterly in arrears on each
January 1, April 1, July 1 and October 1, commencing on the
first such day occurring after a full calendar quarter has elapsed since the
Issue Date; provided,
however, if any such
day is not a Business Day, then payment of any dividend otherwise payable on
that date will be made on the next succeeding day that is a Business Day,
without any interest or other payment in respect of such delay (each such day on
which dividends are payable, a “Dividend Payment
Date”). The period from and 

     

    
      
        
        

      

      
        A-7

        
          

        

      

      
        
        

      

    

     

    including
any Dividend Payment Date (or, prior to the first Dividend Payment Date, from
and including the date of issuance of the Convertible Preferred Stock) to, but
excluding, the next Dividend Payment Date is a “Dividend
Period.”  Dividends on each share of Convertible Preferred
Stock will accrue daily at a rate per annum of $85, payable for each full
Dividend Period in equal quarterly installments; provided, however, that for the
Dividend Period from and including the Issue Date and ending on the day that is
immediately prior to the first Dividend Payment Date, dividends will be computed
on the basis described in the last sentence of this Section 4(a) as being
applicable to such Dividend Period.  The record date for payment of
dividends on the Convertible Preferred Stock will be the fifteenth day of the
calendar month immediately preceding the relevant Dividend Payment Date (each, a
“Dividend Record
Date”), whether or not such day is a Business Day.  The amount
of dividends payable will be computed on the basis of a 360 day year of twelve
30-day months, and for any period of less than a month, actual days elapsed over
a 30-day month.

     

    (b) Payment.  Dividends
may be paid in cash, shares of Common Stock, or any combination thereof, at the
Company’s discretion; provided, that if the Company
elects to pay any dividend in shares of Common Stock or in a combination of
shares of Common Stock and cash, the Company shall provide the Holder with
notice thereof immediately in connection with the declaration thereof, provided, further, that if any shares
of Common Stock paid by the Company as a dividend are Restricted Securities,
then the Company shall only pay dividends in shares of Common Stock if resales
thereof are covered by an effective registration statement.  If the
Company elects to make any dividend payment, or any portion thereof, in shares
of Common Stock, such shares shall be valued for such purpose at 97% of the
average of the VWAP per share of Common Stock over each of the five consecutive
Trading Days ending on the Trading Day immediately prior to the relevant Record
Date.

     

    If the
Company fails to pay a full dividend on the Convertible Preferred Stock, then
dividends on the Convertible Preferred Stock shall continue to accrue and
cumulate at a rate per annum of $85 per share, and, commencing on the day after
such failure to pay occurs, the Convertible Preferred Stock shall, in addition,
accrue and cumulate additional dividends at an annual rate equal to 10.0%,
compounded quarterly, on the aggregate accrued amount of any such unpaid
dividends (including additional dividends), with the amount of such additional
dividend accrual being added to other past due dividends (and being referred to
herein, together with the aggregate accrued amount of all such unpaid dividends,
as the “Past Due
Dividends”) up to and including the date that all such Past Due Dividends
shall have been declared and paid in full.

     

    (c) Priority of
Dividends.  So long as any share of Convertible Preferred Stock
remains outstanding, unless full dividends (including Past Due Dividends) on all
outstanding shares of the Convertible Preferred Stock have been declared and
paid, or declared and a sum sufficient for the payment of those dividends has
been set aside for the benefit of the holders thereof on the applicable Record
Date, the Company will not, and will cause its subsidiaries not to, declare or
pay any dividend on, make any distributions relating to Junior Stock, or redeem,
purchase, acquire (either directly or through any subsidiary) or make a
liquidation payment relating to, any Junior Stock, or make any guarantee payment
with respect thereto, other than:

     

    
      
        
        

      

      
        A-8

        
          

        

      

      
        
        

      

    

     

    (i)    purchases,
redemptions or other acquisitions of shares of Junior Stock in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of employees, officers, directors or consultants;

     

    (ii)    purchases of
shares of Common Stock pursuant to a contractually binding requirement to buy
stock, including under a contractually binding stock repurchase plan, so long as
any such contractually binding requirement was entered into at a time when there
are no Past Due Dividends or any Past Due Dividends have been declared and paid
in full;

     

    (iii)    as a result
of an exchange or conversion of any class or series of Junior Stock, or the
securities of another company, for any other class or series of Junior
Stock;

     

    (iv)    the purchase
of fractional interests in shares of Junior Stock pursuant to the conversion or
exchange provisions of such Junior Stock or the security being converted or
exchanged; or

     

    (v)    the payment
of any dividends in respect of Junior Stock where the dividend is in the form of
the same stock as that on which the dividend is being paid.

     

    Except as
provided below, for so long as any share of Convertible Preferred Stock remains
outstanding, if dividends are not declared and paid in full upon the shares of
Convertible Preferred Stock and any Parity Stock with the same dividend payment
date or with a dividend payment date during a Dividend Period, all dividends
declared upon shares of Convertible Preferred Stock and any such Parity Stock
will be declared on a proportional basis so that the amount of dividends
declared per share will bear to each other the same ratio that all Past Due
Dividends as of the end of the then-current Dividend Period per share of
Convertible Preferred Stock and all accrued and unpaid dividends as of the end
of the applicable dividend period per share of any Parity Stock (including, in
the case of any such Parity Stock that bears cumulative dividends, all accrued
and unpaid dividends) bear to each other.

     

    Subject
to the foregoing, dividends payable in cash, stock or otherwise, as may be
determined by the Board of Directors, or any duly authorized committee thereof,
may be declared and paid on any Junior Stock and Parity Stock from time to time
out of any assets legally available for such payment, and Holders will not be
entitled to participate in those dividends.

     

    (d) Conversion Following a Record
Date.  If the Conversion Date for any shares of Convertible
Preferred Stock is prior to the close of business on a Dividend Record Date, the
Holder of such shares will not be entitled to any such dividend.  If
the Conversion Date for any shares of Convertible Preferred Stock is after the
close of business on a Dividend Record Date but prior to the corresponding
Dividend Payment Date, the Holder of such shares shall be entitled to receive
such dividend, notwithstanding the conversion of such shares prior to the
Dividend Payment Date.  However, such shares, upon surrender for
conversion, must be accompanied by the dividend on such shares.

     

    Section 5.  Liquidation
Rights.

     

    
      
        
        

      

      
        A-9

        
          

        

      

      
        
        

      

    

     

    (a) Liquidation.  In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, Holders shall be entitled, out of assets legally
available therefor, before any distribution or payment out of the assets of the
Company may be made to or set aside for the holders of any Junior Stock and
subject to the rights of the holders of any Senior Stock or Parity Stock upon
liquidation and the rights of the Company’s creditors, to receive in full a
liquidating distribution in the amount of the liquidation preference of $1,000
per share and the Company shall also declare and deliver as a dividend or pay
any and all dividends accrued thereon from the last Dividend Payment Date and
all Past Due Dividends,  to, but excluding, the date of such
payment.  Holders shall not be entitled to any further payments in the
event of any such voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Company other than what is expressly provided for in
this Section 5.

     

    (b) Partial Payment.  If
the assets of the Company are not sufficient to pay in full the aggregate
liquidating distributions required to be paid pursuant to Section 5(a) to
all Holders and all holders of any Parity Stock, the amounts paid to the Holders
and to the holders of all Parity Stock shall be pro rata in accordance with the
respective aggregate liquidating distributions to which they would otherwise be
entitled.

     

    (c) Residual
Distributions.  If the respective aggregate liquidating
distributions to which all Holders and all holders of any Parity Stock are
entitled pursuant to Section 5(a) have been paid, the holders of Junior
Stock shall be entitled to receive all remaining assets of the Company according
to their respective rights and preferences.

     

    (d) Merger, Consolidation and Sale of
Assets Not Liquidation.  For purposes of this Section 5,
the sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the property
and assets of the Company shall not be deemed a voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company, nor shall
the merger, consolidation or any other business combination transaction of the
Company into or with any other corporation or person or the merger,
consolidation or any other business combination transaction of any other
corporation or person into or with the Company be deemed to be a voluntary or
involuntary dissolution, liquidation or winding up of the affairs of the
Company.

     

    Section 6.  Redemption.

     

    The
Convertible Preferred Stock is perpetual and has no maturity date and shall not
be redeemable or callable at the option of the Company.

     

    Section 7.  Right of the Holders to
Convert.

     

    Each
Holder shall have the right, at such Holder’s option, to convert all or any
portion of such Holder’s Convertible Preferred Stock at any time into shares of
Common Stock at the Conversion Rate per share of Convertible Preferred Stock
(subject to the conversion procedures, and with the effect, set forth in
Section 8), plus cash in lieu of fractional shares as set out in
Section 11(i).

     

    Section 8.  Conversion Procedures and Effect of
Conversion.

     

    
      
        
        

      

      
        A-10

        
          

        

      

      
        
        

      

    

     

    (a) Conversion
Procedure.  A Holder must do each of the following in order to
convert shares of Convertible Preferred Stock:

     

    (i)    complete and
manually sign the conversion notice provided by the Conversion Agent, and
deliver such notice to the Conversion Agent;

     

    (ii)    deliver a
certificate or certificates representing the shares of Convertible Preferred
Stock to be converted to the Conversion Agent;

     

    (iii)    if required,
furnish appropriate endorsements and transfer documents;

     

    (iv)    if required,
pay any stock transfer, documentary, stamp or similar taxes not payable by the
Company pursuant to Section 22; and

     

    (v)    if required,
surrender the dividend payable in respect of such shares pursuant to the last
sentence of Section 4(d).

     

    The date
on which a Holder complies with the procedures in this Section 8(a) with
regard to shares of Convertible Preferred Stock is referred to as the “Conversion Date”
applicable to such shares.  The Conversion Agent shall, on a Holder’s
behalf, convert the Convertible Preferred Stock into shares of Common Stock, in
accordance with the terms of the notice delivered by such Holder described
above.

     

    (b) Effect of
Conversion.  Effective immediately prior to the close of
business on the Conversion Date applicable to any shares of Convertible
Preferred Stock, dividends shall no longer accrue or be declared on any such
shares of Convertible Preferred Stock and such shares of Convertible Preferred
Stock shall cease to be outstanding.  Holders who convert shares of
Convertible Preferred Stock will not be entitled to, nor will the Conversion
Rate be adjusted for, any Past Due Dividends in respect of such
shares.

     

    (c) Record Holder of Underlying
Securities as of Conversion Date.  The Person or Persons
entitled to receive the Common Stock and/or cash, securities or other property
issuable upon conversion of Convertible Preferred Stock on a Conversion Date
shall be treated for all purposes as the record holder(s) of such shares of
Common Stock and/or securities as of the close of business on such Conversion
Date.  In the event that a Holder shall not by written notice
designate the name in which shares of Common Stock and/or cash, securities or
other property (including payments of cash in lieu of fractional shares) to be
issued or paid upon conversion of shares of Convertible Preferred Stock should
be registered or paid or the manner in which such shares should be delivered,
the Company shall be entitled to register and deliver such shares, and make such
payment, in the name of the Holder and in the manner shown on the records of the
Company.

     

    (d) No Rights to Common Stock Prior to
Conversion.  Except pursuant to Section 11, no adjustment
to shares of Convertible Preferred Stock being converted on a Conversion Date or
to the shares of Common Stock issuable upon the conversion thereof shall be made
in respect of dividends payable to holders of the Common Stock as of any date
prior to the close of business on such Conversion Date.  Prior to the
close of business on such Conversion Date, the shares of Common Stock or other
securities issuable upon conversion of such shares of Convertible

     

    
      
        
        

      

      
        A-11

        
          

        

      

      
        
        

      

    

     

    Preferred
Stock shall not be deemed outstanding for any purpose, and Holders shall have no
rights with respect to such Common Stock or other securities (including voting
rights, rights to respond to tender offers for the Common Stock or other
securities issuable upon conversion, and rights to receive any dividends or
other distributions on the Common Stock) by virtue of holding such shares of
Convertible Preferred Stock.

     

    (e) Status of Converted or Reacquired
Shares.  Shares of Convertible Preferred Stock converted in
accordance with this Certificate of Designations, or otherwise reacquired by the
Company, will resume the status of authorized and unissued preferred stock,
undesignated as to series and available for future issuance.

     

    Section 9.  Conversion upon Make-Whole
Acquisition.

     

    (a) Make-Whole Acquisition
Conversion.  In the event of a Make-Whole Acquisition, each
Holder shall have the option to convert its shares of Convertible Preferred
Stock (a “Make-Whole
Acquisition Conversion”) during the period (the “Make-Whole Acquisition
Conversion Period”) beginning on the effective date of the Make-Whole
Acquisition (the “Make-Whole Acquisition
Effective Date”) and ending on the date that is 30 days after the
Make-Whole Acquisition Effective Date and receive an additional number of shares
of Common Stock for each share of Convertible Preferred Stock set forth in
Section 9(b) below (the “Make-Whole
Shares”).

     

    (b) Number of Make-Whole
Shares.  The number of Make-Whole Shares shall be determined by
reference to the table below based on the applicable Make-Whole Acquisition
Effective Date and the applicable Make-Whole Acquisition Stock Price (where each
entry in the column entitled “Effective Date” refers to the Issue Date or an
anniversary of the Issue Date):

     

    
      	
              Effective
      Date

            	 	
              Stock
      Price

            	 
	 
      	 	$	34.43	 	 	$	37.00	 	 	$	40.00	 	 	$	43.00	 	 	$	46.00	 	 	$	49.00	 	 	$	52.00	 	 	$	55.00	 	 	$	60.00	 	 	$	65.00	 	 	$	70.00	 
	
              Issue
      Date

            	 	 	4.8401	 	 	 	4.3985	 	 	 	3.3366	 	 	 	2.5320	 	 	 	1.9155	 	 	 	1.4387	 	 	 	1.0675	 	 	 	0.7775	 	 	 	0.4287	 	 	 	0.2024	 	 	 	0.0611	 
	
              First

            	 	 	4.8401	 	 	 	4.1739	 	 	 	3.1013	 	 	 	2.2998	 	 	 	1.6966	 	 	 	1.2396	 	 	 	0.8915	 	 	 	0.6258	 	 	 	0.3165	 	 	 	0.1254	 	 	 	0.0119	 
	
              Second

            	 	 	4.8401	 	 	 	3.9758	 	 	 	2.8839	 	 	 	2.0767	 	 	 	1.4807	 	 	 	1.0409	 	 	 	0.7161	 	 	 	0.4766	 	 	 	0.2114	 	 	 	0.0585	 	 	 	0.0000	 
	
              Third

            	 	 	4.8401	 	 	 	3.8028	 	 	 	2.6849	 	 	 	1.8602	 	 	 	1.2605	 	 	 	0.8320	 	 	 	0.5307	 	 	 	0.3217	 	 	 	0.1102	 	 	 	0.0018	 	 	 	0.0000	 
	
              Fourth

            	 	 	4.8401	 	 	 	3.6466	 	 	 	2.5060	 	 	 	1.6540	 	 	 	1.0262	 	 	 	0.5848	 	 	 	0.2986	 	 	 	0.1292	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	
              Fifth

            	 	 	4.8401	 	 	 	3.5201	 	 	 	2.3679	 	 	 	1.5091	 	 	 	0.8606	 	 	 	0.3651	 	 	 	0.0010	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	
              Sixth

            	 	 	4.8401	 	 	 	3.4154	 	 	 	2.2485	 	 	 	1.3896	 	 	 	0.7537	 	 	 	0.2811	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	
              Seventh

            	 	 	4.8401	 	 	 	3.3339	 	 	 	2.1468	 	 	 	1.2817	 	 	 	0.6528	 	 	 	0.1978	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	
              Eighth

            	 	 	4.8401	 	 	 	3.2840	 	 	 	2.0749	 	 	 	1.2000	 	 	 	0.5743	 	 	 	0.1323	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	
              Ninth

            	 	 	4.8401	 	 	 	3.2547	 	 	 	2.0211	 	 	 	1.1315	 	 	 	0.5037	 	 	 	0.0753	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	
              Tenth

            	 	 	4.8401	 	 	 	3.2464	 	 	 	1.9877	 	 	 	1.0796	 	 	 	0.4430	 	 	 	0.0261	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 


    

    


    (c) 
(i) The actual Make-Whole Acquisition Stock Price and Make-Whole
Acquisition Effective Date may not be set forth on the table, in which
case:

     

    (A)           if
the Make-Whole Acquisition Stock Price is between two Make-Whole Acquisition
Stock Price amounts on the table and/or the Make-Whole Acquisition Effective
Dates are between two dates on the table, the number of Make-Whole Shares will
be determined by straight-line interpolation between the number of Make-Whole
Shares set forth for the higher and lower Make-Whole Acquisition Stock Price
amounts and the two Make-Whole Acquisition Effective Dates, as applicable, based
on a 365-day year;

     

    
      
        
        

      

      
        A-12

        
          

        

      

      
        
        

      

    

     

    (B)           if
the Make-Whole Acquisition Stock Price is in excess of $70 per share (subject to
adjustment as described in clause (ii) below), no Make-Whole Shares will be
issued upon conversion of the Convertible Preferred Stock;

     

    (C)           if
the Make-Whole Acquisition Stock Price is less than $34.43 per share (subject to
adjustment as described in Section 9(c)(ii) below), no Make-Whole Shares
will be issued upon conversion of the Convertible Preferred Stock;
and

     

    (D)           if
the Make-Whole Acquisition Effective Date is subsequent to the tenth anniversary
of the Issue Date, no Make-Whole Shares will be issued upon conversion of the
Convertible Preferred Stock.

     

    (ii)         The
Make-Whole Acquisition Stock Prices set forth in the table above are subject to
adjustment pursuant to Section 11 and shall be adjusted as of any date the
Conversion Rate is adjusted.  The adjusted Make-Whole Acquisition
Stock Prices will equal the Make-Whole Acquisition Stock Prices applicable
immediately prior to such adjustment multiplied by a fraction, the numerator of
which is the Conversion Rate immediately prior to the adjustment giving rise to
the Make-Whole Acquisition Stock Prices adjustment and the denominator of which
is the Conversion Rate as so adjusted.  Each of the number of
Make-Whole Shares in the table shall also be subject to adjustment in the same
manner as the Conversion Rate pursuant to Section 11.

     

    (d) Initial Make-Whole Acquisition
Notice.  On or before the twentieth day prior to the date on
which the Company anticipates consummating the Make-Whole Acquisition (or, if
later, or in the case of a Make-Whole Acquisition referred to in clause (i)
of the definition thereof, promptly after the Company discovers that the
Make-Whole Acquisition will occur or has occurred), a written notice shall be
sent by or on behalf of the Company, by overnight courier to the Holders as they
appear in the records of the Company.  Such notice shall
contain:

     

    (i)         the
date on which the Make-Whole Acquisition is anticipated to be effected (or, in
the case of a Make-Whole Acquisition referred to in clause (i) of the
definition thereof, the date on which the Schedule TO or other schedule, form or
report referred to in such clause was filed); and

     

    (ii)         the
date, which shall be 30 days after the anticipated Make-Whole Acquisition
Effective Date, by which the Make-Whole Acquisition Conversion option must be
exercised.

     

    (e) Final Make-Whole Acquisition
Notice.  On the Make-Whole Acquisition Effective Date, a final
written notice shall be sent by or on behalf of the Company, by overnight
courier to the Holders as they appear in the records of the
Company.  Such notice shall contain:

     

    (i)         the
date, which shall be 30 days after the Make-Whole Acquisition Effective
Date, by which the Make-Whole Conversion option must be exercised;

     

    (ii)         the
number of Make-Whole Shares and, if applicable, the Base Price;

     

    (iii)        the
amount of cash, securities and other consideration payable per share of Common
Stock; and

     

    
      
        
        

      

      
        A-13

        
          

        

      

      
        
        

      

    

     

    (iv)        the
instructions a Holder must follow to exercise its conversion option in
connection with such Make-Whole Acquisition.

     

    (f) Make-Whole Acquisition Conversion
Procedure.  To exercise a Make-Whole Acquisition Conversion
option, a Holder must, no later than 5:00 p.m., New York City time, on the
date by which the Make-Whole Acquisition Conversion option must be exercised as
specified in the notice delivered under clause (e) above, comply with the
procedures set forth in Section 8(a) and indicate that it is exercising its
Make-Whole Acquisition Conversion option.

     

    (g) Delivery upon Make-Whole Acquisition
Conversion.  Upon a Make Whole Acquisition Conversion, the
Conversion Agent shall deliver to the Holder the shares of Common Stock
deliverable upon conversion of such shares of Convertible Preferred Stock,
including any Make-Whole Shares required to be delivered pursuant to
Section 9(a), or, in the event of a Make-Whole Acquisition in which the
Common Stock shall be changed into or exchanged for other securities or property
(including cash), the amount of securities or property (including cash) per each
share of the Common Stock, including any Make-Whole Shares required to be
delivered pursuant to Section 9(a), so deliverable upon conversion into
which or for which each share of Common Stock is so changed or
exchanged.

     

    (h) Unconverted Shares Remain
Outstanding.  If a Holder does not elect to exercise the
Make-Whole Acquisition Conversion option pursuant to this Section 9, the
shares of Convertible Preferred Stock held by it will remain outstanding until
otherwise subsequently converted, but no Make-Whole Shares will be deliverable
upon any such subsequent conversion.  In the event of a Make-Whole
Acquisition in which the Company’s Common Stock shall be changed into or
exchanged for other securities or property (including cash), each share of
Convertible Preferred Stock shall be entitled, upon such subsequent conversion,
to an amount per share equal to the consideration into which or for which each
share of Common Stock is changed or exchanged.

     

    (i) Partial Make-Whole Acquisition
Conversion.  In the event that a Make-Whole Acquisition
Conversion is effected with respect to shares of Convertible Preferred Stock
representing less than all the shares of Convertible Preferred Stock held by a
Holder, upon such Make-Whole Acquisition Conversion the Company shall execute
and the Conversion Agent shall, unless otherwise instructed in writing,
countersign and deliver to such Holder, at the expense of the Company, a
certificate evidencing the shares of Convertible Preferred Stock held by the
Holder as to which a Make-Whole Acquisition Conversion was not
effected.

     

    (j) Alternative
Conversion.  If the Make-Whole Acquisition Stock Price in
connection with a Make-Whole Acquisition is less than the Conversion Price, a
Holder may convert each share of Convertible Preferred Stock during the
Make-Whole Acquisition Conversion Period at an adjusted Conversion Price equal
to the greater of (1) the Make-Whole Acquisition Stock Price and
(2) $17.22 (the “Base
Price”).  The Base Price shall be adjusted as of any date the
Conversion Rate of the Convertible Preferred Stock is adjusted pursuant to
Section 11.  The adjusted Base Price shall equal the Base Price
applicable immediately prior to such adjustment multiplied by a fraction, the
numerator of which is the Conversion Rate immediately prior to the adjustment
giving rise to the Base Price adjustment and the denominator of which is the
Conversion Rate as so adjusted.  In lieu of issuing Common Stock upon
conversion in the event of a Make-Whole Acquisition where the Make-Whole
Acquisition Stock Price is less than the

     

    
      
        
        

      

      
        A-14

        
          

        

      

      
        
        

      

    

     

    Conversion
Price, the Company may, at its option, pay an amount in cash (computed to the
nearest one-hundredth of one cent) equal to the Make-Whole Acquisition Stock
Price for each share of Common Stock otherwise issuable upon
conversion.

     

    Section 10.  Conversion at the Option of the
Company.

     

    (a) Company Conversion
Right.  On or after the fifth anniversary of the Issue Date,
the Company shall have the right, at its option, at any time or from time to
time, to cause some or all of the Convertible Preferred Stock to be converted
into shares of Common Stock at the then-applicable Conversion Rate if,
(i) for 20 Trading Days within any period of 30 consecutive Trading Days
ending on the Trading Day preceding the date the Company delivers a Notice of
Conversion at the Option of the Company, the Closing Price of the Common Stock
exceeds 130% of the then-applicable Conversion Price of the Convertible
Preferred Stock and (ii) the Company has declared and paid, or has declared
and set apart for payment, any Past Due Dividends on the Convertible Preferred
Stock.

     

    (b) Partial
Conversion.  If the Company elects to cause less than all the
shares of the Convertible Preferred Stock to be converted under clause (a)
above, the Conversion Agent shall select the Convertible Preferred Stock to be
converted on a pro rata basis.  If the Conversion Agent selects a
portion of a Holder’s Convertible Preferred Stock for partial conversion at the
option of the Company and such Holder converts a portion of its shares of
Convertible Preferred Stock, both converted portions will be deemed to be from
the portion selected for conversion at the option of the Company under this
Section 10.

     

    (c) Conversion
Procedure.  In order to exercise the conversion right described
in this Section 10, the Company shall provide notice of such conversion to
each Holder (such notice, a “Notice of Conversion at the
Option of the Company”).  The Conversion Date shall be a date
selected by the Company (the “Conversion at the Option of
the Company Date”) and shall be no more than 15 days after the date
on which the Company provides such Notice of Conversion at the Option of the
Company.  In addition to any information required by applicable law or
regulation, the Notice of Conversion at the Option of the Company shall state,
as appropriate:

     

    (i)
         the Conversion at the
Option of the Company Date;

     

    (ii)         the
number of shares of Common Stock to be issued upon conversion of each share of
Convertible Preferred Stock; and

     

    (iii)        the
number of shares of Convertible Preferred Stock to be converted.

     

    Section 11.  Anti-Dilution
Adjustments.

     

    (a)
Adjustments.  The Conversion Rate will be subject to adjustment,
without duplication, under the following circumstances:

     

    (i)         the
issuance of Common Stock as a dividend or distribution to all holders of Common
Stock, or a subdivision or combination of Common Stock, in which event the
Conversion Rate will be adjusted based on the following formula:

     

    
      
        
        

      

      
        A-15

        
          

        

      

      
        
        

      

    

     

    CR1 =
CR0 x
(OS1
/ OS0)

     

    
      	
               

            	where,	 	 
	
               

            	 	 	 
	
               
      

            	
              CR0

            	
              =

            	
              the
      Conversion Rate in effect at the close of business on the Trading Day
      immediately preceding the Ex-Date for such
event

            


    

    
      	
               
      

            	
              CR1

            	
              =

            	
              the
      Conversion Rate in effect on the Ex-Date for such dividend or
      distribution

            


    

    
      	
               
      

            	
              OS0

            	
              =

            	
              the
      number of shares of Common Stock outstanding at the close of business on
      the Trading Day immediately preceding the effective date of such
      event

            


    

    
      	
               
      

            	
              OS1

            	
              =

            	
              the
      number of shares of Common Stock that would be outstanding immediately
      after, and solely as a result of, such
event

            


    

     

    Any
adjustment made pursuant to this clause (i) shall be effective immediately
prior to the open of business on the Ex-Date for the event giving rise to the
adjustment.  If any such event is declared but does not occur, the
Conversion Rate shall be readjusted, effective as of the date the Board of
Directors announces that such event shall not occur, to the Conversion Rate that
would then be in effect if such event had not been declared.

     

    (ii) the
dividend, distribution or other issuance to all holders of Common Stock of
(A) rights (other than pursuant to a stockholders’ rights plan) or warrants
entitling them to purchase shares of Common Stock or (B) securities
convertible into Common Stock, in either case for a period expiring 45 days
or less from the date of issuance thereof, at less than (or having a conversion
price per share less than) the Current Market Price as of the Record Date for
such issuance, in which event the Conversion Rate will be adjusted based on the
following formula:

     

    CR1 =
CR0 x
(OS0 +
X) / (OS0 +
Y)

     

    
      	
               

            	
              where,

            	 	 
	
               

            	 	 	 
	
               
      

            	
              CR0

            	
              =

            	
              the
      Conversion Rate in effect at the close of business on the Trading Day
      immediately preceding the Ex-Date for such
  issuance

            


    

    
      	
               
      

            	
              CR1

            	
              =

            	
              the
      Conversion Rate in effect on the Ex-Date for such
  issuance

            


    

    
      	
               
      

            	
              OS0

            	
              =

            	
              the
      number of shares of Common Stock outstanding at the close of business on
      the Trading Day immediately preceding the Ex-Date for such
      issuance

            


    

    
      	
               
      

            	
              X

            	
              =

            	
              the
      total number of shares of Common Stock issuable pursuant to such rights or
      warrants (or upon conversion of such
securities)

            


    

    
      	
               
      

            	
              Y

            	
              =

            	
              the
      aggregate price payable to exercise such rights or warrants (or the
      conversion price for such securities paid upon conversion) divided by the
      Current Market Price as of the Record Date for such
    issuance

            


    

     

    For
purposes of this clause (ii), in determining whether any rights or warrants
entitle the holders to purchase the Common Stock at less than the Current Market
Price as of the Record Date, there shall be taken into account any consideration
the Company receives for such rights or warrants (or convertible securities),
and any amount payable on exercise or conversion thereof, with the value of such
consideration, if other than cash, to be the Fair Market Value
thereof.

     

    
      
        
        

      

      
        A-16

        
          

        

      

      
        
        

      

    

     

    Any
adjustment made pursuant to this clause (ii) shall become effective
immediately prior to the open of business on the Ex-Date for such
issuance.  In the event that such rights or warrants are not so
issued, the Conversion Rate shall be readjusted, effective as of the date the
Board of Directors publicly announces its decision not to issue such rights or
warrants, to the Conversion Rate that would then be in effect if such issuance
had not been declared.  To the extent that such rights or warrants are
not exercised prior to their expiration or shares of Common Stock are otherwise
not delivered pursuant to such rights or warrants upon the exercise of such
rights or warrants, the Conversion Rate shall be readjusted to the Conversion
Rate that would then be in effect had the adjustments made upon the issuance of
such rights or warrants been made on the basis of the delivery of only the
number of shares of Common Stock actually delivered.

     

    (iii)
(a) the dividend or other distribution to all holders of Common Stock of
shares of capital stock of the Company (other than Common Stock) or evidences of
its indebtedness or its assets (including, for the avoidance of doubt, rights
(other than pursuant to a stockholders’ rights plan) or warrants issued by it,
but excluding any dividend, distribution or issuance covered by clauses (i)
or (ii) above, clause (iv) below, or Section 12), in which event the
Conversion Rate will be adjusted based on the following formula:

     

    CR1 =
CR0 x
SP0 /
(SP0 –
FMV)

     

    
      	
               

            	
              where,

            	 	 
	 	 	 	 
	
               
      

            	
              CR0

            	
              =

            	
              the
      Conversion Rate in effect at the close of business on the Trading Day
      immediately preceding the Ex-Date for such dividend or
      distribution

            


    

    
      	
               
      

            	
              CR1

            	
              =

            	
              the
      Conversion Rate in effect on the Ex-Date for such dividend or
      distribution

            


    

    
      	
               
      

            	
              SP0

            	
              =

            	
              the
      Current Market Price as of the Record Date for such dividend or
      distribution

            


    

    
      	
               
      

            	
              FMV

            	
              =

            	
              the
      Fair Market Value on the Ex-Date for such dividend or distribution of the
      shares of capital stock of the Company, evidences of indebtedness or
      assets (including, for the avoidance of doubt, rights or warrants issued
      by it) so distributed, expressed as an amount per share of Common
      Stock

            


    

     

    Any
adjustment made pursuant to this clause (iii)(a) shall become effective
immediately prior to the open of business on the Ex-Date for such dividend or
distribution.

     

    (b) However,
if the transaction that would otherwise give rise to an adjustment pursuant to
clause (iii)(a) above is one pursuant to which the payment of a dividend or
other distribution on Common Stock consists of shares of capital stock of, or
similar equity interests in, a subsidiary or other business unit of the Company
(a “Spin-Off”) that on the Ex-Date for such Spin-Off are traded (or are traded
on a when-issued basis) on any securities exchange, market or automated
quotation system, then the Conversion Rate will instead be adjusted based on the
following formula:

     

    CR1 =
CR0 x
(FMV0
+ MP0)
/ MP0

     

    
      
        where,
 
  
 
 

    

     

    
      
        
        

      

      
        A-17

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              CR0

            	
              =

            	
              the
      Conversion Rate in effect at the close of business on the last Trading Day
      of the five consecutive Trading Days commencing on and including the
      Ex-Date for such Spin-Off

            


    

    
      	
               
      

            	
              CR1

            	
              =

            	
              the
      Conversion Rate in effect immediately after the close of business on the
      last Trading Day of the five consecutive Trading Days commencing on and
      including the Ex-Date for such
Spin-Off

            


    

    
      	
               
      

            	
              FMV0

            	
              =

            	
              the
      average of the volume-weighted average price per share (as displayed on
      Bloomberg or, if Bloomberg does not publish such price, any successor
      service reasonably chosen by the Company, or if such service is not
      available, as determined in good faith by the Board of Directors using a
      volume-weighted method) of the capital stock or similar equity interests
      distributed to holders of Common Stock applicable to one share of Common
      Stock over each of the five consecutive Trading Days commencing on and
      including the Ex-Date for such
Spin-Off

            


    

    
      	
               
      

            	
              MP0

            	
              =

            	
              the
      average of the VWAP per share of Common Stock over each of such five
      consecutive Trading Days

            


    

     

    Any
adjustment made pursuant to this clause (iii)(b) shall become effective
immediately after the close of business on the last Trading Day of the five
consecutive Trading Days commencing on and including the Ex-Date for such
Spin-Off; provided, that the Conversion Rate applicable to any conversion
occurring during such five Trading Days shall be determined by applying the
formula set forth above except that all references to five consecutive Trading
Days shall be replaced with such lesser number of consecutive Trading Days
commencing on and including the Ex-Date for such Spin-Off and ending on and
including the Trading Day immediately preceding the date of such
conversion.

     

    In the
event that any dividend or distribution described in clauses (iii)(a) and
(b) above is not so paid or made, the Conversion Rate shall be readjusted,
effective as of the date the Board of Directors publicly announces its decision
not to pay such dividend or make such distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not been
declared.

     

    (iv) the
Company makes a distribution per share of Common Stock as of any date (the
“Relevant
Date”) of cash to all holders of Common Stock, and the sum (the “Aggregate Dividend
Amount”) of such distribution and all prior distributions of cash per
share of Common Stock paid since the Issue Date exceeds the sum (the “Dividend Threshold
Amount”) of the hypothetical cash distributions that would have been paid
on a share of Common Stock had such distributions been paid quarterly
(commencing with the first cash dividend paid since the Issue Date) and
increased at a compound annual growth rate of 5.0%, compounded quarterly, from
$0.42 per share as of July 30, 2008, through and including the Relevant
Date, in which event, the Conversion Rate will be adjusted based on the
following formula:

     

    CR1 =
CR0 x
SP0 /
( SP 0
– C1+
C2)

     

    
      
        where,
 
   
 
 

    

     

    
      
        
        

      

      
        A-18

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              CR0

            	
              =

            	
              the
      Conversion Rate in effect at the close of business on the Trading Day
      immediately preceding the Ex-Date for such
  distribution

            


    

    
      	
               
      

            	
              CR1

            	
              =

            	
              the
      Conversion Rate in effect on the Ex-Date for such
    distribution

            


    

    
      	
               
      

            	
              SP0

            	
              =

            	
              the
      Current Market Price as of the Record Date for such
      distribution

            


    

    
      	
               
      

            	
              C1

            	
              =

            	
              the
      amount, if any,  by which the Aggregate Dividend Amount on the
      Relevant Date exceeds the Dividend Threshold Amount on the Relevant
      Date

            


    

    
      	
               
      

            	
              C2

            	
              =

            	
              the
      amount, if any, by which the Aggregate Dividend Amount on the most recent
      date prior to the Relevant Date on which a cash distribution was made
      which caused an adjustment in the Conversion Price pursuant to this
      Section 11(a)(iv) exceeds the Dividend Threshold Amount on such most
      recent date

            


    

     

    The
Dividend Threshold Amount and the Aggregate Dividend Amount (but not the
compound annual growth rate of 5.0% compounded quarterly) shall be adjusted on
an inversely proportional basis whenever the Conversion Rate is adjusted
pursuant to this Section 11; provided, that no adjustment
will be made to the Dividend Threshold Amount or the Aggregate Dividend Amount
for any adjustment made to the Conversion Rate pursuant to this
clause (iv).

     

    Any
adjustment made pursuant to this clause (iv) shall become effective
immediately prior to the open of business on the Ex-Date for such
distribution.  In the event that such distribution is not so made, the
Conversion Rate shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to pay such distribution, to the
Conversion Rate that would then be in effect if such distribution had not been
declared.

     

    (v) the
Company or one or more of its subsidiaries make purchases of Common Stock
pursuant to a tender offer or exchange offer by the Company or a subsidiary of
the Company for Common Stock to the extent that the cash and value of any other
consideration included in the payment per share of Common Stock validly tendered
or exchanged exceeds the VWAP per share of Common Stock on the Trading Day next
succeeding the last day on which tenders or exchanges may be made pursuant to
such tender or exchange offer (the “Expiration Date”), in
which event the Conversion Rate will be adjusted based on the following
formula:

     

    CR1 =
CR0 x
[(FMV + (SP1 x
OS1)] /
(SP1
x OS0)

     

    
      	 	
              where,

            	 	 
	 	 	 	 
	
               
      

            	
              CR0

            	
              =

            	
              the
      Conversion Rate in effect at the close of business on the Expiration
      Date

            


    

    
      	
               
      

            	
              CR1

            	
              =

            	
              the
      Conversion Rate in effect after the Expiration
  Date

            


    

    
      	
               
      

            	
              FMV

            	
              =

            	
              the
      Fair Market Value, on the Expiration Date, of the aggregate value of all
      cash and any other consideration paid or payable for shares validly
      tendered or exchanged and not withdrawn as of the Expiration Date (the
      “Purchased Shares”)

            


    

    
      	
               
      

            	
              OS1

            	
              =

            	
              the
      number of shares of Common Stock outstanding as of the last time tenders
      or exchanges may be made pursuant to such tender or exchange offer (the
      “Expiration Time”), excluding any Purchased
  Shares

            


    

     

    
      
        
        

      

      
        A-19

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              OS0

            	
              =

            	
              the
      number of shares of Common Stock outstanding immediately before Expiration
      Time, including any Purchased
Shares

            


    

    
      	
               
      

            	
              SP1

            	
              =

            	
              the
      average of the VWAP per share of Common Stock over each of the five
      consecutive Trading Days commencing with the Trading Day immediately after
      the Expiration Date.

            


    

     

    Any
adjustment made pursuant to this clause (v) shall become effective
immediately prior to the open of business on the Trading Day immediately
following the Expiration Date.  In the event that the Company or any
of its subsidiaries is obligated to purchase Common Stock pursuant to any such
tender offer or exchange offer but is permanently prevented by applicable law
from effecting any such purchases, or all such purchases are rescinded, then the
Conversion Rate shall be readjusted to be the Conversion Rate that would then be
in effect if such tender offer or exchange offer had not been made.

     

    (b) Calculation of
Adjustments.  All adjustments to the Conversion Rate shall be
calculated by the Company to the nearest 1/10,000th of one share of Common Stock
(or if there is not a nearest 1/10,000th of a share, to the next lower
1/10,000th of a share).  No adjustment to the Conversion Rate will be
required unless such adjustment would require an increase or decrease of at
least one percent; provided, however, that any such adjustment that is not
required to be made will be carried forward and taken into account in any
subsequent adjustment, and provided further, that any such adjustment of less
than one percent that has not been made will be made upon any Conversion
Date.

     

    (c) When No Adjustment
Required.

     

    (i)    Except as
otherwise provided in this Section 11, the Conversion Rate will not be
adjusted for the issuance of Common Stock or any securities convertible into or
exchangeable for Common Stock or carrying the right to purchase any of the
foregoing, or for the repurchase of Common Stock.

     

    (ii)    No adjustment
of the Conversion Rate need be made as a result of the issuance of, the
distribution of separate certificates representing, the exercise or redemption
of, or the termination or invalidation of, rights pursuant to any stockholder
rights plans; provided,
however, that to the
extent that the Company has a stockholder rights plan in effect on a Conversion
Date, the Holder shall receive, in addition to the shares of Common Stock, the
rights under such rights plan, unless, prior to any such Conversion Date, the
rights have separated from the Common Stock, in which case the Conversion Rate
will be adjusted at the time of separation as if the Company made a distribution
to all holders of Common Stock of shares of capital stock of the Company or
evidences of its indebtedness or its assets (including, for the avoidance of
doubt, rights or warrants issued by it) as described in Section 11(a)(iii),
subject to (x) readjustment for only that portion of such rights or
warrants which expire or terminate or (y) readjustment in the event of the
redemption of such rights or warrants, except that any such readjustment shall
be calculated net of the aggregate value of the consideration payable in
connection with any such redemption.

     

    
      
        
        

      

      
        A-20

        
          

        

      

      
        
        

      

    

     

    (iii)    No adjustment
to the Conversion Rate need be made:

     

    (A)           upon
the issuance of any shares of Common Stock pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on
securities of the Company and the investment of additional optional amounts in
Common Stock under any plan in which purchases are made at market prices on the
date or dates of purchase, without discount, and whether or not the Company
bears the ordinary costs of administration and operation of the plan, including
brokerage commissions;

     

    (B)           upon
the issuance of any shares of Common Stock or options or rights to purchase such
shares pursuant to any present or future employee, director or consultant
benefit plan or program of or assumed by the Company or any of its
subsidiaries;

     

    (C)           upon
the issuance of any shares of Common Stock pursuant to any option, warrant,
right, or exercisable, exchangeable or convertible security outstanding as of
October 27, 2008; or

     

    (D)           for
a change in the par value of the Common Stock.

     

    (iv)    No adjustment
to the Conversion Rate need be made for a transaction referred to in
Section 11(a), if the Holder, as a result of holding the Convertible
Preferred Stock and without having to convert the Convertible Preferred Stock,
receives the cash, securities, assets, property or other benefits in such
transaction on the same basis and at the same time as if such Holder held the
full number of shares of Common Stock into which its shares of Convertible
Preferred Stock may then be converted.

     

    (v)    No adjustment
to the Conversion Rate will be made to the extent that such adjustment would
result in the Conversion Price being less than the par value of the Common
Stock.

     

    (vi)    Before taking
any action which would cause an adjustment pursuant to this Section 11 to
reduce the Conversion Rate below the then par value (if any) of the Common
Stock, the Company shall take any and all corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue fully paid and non-assessable shares of Common Stock at the
Conversion Price as so adjusted.

     

    (d) Successive
Adjustments.  After an adjustment to the Conversion Rate under
this Section 11, any subsequent event requiring an adjustment under this
Section 11 shall cause an adjustment to such Conversion Rate as so
adjusted.

     

    (e) Multiple
Adjustments.  For the avoidance of doubt, if an event occurs
that would trigger an adjustment to the Conversion Rate pursuant to this
Section 11 under more than one subsection hereof, such event, to the extent
fully taken into account in a single adjustment, shall not result in multiple
adjustments hereunder; provided, however, that if more than one subsection of
this Section 11 is applicable to a single event, the subsection shall be
applied that produces the largest adjustment.

     

    
      
        
        

      

      
        A-21

        
          

        

      

      
        
        

      

    

     

    (f) Other
Adjustments.  The Company may, but shall not be required to,
make such increases in the Conversion Rate, in addition to those required by
this Section 11, as the Board of Directors considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reason.

     

    (g) Notice of
Adjustments.  Whenever a Conversion Rate is adjusted as
provided under Section 11, the Company shall within 10 Business Days
following the occurrence of an event that requires such adjustment (or if the
Company is not aware of such occurrence, as soon as reasonably practicable after
becoming so aware) or the date the Company makes an adjustment pursuant to
Section 11(f):

     

    (i)         compute
the adjusted applicable Conversion Rate in accordance with this Section 11
and prepare and transmit to the Conversion Agent an Officer’s Certificate
setting forth the applicable Conversion Rate, the method of calculation thereof
in reasonable detail, and the facts requiring such adjustment and upon which
such adjustment is based; and

     

    (ii)         provide
a written notice to the Holders of the occurrence of such event and a statement
in reasonable detail setting forth the method by which the adjustment to the
applicable Conversion Rate was determined and setting forth the adjusted
applicable Conversion Rate.

     

    (h) Conversion
Agent.  The Conversion Agent shall not at any time be under any
duty or responsibility to any Holder to determine whether any facts exist that
may require any adjustment of the applicable Conversion Rate or with respect to
the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same.  The Conversion
Agent shall be fully authorized and protected in relying on any Officer’s
Certificate delivered pursuant to Section 11(g) and any adjustment
contained therein and the Conversion Agent shall not be deemed to have knowledge
of any adjustment unless and until it has received such
certificate.  The Conversion Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property, that may at the time be issued or
delivered with respect to any Convertible Preferred Stock; and the Conversion
Agent makes no representation with respect thereto.  The Conversion
Agent shall not be responsible for any failure of the Company to issue, transfer
or deliver any shares of Common Stock pursuant to the conversion of Convertible
Preferred Stock or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Section 11.

     

    (i) Fractional
Shares.  No fractional shares of Common Stock will be issued to
holders of the Convertible Preferred Stock upon conversion.  In lieu
of fractional shares otherwise issuable, holders will be entitled to receive an
amount in cash equal to the fraction of a share of Common Stock, multiplied by
the Closing Price of the Common Stock on the Trading Day immediately preceding
the applicable Conversion Date.  In order to determine whether the
number of shares of Common Stock to be issued to a Holder upon the conversion of
such Holder's shares of Convertible Preferred Stock will include a fractional
share (in lieu of which cash would be paid

     

    
      
        
        

      

      
        A-22

        
          

        

      

      
        
        

      

    

     

    hereunder),
such determination shall be based on the aggregate number of shares of
Convertible Preferred Stock of such Holder that are being converted on any
single Conversion Date.

     

    Section 12.  Adjustment for Reorganization
Events.

     

    (a)
Reorganization Events.  In the event of:

     

    (1) any
consolidation or merger of the Company with or into another person pursuant to
which the Common Stock is changed into or exchanged for cash, securities or
other property of the Company or another person;

     

    (2) any
sale, transfer, lease or conveyance to another person of all or substantially
all the property and assets of the Company, in each case pursuant to which the
Common Stock is converted into cash, securities or other property;
or

     

    (3) any
statutory exchange of securities of the Company with another Person (other than
in connection with a merger or acquisition) or reclassification of the Common
Stock into other securities;

     

    (each of
which is referred to as a “Reorganization
Event”) each share of the Convertible Preferred Stock outstanding
immediately prior to such Reorganization Event will, without the consent of the
holders of the Convertible Preferred Stock, become convertible into the kind and
amount of securities, cash and other property (the “Exchange Property”)
receivable in such Reorganization Event (without any interest on such Exchange
Property, and without any right to dividends or distribution on such Exchange
Property which have a record date that is prior to the applicable Conversion
Date) per share of Common Stock by a holder of Common Stock that is not a Person
with which the Company consolidated or into which the Company merged or which
merged into the Company or to which such sale or transfer was made, as the case
may be (any such Person, a “Constituent Person”),
or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-Affiliates; provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by a Person other than a
Constituent Person or an Affiliate thereof, then for the purpose of this
Section 12(a), the kind and amount of securities, cash and other property
receivable upon such Reorganization Event will be deemed to be the weighted
average of the types and amounts of consideration received by the holders of
Common Stock that affirmatively make an election (or of all such holders if none
make an election).  On each Conversion Date following a Reorganization
Event, the Conversion Rate then in effect will be applied to the value on such
Conversion Date of such securities, cash or other property received per share of
Common Stock, as determined in accordance with this
Section 12.

     

    (b) Exchange Property
Election.  In the event that the holders of the shares of
Common Stock have the opportunity to elect the form of consideration to be
received in such transaction, the consideration that the Holders are entitled to
receive shall be deemed to be the types and amounts of consideration received by
the holders of the shares of Common Stock that affirmatively make an election
(or of all such holders if none make an election).  The amount of
Exchange Property receivable upon conversion of any Convertible Preferred Stock
in accordance

     

    
      
        
        

      

      
        A-23

        
          

        

      

      
        
        

      

    

     

    with the
terms hereof shall be determined based upon the Conversion Rate in effect on
such Conversion Date.

     

    (c) Successive Reorganization
Events.  The above provisions of this Section 12 shall
similarly apply to successive Reorganization Events and the provisions of
Section 11 shall apply to any shares of capital stock of the Company (or
any other issuer) received by the holders of the Common Stock in any such
Reorganization Event.

     

    (d) Reorganization Event
Notice.  The Company (or any successor) shall, 20 days
prior to the occurrence of any Reorganization Event, provide written notice to
the Holders of such occurrence of such event and of the kind and amount of the
cash, securities or other property that constitutes the Exchange
Property.  Failure to deliver such notice shall not affect the
operation of this Section 12.

     

    Section 13.  Voting Rights.

     

    (a) General.  The
Holders shall not be entitled to vote on any matter except as set forth in
Section 13(b) below or as required by Delaware law.

     

    (b) Special Voting
Right.

     

    (i)         Voting Right.  If
and whenever dividends on the Convertible Preferred Stock have not been paid in
an aggregate amount equal, to at least six quarterly Dividend Periods (whether
consecutive or not) (a “Nonpayment”), the
number of directors constituting the Board of Directors shall be increased by
two, and the Holders (together with holders of any class or series of the
Company’s authorized preferred stock having equivalent voting rights and
entitled to vote thereon), shall have the right, voting separately as a single
class without regard to class or series (and with voting rights allocated
pro rata based on the liquidation preference of each such class or series), to
the exclusion of the holders of Common Stock, to elect two directors of the
Company to fill such newly created directorships (and to fill any vacancies in
the terms of such directorships), provided that the Holders and the holders of
any such other class or series shall not be entitled to elect such directors to
the extent such election would cause the Company to violate the corporate
governance requirements of the New York Stock Exchange (or other exchange on
which the Company’s securities may be listed) that listed companies must have a
majority of independent directors, and further provided that the Board of
Directors shall at no time include more than two such directors.  Each
such director so elected is referred to as a “Preferred Stock
Director.”

     

    (ii)         Election.  The
election of the Preferred Stock Directors will take place at any annual meeting
of stockholders or any special meeting of the Holders and any other class or
series of stock of the Company having equivalent voting rights and entitled to
vote thereon, called as provided herein.  At any time after the
special voting power has vested pursuant to Section 13(b)(i) above, the
secretary of the Company may, and upon the written request of the Holders of at
least 20% of the Convertible Preferred Stock or the holders of at least 20% of
such other series (addressed to the secretary at the Company’s principal
office) must (unless such request is received less than 90 days before the
date fixed for the next annual or special meeting of the stockholders, in which
event such election shall be held at such next

     

    
      
        
        

      

      
        A-24

        
          

        

      

      
        
        

      

    

     

    annual or
special meeting of stockholders), call a special meeting of the Holders and any
such other class or series of preferred stock for the election of the two
directors to be elected by them as provided in Section 13(b)(iii)
below.  The Preferred Stock Directors shall each be entitled to one
vote per director on any matter.

     

    (iii)    Notice of Special
Meeting.  Notice for a special meeting will be given in a
similar manner to that provided in the Company’s by-laws for a special meeting
of the stockholders.  If the secretary of the Company does not call a
special meeting within 20 days after receipt of any such request, then any
Holder may (at the expense of the Company) call such meeting, upon notice as
provided in this Section 13(b)(iii), and for that purpose will have access
to the stock register of the Company.  The Preferred Stock Directors
elected at any such special meeting will hold office until the next annual
meeting of the stockholders of the Company unless they have been previously
terminated or removed pursuant to Section 13(b)(iv).  In case any
vacancy in the office of a Preferred Stock Director occurs (other than prior to
the initial election of the Preferred Stock Directors), the vacancy may be
filled by the written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by the vote of the Holders (together with
holders of any other class of the Company’s authorized preferred stock having
equivalent voting rights and entitled to vote thereon) to serve until the next
annual meeting of the stockholders.

     

    (iv)    Termination;
Removal.  Whenever the Company has declared and paid or
declared and set aside for payment in full all Past Due Dividends, then the
right of the Holders to elect the Preferred Stock Directors will cease (but
subject always to the same provisions for the vesting of the special voting
rights in the case of any similar non-payment of dividends in respect of future
Dividend Periods).  The terms of office of the Preferred Stock
Directors will immediately terminate, and the number of directors constituting
the Board of Directors will be reduced accordingly.  Any Preferred
Stock Director may be removed at any time without cause by the Holders of a
majority of the outstanding shares of the Convertible Preferred Stock (together
with holders of any other class of the Company’s authorized preferred stock
having equivalent voting rights and entitled to vote thereon) when they have the
voting rights described in this Section 13(b).

     

    (c) Senior Issuances; Adverse
Changes.  So long as any shares of Convertible Preferred Stock
are outstanding, the vote or consent of the Holders of at least 50.1% of the
shares of Convertible Preferred Stock at the time outstanding, voting as a class
with all other series of Parity Stock having equivalent voting rights and
entitled to vote thereon (and with voting rights allocated pro rata based on the
liquidation preference of each such class or series), given in person or by
proxy, either in writing without a meeting or by vote at any meeting called for
the purpose, will be necessary for effecting or validating any of the following
actions, whether or not such approval is required by Delaware law:

     

    (i)    any
amendment, alteration or repeal of any provision of the Company’s certificate of
incorporation (including the certificate of designations creating the
Convertible Preferred Stock) or the Company’s by-laws that would alter or change
the voting powers, dividend rights, preferences or special rights (including
conversion rights) of the Convertible Preferred Stock so as to affect them
adversely (provided,
however, that to the
extent that any such amendment, alteration or repeal relates solely to an
increase in the amount of the authorized

     

    
      
        
        

      

      
        A-25

        
          

        

      

      
        
        

      

    

     

    or issued
preferred stock (other than Convertible Preferred Stock or Senior Stock) or any
securities convertible into preferred stock (other than Convertible Preferred
Stock or Senior Stock) or the creation and issuance, or an increase in the
authorized or issued amount, of other series of preferred stock (other than
Convertible Preferred Stock or Senior Stock) or any securities convertible into
Parity Stock (other than Convertible Preferred Stock) or Junior Stock, then such
amendment, alteration or repeal will not be deemed to adversely affect the
voting powers, preferences or special rights of the Convertible Preferred Stock,
and Holders will have no right to vote on such an increase, creation or
issuance);

     

    (ii)    any amendment
or alteration of the Company’s certificate of incorporation (including the
certificate of designations creating the Convertible Preferred Stock) to
authorize or create, or increase the authorized amount of, any shares of, or any
securities convertible into shares of, any class or series of Convertible
Preferred Stock or Senior Stock; or

     

    (iii)    any
consummation of a binding share exchange or reclassification involving the
Convertible Preferred Stock, or of a merger or consolidation of the Company with
another corporation or other entity, unless in each case (x) the shares of
Convertible Preferred Stock remain outstanding or, in the case of any such
merger or consolidation with respect to which the Company is not the surviving
or resulting entity, are converted into or exchanged for preference securities
of the surviving or resulting entity or its ultimate parent, and (y) such
shares of Convertible Preferred Stock remaining outstanding or such preference
securities, as the case may be, have such rights, preferences, privileges and
voting powers, and limitations and restrictions, taken as a whole, as are not
less favorable to the holders thereof than the rights, preferences, privileges
and voting powers, and limitations and restrictions, of the Convertible
Preferred Stock immediately prior to such consummation, taken as a whole, and
(z) if such shares of Convertible Preferred Stock do not remain
outstanding, immediately prior to or concurrent with the consummation thereof,
all Past Due Dividends on the Convertible Preferred Stock to the date of
consummation, whether or not declared, have been paid in full.

     

    If any
amendment, alteration, repeal, share exchange, reclassification, merger or
consolidation specified in this Section 13(c) would adversely affect the
Convertible Preferred Stock but would not similarly adversely affect all other
series of preferred stock, then only the Convertible Preferred Stock and each
other series of preferred stock as is similarly adversely affected by and
entitled to vote on the matter, if any, shall vote on the matter together as a
single class (and with voting rights allocated pro rata based on the liquidation
preference of each such class or series) in lieu of all other series of
preferred stock.

     

    Section 14.  Preemption.

     

    The
Holders shall not have any preemptive rights.

     

    Section 15.  Creation of Junior Stock or Parity
Stock.

     

    Notwithstanding
anything set forth in the Certificate of Incorporation or this Certificate of
Designations to the contrary, the Board of Directors, or any duly authorized
committee thereof,

     

    
      
        
        

      

      
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    without
the vote of the Holders, may authorize and issue additional shares of Junior
Stock or Parity Stock, other than Convertible Preferred Stock.

     

    Section 16.  Repurchase.

     

    Subject
to the limitations imposed herein, and subject to the provisions of
Section 6, the Company may purchase and sell Convertible Preferred Stock
from time to time to such extent, in such manner, and upon such terms as the
Board of Directors or any duly authorized committee thereof may determine; provided, however, that the Company
shall not use any of its funds for any such purchase when there are reasonable
grounds to believe that the Company is, or by such purchase would be, rendered
insolvent; provided,
further, however, that in the event
that the Company beneficially owns any Convertible Preferred Stock, voting
rights in respect of such Convertible Preferred Stock shall not be
exercisable.

     

    Section 17.  Unissued or Reacquired
Shares.

     

    Shares of
Convertible Preferred Stock not issued or which have been issued and converted,
or otherwise purchased or acquired by the Company shall be restored to the
status of authorized but unissued shares of preferred stock without designation
as to series (provided that any such cancelled shares of Convertible
Preferred Stock may be reissued only as shares of a series other than
Convertible Preferred Stock).

     

    Section 18.  No Sinking Fund.

     

    Shares of
Convertible Preferred Stock are not subject to the operation of a sinking
fund.

     

    Section 19.  Reservation of Common
Stock.

     

    (a) Sufficient
Shares.  The Company shall at all times reserve and keep
available out of its authorized and unissued Common Stock or shares of Common
Stock acquired by the Company, solely for issuance upon the conversion of shares
of Convertible Preferred Stock as provided in this Certificate of Designations,
free from any preemptive or other similar rights, such number of shares of
Common Stock as shall from time to time be issuable upon the conversion of all
the shares of Convertible Preferred Stock then outstanding.  For
purposes of this Section 19(a), the number of shares of Common Stock that
shall be deliverable upon the conversion of all outstanding shares of
Convertible Preferred Stock shall be computed as if at the time of computation
all such outstanding shares were held by a single Holder.

     

    (b) Use of Acquired
Shares.  Notwithstanding the foregoing, the Company shall be
entitled to deliver upon conversion of shares of Convertible Preferred Stock, as
herein provided, shares of Common Stock acquired by the Company (in lieu of the
issuance of authorized and unissued shares of Common Stock), so long as any such
acquired shares are free and clear of all liens, charges, security interests or
encumbrances (other than liens, charges, security interests and other
encumbrances created by the Holders).

     

    (c) Free and Clear
Delivery.  All shares of Common Stock delivered upon conversion
of the Convertible Preferred Stock or upon the payment of dividends shall be
duly authorized, validly issued, fully paid and non-assessable, free and clear
of all liens, claims, security interests

     

    
      
        
        

      

      
        A-27

        
          

        

      

      
        
        

      

    

     

    and other
encumbrances (other than liens, charges, security interests and other
encumbrances created by the Holders).

     

    (d) Compliance with
Law.  Prior to the delivery of any securities that the Company
shall be obligated to deliver upon conversion of the Convertible Preferred Stock
or upon the payment of dividends, the Company shall use its commercially
reasonable best efforts to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.

     

    (e) Listing.  The
Company hereby covenants and agrees that, if at any time the Common Stock shall
be listed on the New York Stock Exchange or any other national securities
exchange or automated quotation system, the Company will, if permitted by the
rules of such exchange or automated quotation system, list and keep listed, so
long as the Common Stock shall be so listed on such exchange or automated
quotation system, all the Common Stock issuable upon conversion of the
Convertible Preferred Stock or upon the payment of dividends; provided, however,
that if the rules of such exchange or automated quotation system require the
Company to defer the listing of such Common Stock until the first conversion of
Convertible Preferred Stock into Common Stock in accordance with the provisions
hereof, the Company covenants to list the Common Stock issuable upon conversion
of the Convertible Preferred Stock in accordance with the requirements of such
exchange or automated quotation system at such time.

     

    Section 20.  Transfer Agent, Conversion Agent,
Registrar and Paying Agent.

     

    The duly
appointed Transfer Agent, Conversion Agent, Registrar and paying agent for the
Convertible Preferred Stock shall be BNY Mellon Shareowner
Services.  The Company may, in its sole discretion, remove the
Transfer Agent in accordance with the agreement between the Company and the
Transfer Agent; provided that the Company shall appoint a successor transfer
agent who shall accept such appointment prior to the effectiveness of such
removal.  Upon any such removal or appointment, the Company shall send
notice thereof by first-class mail, postage prepaid, to the
Holders.

     

    Section 21.  Replacement
Certificates.

     

    (a) Mutilated, Destroyed, Stolen and Lost
Certificates.  If physical certificates are issued, the Company
shall replace any mutilated certificate at the Holder’s expense upon surrender
of that certificate to the Transfer Agent.  The Company shall replace
certificates that become destroyed, stolen or lost at the Holder’s expense upon
delivery to the Company and the Transfer Agent of satisfactory evidence that the
certificate has been destroyed, stolen or lost, together with any indemnity that
may be required by the Transfer Agent and the Company.

     

    (b) Certificates Following
Conversion.  If physical certificates are issued, the Company
shall not be required to issue certificates representing shares of Convertible
Preferred Stock on or after the Conversion Date applicable to such
shares.  In place of the delivery of a replacement certificate
following the applicable Conversion Date, the Transfer Agent, upon delivery of
the evidence and indemnity described in clause (a) above, shall deliver the
shares of Common Stock pursuant to the terms of the Convertible Preferred Stock
formerly evidenced by the certificate.

     

    
      
        
        

      

      
        A-28

        
          

        

      

      
        
        

      

    

     

    Section 22.  Taxes.

     

    (a) Transfer Taxes.  The
Company shall pay any and all stock transfer, documentary, stamp and similar
taxes that may be payable in respect of any issuance or delivery of shares of
Convertible Preferred Stock or shares of Common Stock or other securities issued
on account of Convertible Preferred Stock pursuant hereto or certificates
representing such shares or securities.  The Company shall not,
however, be required to pay any such tax that may be payable in respect of any
transfer involved in the issuance or delivery of shares of Convertible Preferred
Stock, shares of Common Stock or other securities in a name other than that in
which the shares of Convertible Preferred Stock with respect to which such
shares or other securities are issued or delivered were registered, or in
respect of any payment to any Person other than a payment to the registered
holder thereof, and shall not be required to make any such issuance, delivery or
payment unless and until the Person otherwise entitled to such issuance,
delivery or payment has paid to the Company the amount of any such tax or has
established, to the satisfaction of the Company, that such tax has been paid or
is not payable.

     

    (b) Withholding.  All
payments and distributions (or deemed distributions) on the shares of
Convertible Preferred Stock (and on the shares of Common Stock received upon
their conversion) shall be subject to withholding and backup withholding of tax
to the extent required by law, subject to applicable exemptions, and amounts
withheld, if any, shall be treated as received by Holders.

     

    Section 23.  Notices.

     

    All
notices referred to herein shall be in writing, and, unless otherwise specified
herein, all notices hereunder shall be deemed to have been given upon the
earlier of receipt thereof or three Business Days after the mailing thereof if
sent by registered or certified mail (unless first class mail shall be
specifically permitted for such notice under the terms of this Certificate of
Designations) with postage prepaid, addressed:  (i) if to the
Company, to its office at 2030 Dow Center, Midland, MI  48674
(Attention:  Treasurer) (ii) if to any Holder, to such Holder at
the address of such Holder as listed in the stock record books of the Company
(which may include the records of the Transfer Agent) or (iii) to such
other address as the Company or any such Holder, as the case may be, shall have
designated by notice similarly given.

     

    
      
        
        

      

      
        A-29

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, this Certificate of Designations has been executed on behalf of
the Company by its Executive Vice President and Chief Financial Officer this
_________th day of ______________, 2008.

     

    
      
        	 	THE DOW CHEMICAL
      COMPANY	 
	 	 	 	 
	 	 	 	 
	
                 

              	
                By:
      

              	 	 
	 	 	Name: 	 
	 	 	Title: 	 
	 	 	 	 


      

    

     

    
       

       

       

       

       

       

       

       

      
        
          
          

        

        
          A-30

          
            

          

        

        
          
          

        

      

    

     

    Exhibit
A

     

    FORM
OF

    CUMULATIVE
CONVERTIBLE PERPETUAL PREFERRED STOCK, SERIES A

     

    FACE
OF CERTIFICATE

     

    THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER
THE SECURITIES ACT.  THIS INSTRUMENT IS ISSUED PURSUANT TO AND IS ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF AN
INVESTMENT AGREEMENT, DATED AS OF OCTOBER 27, 2008, BETWEEN THE COMPANY AND THE
INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH THE
ISSUER.  THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD
OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID
AGREEMENT.  ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID
AGREEMENT WILL BE VOID.

     

    IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE COMPANY AND THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES, OPINIONS OF COUNSEL AND OTHER
INFORMATION AS MAY BE REASONABLY REQUESTED TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.

     

    Certificate
Number
____________                                                                           Number
of Shares of Convertible Preferred Stock________

     

     

    THE
DOW CHEMICAL COMPANY

     

    Cumulative
Convertible Perpetual Preferred Stock, Series A

    (par
value $2.50 per share of Common Stock)

    (liquidation
preference $1,000 per share)

     

    THE DOW
CHEMICAL COMPANY, a Delaware corporation (the “Company”), hereby certifies
that _____________________ (the “Holder”) is the registered owner
of __________________ fully paid and non-assessable shares of the Company’s
designated Cumulative Convertible Perpetual Preferred Stock, Series A, with a
par value of $2.50 per share and a liquidation preference of $1,000 per share
(the “Convertible Preferred Stock”).  The shares of Convertible
Preferred Stock are transferable on the books and records of the Registrar, in
person or by a duly authorized attorney, upon surrender

     

    
      
        
        

      

      
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    of this
certificate duly endorsed and in proper form for transfer.  The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Convertible Preferred Stock represented hereby are and shall
in all respects be subject to the provisions of the Certificate of Designations
dated ____________________, 2008 as the same may be amended from time to time
(the “Certificate of Designations”).  Capitalized terms used herein
but not defined shall have the meaning given them in the Certificate of
Designations.  The Company will provide a copy of the Certificate of
Designations to a Holder without charge upon written request to the Company at
its principal place of business.

     

    Reference
is hereby made to select provisions of the Convertible Preferred Stock set forth
on the reverse hereof, and to the Certificate of Designations, which select
provisions and the Certificate of Designations shall for all purposes have the
same effect as if set forth at this place.

     

    Upon
receipt of this certificate, the Holder is bound by the Certificate of
Designations and is entitled to the benefits thereunder.

     

    Unless
the Registrar has properly countersigned, these shares of Convertible Preferred
Stock shall not be entitled to any benefit under the Certificate of Designations
or be valid or obligatory for any purpose.

     

     

     

    
      
        
        

      

      
        A-32

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, this certificate has been executed on behalf of the Company by
its _____________ this ______ day of_________, _________.

     

    
      
        	 	THE DOW CHEMICAL
      COMPANY	 
	 	 	 	 
	 	 	 	 
	
                 

              	
                By:
      

              	 	 
	 	 	Name: 	 
	 	 	Title: 	 
	 	 	 	 


      

    

     

    
       

       

       

       

       

       

       

      
        
          
          

        

        
          A-33

          
            

          

        

        
          
          

        

      

    

     

    REGISTRAR’S
COUNTERSIGNATURE

     

    These are
shares of Convertible Preferred Stock referred to in the within-mentioned
Certificate of Designations.

     

    Dated:

     

    ________________,
as Registrar

     

    By: 
________________________                                           

    Name:

    Title:

     

     

     

     

     

     

    
      
        
        

      

      
        A-34

        
          

        

      

      
        
        

      

    

     

    REVERSE
OF CERTIFICATE

     

    Dividends
on each share of Convertible Preferred Stock shall be payable at the rate
provided in the Certificate of Designations.

     

    The
shares of Convertible Preferred Stock shall be convertible in the manner and
accordance with the terms set forth in the Certificate of
Designations.

     

    The
Company shall furnish without charge to each holder who so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class or series of share capital issued by the Company and the
qualifications, limitations or restrictions of such preferences and/or
rights.

     

    ASSIGNMENT

     

    FOR VALUE
RECEIVED, the undersigned assigns and transfers the shares of Convertible
Preferred Stock evidenced hereby to:

     

    
      	 	 
	 	 


    

    (Insert
assignee’s social security or taxpayer identification number, if
any)

     

    
      	 	 
	 	 


    

    (Insert
address and zip code of assignee)

     

    and
irrevocably appoints:

     

    
      	 	 
	 	 


    

     

    as agent
to transfer the shares of Convertible Preferred Stock evidenced hereby on the
books of the Transfer Agent.  The agent may substitute another to act
for him or her.

     

    Date:

     

    Signature:

    
      	 	 


    

     

    (Sign
exactly as your name appears on the other side of this Certificate)

     

    
      	Signature
      Guarantee: 	 	 


    

                                                                         

    (Signature
must be guaranteed by an “eligible guarantor institution” that is a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Transfer Agent, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be

     

    
      
        
        

      

      
        A-35

        
          

        

      

      
        
        

      

    

     

    determined
by the Transfer Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)

     

     

     

     

     

     

     

     

    A-36