Exhibit
10.2

      


      EXECUTION
COPY

       

    

    
      

      

    

     

     

     

     

     

    INVESTMENT
AGREEMENT

     

    dated as
of March 9, 2009,

     

    among

     

    THE DOW
CHEMICAL COMPANY

     

    and

     

    THE
INVESTORS NAMED HEREIN

     

     

     

     

     

     

    
      

      

    

     

    


     

    
      
        
        

      

      
        
        

        
        

      

      
        
        

      

    

    
      


       

      Table of
Contents

       

       

      Page

       

       

      ARTICLE
I

       

      Purchase
and Sale; Closings

       

      
        
          	
                  SECTION
      1.01.

                	
                  Purchase
      and Sale of the Purchased Perpetual Preferred Shares

                	
                  1

                
	
                  SECTION
      1.02.

                	
                  Initial
      Closing

                	
                  1

                
	
                  SECTION
      1.03.

                	
                  Purchase
      and Sale of the Purchased Convertible Preferred Shares

                	
                  3

                
	
                  SECTION
      1.04.

                	
                  Convertible
      Preferred Stock Closing

                	
                  4

                
	
                  SECTION
      1.05.

                	
                  Frustration
      of Closing Conditions

                	
                  4

                


        

      

       

      ARTICLE
II

       

      Representations
and Warranties

       

      
        
          	
                  SECTION
      2.01.

                	
                  Representations
      and Warranties of the Company

                	
                  5

                
	
                  SECTION
      2.02.

                	
                  Representations
      and Warranties of the Investors

                	
                  8

                


        

      

       

      ARTICLE
III

       

      Covenants

       

      
        
          	
                  SECTION
      3.01.

                	
                  Further
      Assurances

                	
                  10

                
	
                  SECTION
      3.02.

                	
                  Expenses

                	
                  10

                
	
                  SECTION
      3.03.

                	
                  Confidentiality

                	
                  11

                
	
                  SECTION
      3.04.

                	
                  Sufficiency
      of Outstanding Company Common Stock

                	
                  11

                


        

      

       

      ARTICLE
IV

       

      Additional
Agreements

       

      
        
          	
                  SECTION
      4.01.

                	
                  Release
      of Claims

                	
                  11

                
	
                  SECTION
      4.02.

                	
                  Commitment
      Fees

                	
                  12

                


        

      

       

      ARTICLE
V

       

      Registration
Rights

       

      
        
          	
                  SECTION
      5.01.

                	
                  Shelf
      Registration

                	
                  13

                
	
                  SECTION
      5.02.

                	
                  Demand
      Registration

                	
                  16

                
	
                  SECTION
      5.03.

                	
                  Piggyback
      Registrations

                	
                  18

                
	
                  SECTION
      5.04.

                	
                  Registration
      Procedures

                	
                  19

                


        

      

       

      
        
          
          

        

        
          i

          
            

          

        

        
          
          

        

      

       

      
        
          	
                  SECTION
      5.05.

                	
                  Registration
      Expenses

                	
                  26

                
	
                  SECTION
      5.06.

                	
                  Indemnification

                	
                  27

                
	
                  SECTION
      5.07.

                	
                  Lockup

                	
                  29

                
	
                  SECTION
      5.08.

                	
                  No
      Grant of Future Registration Rights

                	
                  30

                
	
                  SECTION
      5.09.

                	
                  Termination
      of Registration Rights

                	
                  30

                


        

      

       

      ARTICLE
VI

       

      Miscellaneous

       

      
        
          	
                  SECTION
      6.01.

                	
                  Survival

                	
                  30

                
	
                  SECTION
      6.02.

                	
                  Termination

                	
                  30

                
	
                  SECTION
      6.03.

                	
                  Indemnity
      for Investors

                	
                  31

                
	
                  SECTION
      6.04.

                	
                  Rule
      144; Rule 144A

                	
                  31

                
	
                  SECTION
      6.05.

                	
                  Amendments,
      Waivers, Etc

                	
                  31

                
	
                  SECTION
      6.06.

                	
                  Counterparts
      and Facsimile

                	
                  32

                
	
                  SECTION
      6.07.

                	
                  Specific
      Enforcement; Governing Law; Submission to Jurisdiction; Waiver of Jury
      Trial

                	
                  32

                
	
                  SECTION
      6.08.

                	
                  Notices

                	
                  33

                
	
                  SECTION
      6.09.

                	
                  Entire
      Agreement, Etc

                	
                  34

                
	
                  SECTION
      6.10.

                	
                  Definitions

                	
                  35

                
	
                  SECTION
      6.11.

                	
                  Interpretation

                	
                  37

                
	
                  SECTION
      6.12.

                	
                  Severability

                	
                  38

                
	
                  SECTION
      6.13.

                	
                  No
      Third-Party Beneficiaries

                	
                  38

                
	
                  SECTION
      6.14.

                	
                  Assignment

                	
                  38

                
	
                  SECTION
      6.15.

                	
                  Independent
      Nature of Investors’ Obligations and Rights

                	
                  38

                
	
                  SECTION
      6.16.

                	
                  Repurchases

                	
                  39

                
	
                  SECTION
      6.17.

                	
                  Public
      Announcements

                	
                  39

                


        

      

       

      
        
          
          

        

        
          ii

          
            

          

        

        
          
          

        

      

       

      Index of
Defined Terms

      


      
        
          	
                  Term

                	
                  Location of Definition

                
	 
      	 
      
	
                  1955
      Trust

                	
                  6.10(u)

                
	
                  1956
      Trust

                	
                  
                    6.10(u)

                  

                
	
                  1961
      Trust A

                	
                  
                    6.10(u)

                  

                
	
                  1961
      Trust B

                	
                  
                    6.10(u)

                  

                
	
                  Adverse
      Disclosure

                	
                  6.10(a)

                
	
                  affiliate

                	
                  
                    6.10(b)

                  

                
	
                  Agreement

                	
                  Preamble

                
	
                  Automatic
      Shelf Registration Statement

                	
                  2.01(i)

                
	
                  Bankruptcy
      Exceptions

                	
                  2.01(c)

                
	
                  Beneficial
      Ownership

                	
                  
                    6.10(c)

                  

                
	
                  Beneficially
      Own

                	
                  6.10(c)

                
	
                  Benefit
      Plans

                	
                  6.10(d)

                
	
                  Capitalization
      Date

                	
                  
                    2.01(b)

                  

                
	
                  Commission

                	
                  2.01

                
	
                  Company

                	
                  Preamble

                
	
                  Company
      Capital Stock

                	
                  
                    2.01(b)

                  

                
	
                  Company
      Common Stock

                	
                  Recitals

                
	
                  Company
      Indemnified Persons

                	
                  5.06(b)

                
	
                  Company
      Preferred Stock

                	
                  
                    2.01(b)

                  

                
	
                  Company
      Stock Options

                	
                  
                    2.01(b)

                  

                
	
                  control

                	
                  6.10(b)

                
	
                  Convertible
      Preferred Certificate of Designations

                	
                  Recitals

                
	
                  Convertible
      Preferred Deduction

                	
                  1.04(b)

                
	
                  Convertible
      Preferred Share
      Purchase                                                                                                

                	
                  1.03(a)

                
	
                  Convertible
      Preferred
      Stock                                                                                                

                	
                  Recitals

                
	
                  Convertible
      Preferred Stock
      Closing                                                                                                

                	
                  1.04(a)

                
	
                  Covered
      Securities                                                                                                

                	
                  6.10(e)

                
	
                  Delay
      Period                                                                                                

                	
                  5.01(e)

                
	
                  Demand
      Notice                                                                                                

                	
                  5.02(a)

                
	
                  Demand
      Registration                                                                                                

                	
                  
                    5.02(a)

                  

                
	
                  Demand
      Registration
      Statement                                                                                                

                	
                  
                    5.02(a)

                  

                
	
                  Demanding
      Investor
      Representative                                                                                                

                	
                  6.10(f)

                
	
                  Dow
      – Rohm and Haas
      Litigation                                                                                                

                	
                  6.10(g)

                
	
                  Exchange
      Act                                                                                                

                	
                  2.01

                
	
                  First
      1945
      Trust                                                                                                

                	
                  
                    6.10(a)

                  

                
	
                  Holder                                                                                                

                	
                  6.10(h)

                
	
                  Holder
      Indemnified
      Persons                                                                                                

                	
                  
                    5.06(a)

                  

                
	
                  Indemnified
      Persons                                                                                                

                	
                  6.03

                
	
                  Initial
      Closing                                                                                                

                	
                  1.02(a)

                
	
                  Initial
      Closing
      Date                                                                                                

                	
                  1.02(a)

                
	Inspectors 	5.04(a)(vi) 


        

      

       

      
        
          
          

        

        
          iii

          
            

          

        

        
          
          

        

      

       

      
        
          	
                  Investor                                                                                                

                	
                  Preamble

                
	
                  Investor
      Representative                                                                                                

                	
                  6.10(i)

                
	
                  Investors                                                                                                

                	
                  Preamble

                
	
                  Issuer
      Free Writing
      Prospectus                                                                                                

                	
                  6.10(j)

                
	
                  Losses                                                                                                

                	
                  5.06(a)

                
	
                  Merger                                                                                                

                	
                  1.02(c)(ii)

                
	
                  Merger
      Agreement                                                                                                

                	
                  6.10(k)

                
	
                  NYSE                                                                                                

                	
                  2.01(h)

                
	
                  Option                                                                                                

                	
                  1.03(b)

                
	
                  Option
      Notice                                                                                                

                	
                  1.03(b)

                
	
                  Other
      Piggyback
      Securities                                                                                                

                	
                  5.03(b)

                
	
                  Paulson
      Representative                                                                                                

                	
                  6.10(l)

                
	
                  Perpetual
      Preferred Certificate of
      Designation                                                                                                

                	
                  Recitals

                
	
                  Perpetual
      Preferred
      Deduction                                                                                                

                	
                  1.02(b)

                
	
                  Perpetual
      Preferred Share
      Purchase                                                                                                

                	
                  1.01

                
	
                  Perpetual
      Preferred
      Stock                                                                                                

                	
                  Recitals

                
	
                  person                                                                                                

                	
                  6.10(m)

                
	
                  Person                                                                                                

                	
                  6.10(m)

                
	
                  Piggyback
      Notice                                                                                                

                	
                  5.03(a)

                
	
                  Piggyback
      Registration                                                                                                

                	
                  5.03(a)

                
	
                  Prospectus                                                                                                

                	
                  6.10(n)

                
	
                  Purchased
      Convertible Preferred
      Shares                                                                                                

                	
                  Recitals

                
	
                  Purchased
      Perpetual Preferred
      Shares                                                                                                

                	
                  Recitals

                
	
                  Purchased
      Shares                                                                                                

                	
                  Recitals

                
	
                  Ramses                                                                                                

                	
                  1.02(c)(ii)

                
	
                  Records                                                                                                

                	
                  5.04(a)(vi)

                
	
                  Registrable
      Securities                                                                                                

                	
                  6.10(o)

                
	
                  Registration
      Statement                                                                                                

                	
                  6.10(p)

                
	
                  Related
      Persons                                                                                                

                	
                  4.01

                
	
                  Released
      Claims                                                                                                

                	
                  4.01

                
	
                  Requested
      Information                                                                                                

                	
                  5.06(g)

                
	
                  SEC
      Reports                                                                                                

                	
                  2.01

                
	
                  Second
      1945
      Trust                                                                                                

                	
                  6.10(u)

                
	
                  Securities
      Act                                                                                                

                	
                  2.01(a)

                
	
                  Share
      Purchase                                                                                                

                	
                  1.03(a)

                
	
                  Shelf
      Demand
      Notice                                                                                                

                	
                  5.01(b)

                
	
                  Shelf
      Demand
      Offering                                                                                                

                	
                  5.01(b)

                
	
                  Shelf
      Registration
      Statement                                                                                                

                	
                  5.01(a)

                
	
                  Significant
      Subsidiary                                                                                                

                	
                  2.01(a)

                
	
                  Significant
      Subsidiaries                                                                                                

                	
                  2.01(a)

                
	
                  Stockholder
      Group                                                                                                

                	
                  6.10(q)

                
	
                  subsidiary                                                                                                

                	
                  6.10(r)

                
	
                  Suspension
      Period                                                                                                

                	
                  5.01(e)

                
	
                  Transferee                                                                                                

                	
                  6.10(s)

                
	
                  Trusts                                                                                                

                	
                  6.10(u)

                
	
                  Trusts
      Representative                                                                                                

                	
                  6.10(t)

                


        

      

       

       

       

      
        
          iv

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	
                Underwriter
      Indemnified
      Persons                                                                                                

              	
                5.06(a)

              
	
                Underwritten
      Offering                                                                                                

              	
                6.10(v)

              
	
                Voting
      Agreement                                                                                                

              	
                6.10(w)

              
	
                Voting
      Company
      Debt                                                                                                

              	
                2.01(b)

              


      

       

    

    
      
        
        

      

      
        v

        
          

        

      

      
        
        

      

    

     

    INVESTMENT
AGREEMENT dated as of March 9, 2009 (this “Agreement”), among
The Dow Chemical Company, a Delaware corporation (the “Company”), and the
investors identified on the signature pages hereto (each, an “Investor” and,
collectively, the “Investors”).

     

    WHEREAS
the Company desires to issue, sell and deliver to the Trusts, and the Trusts
desire to purchase and acquire from the Company, pursuant to the terms and
conditions set forth in this Agreement, an aggregate of 500,000 shares (the
“Purchased Convertible
Preferred Shares”) of the Company’s Convertible Preferred Stock, Series C
(“Convertible
Preferred Stock”), convertible into shares of the common stock, par value
$2.50 per share, of the Company (“Company Common
Stock”), 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 “Convertible Preferred
Certificate of Designations”); and

     

    WHEREAS
the Company desires to issue, sell and deliver to the Investors, and the
Investors desire to purchase and acquire from the Company, pursuant to the terms
and conditions set forth in this Agreement, an aggregate of 2,500,000 shares
(the “Purchased
Perpetual Preferred Shares” and, together with the Purchased Convertible
Preferred Shares, the “Purchased Shares”) of
the Company’s Cumulative Perpetual Preferred Stock, Series B (“Perpetual Preferred
Stock”), 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 B (the “Perpetual Preferred
Certificate of Designations”).

     

    NOW,
THEREFORE, in consideration of the representations, warranties, covenants and
agreements contained in this Agreement, and subject to the conditions set forth
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:

     

     

    ARTICLE
I

     

    Purchase and Sale;
Closings

     

    SECTION
1.01.  Purchase and Sale of the
Purchased Perpetual Preferred Shares.  On the terms and subject
to the conditions set forth in this Agreement, at the Initial Closing, the
Company shall issue, sell and deliver to each Investor, and each Investor shall
purchase and acquire from the Company, the number of Purchased Perpetual
Preferred Shares set forth opposite such Investor’s name on Schedule I hereto for
a purchase price per Purchased Perpetual Preferred Share equal to $1,000,
payable as set forth in Section 1.02.  The purchase and sale of
the Purchased Perpetual Preferred Shares is referred to in this Agreement as the
“Perpetual
Preferred Share
Purchase”.

     

    SECTION
1.02.  Initial
Closing.  (a) The closing of the Perpetual Preferred Share
Purchase (the “Initial
Closing”) shall occur immediately after the consummation of the Merger
(the date on which the consummation of the Merger occurs, the “Initial Closing
Date”), subject only to the satisfaction or (to the extent permitted by
law) waiver of the conditions to the Initial Closing set forth in Section
1.02(c) and 1.02(d), at the offices of Shearman & Sterling LLP,
599

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2

     

    Lexington
Avenue, New York, New York 10022, unless another time, date or place is
agreed to in writing by the Investors and the Company.

     

    (b)  At
the Initial Closing, (i) the Company shall deliver to each Investor certificates
representing the Purchased Perpetual Preferred Shares to be sold to such
Investor, duly registered in the name of such Investor, and (ii) each Investor
shall pay to the Company the amount set forth opposite such Investor’s name on
Schedule I hereto, and such payment shall be (A) in the case of each Trust,
effected as a deduction from the Merger Consideration (as defined in the Merger
Agreement) to be received by such Investor pursuant to and in accordance with
the terms of the Merger Agreement and (B) in all other cases, effected as a
deduction from the Merger Consideration to be received by such Investor pursuant
to and in accordance with the terms of the Merger Agreement; provided, however, that the
Company will cooperate with such Investor in respect of the allocation of
preferred stock certificates among such Investor’s accounts and in respect of
the appropriate allocation of cash deposits (the deductions described in (A) and
(B) above, each a “Perpetual Preferred
Deduction”).

     

    (c)  The
respective obligation of each Investor and the Company to effect the Perpetual
Preferred Share Purchase is subject to the satisfaction at the Initial Closing
of each of the following conditions:

     

    (i)  no
injunction, restraint or prohibition by any court or other tribunal of competent
jurisdiction which prohibits the Perpetual Preferred Share Purchase shall have
been entered and shall continue to be in effect; and

     

    (ii)  the
merger of Ramses Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of the Company (“Ramses”), with and
into Rohm and Haas Company, a Delaware corporation (the “Merger”), shall have
been consummated in accordance with the terms of the Merger
Agreement.

     

    (d)  The
obligation of each Investor to effect the Perpetual Preferred Share Purchase is
also subject to the satisfaction or waiver by such Investor at or prior to the
Initial Closing of each of the following conditions:

     

    (i)  each
Investor shall have been paid by wire transfer of immediately available funds
the Merger Consideration (as reduced by the Perpetual Preferred Deduction and,
in the case of each Trust and so long as the Company has not exercised its
Option, the Convertible Preferred Deduction) to be received by such Investor
pursuant to and in accordance with the terms of the Merger
Agreement;

     

    (ii)  each
Investor shall have been paid on the date of this Agreement by wire transfer of
immediately available funds a commitment fee equal to 2.25% of the aggregate
purchase price (set forth opposite such Investor’s name on Schedule I hereto) to
be paid by such Investor for the Purchased Perpetual Preferred Shares to be sold
to such Investor;

     

    (iii)  the
Purchased Perpetual Preferred Shares shall have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement, will be (A)
validly issued, fully paid and nonassessable, (B) not have been issued in
violation of

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3

     

    any
purchase option, call option, right of first refusal, preemptive right,
subscription right or any similar right and (C) be free and clear of all
pledges, liens, charges, mortgages, encumbrances or security interests of any
kind or nature whatsoever other than those for the benefit of any Investor
or affiliate thereof;

     

    (iv)  the
Board of Directors of the Company shall have duly adopted resolutions approving
the Perpetual Preferred Certificate of Designations, and the Company shall have
filed the Perpetual Preferred Certificate of Designations with the Secretary of
State of the State of Delaware and the Perpetual Preferred Certificate of
Designations shall have become effective;

     

    (v)  each
Trust shall have been paid on the date of this Agreement by wire transfer of
immediately available funds a commitment fee equal to 0.75% of the aggregate
purchase price (set forth opposite such Trust’s name on Schedule II hereto)
to be paid by such Trust for the Purchased Convertible Preferred Shares to be
sold to such Trust;

     

    (vi)  so
long as the Company has not exercised its Option, the Purchased Convertible
Preferred Shares shall have been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, will be (A) validly issued,
fully paid and nonassessable, (B) not have been issued in violation of any
purchase option, call option, right of first refusal, preemptive right,
subscription right or any similar right and (C) be free and clear of all
pledges, liens, charges, mortgages, encumbrances or security interests of any
kind or nature whatsoever other than those for the benefit of any Investor or
affiliate thereof; and

     

    (vii)  so
long as the Company has not exercised its Option, the Board of Directors of the
Company shall have duly adopted resolutions approving the Convertible Preferred
Certificate of Designations, and the Company shall have filed the Convertible
Preferred Certificate of Designations with the Secretary of State of the State
of Delaware and the Convertible Preferred Certificate of Designations shall have
become effective.

     

    SECTION
1.03.  Purchase and Sale of the
Purchased Convertible Preferred Shares.  (a) On the terms and
subject to the conditions set forth in this Agreement, at the Convertible
Preferred Stock Closing, the Company shall issue, sell and deliver to each
Trust, and each Trust shall purchase and acquire from the Company, the number of
Purchased Convertible Preferred Shares set forth opposite such Trust’s name on
Schedule II
hereto for a purchase price per Purchased Convertible Preferred Share equal to
$1,000, payable as set forth in Section 1.04.  The purchase and
sale of the Purchased Convertible Preferred Shares is referred to in this
Agreement as the “Convertible Preferred Share
Purchase”.  The “Share Purchase”
means, collectively, the Perpetual Preferred Share Purchase and the Convertible
Preferred Share Purchase.

     

    (b)  Notwithstanding
anything to the contrary contained herein, the Company may elect not to effect
and close the Convertible Preferred Share Purchase (the “Option”) by
delivering a written notice to that effect (the “Option Notice”) to
the Trusts.  If the Option Notice is not delivered by 5:00 p.m., New
York time, on the date that is two business day prior to the Initial Closing,
the Option shall terminate and be of no further force and effect.  If
the Company

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4

     

    exercises
its Option, the respective obligation of each Trust and the Company to effect
the Convertible Preferred Share Purchase shall terminate and the Merger
Consideration to be received by the Trusts pursuant to and in accordance with
the terms of the Merger Agreement shall not reduced by the Convertible Preferred
Deduction, and such Merger Consideration shall be paid to the Trusts pursuant to
and in accordance with the terms of the Merger Agreement.

     

    SECTION
1.04.  Convertible Preferred Stock
Closing.  (a) The closing of the Convertible Preferred Share
Purchase (the “Convertible Preferred Stock
Closing”) shall occur simultaneously with the Initial Closing so long as
the Company has not exercised its Option, subject only to the satisfaction or
(to the extent permitted by law) waiver of the conditions to the Convertible
Preferred Stock Closing set forth in Section 1.04(c) and 1.04(d), at the offices
of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York
10022, unless another time, date or place is agreed to in writing by the Trusts
and the Company.

     

    (b)  At
the Convertible Preferred Stock Closing, (i) the Company shall deliver to
each Trust certificates representing the Purchased Convertible Preferred Shares
to be sold to such Trust, duly registered in the name of such Trust, and
(ii) each Trust shall pay to the Company the amount set forth opposite such
Trust’s name on Schedule II
hereto, and such payment shall be effected as a deduction (the “Convertible Preferred
Deduction”) from the aggregate Merger Consideration (as defined in the
Merger Agreement) to be received by such Investor pursuant to and in accordance
with the terms of the Merger Agreement.

     

    (c)  The
respective obligation of each Trust and the Company to effect the Convertible
Preferred Share Purchase is subject to the satisfaction at the Convertible
Preferred Stock Closing of each of the following conditions:

     

    (i)  no
injunction, restraint or prohibition by any court or other tribunal of competent
jurisdiction which prohibits the Convertible Preferred Share Purchase shall have
been entered and shall continue to be in effect; and

     

    (ii)  the
Merger shall have been consummated in accordance with the terms of the Merger
Agreement.

     

    (d)  The
obligation of each Trust to effect the Convertible Preferred Share Purchase is
also subject to the satisfaction or waiver by such Trust at or prior to the
Convertible Preferred Stock Closing of the following condition:  the
Initial Closing shall occur simultaneously.

     

    SECTION
1.05.  Frustration of Closing
Conditions.  Neither the Company nor any Investor may assert
that a condition set forth in Section 1.02 or 1.04 has not been satisfied
or waived if such failure was caused by such party’s breach of Section 3.01
or any other provision of this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    5

     

    ARTICLE
II

     

    Representations and
Warranties

     

    SECTION
2.01.  Representations and
Warranties of the Company.  Except as previously disclosed in
its Annual Report on Form 10-K for the year ended December 31, 2008, or its
other reports and forms (collectively, the “SEC Reports”) filed
with the Securities and Exchange Commission (the “Commission”) under
Section 12, 13, 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)
subsequent to January 1, 2009 and prior to the date of this Agreement, the
Company hereby represents and warrants to each Investor that as of the date
hereof (or such other date so specified):

     

    (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 the requisite corporate power and authority
to own, lease and operate its properties and assets and conduct its business as
currently conducted.  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 of 1933, as amended (the “Securities Act”) and
the Exchange Act (individually, a “Significant
Subsidiary” and, collectively, the “Significant
Subsidiaries”) has been duly organized or formed and is validly existing
and in good standing under the laws of its jurisdiction of organization or
formation, except where the failure to be so organized or formed, validly
existing or in good standing 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.

     

    (b)  Capitalization.  The
authorized capital stock of the Company consists of 1,500,000,000 shares of
Company Common Stock and 250,000,000 shares of preferred stock, par value $1.00
per share (the “Company Preferred
Stock” and, together with the Company Common Stock, the “Company Capital
Stock”).  At the close of business on February 28, 2009 (the
“Capitalization
Date”), (i) 925,778,423 shares of Company Common Stock were issued and
outstanding; (ii) 55,599,130 shares of Company Common Stock were held by the
Company as treasury shares; (iii) 63,784,379 shares of Company Common Stock were
subject to outstanding options to acquire shares of Company Common Stock (“Company Stock
Options”); (iv) the Company had granted deferred, performance deferred
and restricted stock for a total of 2,978,040 shares of Company Common Stock and
maintained a balance in its employee stock purchase plan of 10,409,704 shares of
Company Common Stock; and (v) no shares of Company Preferred Stock were issued
or outstanding or held by the Company as treasury shares.  Except as
set forth above or in connection with an aggregate of 4,000,000 shares of the
Company’s Cumulative Convertible Perpetual Preferred Stock, Series A, to be
issued to Berkshire Hathaway Inc. and to the Kuwait Investment Authority, at the
Capitalization Date, no shares of Company Common Stock or other capital stock or
other voting securities of the Company were issued,  reserved for
issuance or outstanding.  Since the Capitalization Date through the
date of this Agreement, other than in connection with the issuance of Company
Common Stock pursuant to the exercise of Company Stock Options, no shares of
Company Common Stock or other capital stock or voting securities of the Company
were issued and there has been no change in the number of outstanding Company
Stock Options.  All outstanding shares of Company Capital Stock are,
and all such shares that may be issued prior to the Initial Closing or the
Convertible

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    6

     

    Preferred
Stock Closing will be when issued, duly authorized, validly issued, fully paid
and nonassessable and not subject to or issued in violation of any purchase
option, call option, right of first refusal, preemptive right, subscription
right or any similar right.  There are no bonds, debentures, notes or
other indebtedness of the Company having the right to vote (or convertible into,
or exchangeable for, securities having the right to vote) on any matters on
which holders of Company Common Stock may vote (“Voting Company
Debt”).  Except for any obligations under any Company Benefit
Plan, in connection with an aggregate of 4,000,000 shares of the Company’s
Cumulative Convertible Perpetual Preferred Stock, Series A, to be issued to
Berkshire Hathaway Inc. and to the Kuwait Investment Authority or as otherwise
set forth above, as of the date of this Agreement, there are no options,
warrants, calls, rights, convertible or exchangeable securities, stock-based
performance units, contracts or undertakings of any kind to which the Company or
any of its subsidiaries is a party or by which any of them is bound
(i) obligating the Company or any such subsidiary to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of capital
stock or other equity interests in, or any security convertible or exchangeable
for any capital stock of or other equity interest in, the Company or of any of
its subsidiaries or any Voting Company Debt or (ii) obligating the Company
or any such subsidiary to issue, grant or enter into any such option, warrant,
call, right, convertible or exchangeable security, stock-based performance unit,
contract or undertaking.

     

    (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, and no other actions or proceedings on the part of the Company
(including any approval of the holders of any shares of capital stock of the
Company) are necessary to authorize the consummation of the transactions
contemplated hereby (except for the approval by the Company’s Board of Directors
of the Perpetual Preferred Certificate of Designations and the Convertible
Preferred Certificate of Designations).  This Agreement has been duly
and validly executed and delivered by the Company and constitutes a legal, valid
and binding obligation 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.

     

    (i)  Neither
the execution, delivery and performance by the Company of this Agreement, nor
the consummation of the transactions contemplated hereby, nor compliance by the
Company with any of the provisions hereof, will (A) 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 (1) its certificate of incorporation or by-laws
or (2) any note, bond, mortgage, indenture, deed of

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    7

     

    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
(B) 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 (A)(2) and (B) above, 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.

     

    (ii)  Other
than (x) in connection or in compliance with the provisions of the Securities
Act and the securities or blue sky laws of the various states, (y) the filing of
the Perpetual Preferred Certificate of Designations and the Convertible
Preferred Certificate of Designations and (z) the filing of the certificate of
merger relating to the Merger, no notice to, filing with, review by, or
authorization, consent or approval of, any governmental authority is necessary
for the consummation by the Company of the transactions contemplated by this
Agreement.

     

    (e)  Company Financial
Statements.

     

    (i)  The
consolidated financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the SEC Reports fairly
present 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).

     

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

     

    (f)  Authorization of Purchased
Perpetual Preferred Shares and Purchased Convertible Preferred
Shares.  As of the Initial Closing Date, the Purchased
Perpetual Preferred Shares and the Purchased Convertible Preferred Shares will
(i) be duly authorized by all necessary corporate action on the part of the
Company, (ii) be validly issued, fully paid and nonassessable,
(iii) not have been issued in violation of any purchase option, call
option, right of first refusal, preemptive right, subscription right or any
similar right and (iv) be free and clear of all pledges, liens, charges,
mortgages, encumbrances or security interests of any kind or nature
whatsoever.

     

    (g)  Reports.  Since
December 31, 2008 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,

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    8

     

    and none
of such documents contained an untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.

     

    (h)  NYSE.  Shares
of the Company Common Stock are registered pursuant to Section 12(b) of the
Exchange Act and are listed on the New York Stock Exchange (“NYSE”), and the
Company has no action pending to terminate the registration of the Company
Common Stock under the Exchange Act or delist the Company Common Stock from the
NYSE, nor has the Company received any notification that the Commission or the
NYSE is currently contemplating terminating such registration or
listing.

     

    (i)  Automatic Shelf Registration
Statement.  The Company is and, at the time of initial filing
of an automatic shelf registration statement on Form S-3 (the “Automatic Shelf Registration
Statement”) under the Securities Act with the Commission, covering the
Purchased Convertible Preferred Shares, the Company Common Stock issuable upon
conversion of the Convertible Preferred Shares and the Purchased Perpetual
Preferred Shares, will be a “well-known seasoned issuer” (as defined in Rule 405
of the Securities Act) and is and, at the time of initial filing of an Automatic
Shelf Registration Statement, will be eligible to file an automatic shelf
registration statement on Form S-3 under the Securities Act.  Upon
filing of an Automatic Shelf Registration Statement, covering the Purchased
Convertible Preferred Shares, the Company Common Stock issuable upon conversion
of the Convertible Preferred Shares and the Purchased Perpetual Preferred
Shares, such Automatic Shelf Registration Statement will be effective and will
conform in all respects to the requirements of the Securities Act, and the rules
and regulations of the Commission thereunder, and will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.  The preceding sentence does not apply to any information
furnished in writing to the Company by any Investor expressly for inclusion
therein.

     

    (j)  Authorization of Company
Common Stock Issuable upon Conversion of Convertible Preferred
Shares.  The Company Common Stock issuable upon conversion of
the Convertible Preferred Shares has been duly authorized and reserved and, when
issued and delivered upon conversion of the Convertible Preferred Shares in
accordance with the terms of the Convertible Preferred Certificate of
Designations, will (i) be validly issued, fully paid and nonassessable,
(ii) not have been issued in violation of any purchase option, call option,
right of first refusal, preemptive right, subscription right or any similar
right and (iii) be free and clear of all pledges, liens, charges, mortgages,
encumbrances or security interests of any kind or nature
whatsoever.

     

    SECTION
2.02.  Representations and
Warranties of the Investors.  Each Investor, with respect to
itself and not with respect to any other Investor, hereby represents and
warrants to the Company that as of the date hereof:

     

    (a)  Organization and
Authority.  Such Investor has been duly organized or formed
and, if applicable, is validly existing and in good standing under the laws of
its jurisdiction of organization or formation, with the requisite power and
authority to own, lease and operate its properties and assets and conduct its
business as currently conducted.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    9

     

    (b)  Authorization;
Enforceability.  Such 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 such Investor and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of such Investor,
and no other actions or proceedings on the part of such Investor are necessary
to authorize the consummation of the transactions contemplated
hereby.  This Agreement has been duly and validly executed and
delivered by such Investor and constitutes a legal, valid and binding obligation
of such Investor, enforceable against such 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
such Investor of this Agreement, nor the consummation by such Investor of the
transactions contemplated hereby, nor compliance by such Investor with any of
the provisions hereof, will (A) 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
such Investor under any of the terms, conditions or provisions of (1) its
certificate of incorporation or by-laws or other equivalent organizational or
formation document or (2) any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation to which such
Investor is a party or by which it may be bound, or to which such Investor or
any of the properties or assets of such Investor may be subject, or
(B) 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 such Investor or any of
its respective properties or assets except, in the case of clauses (A)(2)
and (B) above, for those occurrences that would not reasonably be expected to
have a material adverse effect on the ability of such Investor to consummate the
transactions contemplated by this Agreement.

     

    (d)  Consents.  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
authority is necessary for the consummation by such Investor of the transactions
contemplated by this Agreement.

     

    (e)  Purchase for
Investment.  Such Investor acknowledges that the Purchased
Perpetual Preferred Shares have not been registered under the Securities Act or
under any state securities laws.  Such Investor (i) is acquiring
the Purchased Perpetual Preferred Shares pursuant to an exemption from
registration under the Securities Act solely for investment with no present
intention or view to distribute any of the Purchased Perpetual Preferred Shares
to any person in violation of the Securities Act, (ii) will not sell or
otherwise dispose of any of the Purchased Perpetual Preferred Shares, except in
compliance with the registration requirements or exemption provisions of the
Securities Act and any other applicable securities laws, (iii) 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 Purchased Perpetual Preferred Shares 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 Purchased
Perpetual

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    10

     

    Preferred
Shares, and (iv) is an “accredited investor” (as such term is defined in
Rule 501 of Regulation D promulgated under the Securities
Act).

     

     

    ARTICLE
III

     

    Covenants

     

    SECTION
3.01.  Further
Assurances.  (a) Upon the terms and subject to the conditions
set forth in this Agreement, each of the parties hereto shall use its reasonable
best efforts to take, or cause to be taken, all actions, and to do, or cause to
be done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Perpetual Preferred Share Purchase, the
Convertible Preferred Share Purchase and the other transactions contemplated by
this Agreement, including using reasonable best efforts to accomplish the
following:  (i) the taking of all acts necessary to cause the
conditions to the Initial Closing and the Convertible Preferred Stock Closing to
be satisfied as promptly as reasonably practicable; and (ii) the execution
and delivery of any additional instruments reasonably necessary to consummate
the transactions contemplated by, and to fully carry out the purposes of, this
Agreement.  For the avoidance of doubt, the foregoing shall not be
construed to impose on the Company any obligation with respect to the Merger or
otherwise require the Company to take any action under the Merger
Agreement.

     

    (b)  Between
the date hereof and the Initial Closing Date, the Company shall not, without the
prior written consent of each of the Investors, which consent may not be
unreasonably withheld:  (i) adjust, split, combine, reclassify,
redeem, repurchase or otherwise acquire any capital stock or other equity
interests or rights or otherwise amend the terms of its capital stock or other
equity interests or rights; (ii) make, declare or pay any dividend, or make
any other distribution on, or directly or indirectly redeem, purchase or
otherwise acquire or encumber, any shares of its capital stock or other equity
interest or any securities or obligations convertible (whether currently
convertible or convertible only after the passage of time or the occurrence of
certain events) into or exchangeable for any shares of its capital stock or
other equity interests, except in connection with exercises or similar
transactions pursuant to the exercise of stock options or settlement of other
awards or obligations outstanding as of the date hereof; or (iii) issue or
sell any additional shares of capital stock or other equity interests, any
securities convertible into, or any rights, warrants or options to acquire, any
such shares of capital stock or other equity interests, except pursuant to the
exercise of stock options or settlement of other awards outstanding as of the
date hereof and in accordance with the terms of such instruments or as required
under any Benefit Plan, other than the issuance of an aggregate of 4,000,000
shares of the Company’s Cumulative Convertible Perpetual Preferred Stock,
Series A, to Berkshire Hathaway Inc. and to the Kuwait Investment
Authority.

     

    SECTION
3.02.  Expenses.  (a)
With respect to the Trusts, the Company shall bear and pay all reasonable and
documented (i) costs, fees and expenses incurred by the Company and each Trust
after February 16, 2009 in connection with this Agreement, the Share Purchase
and the other transactions contemplated by this Agreement, (ii) costs, fees and
expenses incurred by the Company and each Trust relating to the discovery in the
Dow – Rohm and Haas Litigation and (iii) public relations costs, fees and
expenses incurred by the Company

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    11

     

    and each
Trust relating to the Dow – Rohm and Haas Litigation, this Agreement, the Share
Purchase and the other transactions contemplated by this Agreement; provided, however, that the sum
of all expenses to be paid pursuant to (i), (ii) and (iii) of this Section
3.02(a) shall not exceed $1,000,000; and provided further that the
Trusts shall make available and permit the Company and its representatives to
review supporting documentation evidencing such costs, fees and expenses as
reasonably requested by the Company.

     

    (b)  With
respect to each other Investor, the Company shall bear and pay all reasonable
and documented costs, fees and expenses incurred by such Investor in connection
with this Agreement and the other transactions contemplated by this Agreement;
provided
that such
Investor shall make available and permit the Company and its representatives to
review supporting documentation evidencing such costs, fees and expenses as
reasonably requested by the Company.

     

    SECTION
3.03.  Confidentiality.  Each
Investor shall treat as confidential all nonpublic, proprietary 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 such Investor from disclosing any such
information (i) pursuant to the order of any court, administrative agency or
other tribunal of competent jurisdiction 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 3.03, (iv) to its affiliates and to its and their respective
employees, legal counsel, independent auditors and other experts, agents or
representatives who are informed of the confidential nature of such information,
(v) to the extent that such information is received by such 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 each Investor and (vii) in connection with any filings and public
disclosures such Investor is required by law, in the opinion of the Investor’s
counsel, to make.

     

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

     

     

    ARTICLE
IV

     

    Additional
Agreements

     

    SECTION
4.01.  Release of
Claims.  Except for the obligations set forth in this
Agreement, effective as of the Effective Time (as defined in the Merger
Agreement), each Investor releases and forever discharges the Company and its
stockholders and members, officers, directors, employees, attorneys, advisors,
agents, parents, subsidiaries, affiliates, heirs, executors, administrators,
predecessors, successors and assigns (collectively, “Related Persons”),
and the Company releases and forever discharges each Investor and its Related
Persons, from all

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    12

     

    actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bills, specialties, covenants, contracts, controversies, agreements, promises,
damages, judgments, executions, claims, and demands whatsoever, past, present,
direct, indirect, or derivative, in law or equity, which against the Company or
such Investor, as applicable, it ever had, now have, or hereafter can, shall or
may have, by reason of any matter, cause or thing whatsoever, from the beginning
of the world, including those that in any way arise from or out of, are based
upon, or are in connection with or relate to the Merger Agreement or the Voting
Agreement, any breach, non-performance, or failure to act under the Merger
Agreement or the Voting Agreement, or the transactions contemplated thereby, but
excluding  those to the extent they arise from or out of, are based
upon, or are in connection with or relate to this Agreement, any breach,
non-performance, or failure to act under this Agreement, or the transactions
contemplated hereby (hereinafter, the “Released
Claims”).  It is the intention of each Investor and the Company
to extinguish all Released Claims and consistent with such intention, each
Investor hereby expressly waives its rights to the fullest extent permitted by
law, to any benefits of the provisions of Section 1542 of the California Civil
Code or any other similar state law, federal law or principle of common law,
which may have the effect of limiting the releases set forth
herein.  Section 1542 of the California Civil Code
provides:

     

    A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.

     

    Each
Investor and the Company acknowledge that they may discover facts in addition to
or different from those that they now know or believe to be true with respect to
the subject matter of the releases granted herein, but acknowledge that it is
their intention to fully, finally and forever settle, release and discharge any
and all claims hereby known or unknown, suspected or unsuspected, which do or do
not exist, or heretofore existed, and without regard to the subsequent discovery
or existence of such additional or different facts.

     

    SECTION
4.02.  Commitment
Fees.  (a) The Company shall pay each Investor on the date of
this Agreement by wire transfer of immediately available funds a commitment fee
equal to 2.25% of the aggregate purchase price (set forth opposite such
Investor’s name on Schedule I hereto) to
be paid by such Investor for the Purchased Perpetual Preferred Shares to be sold
to such Investor.

     

    (b)   The
Company shall pay each Trust on the date of this Agreement by wire transfer of
immediately available funds a commitment fee equal to 0.75% of the aggregate
purchase price (set forth opposite such Trust’s name on Schedule II hereto)
to be paid by such Trust for the Purchased Convertible Preferred Shares to be
sold to such Trust.

     

    (c)  The
Company shall pay each Trust on the date of the Convertible Preferred Stock
Closing by wire transfer of immediately available funds a commitment fee equal
to 0.75% of the aggregate purchase price (set forth opposite such Trust’s name
on Schedule II
hereto) to be paid by such Trust for the Purchased Convertible Preferred Shares
to be sold to such Trust.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    13

     

    ARTICLE
V

     

    Registration
Rights

     

    SECTION
5.01.  Shelf
Registration.  (a) Automatic Shelf Registration
Statement.  The Company shall prepare and file an Automatic
Shelf Registration Statement with the Commission no later than May 5, 2009,
covering the Covered Securities, which shall automatically become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act and
contain a prospectus in such form as to permit any Holder to sell its
Registrable Securities at any time beginning on or after the filing thereof with
the Commission pursuant to Rule 415 under the Securities Act or any successor or
similar rule that may be adopted by the Commission.  If the Company is
not eligible to use an Automatic Shelf Registration Statement at any time of
determination of eligibility, the Company shall promptly post-effectively amend
the Automatic Shelf Registration Statement or file a new Registration Statement
on a Form S-3, in either case to permit any Holder to sell its Registrable
Securities pursuant to Rule 415 under the Securities Act or any successor or
similar rule that may be adopted by the Commission.  The term “Shelf Registration
Statement” as used herein means the Automatic Shelf Registration
Statement or any post-effective amendment thereto or a new Registration
Statement so filed pursuant to this Section 5.01.  Upon any Shelf
Registration Statement having been filed:

     

    (i)  the
Company shall use its reasonable best efforts to keep such Shelf Registration
Statement continuously effective (including by filing any necessary
post-effective amendments to such Shelf Registration Statement or a new Shelf
Registration Statement) until the earlier of (x) the date on which all
Registrable Securities have been sold pursuant to such Shelf Registration
Statement or another shelf registration statement filed under the Securities Act
(but in no event prior to the applicable period referred to in Section 4(3) of
the Securities Act and Rule 174 thereunder) and (y) such time as the Registrable
Securities are no longer outstanding or otherwise no longer constitute
Registrable Securities; and

     

    (ii)  the
Company shall pay the registration fee for all the Registrable Securities at the
time of filing of the Automatic Shelf Registration Statement and shall not elect
to pay any portion of the registration fee on a deferred basis.

     

    Subject
to Section 5.01(e), the Company shall not be deemed to have used its reasonable
best efforts to keep the Shelf Registration Statement effective if the Company
voluntarily takes any action or omits to take any action that would result in
any Holder covered thereby not being able to offer and sell any Registrable
Securities pursuant to such Shelf Registration Statement, unless such action or
omission is required by applicable law.  The Company shall use its
reasonable best efforts to remain a well-known seasoned issuer (as defined in
Rule 405 under the Securities Act) and to not become an ineligible issuer (as
defined in Rule 405 under the Securities Act).  An Investor shall
provide notice to the Company prior to any use of the Shelf Registration
Statement by such Investor.

     

    (b)  Shelf Demand
Notice.  If at any time following the filing of any Shelf
Registration Statement, an Investor desires to sell all or any portion of its
Registrable Securities

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    14

     

    under
such Shelf Registration Statement in an Underwritten Offering (any such sale, a
“Shelf Demand
Offering”), the applicable Investor Representative shall (i) notify (such
notice, the “Shelf
Demand Notice”) the Company of such intent at least three business days
prior to such proposed sale and (ii) simultaneously with delivery of the
Shelf Demand Notice to the Company, deliver written notice of such Shelf Demand
Offering to each other Holder (if any) that holds Registrable Securities on the
date that such Shelf Demand Notice is delivered to the Company.  The
Shelf Demand Notice shall:  (1) specify (x) the aggregate number of
Registrable Securities requested to be sold in such Shelf Demand Offering and
(y) the identity of the Investor or Investors requesting such Shelf Demand
Offering; and (2) if the Shelf Demand Notice is not delivered by an Investor,
provide a representation from the proposed selling Holders that all the shares
proposed for sale under such Shelf Demand Offering constitute Registrable
Securities.

     

    (c)  Shelf Demand
Offering.  The Company shall include in the Shelf Demand
Offering covered by such Shelf Demand Notice all Registrable Securities of each
Holder with respect to which the Company has received a written request for
inclusion therein from such Holder within three business days after the Company
has received the Shelf Demand Notice.  The Company shall prepare and
file a prospectus supplement, post-effective amendment to the Shelf Registration
Statement and/or Exchange Act reports incorporated by reference into the Shelf
Registration Statement and take such other actions as reasonably necessary or
appropriate to permit the consummation of such Shelf Demand
Offering.  The Company shall take all reasonable actions to enable the
Holders with respect to which the Company has received a written request for
inclusion in such offering in accordance with the first sentence of this
paragraph (c) to price such offering within five business days of receipt of the
Shelf Demand Notice.  The applicable Investor Representative having
notified or directed the Company to commence a Shelf Demand Offering or to
include any of their Registrable Securities therein shall have the right to
withdraw such notice or direction by giving written notice to the
Company.

     

    (d)  Limitation on Shelf Demand
Offerings and Demand Registrations.  The Company shall be
obligated to effect a total of only two Demand Registrations or Shelf Demand
Offerings pursuant to Sections 5.01 and 5.02, in the aggregate, at the request
of the Paulson Representative and two Demand Registrations or Shelf Demand
Offerings pursuant to Sections 5.01 and 5.02, in the aggregate, at the request
of the Trusts Representative; provided, however, that any
such Demand Registration or Shelf Demand Offering shall in no event be in an
amount less than $250 million.  In the event the Company has failed to
keep the Shelf Registration Statement continuously effective, and the Company
receives from an Investor Representative a notice requesting that the Company
effect a registration on Form S-3 (provided that
the Company is eligible to effect such registration on Form S-3 at such
time), the Company shall be obligated to effect any such requested
registration on Form S-3 without regard to the number of Demand Registrations
made.  The Paulson Representative and the Trusts Representative shall
use commercially reasonable efforts to coordinate the timing of their Shelf
Demand Notices under this Section 5.01 so as to not unduly burden the Company in
connection with its fulfilling its obligations under this Article V, it being
understood that the Company shall fulfill all its obligations under this Article
V if the Company receives any Shelf Demand Notice.

     

    (e)  Suspension of Shelf
Registration Statement.  For purposes of this Agreement, the
term “Suspension
Period” shall mean (i) the period, beginning on the Closing Date
and

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    15

     

    continuing
until the date that the Automatic Shelf Registration Statement is filed with the
Commission and made available for the sale of Registrable Securities (the “Delay Period”) or
(ii) any period during which the Company has required the Holders to suspend the
use of the Prospectus for sales of Registrable Securities under a Shelf
Registration Statement or a Demand Registration Statement (as defined
below).  Notwithstanding anything to the contrary contained in this
Agreement, the Company shall be entitled, from time to time on or after the
Closing Date, to declare a Suspension Period, provided that such
Suspension Period is for a reasonable period of time not to exceed 30 days in
succession (other than the Delay Period) or 90 days in the aggregate in any
12-month period, and provided further that the
Company shall deliver a written certificate to the Holders signed by either the
Chief Executive Officer of the Company or the Chief Financial Officer of the
Company, certifying that the Company has determined, in its good faith judgment,
that such action or proposed action (x) would adversely affect or interfere with
any proposal or plan by the Company or any of its affiliates to engage in any
material financing or in any material acquisition, merger, consolidation, tender
offer, business combination, securities offering or other material transaction
or (y) would require the Company to make an Adverse
Disclosure.  Notwithstanding the foregoing, the Company shall have the
right, exercisable one time from and after the Closing Date under either this
Section 5.01(e) or Section 5.02(e), to extend the successive 30-day or aggregate
90-day Suspension Period limitation for up to an additional 15 days, provided
that the Company shall deliver a written certificate to the Holders signed by
either the Chief Executive Officer of the Company or the Chief Financial Officer
of the Company certifying that the Company has a proposal or plan with respect
to a material acquisition, merger, consolidation, tender offer, business
combination or other strategic transaction and that, in its good faith judgment,
such action would adversely affect or interfere with such proposal or
plan.  Immediately upon receipt of such notice, the Holders covered by
the Shelf Registration Statement (if any) shall discontinue the disposition of
Registrable Securities under such Shelf Registration Statement until the
requisite changes to the Prospectus have been made as required
below.  Each Holder shall keep confidential any communications
received by it from the Company regarding the suspension of, or the use of the
Shelf Registration Statement, except as required by applicable law or court
order.  The Company agrees that it will terminate any such Suspension
Period as promptly as reasonably practicable and will promptly notify the
Holders of such termination.  After the expiration of any Suspension
Period and without any further request from any Holder, the Company shall as
promptly as reasonably practicable prepare a post-effective amendment or
supplement to the Shelf Registration Statement or the Prospectus, or any
document incorporated therein by reference, or file any other required document
so that, as thereafter delivered to purchasers of the Registrable Securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.

     

    (f)  If
any of the Registrable Securities to be registered pursuant to a Shelf Demand
Offering are to be sold in a firm commitment underwritten offering, and the
managing underwriter(s) of such underwritten offering advise the Holders in
writing that it is their good faith opinion that the total number or dollar
amount of Registrable Securities proposed to be sold in such offering exceeds
the total number or dollar amount of such securities that can be sold without
having an adverse effect on the price, timing or distribution of the Registrable Securities to be so
included, then there shall be included in such firm commitment underwritten
offering the number or dollar amount of Registrable Securities that in the
opinion of such managing

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    16

     

    underwriter(s)
can be sold without so adversely affecting such offering, and such number of
Registrable Securities shall be allocated for inclusion pro rata (if applicable)
among the Holders of the Registrable Securities for which inclusion in such
underwritten offering was requested, based on the number of Registrable
Securities Beneficially Owned by
each such Holder.

     

    (g)  In
the event of a Shelf Demand Offering, the Company shall be required to use its
reasonable best efforts to maintain the continuous effectiveness of the
applicable Registration Statement for a period of at least 180 days after the
effective date thereof or such shorter period in which all Registrable
Securities included in such Registration Statement have actually been
sold.

     

    SECTION
5.02.  Demand
Registration.  (a) If the Company is unable to file, cause to
be effective or maintain the effectiveness of a Shelf Registration Statement as
required under Section 5.01, each Investor Representative shall have the right
by delivering a written notice to the Company (a “Demand Notice”) to
require the Company to, pursuant to the terms of this Agreement, register under
and in accordance with the provisions of the Securities Act the number of
Registrable Securities held by any Holders and requested by such Demand Notice
to be so registered (a “Demand
Registration”).  A Demand Notice shall also specify the
expected method or methods of disposition of the applicable Registrable
Securities.  Following receipt of a Demand Notice, the Company shall
use its reasonable best efforts to file, as promptly as reasonably practicable,
but not later than 45 days after receipt by
the Company of such Demand Notice (subject to paragraph (e) of this Section
5.02), a Registration Statement relating to the offer and sale of the
Registrable Securities requested to be included therein by the Holders thereof
in accordance with the methods of distribution elected by such Holders (a “Demand Registration
Statement”) and shall use its reasonable best efforts to cause such
Registration Statement to be declared effective under the Securities Act as
promptly as practicable after the filing thereof.

     

    (b)  If
any of the Registrable Securities to be registered pursuant to a Demand
Registration are to be sold in a firm commitment underwritten offering, and the
managing underwriter(s) of such underwritten offering advise the Holders in
writing that it is their good faith opinion that the total number or dollar
amount of Registrable Securities proposed to be sold in such offering, together
with any other securities proposed to be included by Holders which are entitled
to exercise piggyback registration rights as set forth herein with respect to
such Registration Statement, exceeds the total number or dollar amount of such
securities that can be sold without having an adverse effect on the price,
timing or distribution of the Registrable Securities to be so included together
with all such Other Piggyback Securities, then there shall be included in such
firm commitment underwritten offering the number or dollar amount of Registrable
Securities and such other securities that in the opinion of such managing
underwriter(s) can be sold without so adversely affecting such offering, and
such number of Registrable Securities and other securities shall be allocated
for inclusion as follows:

     

    (i)           first,
among the Holders of the Registrable Securities set forth in the Demand Notice,
pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder;
and

     

    (ii)          second,
among the Holders holding Registrable Securities

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    17

     

    exercising
piggyback registration rights under Section 5.03 with respect to such Demand
Registration.

     

    (c)  In
the event of a Demand Registration, the Company shall be required to maintain
the continuous effectiveness of the applicable Registration Statement for a
period of at least 180 days after the effective date thereof or such shorter
period in which all Registrable Securities included in such Registration
Statement have actually been sold.

     

    (d)  The
Company shall be obligated to effect a total of only two Demand Registrations or
Shelf Demand Offerings pursuant to Sections 5.01 and 5.02, in the aggregate, at
the request of the Paulson Representative and two Demand Registrations or Shelf
Demand Offerings pursuant to Sections 5.01 and 5.02, in the aggregate, at the
request of the Trusts Representative; provided, however, that any
such Demand Registration or Shelf Demand Offering shall in no event be in amount
less than $250 million.  In the event the Company has failed to keep
the Shelf Registration Statement continuously effective, and the Company
receives from an Investor Representative a notice requesting that the Company
effect a registration on Form S-3 (provided that
the Company is eligible to effect such registration on Form S-3 at such
time), the Company shall be obligated to effect any such requested
registration on Form S-3 without regard to the number of Demand Registrations
made.  The Paulson Representative and the Trusts Representative shall
use commercially reasonable efforts to coordinate the timing of their Demand
Notices under this Section 5.02 so as to not unduly burden the Company in
connection with its fulfilling its obligations under this Article V, it being
understood that the Company shall fulfill all its obligations under this Article
V if the Company receives any Demand Notice.

     

    (e)  Notwithstanding
anything to the contrary contained in this Agreement, the Company shall be
entitled, from time to time on or after the Closing Date, to declare a
Suspension Period, provided that the Company delivers a written certificate to
the Holders signed by either the Chief Executive Officer of the Company or the
Chief Financial Officer of the Company, certifying that the Company has
determined, in its good faith judgment, that such action or proposed action (i)
would adversely affect or interfere with any proposal or plan by the Company or
any of its affiliates to engage in any material financing or in any material
acquisition, merger, consolidation, tender offer, business combination,
securities offering or other material transaction or (ii) would require the
Company to make an Adverse Disclosure.  Notwithstanding the foregoing,
the Company shall have the right, exercisable one time from and after the
Closing Date under either this Section 5.01(e) or Section 5.02(e), to extend the
successive 30-day or aggregate 90-day Suspension Period limitation for up to an
additional 15 days, provided that the Company shall deliver a written
certificate to the Holders signed by either the Chief Executive Officer of the
Company or the Chief Financial Officer of the Company certifying that the
Company has a proposal or plan with respect to a material acquisition, merger,
consolidation, tender offer, business combination or other strategic transaction
and that, in its good faith judgment, such action would adversely affect or
interfere with such proposal or plan.  Immediately upon receipt of
such notice, the Holders covered by the Demand Registration Statement shall
discontinue the disposition of Registrable Securities under such Demand
Registration Statement until the requisite changes to the Prospectus have been
made as required below.  Each Holder shall keep confidential any
communications received by it from the Company regarding the suspension of, or
the use of the Demand Registration Statement, except

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    18

     

    as
required by applicable law or court order.  The Company agrees that it
will terminate any such Suspension Period as promptly as reasonably practicable
and will promptly notify the Holders of such termination.  After the
expiration of any Suspension Period and without any further request from any
Holder, the Company shall as promptly as reasonably practicable prepare a
post-effective amendment or supplement to the Demand Registration Statement or
the Prospectus, or any document incorporated therein by reference, or file any
other required document so that, as thereafter delivered to purchasers of the
Registrable Securities included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.

     

    (f)  The
Demanding Investor Representative, as applicable, shall have the right to notify
the Company that it has determined that the Registration Statement relating to a
Demand Registration be abandoned or withdrawn, in which event the Company shall
promptly abandon or withdraw such Registration Statement; provided, however,
that such abandonment or withdrawal of the Demand Registration shall be
permissible only if, at the time of such notice to the Company, (i) no action
has been taken under Section 5.04(xiv) and (ii) no offers for the Registrable
Securities had been made under such Demand Registration.

     

    SECTION
5.03.  Piggyback
Registrations.  (a) If, other than pursuant to Section 5.01,
the Company proposes or is required to file a registration statement under the
Securities Act with respect to an offering of preferred stock of the Company,
whether or not for sale for its own account (other than a registration statement
(i) on Form S-4, Form S-8 or any successor forms thereto or (ii) filed solely in
connection with any employee benefit or dividend reinvestment plan), then the
Company shall give prompt written notice of such proposed filing at least 30
days before the anticipated filing date (the “Piggyback Notice”) to
the Holders. The Piggyback Notice shall offer the Holders the opportunity to
include in such registration statement the number of Registrable Securities as
they may request (a “Piggyback
Registration”). Subject to Section 5.02(b) hereof, the Company shall
include in each such Piggyback Registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within 15 days after notice has been given to the Holders. The Holders shall be
permitted to withdraw all or part of the Registrable Securities from a Piggyback
Registration at any time at least two business days prior to the effective date
of the registration statement relating to such Piggyback Registration. The
Company shall be required to maintain the effectiveness of the registration
statement for a Piggyback Registration for a period of 180 days after the
effective date thereof or such shorter period in which all Registrable
Securities included in such Registration Statement have actually been sold.  If the Company shall
determine for any reason not to proceed with the registration that is the
subject of the Piggyback Notice, the Company shall give notice to the
Holders
and thereupon shall be relieved of its obligation
to register any Registrable Securities in connection with the Piggyback
Registration relating to such registration, but shall not be relieved of its
obligation hereunder for registration expenses with respect to such
registration.

     

    (b)  If
any of the securities to be registered pursuant to the registration giving rise
to the Holders’ rights under this Section 5.03 are to be sold in an underwritten
offering, the Holders shall be permitted to include all Registrable Securities
requested to be included in such registration in such offering on the same terms
and conditions as any other shares of stock or

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    19

     

    other
equity, if any, of the Company included therein; provided, however, that if such
offering involves a firm commitment underwritten offering and the managing
underwriter(s) of such underwritten offering advise the Company in writing that
it is their good faith opinion that the total amount of Registrable Securities
requested to be so included, together with all other securities that the Company
and any other Persons having rights to participate in such registration intend
to include in such offering (such other securities being referred to herein as
“Other Piggyback
Securities”), exceeds the total number or dollar amount of such
securities that can be sold without having an adverse effect on the price,
timing or distribution of the Registrable Securities to be so included together
with all Other Piggyback Securities, then there shall be included in such firm
commitment underwritten offering the number or dollar amount of Registrable
Securities and such Other Piggyback Securities that in the opinion of such
managing underwriter(s) can be sold without so adversely affecting such
offering, and such number of Registrable Securities and Other Piggyback
Securities shall be allocated for inclusion as follows:

     

    (i)  first,
all Other Piggyback Securities being sold by the Company;

     

    (ii)  second,
all Registrable Securities requested to be included by any Holders, pro rata (if
applicable), based on the number of shares of Registrable Securities Beneficially Owned by
each such Holder; and

     

    (iii)  third,
among any other holders of
Other_Piggyback_Securities requesting such
registration, pro rata, based on the number
of Other_Piggyback_Securities Beneficially
Owned by each such holder of Other Piggyback Securities.

     

    SECTION
5.04.  Registration
Procedures.  (a) Registration.  Subject
to the provisions of Sections 5.01, 5.02 and 5.03, including the Company’s
obligation to file the Automatic Shelf Registration Statement and the timing
thereof, if and whenever the Company is required to use reasonable best efforts
to effect the registration of any Registrable Securities under the Securities
Act as provided in this Article V, the Company shall effect such registration to
permit the sale of such Registrable Securities in accordance with the intended
methods of disposition thereof, and pursuant thereto the Company shall cooperate
in the sale of the securities and shall, as expeditiously as
possible:

     

    (i)  prepare
and file with the Commission a Registration Statement or Registration Statements
on such form which shall be available for the sale of the Registrable Securities
by the Holders or the Company in accordance with the intended method or methods
of distribution thereof, and use its reasonable best efforts to cause such
Registration Statement to become and remain effective pursuant to the terms of
this Agreement; provided, however, that the
Company may discontinue any registration of its securities that are not
Registrable Securities at any time prior to the effective date of the
Registration Statement relating thereto; provided further that before
filing such Registration Statement or a Prospectus (including any Issuer Free
Writing Prospectus  related thereto) or any amendments or supplements
thereto (including documents that would be incorporated or deemed to be
incorporated therein by reference), the Company will furnish to each selling
Holder, the counsel of each selling Holder and the managing underwriter(s), if
any, copies of all such documents proposed to be filed, which documents will be
subject to the reasonable review and comment of such counsel (such

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    20

     

    review to
be conducted with reasonable promptness), and such other documents reasonably
requested by such counsel, including any comment letter from the Commission,
and, if requested by such counsel, provide such counsel reasonable opportunity
to participate in the preparation of such Registration Statement and each
Prospectus included therein (including any Issuer Free Writing
Prospectus  related thereto) and such other opportunities to conduct a
reasonable investigation within the meaning of the Securities Act, including
reasonable access to the Company’s books and records, officers, accountants and
other advisors.  The Company shall not file any such Registration
Statement or Prospectus (including any Issuer Free Writing
Prospectus  related thereto) or any amendments or supplements thereto
(including such documents that, upon filing, would be incorporated or deemed to
be incorporated by reference therein) with respect to any registration pursuant
to a Shelf Demand Offering or Demand Registration to which an Investor
Representative, its counsel, or the managing underwriter(s), if any, shall
reasonably object, in writing, on a timely basis, unless, in the opinion of the
Company, such filing is necessary to comply with applicable law;

     

    (ii)  prepare
and file with the Commission such amendments, post-effective amendments and
supplements to each Registration Statement and the Prospectus used in connection
therewith as may be necessary to (A) keep such Registration Statement
continuously effective during the period provided herein, (B) comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement, and cause the related
Prospectus to be supplemented by any prospectus supplement or Issuer Free
Writing Prospectus  as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of the securities covered
by such Registration Statement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the Securities Act and
(C) complete the disposition of such securities in accordance with the
intended methods of disposition set forth in such Registration
Statement;

     

    (iii)  furnish
without charge to Holder and each underwriter, if any, of the securities being
sold by such Holder such number of conformed copies of such Registration
Statement and of each amendment, post-effective amendment and supplement
thereto, including financial statements (in each case including all exhibits),
such number of copies of the Prospectus contained in such Registration Statement
(including each preliminary Prospectus), such number of copies of any and all
transmittal letters or other correspondence with the Commission or any other
governmental entity relating to such offering and such other documents as such
Holder or underwriter, if any, may reasonably request;

     

    (iv)  prior
to any public offering of Registrable Securities, use its reasonable best
efforts to register or qualify or cooperate with the selling Holders, the
managing underwriter(s), if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer or sale under the
securities or “blue sky laws” of such jurisdictions as any Holder or any
underwriter shall reasonably request in writing and to keep each such
registration or qualification (or exemption therefrom) effective during the
period that such Registration Statement is required to be kept effective and to
take any other action

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    21

     

    that may
be necessary or advisable to enable such Holder or underwriter to consummate the
disposition in such jurisdictions of the Registrable Securities, except that the
Company shall not for any such purpose be required to (A) qualify generally
to do business as a foreign corporation in any jurisdiction wherein it would not
but for the requirements of this paragraph (iv) be obligated to be so qualified,
or (B) take any action that would subject it to general service of process
in any such jurisdiction where it is not then so subject;

     

    (v)  on
the earlier of (A) June 2, 2009 and (B) the date of conversion of all of the
Convertible Preferred Shares, submit a listing application for the Perpetual
Preferred Stock to the NYSE and use its reasonable best efforts to cause the
Perpetual Preferred Stock to be listed on the NYSE upon commencement of any
offering or sales of Registrable Securities under the Shelf Registration
Statement;

     

    (vi)  promptly
make available for inspection by any Holder, any underwriter participating in
any disposition pursuant to any Registration Statement, and any attorney,
accountant or other agent or representative retained by any such Holder or
underwriter (collectively, the “Inspectors”), all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the “Records”), as shall
be reasonably necessary to enable them to conduct customary due diligence, and
cause the Company’s officers, directors and employees to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement; provided, however, that, unless
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, the Company shall not be required to
provide any information under this paragraph (viii) if (A) the Company believes,
after consultation with counsel for the Company, that to do so would cause the
Company to forfeit an attorney-client privilege that was applicable to such
information or (B) if either (1) the Company has requested and been granted from
the Commission confidential treatment of such information contained in any
filing with the Commission or documents provided supplementally or otherwise or
(2) the Company reasonably determines in good faith that such Records are
confidential and so notifies the Inspectors in writing unless prior to
furnishing any such information with respect to clause (A) or (B) above such
Holder requesting such information agrees, and causes each of its Inspectors, to
enter into a confidentiality agreement on terms reasonably acceptable to the
Company and the Inspectors in accordance with market norms; provided further that each
Holder agrees that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company to, at its expense, undertake appropriate action and to
prevent disclosure of the Records deemed confidential;

     

    (vii)  promptly
notify in writing each Holder and the underwriters, if any, of the following
events:

     

    (1) the
filing of the Registration Statement, the Prospectus or any prospectus
supplement related thereto, any Issuer Free Writing Prospectus , or any
post-effective amendment to the Registration Statement and, with

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    22

     

    respect
to the Registration Statement or any post-effective amendment thereto, when the
same has become effective;

     

    (2) any
request by the Commission or any other governmental entity for amendments or
supplements to the Registration Statement or related Prospectus or Issuer Free
Writing Prospectus or for additional information;

     

    (3) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings by any person for
that purpose;

     

    (4) the
receipt by the Company of any notification with respect to the suspension of the
qualification or exception from qualification of any Registrable Securities for
sale in any jurisdiction or the initiation or threat of any proceeding for such
purpose;

     

    (5) of
the happening of any event that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference or any Issuer Free Writing Prospectus related
thereto untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus, documents or Issuer Free
Writing Prospectus so that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, not misleading, and that in the case of any Prospectus or Issuer Free
Writing Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and

     

    (6) if at
any time the representations and warranties of the Company contained in any
agreement (including any underwriting agreement contemplated by Section
5.04(a)(xiv) below) cease to be true and correct;

     

    (viii)  (A)
promptly notify in writing each Holder, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act, upon discovery
that the Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and (B) upon such discovery and at the request of any Holder,
promptly prepare and furnish to such Holder a reasonable number of copies of a
supplement to or an amendment of such Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
Prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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    (ix)  use
its reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of such Registration Statement, or the lifting of any suspension
of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction at the reasonably earliest practical
date;

     

    (x)  otherwise
use reasonable best efforts to comply with all applicable rules and regulations
of the Commission and any applicable national securities exchange, and make
available to its security holders, as soon as reasonably practicable (but not
more than 18 months), an earnings statement of the Company covering the period
of at least 12 months, beginning with the first day of the Company’s first full
quarter after the effective date of such Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder;

     

    (xi)  cooperate
with the Holders and the managing underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates (which shall not bear any
restrictive legends) representing Registrable Securities to be sold under any
Registration Statement, and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter(s) or
selling Holders may request and keep available and make available to the
Company’s transfer agent prior to the effectiveness of such Registration
Statement a supply of such certificates;

     

    (xii)  in
connection with an underwritten offering, enter into such agreements (including
an underwriting agreement in form, scope and substance as is customary in
underwritten offerings) and take all such other actions reasonably requested by
the Holders of a majority of the Registrable Securities being sold in connection
therewith or by the managing underwriter(s), if any, to expedite or facilitate
the disposition of such Registrable Securities, and in connection therewith,
whether or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, (i) make such representations and
warranties to the selling Holders and the managing underwriter(s), if any, with
respect to the business of the Company and its subsidiaries, and the
Registration Statement, Prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, in form, substance and
scope as are customarily made by issuers in underwritten offerings, and, if
true, confirm the same if and when requested, (ii) use its reasonable best
efforts to furnish to the selling Holders of such Registrable Securities 10b-5
statements and opinions of counsel to the Company and updates thereof (which
10b-5 statements, and counsel and opinions, as the case may be, (in form, scope
and substance) shall be reasonably satisfactory to the managing underwriter(s),
if any, and counsels to the selling Holders of the Registrable Securities),
addressed to each selling Holder of Registrable Securities and each of the
managing underwriter(s), if any, covering the matters customarily covered by
10b-5 statements and in opinions requested in underwritten offerings, as the
case may be, and such other matters as may be reasonably requested by such
counsel and managing underwriter(s), (iii) use its reasonable best efforts to
obtain “comfort” letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement) who
have

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    24

     

    certified
the financial statements included in such Registration Statement, addressed to
each selling Holder of Registrable Securities (unless such accountants shall be
prohibited from so addressing such letters by applicable standards of the
accounting profession, in which case an “agreed-upon procedures” letter may be
required) and each of the managing underwriter(s), if any, such letters to be in
customary form and covering matters of the type customarily covered in “comfort” letters in connection
with underwritten offerings, (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures substantially
to the effect set forth in Section 5.06 hereof with respect to all parties to be
indemnified pursuant to said Section except as otherwise agreed by the Holders
holding a majority of the Registrable Securities being sold in connection
therewith and the managing underwriter(s) and (v) deliver such documents and
certificates as may be reasonably requested by the Holders holding a majority of
the Registrable Securities being sold in connection therewith, their counsel and
the managing underwriter(s), if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company. The above shall be done at each
closing under such underwriting or similar agreement, or as and to the extent
required thereunder;

     

    (xiii)  upon
execution of a customary confidentiality agreement, make available for
inspection by a representative of the selling Holders, the managing
underwriter(s), if any, and any attorneys or accountants retained by such
selling Holders or managing underwriter(s), at the offices where normally kept,
during reasonable business hours, financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, and
cause the officers, directors and employees of the Company and its subsidiaries
to supply all information in each case reasonably requested by any such
representative, managing underwriter(s), attorney or accountant in connection
with such Registration Statement;

     

    (xiv)  in
connection with a Shelf Demand Offering or a Demand Registration, cause its
officers or other members of management to use their reasonable best efforts to
support the marketing of the Registrable Securities covered by the Registration
Statement (including by participation in “road shows”);

     

    (xv)  if
requested by the managing underwriter(s), if any, or the Holders of a majority
of the Registrable Securities being sold in connection with an underwritten
offering, promptly include in a Prospectus supplement, post-effective amendment
or Issuer Free Writing Prospectus such information as the managing
underwriter(s), if any, or such Holders may reasonably request in order to
permit the intended method of distribution of such securities and make all
required filings of such Prospectus supplement, such post-effective amendment or
Issuer Free Writing Prospectus as soon as practicable after the Company has
received such request;

     

    (xvi)  deliver
to each selling Holder, and the managing underwriter(s), if any, without charge,
as many copies of the Prospectus or Prospectuses (including each form of
Prospectus and any Issuer Free Writing Prospectus related to any such
Prospectuses) and each amendment or supplement thereto as such Persons may
reasonably request in

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    25

     

    connection
with the distribution of the Registrable Securities; and the Company, subject to
the last paragraph of this Section 5.04, hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders and the managing underwriter(s), if any, in connection with the offering
and sale of the Registrable Securities covered by such Prospectus and any such
amendment or supplement thereto;

     

    (xvii)  use
its reasonable best efforts to cause the Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
governmental entities within the United States, except as may be required solely
as a consequence of the nature of such selling Holder’s business, in which case
the Company will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals, as may be necessary
to enable the seller or sellers thereof or the managing underwriter(s), if any,
to consummate the disposition of such Registrable Securities;

     

    (xviii)  upon
the occurrence of any event contemplated by Section 5.04(a)(viii)(2), (3), (4),
(5) or (6) hereof, prepare a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference or an Issuer Free
Writing Prospectus related thereto, or file any other required document so that,
as thereafter delivered to the selling Holders, such Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;

     

    (xix)  prior
to the effective date of the Registration Statement relating to the Registrable
Securities, use its reasonable best efforts to obtain a CUSIP number for the
Registrable Securities;

     

    (xx)  provide
and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by such Registration Statement from and after a date not
later than the effective date of such Registration Statement; and

     

    (xxi)  otherwise
use its reasonable best efforts to cooperate and take such other actions as
reasonably requested by the Holders and the underwriters in the offering,
marketing or selling of the Registrable Securities.

     

    The
Company may require each Holder and each underwriter, if any, to furnish the
Company in writing such information required in connection with such
registration regarding such Holder or underwriter and the distribution of such
Registrable Securities as the Company may from time to time reasonably request
to complete or amend the information required by such Registration Statement or
comply with applicable laws.

     

    Each
selling Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5.04(a)(viii)(2), (3),
(4), (5) or (6) hereof, such Holder will forthwith discontinue disposition of
such Registrable Securities covered by such

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    26

     

    Registration
Statement or Prospectus until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5.04(a)(xx) hereof,
or until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus; provided, however, that the
Company shall extend the time periods under Section 5.02 and Section 5.03 with
respect to the length of time that the effectiveness of a Registration Statement
must be maintained by the amount of time the Holder is required to discontinue
disposition of such securities.

     

    (b)  Underwriting.  Without
limiting any of the foregoing, in the event that any offering of Registrable
Securities is to be made by or through an underwriter, the investment banker and
managers that will administer the offering will be selected by the Demanding
Investor Representative in connection with the offering, subject to approval by
the Company, not to be unreasonably withheld.  The Company, if
requested by such underwriter, shall enter into an underwriting agreement with a
managing underwriter or underwriters in connection with such offering containing
representations, warranties, indemnities and agreements customarily included by
an issuer of preferred stock in underwriting agreements with respect to
offerings of preferred stock for the account of, or on behalf of, such issuers,
and customary in form and substance.

     

    (c)  Return of
Prospectuses.  Each Holder agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 5.02(a)(x)(A), such Holder shall forthwith (i) discontinue such
Holder’s disposition of Registrable Securities pursuant to the applicable
Registration Statement and Prospectus relating thereto until (A) such
Holder’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5.02(a)(x) or (B) such supplemented or amended
Prospectus has been filed with the Commission, and (ii) if so directed by
the Company, deliver to the Company, at the Company’s expense, all copies, other
than permanent file copies, then in such Holder’s possession of the Prospectus
covering Registrable Securities at the time of receipt of such
notice.  In the event the Company gives such notice, any applicable
period during which the applicable Registration Statement must remain effective
pursuant to this Agreement shall be extended by the number of days during the
period from the date of giving of such notice to the date when all Holders shall
receive such a supplemented or amended Prospectus or such Prospectus shall have
been filed with the Commission.

     

    SECTION
5.05.  Registration
Expenses.  All expenses incident to the Company’s performance
of, or compliance with, its obligations under this Article V including all
(a) registration and filing fees, all fees and expenses of compliance with
securities and “blue sky” laws, (b) fees and expenses associated with filings
required to be made with The Financial Industry Regulatory Authority, (c)
printing and copying expenses (including expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company), (d) messenger, telephone and delivery expenses, (e) fees and expenses
of all independent certified public accountants and counsel (including with
respect to “comfort” letters and opinions) and any other persons, including
special experts retained by the Company, (f) expenses of the Company incurred in
connection with any road show, (g) all transfer taxes incurred or payable by
each Holder in connection with sale of such Holder’s Registrable Securities and
(h) fees and disbursements of counsel for the selling Holders, shall be borne by
the Company, regardless of whether a registration is effected.  The
Company will pay its internal

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    27

     

    expenses
(including all salaries and expenses of its officers and employees performing
legal or accounting duties, the expense of any annual audit and the expense of
any liability insurance) and the expenses and fees for listing the securities to
be registered on each securities exchange and included in each established
over-the-counter market on which similar securities issued by the Company are
then listed or traded.

     

    SECTION
5.06.  Indemnification.  (a)  By the
Company.  The Company agrees to indemnify and hold harmless, to
the fullest extent permitted by law, (i) each Holder and, as applicable, its
affiliates, officers, directors, employees, representatives and agents
(collectively, the “Holder Indemnified
Persons”) and (ii) each person who controls (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act) any such
Holder Indemnified Person, in each case, from and against all losses, claims,
actions, judgments, damages, liabilities, costs and expenses, including
reasonable expenses of investigation and reasonable attorneys’ fees and expenses
(collectively, “Losses”) caused by,
arising out of, resulting from, based on or relating to (A) any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary Prospectus or any amendment or supplement
thereto, or any documents incorporated therein by reference, or (B) any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case, except insofar as the same are caused by any information furnished in
writing to the Company by any Holder Indemnified Persons expressly for inclusion
therein.  In connection with an Underwritten Offering and without
limiting any of the Company’s other obligations under this Agreement, the
Company shall also provide customary indemnities to (i) such underwriters and
their affiliates, officers, directors, employees, representatives and agents
(collectively, the “Underwriter Indemnified
Persons”) and (ii) each person who controls (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act) any such
Underwriter Indemnified Person to the same extent as provided above with respect
to the indemnification (and exceptions thereto) of the Holder Indemnified Person
and the person controlling such Holder Indemnified
Persons.  Reimbursements payable pursuant to the indemnification
contemplated by this Section 5.06(a) will be made by periodic payments during
the course of any investigation or defense, as and when bills are received or
expenses incurred.

     

    (b)  By the
Holders.  In connection with any Registration Statement in
which a holder of Registrable Securities is participating, each participating
Holder will furnish to the Company in writing information regarding such
Holder’s ownership of Registrable Securities and its intended method of
distribution thereof and, to the extent permitted by law, shall, severally and
not jointly, indemnify (i) the Company and its affiliates, directors, officers,
employees, representatives and agents (collectively, the “Company Indemnified
Persons”) and (ii) each person who controls (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act) any such
Company Indemnified Person against all Losses caused by (A) any untrue statement
of material fact contained in the Registration Statement, Prospectus or
preliminary Prospectus or any amendment or supplement thereto, or any documents
incorporated therein by reference, or (B) any omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but, in each case, only to the extent that such untrue
statement or omission is caused by any information furnished in writing by such
Holder Indemnified Person expressly for inclusion therein; provided, however, that each
Holder’s obligation to indemnify the Company hereunder shall, to the extent more
than one

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    28

     

    Holder is
subject to the same indemnification obligation, be apportioned between each
Holder based upon the net amount received by each Holder from the sale of
Registrable Securities, as compared to the total net amount received by all of
the Holders holding Registrable Securities sold pursuant to such Registration
Statement.  Notwithstanding the foregoing, no Holder shall be liable
to the Company for amounts in excess of the lesser of (x) such apportionment and
(y) the amount received by such holder in the offering giving rise to such
liability.  In connection with an Underwritten Offering and without
limiting any of the other obligations of the Holders under this Agreement, the
Holders shall also provide customary indemnities to (i) such Underwriter
Indemnified Persons and (ii) each person who controls (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act) any such
Underwriter Indemnified Person to the same extent as provided above with respect
to the indemnification (and exceptions thereto) of the Company Indemnified
Person and the person controlling such Company Indemnified
Persons.  Reimbursements payable pursuant to the indemnification
contemplated by this Section 5.06(b) will be made by periodic payments
during the course of any investigation or defense, as and when bills are
received or expenses incurred.

     

    (c)  Notice.  Any
person entitled to indemnification hereunder shall give prompt written notice to
the indemnifying party of any claim with respect to which it seeks
indemnification; provided, however, that the
failure to give such notice shall not release the indemnifying party from its
obligation, except to the extent that the indemnifying party has been materially
prejudiced by such failure to provide such notice on a timely
basis.

     

    (d)  Defense of
Actions.  In any case in which any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not (so long as it shall continue
to have the right to defend, contest, litigate and settle the matter in question
in accordance with this paragraph) be liable to such indemnified party hereunder
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation, supervision and monitoring (unless (i) such indemnified party
reasonably objects to such assumption on the grounds that there may be defenses
available to it that are different from or in addition to the defenses available
to such indemnifying party or (ii) the indemnifying party shall have failed
within a reasonable period of time to assume such defense and the indemnified
party is or is reasonably likely to be prejudiced by such delay, in either event
the indemnified party shall be promptly reimbursed by the indemnifying party for
the expenses incurred in connection with retaining separate legal
counsel).  An indemnifying party shall not be liable for any
settlement of an action or claim effected without its consent.  The
indemnifying party shall lose its right to defend, contest, litigate and settle
a matter if it shall fail to diligently contest such matter (except to the
extent settled in accordance with the next following sentence).  No
matter shall be settled by an indemnifying party without the consent of the
indemnified party, which consent shall not be unreasonably withheld (it being
understood that the indemnified party shall not be deemed to be unreasonable in
withholding its consent if the proposed settlement imposes any obligation on the
indemnified party other than the payment of money).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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    (e)  Survival.  The
indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
person and will survive the transfer of the Registrable Securities and the
termination of this Agreement.

     

    (f)  Contribution.  If
recovery is not available or insufficient to hold harmless an indemnified party
in respect of any Losses under the foregoing indemnification provisions for any
reason or reasons other than as specified therein, any person who would
otherwise be entitled to indemnification by the terms thereof shall nevertheless
be entitled to contribution with respect to any Losses with respect to which
such person would be entitled to such indemnification but for such reason or
reasons.  In determining the amount of contribution to which the
respective persons are entitled, there shall be considered the persons’ relative
fault, relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, the opportunity to correct and prevent
any statement or omission and other equitable considerations appropriate under
the circumstances.  It is hereby agreed that it would not necessarily
be equitable if the amount of such contribution were determined by pro rata or
per capita allocation.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation.  Notwithstanding the foregoing, no
Holder shall be required to make a contribution in excess of the net amount
received by such holder from its sale of Registrable Securities in connection
with the offering that gave rise to the contribution obligation.

     

    (g)  Request for
Information.  Not less than five business days before the
expected filing date of each Registration Statement pursuant to this Agreement,
the Company shall notify each Holder who has timely provided the requisite
notice hereunder entitling the Holder to register Registrable Securities in such
Registration Statement of the information, documents and instruments from such
Holder that the Company or any underwriter reasonably requests in connection
with such Registration Statement, including a questionnaire, custody agreement,
power of attorney, lock-up letter and underwriting agreement (the “Requested
Information”).  If the Company has not received, on or before
the second day before the expected filing date, the Requested Information from
such Holder, the Company may file the Registration Statement without including
Registrable Securities of such Holder.  The failure to so include in
any Registration Statement the Registrable Securities of a Holder (with regard
to that Registration Statement) shall not in and of itself result in any
liability on the part of the Company to such Holder.

     

    SECTION
5.07.  Lockup.  In
the event that any offering of Registrable Securities is to be made in an
Underwritten Offering, if requested by an underwriter, the Company shall not
effect, and shall use its reasonable best efforts to cause its directors and
officers not to effect, any offer, sale, pledge, transfer or other distribution
or disposition or any agreement with respect to the foregoing of the Company
Common Stock, the Perpetual Preferred Stock or the Convertible Preferred Stock,
whichever is the subject of the Underwritten Offering, or of a similar security
of the Company, or any securities convertible into, or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144
under the Securities Act, during the period beginning at the Closing and
continuing to and including 90 days from the Closing.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    30

     

    SECTION
5.08.  No
Grant of Future Registration Rights.  The Company shall not
(a) grant any registration rights that are senior to the rights granted to
the Holders hereunder to any other person and (b) enter into any agreement
that will impair its ability to perform its obligations under this
Article V, in each case without the prior written consent of each
Holder.

     

    SECTION
5.09.  Termination of Registration
Rights.  This Article V (other than Sections 5.05 and 5.06)
will terminate on the date on which all Shares subject to this Agreement cease
to be Registrable Securities.

     

     

    ARTICLE
VI

     

    Miscellaneous

     

    SECTION
6.01.  Survival.  Except
for the representations and warranties contained in Section 2.01(f), 2.01(i) and
2.01(j), none of the representations and warranties in this Agreement shall
survive the Convertible Preferred Stock Closing.  This
Section 6.01 shall not limit any covenant or agreement of the parties which
by its terms contemplates performance after the Initial Closing or the
Convertible Preferred Stock Closing.  

     

    SECTION
6.02.  Termination.  This
Agreement may be terminated at any time prior to the Initial
Closing:

     

    (a)  by
the Investors if the Initial Closing shall not have occurred on or before April
1, 2009;

     

    (b)  by
either the Investors or the Company if an injunction shall have been entered
permanently restraining, enjoining or otherwise prohibiting the consummation of
the Merger and such injunction shall have become final and non-appealable;


     

    (c)  by
the mutual written consent of the Investors and the Company; or

     

    (d)  by
the Company if the Initial Closing shall not have occurred on or before the End
Date (as defined in the Merger Agreement) and the Company shall not have
breached in any material respect its obligations under the Merger Agreement in
any manner that has been a principal cause of or resulted in the failure to
consummate the Merger on or before such date.

     

    In the
event of termination or abandonment of this Agreement by either the Company or
the Investor as provided in this Section 6.02, this Agreement shall
forthwith become void and have no effect, without any liability or obligation on
the part of any Investor or the Company, other than the provisions of
Sections 3.02, 3.03, 4.01 and 4.02 and this Article VI (other than
Section 6.04), which provisions shall survive such termination or abandonment;
provided, however, that nothing
herein shall relieve the Company or any Investor from liability for any
intentional breach of any of the provisions set forth in this Agreement prior to
such termination.

     

    SECTION
6.03.  Indemnity for
Investors. The Company agrees to indemnify and hold harmless, to the
fullest extent permitted by law, (a) each Investor and, as applicable, its
affiliates, officers, directors, employees, representatives and agents
(collectively, the

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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    “Indemnified Persons”)
and (b) each person who controls (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act) any such Indemnified Person,
in each case, from and against all Losses caused by, arising out of, resulting
from, based on or relating to any investigation, suit, action, claim or other
proceeding by any governmental authority, stockholder of the Company or any
other person (other than the Company) relating to this Agreement or the
transactions contemplated by this Agreement (other than any Losses, as
determined by a court of competent jurisdiction, that resulted from or arose out
of or which would not have occurred but for one or more of the
following:  (i) any representation or warranty by such Indemnified
Person in this Agreement being incorrect in any material respect; (ii) the
failure by such Indemnified Person to perform or observe any agreement, covenant
or condition in this Agreement applicable to it (except to the extent such
failure was caused directly by the failure of the Company to perform any
obligation under this Agreement); or (iii) the wilful misconduct or the gross
negligence of such Indemnified Person (or any of its affiliates), other than any
Loss resulting from or arising out of actions performed at the request of, with
the consent of, or in conformity with actions taken or omitted to be taken by,
the Company).  With respect to any Losses in respect of which
indemnification may be sought under this Section 6.03, the respective rights,
obligations and procedures contained in Section 5.04 shall apply as if
restated in this Section 6.03.

     

    SECTION
6.04.  Rule
144; Rule 144A.  The Company covenants that it shall file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder (or, if it is
not required to file such reports, it shall, upon the request of any holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales of such Registrable Securities in compliance with Rule
144 or 144A under the Securities Act), and it shall take such further reasonable
action, to the extent required from time to time to enable any holder of
Registrable Securities to sell such Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 or 144A or Regulation S under the Securities Act, as such
Rules  may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.  Upon the reasonable
request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
information and filing requirements and, if not, the specifics
thereof.

     

    SECTION
6.05.  Amendments, Waivers,
Etc.  Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed by the
Company and each of the Investors; provided, however, that any
provision that relates to the Convertible Preferred Share Purchase or Company
Common Stock may be amended or waived if, and only if, such amendment or waiver
is in writing and signed by the Company and each of the Trusts.  The
failure of any party hereto to exercise any right, power or remedy provided
under this Agreement or otherwise available in respect hereof at law or in
equity, or to insist upon compliance by any other party hereto with its
obligations hereunder, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.

     

    SECTION
6.06.  Counterparts and
Facsimile.  This Agreement may be executed in two or more
consecutive counterparts (including by facsimile), each of which shall be an
original, with the same 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    32

     

    effect as
if the signatures thereto and hereto were upon the same instrument, and shall
become effective when one or more counterparts have been signed by each of the
parties and delivered (by telecopy or otherwise) to the other
parties.

     

    SECTION
6.07.  SPECIFIC
ENFORCEMENT; GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.  (a) 
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
DELAWARE.

     

    (b)  THE PARTIES ACKNOWLEDGE AND AGREE
THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF
THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR
WERE OTHERWISE BREACHED AND THAT THE PARTIES WOULD NOT HAVE ANY ADEQUATE REMEDY
AT LAW.  IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED
TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OR THREATENED BREACHES OF
THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS OF THIS
AGREEMENT EXCLUSIVELY IN THE DELAWARE COURT OF CHANCERY, OR IN THE EVENT (BUT
ONLY IN THE EVENT) THAT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION
OVER SUCH ACTION OR PROCEEDING, IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF DELAWARE OR ANOTHER COURT SITTING IN THE STATE OF
DELAWARE.  THE FOREGOING IS IN ADDITION TO ANY OTHER REMEDY TO WHICH
ANY PARTY IS ENTITLED AT LAW, IN EQUITY OR OTHERWISE.  IN ADDITION,
EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS ARISING
HEREUNDER, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT OF THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS ARISING HEREUNDER BROUGHT BY THE OTHER
PARTY HERETO OR ITS SUCCESSORS OR ASSIGNS SHALL BE BROUGHT AND DETERMINED
EXCLUSIVELY IN THE DELAWARE COURT OF CHANCERY, OR IN THE EVENT (BUT ONLY IN THE
EVENT) THAT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH
ACTION OR PROCEEDING, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE OR ANOTHER COURT SITTING IN THE STATE OF DELAWARE.  EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS WITH REGARD TO ANY SUCH ACTION OR
PROCEEDING FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, TO THE PERSONAL JURISDICTION OF THE AFORESAID COURTS AND AGREES
THAT IT WILL NOT BRING ANY ACTION RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN ANY COURT OTHER THAN THE
AFORESAID COURTS.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF 

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    33

     

    MOTION, AS A DEFENSE, COUNTERCLAIM OR
OTHERWISE, IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, (1) ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED
COURTS FOR ANY REASON OTHER THAN THE FAILURE TO SERVE IN ACCORDANCE APPLICABLE
LAW, (2) ANY CLAIM THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM JURISDICTION
OF ANY SUCH COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH COURTS (WHETHER
THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE) AND (3) TO THE
FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW, ANY CLAIM THAT (A) THE SUIT,
ACTION OR PROCEEDING IN SUCH COURT IS BROUGHT IN AN INCONVENIENT FORUM, (B) THE
VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER OR (C) THIS AGREEMENT, OR
THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH
COURTS.

     

    (c)  EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY SUIT, ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.  EACH PARTY HERETO
(1) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION,
SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (2) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS
SECTION 6.07(C).

     

    SECTION
6.08.  Notices.  Any
notice required to be given hereunder shall be sufficient if in writing, and
sent by facsimile transmission (provided that any
notice received by facsimile transmission or otherwise at the addressee’s
location on any business day after 5:00 p.m. (addressee’s local time) shall be
deemed to have been received at 9:00 a.m. (addressee’s local time) on the next
business day), by reliable overnight delivery service (with proof of service),
or hand delivery, addressed as follows:

     

    
      
        (a)
 If to a
Trust, addressed to such Trust at the address specified for such communications
on Schedule
I attached hereto, with a copy to:

      

    

     

    Cravath,
Swaine & Moore LLP

    825
Eighth Avenue

    New York,
NY 10019

     

    Attention: 
Richard Hall, Esq.

    Andrew R.
Thompson, Esq.

    Facsimile:  (212)
474-3700

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    34

     

    (b)  
If to Paulson & Co. Inc., addressed to such Investor at the address
specified for such communications on Schedule I attached
hereto, with a copy to:

     

    Fried
Frank Harris Shriver & Jacobson LLP

    One New
York Plaza

    New York,
NY 10004

    


    Attention:  Christopher
Ewan, Esq.

    Facsimile:  (212)
859-4000

    


    (c)   If
to the Company:

     

    The Dow
Chemical Company

    2030 Dow
Center

    Midland,
Michigan 48674

    Attention:  Executive
Vice President and General Counsel

    Facsimile:  (989)
638-9347

     

    with a
copy to:

     

    Shearman
& Sterling LLP

    599
Lexington Avenue

    New York,
NY 10022-6069


     

    Attention:  Joel
S. Klaperman, Esq.

    John A.
Marzulli, Jr., Esq.

    Facsimile:  (212)
848-7179

     

    or to
such other address as any party shall specify by written notice so given, and
such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or scheduled to be received if so
mailed.  Any party to this Agreement may notify any other party of any
changes to the address or any of the other details specified in this paragraph;
provided, however, that such
notification shall only be effective on the date specified in such notice or
five business days after the notice is given, whichever is
later.  Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be deemed
to be receipt of the notice as of the date of such rejection, refusal or
inability to deliver.

     

    SECTION
6.09.  Entire Agreement,
Etc.  This Agreement, the Merger Agreement, the Voting
Agreement and any agreements being executed and delivered contemporaneously
therewith (including any attachments hereto or thereto) constitute the entire
agreement, and supersede all other prior agreements, understandings,
representations and warranties, both written and oral, between the parties, with
respect to the subject matter hereof and thereof.

     

    SECTION
6.10.  Definitions.  (a)
The term “Adverse
Disclosure” means public disclosure of material nonpublic information
that has not been, and is not otherwise required to

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    35

     

    be,
disclosed to the public, and that, in the Company’s good-faith judgment after
consultation with outside counsel to the Company:  (i) would be
required to be made in any Registration Statement or report filed with the
Commission by the Company so that such Registration Statement or report would
not be materially misleading; (ii) would not be required to be made at such time
but for the filing of such Registration Statement; and (iii) would not be in the
best interests of the Company to disclose in a Registration Statement at such
time.

     

    (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.

     

    (c)  “Beneficial Ownership”
by a Person of any securities includes ownership by any Person who, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has or shares (i) voting power which includes the power to vote, or
to direct the voting of,
such security; and/or (ii) investment power which includes the power to dispose,
or to direct the disposition, of such security; and shall otherwise be
interpreted in accordance with the term “beneficial ownership” as defined in
Rule 13d-3 adopted by the Commission under the Exchange Act; provided, that for
purposes of determining Beneficial Ownership, in no event will an Investor be
deemed to Beneficially Own any securities which it has the right to acquire
pursuant to this Agreement unless, and then only to the extent that, such
Investor shall have actually exercised such right.  The term “Beneficially Own”
shall have a correlative meaning.

     

    (d)  The
term “Benefit
Plans” means employee benefit plans as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended, and all other
employee benefit practices or arrangements, including any such practices or
arrangements providing severance pay, sick leave, vacation pay, salary
continuation for disability, retirement benefits, deferred compensation, bonus
pay, incentive pay, stock options or other stock-based compensation,
hospitalization insurance, medical insurance, life insurance, scholarships or
tuition reimbursements, maintained by the Company or any of its subsidiaries or
to which the Company or any of its subsidiaries is obligated to contribute for
employees or former employees.

     

    (e)  The
term “Covered
Securities” means the Purchased Convertible Preferred Shares, the Company
Common Stock issuable upon conversion of the Convertible Preferred Shares and
the Purchased Perpetual Preferred Shares.

     

    (f)  The
term “Demanding
Investor Representative” means the Investor Representative who has
delivered a Shelf Demand Notice or a Demand Notice pursuant to Sections 5.01 or
5.02, respectively.

     

    (g)  The
term “Dow – Rohm and
Haas Litigation” means the action of Rohm and Haas Company v. The Dow
Chemical Company, C.A. No. 4309-CC, in the Court of Chancery of the State
of Delaware.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    36

     

    (h)  The
term “Holder”
means any Investor and any Transferee of Registrable Securities.

     

    (i)  The
term “Investor
Representative” means the Trusts Representative or the Paulson
Representative.

     

    (j)  The
term “Issuer Free
Writing Prospectus” means an Issuer Free Writing Prospectus, as defined
in Rule 433 under the Securities Act, relating to an offer of the Registrable
Securities.

     

    (k)  The
term “Merger
Agreement” means the Agreement and Plan of Merger dated as of July 10,
2008, among the Company, Ramses and Rohm and Haas Company, a Delaware
corporation.

     

    (l)  The
term “Paulson
Representative” means Paulson & Co. Inc.

     

    (m)  The
term “Person”
or “person”
means an individual, corporation, association, partnership (as such term is used
in Section 13(d)(3) of the Exchange Act), limited liability company, limited or
general partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivisions
thereof or any group (within the meaning of Section 13(d)(3) of the Exchange
Act) comprised of two or more of the foregoing.

     

    (n)  The
term “Prospectus” means the
prospectus included in any Registration Statement (including a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective Registration Statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, any Issuer Free Writing
Prospectus related thereto, and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such
prospectus.

     

    (o)  The
term “Registrable
Securities” means the Covered Securities and any securities which may be
issued or distributed in respect thereof by way of stock dividend or stock split
or other distribution, recapitalization or reclassification.  As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a Registration Statement registering such
securities under the Securities Act has been declared effective and such
securities have been sold or otherwise transferred by the holder thereof
pursuant to such effective Registration Statement, (ii) such securities have
been sold to the public in accordance with Rule 144 or (iii) such securities are
no longer outstanding.

     

    (p)  The
term “Registration
Statement” means any registration statement of the Company under the
Securities Act which permits the public offering of any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    37

     

    (q)  The
term “Stockholder
Group” means, with respect to any Investor, such Investor and its
controlled affiliates.

     

    (r)  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.

     

    (s)  The term
“Transferee” means (i) the
transferee of all or any portion of the Registrable Securities held by any
Investor or (ii) the subsequent transferee of all or any portion of the
Registrable Securities held by any Transferee.

     

    (t)  The
term “Trusts
Representative” means any of the First 1945 Trust, the Second 1945 Trust,
the 1955 Trust, the 1956 Trust, the 1961 Trust A and the 1961 Trust
B.

     

    (u)  The
term “Trusts”
means, collectively, (i) the trust (Tax Identification No. 23-6226975) (the
“First 1945
Trust”) formed pursuant to the agreement dated December 20, 1945, between
Otto Haas, as grantor, and Girard Trust Company, Phoebe W. Haas, John C. Haas
and F. Otto Haas, as original trustees, (ii) the trust (Tax Identification No.
23-6226976) (the “Second 1945 Trust”)
formed pursuant to the agreement dated December 21, 1945, between Phoebe W.
Haas, as grantor, and Girard Trust Company, Otto Haas, John C. Haas and F. Otto
Haas, as original trustees, (iii) the trust (Tax Identification No. 23-6233446)
(the “1955
Trust”) formed pursuant to the trust agreement dated August 3, 1955,
between Otto Haas, as grantor, and F. Otto Haas, John C. Haas and The
Philadelphia National Bank, as original trustees, (iv) the trust (Tax
Identification No. 23-6233448) (the “1956 Trust”) formed
pursuant to the trust agreement dated as of September 28, 1956, between Otto
Haas, as grantor, and F. Otto Haas, John C. Haas and The Philadelphia National
Bank, as original trustees, (v) the Trust A - for issue of F. Otto Haas (Tax
Identification No. 23-6524491) (the “1961 Trust A”) formed
pursuant to the trust agreement dated August 24, 1961, between Phoebe W. Haas,
as grantor, and F. Otto Haas and John C. Haas, as original trustees, and (vi)
the Trust B - for issue of John C. Haas (Tax Identification No. 23-6524492) (the
“1961 Trust B”)
formed pursuant to the trust agreement dated August 24, 1961, between Phoebe W.
Haas, as grantor, and F. Otto Haas and John C. Haas, as original
trustees.

     

    (v)  The
term “Underwritten
Offering” means a sale of securities of the Company to an underwriter or
underwriters for reoffering to the public.

     

    (w)  The
term “Voting
Agreement” means the Voting Agreement dated as of July 10, 2008, among
the Company, Rohm and Haas Company, a Delaware corporation, and the
Trusts.

     

    SECTION
6.11.  Interpretation.  When
a reference is made in this Agreement to an Article, Section or Schedule,
such reference shall be to an Article or Section of, or a Schedule to, this
Agreement unless otherwise indicated.  The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.  Whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words
“without limitation”.  The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    38

     

    Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement.  All references to “$” mean the lawful currency of the
United States of America.  The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such
term.  Any agreement, instrument or statute defined or referred to
herein or in any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes) by succession of comparable successor
statutes and references to all attachments thereto and instruments incorporated
therein.  References to a person are also to its permitted successors
and assigns.  Each of the parties has participated in the drafting and
negotiation of this Agreement.  If an ambiguity or question of intent
or interpretation arises, this Agreement must be construed as if it is drafted
by all the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of authorship of any of the provisions of this
Agreement.

     

    SECTION
6.12.  Severability.  Any
term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement in any other
jurisdiction.  If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.

     

    SECTION
6.13.  No
Third-Party Beneficiaries.  Nothing expressed or referred to in
this Agreement will be construed to give any person, other than the parties to
this Agreement, any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provision of this Agreement.

     

    SECTION
6.14.  Assignment.  Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties; provided that
any Investor is permitted to assign its rights and obligations under Article V
hereof to a Transferee.

     

    SECTION
6.15.  Independent Nature of
Investors’ Obligations and Rights.  The obligations of each
Investor under this Agreement are several and not joint with the obligations of
any other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under this
Agreement.  Nothing contained herein, and no action taken by any
Investor pursuant hereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Investors are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated by this
Agreement and the Company acknowledges that the Investors are not acting in
concert or as a group with respect to such obligations or the transactions
contemplated by this Agreement.  Each Investor confirms that it has
independently participated in the negotiation of the transactions contemplated
hereby with the advice of its own counsel and advisors.  Each Investor
shall be entitled to independently protect and enforce its rights, including the
rights arising out of this Agreement, and it shall not be necessary for any
other Investor to be joined as an additional party in any proceeding for such
purpose.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    39

     

    SECTION
6.16.  Repurchases.  The
Company shall not purchase any Perpetual Preferred Stock or Convertible
Preferred Stock from any Investor without offering, upon identical terms, to
purchase shares of Perpetual Preferred Stock or shares of Convertible Preferred
Stock, as applicable, from all Investors who then hold Perpetual Preferred Stock
or Convertible Preferred Stock, as applicable, and in the event that the shares
of Perpetual Preferred Stock or shares of Convertible Preferred Stock, as
applicable, sought to be sold in response to such offer exceeds the amount the
Company is willing to purchase, then the amount purchased by the Company from
each such Investor shall be pro rated based on the number of shares of Perpetual
Preferred Stock or shares of Convertible Preferred Stock, as applicable, sought
to be sold by such Investors.

     

    SECTION
6.17.  Public
Announcements.  Each party hereto shall consult with the other
parties hereto before issuing, and provide the other parties the opportunity to
review and comment upon, any press release or other public statements with
respect to the transactions contemplated by this Agreement, and shall not issue
any such press release or make any such public statement prior to such
consultation, except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    40

     

    IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
parties hereto as of the date first written above.

     

    


     

    
      
        
          	
                  THE
      DOW CHEMICAL COMPANY,

                
	 
	
                  by

                
	 
      	
                  /s/
      ANDREW N. LIVERIS

                
	 
      	
                  Name: Andrew N. Liveris

                
	 
      	
                  Title:   Chief
      Executive Officer

                


        

      

    

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    41

     

    
      
        	
                THE
      FIRST 1945 TRUST

                THE
      SECOND 1945 TRUST

                THE
      1955 TRUST

                THE
      1956 TRUST

              
	 
	
                by

              
	 
      	
                /s/
      JOHN C. HAAS

              
	 
      	
                Name:
      John C. Haas

              
	 
      	
                Title:  
      Trustee

              


      

    

     

     

    
      
        	 
      
	 
      	
                /s/
      JOHN OTTO HAAS

              
	 
      	
                Name:
      John Otto Haas

              
	 
      	
                Title:  
      Trustee

              


      

    

    
 

    
      
        	 
      
	 
      	
                /s/
      THOMAS WILLAMAN HAAS

              
	 
      	
                Name:
      Thomas Willaman Haas

              
	 
      	
                Title:  
      Trustee

              


      

    

    
 

    
      
        	 
      
	 
      	
                /s/
      WILLIAM DAVID HAAS

              
	 
      	
                Name:
      William David Haas

              
	 
      	
                Title:   Trustee

              


      

    

     

     

     

    
      
        	
                      WACHOVIA
      BANK, N.A.,

                      as
      Trustee

              
	
                by

              
	 
      	
                /s/
      JOHN A. GINTER

              
	 
      	
                Name:
      John A. Ginter

              
	 
      	
                Title:  
      Senior Vice President

              


      

    

    


     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    42


    
      
        	
                1961
      TRUST A

              
	 
	
                by

              
	 
      	
                /s/
      CAROLE HAAS GRAVAGNO

              
	 
      	
                Name:
      Carole Haas Gravagno

              
	 
      	
                Title:  
      Trustee

              


      

    

     

     

    
      
        	 
      
	 
      	
                /s/
      JOHN OTTO HAAS

              
	 
      	
                Name:
      John Otto Haas

              
	 
      	
                Title:  
      Trustee

              


      

    

     

     

    
      
        	 
      
	 
      	
                /s/THOMAS
      WILLAMAN HAAS

              
	 
      	
                Name:
      Thomas Willaman Haas

              
	 
      	
                Title:   Trustee

              


      

    

     

     

    
      
        	 
      
	 
      	
                /s/
      WILLIAM DAVID HAAS

              
	 
      	
                Name:
      William David Haas

              
	 
      	
                Title:   Trustee

              


      

    

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    43

     

    
      
        	
                1961
      TRUST B

              
	 
	
                by

              
	 
      	
                /s/
      JOHN C. HAAS

              
	 
      	
                Name:
      John C. Haas

              
	 
      	
                Title:  
      Trustee

              


      

    

     

     

    
      
        	 
      
	 
      	
                /s/
      DAVID W. HAAS

              
	 
      	
                Name:
      David W. Haas

              
	 
      	
                Title:  
      Trustee

              


      

    

     

     

    
      
        	 
      
	 
      	
                /s/
      LEONARD C. HAAS

              
	 
      	
                Name:
      Leonard C. Haas

              
	 
      	
                Title:  
      Trustee

              


      

    

     

     

    
      
        	 
      
	 
      	
                /s/
      FREDERICK R. HAAS

              
	 
      	
                Name:
      Frederick R. Haas

              
	 
      	
                Title:  
      Trustee

              


      

    

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    44

     

    
      
        	
                PAULSON
      & CO. INC., ON BEHALF OF
THE SEVERAL FUNDS AND
ACCOUNTS MANAGED
      BY IT,

              
	 
	
                by

              
	 
      	
                /s/
      MICHAEL WALDORF

              
	 
      	
                Name:  Michael
      Waldorf

              
	 
      	
                Title:   
      Senior Vice President

              


      

    

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
I

     

    
      	
              Investor

            	
              Number
      of Perpetual
Preferred Shares to be
Purchased

            	
              Aggregate
      Amount to be
Paid by Such Investor for
the Perpetual
      Preferred
Shares to be Purchased

            
	
              THE
      FIRST 1945 TRUST

               

              Address
      for Communications:

               

              Haas
      Trust Office

              1717
      Arch St., 14th Floor

              Philadelphia,
      PA 19103

              Attn:    
       Dr. Janet Haas,

                           
      Executive Trust Advisor

              Tel:       
      (215) 988-1830

              Fax:      
      (215) 557-8077

               

              Wachovia
      Bank, N.A., as Trustee

              Calibre

              1500
      Market Street, PA 4394

              Philadelphia,
      PA 19102

              Attn:     
      Jason Davis and

                           
      Jack Ginter

              Tel:       (215)
      973-3155

              Fax:       (215)
      973-3191

                           
      (215) 973-3190

            	
              53,850

            	
              53,850,000

            
	
              THE
      SECOND 1945 TRUST

               

               

              Address
      for Communications:

               

              Haas
      Trust Office

              1717
      Arch St., 14th Floor

              Philadelphia,
      PA 19103

              Attn:     
      Dr. Janet Haas,

                           
      Executive Trust Advisor

              Tel:       
      (215) 988-1830

              Fax:       (215)
      557-8077

               

              Wachovia
      Bank, N.A., as Trustee

              Calibre

              1500
      Market Street, PA 4394

              Philadelphia,
      PA 19102

              Attn:     
      Jason Davis and

                           
      Jack Ginter

              Tel:       (215)
      973-3155

              Fax:       (215)
      973-3191

                           
      (215) 973-3190

            	
              634,050

            	
              634,050,000

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2

     

    
      	
              THE
      1955 TRUST

               

              Address
      for Communications:

               

              Haas
      Trust Office

              1717
      Arch St., 14th Floor

              Philadelphia,
      PA 19103

              Attn:     
      Dr. Janet Haas,

                            Executive
      Trust Advisor

              Tel:       (215)
      988-1830

              Fax:       (215)
      557-8077

               

              Wachovia
      Bank, N.A., as Trustee

              Calibre

              1500
      Market Street, PA 4394

              Philadelphia,
      PA 19102

              Attn:    
      Jason Davis and

                          
      Jack Ginter

              Tel:       (215)
      973-3155

              Fax:       (215)
      973-3191

                           
      (215) 973-3190

            	
              137,100

            	
              137,100,000

            
	
              THE
      1956 TRUST

               

              Address
      for Communications:

               

              Haas
      Trust Office

              1717
      Arch St., 14th Floor

              Philadelphia,
      PA 19103

              Attn:     
      Dr. Janet Haas,

                           
      Executive Trust Advisor

              Tel:       
      (215) 988-1830

              Fax:       (215)
      557-8077

               

              Wachovia
      Bank, N.A., as Trustee

              Calibre

              1500
      Market Street, PA 4394

              Philadelphia,
      PA 19102

              Attn:     Jason
      Davis and

                           Jack
      Ginter

              Tel:       (215)
      973-3155

              Fax:       (215)
      973-3191

                           
      (215) 973-3190

            	
              510,600

            	
              510,600,000

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3

     

    
      	
              1961
      TRUST A

               

              Address
      for Communications:

               

              Haas
      Trust Office

              1717
      Arch St., 14th Floor

              Philadelphia,
      PA 19103

              Attn:     
      Dr. Janet Haas,

                            Executive
      Trust Advisor

              Tel:       
      (215) 988-1830

              Fax:       (215)
      557-8077

            	
              82,200

            	
              82,200,000

            
	
              1961
      TRUST B

               

              Address
      for Communications:

               

              Haas
      Trust Office

              1717
      Arch St., 14th Floor

              Philadelphia,
      PA 19103

              Attn:     
      Dr. Janet Haas,

                           
      Executive Trust Advisor

              Tel:       
      (215) 988-1830

              Fax:       (215)
      557-8077

            	
              82,200

            	
              82,200,000

            
	
              PAULSON
      & CO. INC.

               

              Address
      for Communications:

               

              Paulson
      & Co. Inc.

              1251
      Avenue of the Americas

              50th
      Floor

              New
      York, NY 10020

              Attn:     
      Michael Waldorf

              Tel:       
       (212) 956-2472

              Fax:       
      (212) 351-5887

            	
              1,000,000

            	
              1,000,000,000

            


    

     

     

     

     

     

     

     

     

     

     

    
 

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
II

     

     

    
 

    
      	
              Trust

            	
              Number
      of Convertible
Preferred Shares to be
Purchased

            	
              Aggregate
      Amount to be
Paid by Such Investor for
the Convertible
      Preferred
Shares to be Purchased

            
	
              THE
      FIRST 1945 TRUST

            	
              17,950

            	
              17,950,000

            
	
              THE
      SECOND 1945 TRUST

            	
              211,350

            	
              211,350,000

            
	
              THE
      1955 TRUST

            	
              45,700

            	
              45,700,000

            
	
              THE
      1956 TRUST

            	
              170,200

            	
              170,200,000

            
	
              1961
      TRUST A

            	
              27,400

            	
              27,400,000

            
	
              1961
      TRUST B

            	
              27,400

            	
              27,400,000

            


    

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Annex A

    
       

       

      
 

       

      CERTIFICATE
OF DESIGNATIONS

      
 

      OF

      
 

      CUMULATIVE
CONVERTIBLE PERPETUAL PREFERRED STOCK, SERIES C

      
 

      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 [●],
2009, adopted resolutions (i) authorizing the issuance and sale of up to 500,000
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 C
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 C, and the Executive Committee of the Board of Directors, by action duly
taken on [●],
adopted resolutions (i) approving this final form of the Certificate of
Designations of Cumulative Convertible Perpetual Preferred Stock, Series C and
(ii) fixing the 

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      designations,
powers, preferences and rights of the shares of this Cumulative Convertible
Perpetual Preferred Stock, Series C and the qualifications, limitations or
restrictions thereof as follows:

       

      Section
1.  Designation.

       

      The
designation of the series of preferred stock shall be “Cumulative Convertible
Perpetual Preferred Stock, Series C” (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
500,000.  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:

       

      “Additional
Dividends” has the meaning set forth in Section 4(a).

       

      “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.

       

      “Aggregate
Dividend Amount” has the meaning set forth in Section 10(a)(iv).

       

      “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

       

       

      
        
          2

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      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.

       

      “Automatic
Conversion Date” has the meaning set forth in Section 7(b).

      


      “Automatic
Conversion Rate” means for each share of Convertible Preferred Stock, the sum of
the VWAP Conversion Fractions for the Trading Days included in the first full
Conversion Pricing Period that commences after the Effective Shelf Registration
Date.

       

      “Automatic
Shelf Registration Statement” means an automatic shelf registration statement on
Form S-3 under the Securities Act covering the Convertible Preferred Stock and
the Common Stock into which the Convertible Preferred Stock is
convertible.

       

      “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.

       

      “Cash
Dividends” has the meaning set forth in Section 4(a).

       

      “Certificate
of Incorporation” has the meaning set forth in the recitals above.

       

      “Change
of Control” means the occurrence 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 Change of Control will not be deemed to have occurred
if at least 90% of the consideration received by holders of Common Stock in the
transaction or

       

       

      
        
          3

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      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.

       

       “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.

       

      “Company”
has the meaning set forth in the recitals above.

       

      “Constituent
Person” has the meaning set forth in Section 11(a).

       

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

       

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

       

      “Conversion
Pricing Period” means, as of a date, a period of 10 consecutive Trading Days
ending as of such date; provided, however, that no such period shall begin prior
to the Initial Closing Date.  

       

      “Conversion
Rate” means the Floating Conversion Rate, the Fixed Conversion Rate or the
Automatic Conversion Rate, as applicable.

       

       

      
        
          4

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      “Convertible
Preferred Stock” has 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 10 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 10.

       

      “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
Rate” 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” has the meaning set forth in Section 9(a)(iv).

       

      “Dividends”
has the meaning set forth in Section 4(a).

       

      “Effective
Shelf Registration Date” shall have the meaning set forth in Section
7(a).

       

      “Equivalent
Preference Securities” means, in the event of a merger or consolidation of the
Company with another corporation or another entity in which the Company is not
the surviving or resulting parent entity, preference securities of the surviving
or resulting entity or its ultimate parent, as the case may be, having such
rights, preferences, privileges and voting powers, and limitations and
restrictions, taken as a whole, that 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 merger or consolidation, taken as a whole.

       

      “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 10(a).

       

      “Expiration
Date” has the meaning set forth in Section 9(a)(v).

       

      “Expiration
Time” has the meaning set forth in Section 9(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

       

       

      
        
          5

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      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.

       

      “Fixed
Conversion Price” means a dollar amount equal to 110% of the lowest VWAP for
Common Stock for a full Trading Day during the period between the Initial
Closing Date and June 1, 2009.

       

      “Fixed
Conversion Rate” means for each share of Convertible Preferred Stock, a number
of shares of Common Stock equal to the Liquidation Preference divided by the
Fixed Conversion Price.

       

      “Fixed
Conversion Rate Period” means the period during which a Fixed Conversion Rate
shall be in effect by virtue of the Effective Shelf Registration Date not having
occurred prior to June 1, 2009.

       

      “Fixed
Conversion Value” means, as of a date, for each share of Convertible Preferred
Stock, a dollar amount equal to the product of the Fixed Conversion Rate and the
sum of the VWAP Conversion Fractions for the Trading Days included in the
Conversion Pricing Period ending at the close of business on the Trading Day
immediately prior to such redemption date.

       

      “Floating
Conversion Rate” means, as of a date, for each share of Convertible Preferred
Stock, the sum of the VWAP Conversion Fractions for the Trading Days included in
the Conversion Pricing Period that ends on the Trading Day immediately prior to
such date.

       

      “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.

       

      “Initial
Closing Date” shall have the meaning ascribed to it in the Investment
Agreement.

       

      “Investment
Agreement” means the Investment Agreement, dated as of March [·], 2009, among The Dow
Chemical Company and the Investors named therein.

       

      “Investor”
has the meaning set forth in the Investment Agreement.

       

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

       

      “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.

       

      “Liquidation
Preference” on any date means an amount equal to the sum of (i) (a) prior to the
Fixed Conversion Rate Period the Original Purchase Price or (b) during the Fixed
Conversion

       

       

      
        
          6

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      Rate
Period the greater of (1) the Original Purchase Price and (2) the Fixed
Conversion Value, plus (ii) all accrued and unpaid Dividends, including any Past
Due Dividends, up to the date of determination.

       

      “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;

       

      (ii)  any
event 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; or

       

      (iii)           any
event that would give rise to an adjustment pursuant to Section 15 regardless of
whether the Fixed Conversion Rate is then in effect.

       

      “Nonpayment”
has the meaning set forth in Section 11(b)(i).

       

      “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.

       

      “Original
Purchase Price” means $1,000.00 per share of Convertible Preferred
Stock.

       

      “Parity
Stock” means the Perpetual Preferred Stock, the Cumulative Convertible Perpetual
Preferred Stock, Series A of the Company, the Cumulative Convertible Perpetual
Preferred Stock, Series B of the Company and 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(a).

       

      “Perpetual
Preferred Stock” means the Cumulative Perpetual Preferred Stock, Series A of the
Company.

       

       

      
        
          7

        

        
          
          

          
            

          

        

        
          
          

        

      

       

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

       

      “PIK
Dividends” has the meaning set forth in Section 4(a)

       

      “Preferred
Stock Director” has the meaning set forth in Section 11(b)(i).

       

      “Purchased
Shares” has the meaning set forth in Section 9(a)(v).

       

      “Record
Date” means, with respect to any dividend, distribution or other transaction or
event in which the holders of the Convertible Preferred Stock have the right to
receive any cash, securities or other property or in which the Convertible
Preferred 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 Convertible Preferred Stock entitled to receive
such cash, securities or other 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
Exchange” has the meaning set forth in the definition of the term “Market
Disruption Event.”

       

      “Reorganization
Event” has the meaning set forth in Section 10(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.

       

      “Spin-Off”
has the meaning set forth in Section 9(a)(iii)(b).

       

      “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 Shareholder Services acting as Transfer Agent,
Registrar, paying agent and Conversion Agent for the Convertible Preferred
Stock, and its successors and assigns.

       

      “Trust”
has the meaning set forth in Section 6(h).

       

      “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

       

       

      
        
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      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).

       

      “VWAP
Conversion Fraction” means, with respect to a Trading Day, the quotient of (i)
the Liquidation Price and (ii) the product of (A) 10, (B) 0.95 and (C) the VWAP
for such Trading Day.

       

      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, (i) cumulative cash dividends with respect to each Dividend Period
(defined below) at an annual rate per share equal to 7% of the Liquidation
Preference, which may only be paid in cash (the “Cash Dividends”), plus (ii)
additional cumulative dividends with respect to each Dividend Period at an
annual rate per share equal to 8% of the Liquidation Preference, which may be
paid in cash or, if not so paid, will be added to the Liquidation Preference
(the “PIK Dividends” and, together with the Cash Dividends, the “Dividends”);
provided, however, that for any period beginning on or after June 1, 2009, the
Dividends shall consist entirely of cumulative cash dividends, which shall also
be referred to as “Cash Dividends”, with respect to each Dividend Period during
such Fixed Conversion Rate Period at an annual rate per share equal to 12% of
the Liquidation Preference, which may only be paid in cash (each such applicable
rate, a “Dividend Rate”).  Dividends shall be 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 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 and be cumulative from the date
such share of Convertible Preferred Stock is issued, shall compound quarterly,
and shall be 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.

       

      If the
Company fails to pay a full Cash Dividend on the Convertible Preferred Stock,
then the Cash Dividends and the PIK Dividends on the Convertible Preferred Stock
shall continue to

       

       

      
        
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      accrue
and cumulate at their respective Dividend Rates and, commencing on the day after
such failure to pay occurs, the Convertible Preferred Stock shall, in addition,
accrue and cumulate additional dividends (“Additional Dividends”) at an annual
rate equal to 3.0%, compounded quarterly, on the aggregate accrued amount of any
such unpaid Dividends (such aggregate accrued amount of all such unpaid Cash
Dividends being referred to herein as the “Past Due Dividends”) with the amount
of such Additional Dividend accrual being added to the Liquidation Preference up
to and including the date that all such Past Due Dividends shall have been
declared and paid in full.

       

      (b) Priority of
Dividends.  Except as provided in this Section 4(b), 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 in excess of
$0.01 per share on any Junior Stock, 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:

       

      (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
were no Past Due Dividends;

       

      (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.

       

      For so
long as any share of Perpetual Preferred Stock remains outstanding, if Dividends
are not declared and paid in full upon the shares of Convertible Preferred Stock
or 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
Perpetual Preferred Stock and any 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 Perpetual 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.

       

       

      
        
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      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.

       

      (c) 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) 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 an amount per share equal to the Liquidation
Preference.  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.

       

       

      
        
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      Section
6.  Redemption.

       

      (a) Redemption at Holder’s
Option.  On or at any time after March 31, 2069, each Holder of
Convertible Preferred Stock shall have the right to require the Company to
redeem all or a portion of such Holders’ Convertible Preferred Stock, for cash
or for shares of Common Stock, or any combination thereof, at the Company’s
discretion, at a redemption price per share equal to (i) if the Effective Shelf
Registration Date was prior to June 1, 2009, the sum of the Original Purchase
Price plus all accrued but unpaid dividends on the shares being redeemed and
(ii) if the Company has not filed an Automatic Shelf Registration Statement or
the Effective Shelf Registration Date is June 1, 2009 or a later date, the
greater of (x) the sum of the Original Purchase Price, plus all accrued but
unpaid dividends (including any Past Due Dividends) on the shares being redeemed
through the date of redemption and (y) the Fixed Conversion
Value.  If, pursuant to this Section 6(a), the Company elects to
redeem all or a portion of a Holder’s Convertible Preferred Stock for shares of
Common Stock, such shares shall be valued for such purpose at the average VWAP
per share of Common Stock over each of the 5 consecutive Trading Days ending on
the Trading Day immediately prior to the relevant Record Date.

       

      (b) Redemption on a Change of
Control.  Upon the occurrence of a Change of Control, each
Holder of Convertible Preferred Stock shall have the right, beginning on the
effective date of the Change of Control and ending on the date that is 45 days
after the later of (x) the effective date of the Change of Control and (y) the
receipt of notice of the Change of Control from the Company as provided in this
Section 6(b) to, at its option, require the Company or its successor to redeem
all or a portion of such Holder’s Convertible Preferred Stock (a “Change of
Control Redemption”) for an amount in cash per share equal to the sum of (i)
101% of the Original Purchase Price plus (ii) all accrued but unpaid Dividends
(including any Past Due Dividends) on the shares being redeemed pursuant to such
Change of Control Redemption through the date of redemption.  Without
limiting the generality of the foregoing, the right to a Change of Control
Redemption shall expire on May 31, 2009.  On or before the twentieth
day prior to the date on which the Company anticipates consummating the Change
of Control (or, if later, or in the case of a Change of Control referred to in
clause (i) of the definition thereof, promptly after the Company discovers that
the Change of Control 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 (which may include the records of the
Transfer Agent).  Such notice shall contain the date on which the
Change of Control is anticipated to be effected or, in the case of a Change of
Control 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.

       

      (c) Any
Holder of Convertible Preferred Stock may exercise the Holder’s redemption right
under Section 6(a) or 6(b) by delivering to the Company at its principal office
a written notice stating the Holder’s intention to exercise the holder’s
redemption right and the number of the Holder’s shares of Convertible Preferred
Stock to be redeemed.  The Company shall be obligated to redeem the
total number of shares of Convertible Preferred Stock specified in the Holder’s
redemption notice on or before the earlier of (i) the 30th Business Day
following its receipt of the Holder’s notice of a redemption pursuant to Section
6(a) or (ii) the date of the Change of Control if notice is given at least 10
days prior to such Change of Control.  

       

      (d) Redemption at Company’s
Option. On or at any time after March 31, 2014, the Company shall have
the right to redeem all or any portion of the outstanding shares of

       

       

      
        
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      Convertible
Preferred Stock at a redemption price per share of Convertible Preferred Stock
for an amount in cash per share equal to (i) if the Effective Shelf Registration
Date is prior to June 1, 2009, the sum of the Original Purchase Price plus all
accrued and unpaid Dividends (including any Past Due Dividends) on the shares of
Convertible Preferred Stock being redeemed through the date of redemption and
(ii) if the Company has not filed an Automatic Shelf Registration Statement or
the Effective Shelf Registration Date is June 1, 2009 or a later date, the
greater of (x) the Original Purchase Price, plus all accrued but unpaid
dividends (including any Past Due Dividends) on the shares being redeemed and
(y) the Fixed Conversion Value; provided, however, that no partial
redemption of shares of Convertible Preferred Stock by the Company pursuant to
this Section 6(e) shall be permitted unless the aggregate amount of the Original
Purchase Price in respect of all shares of Convertible Preferred Stock to be
redeemed equals or exceeds $50,000,000 and (ii) the aggregate amount of the
Original Purchase Price in respect of all outstanding shares of Convertible
Preferred Stock after giving effect to the redemption equals or exceeds
$50,000,000.  It is understood and agreed that the Company shall
covenant for the benefit of certain of its debt holders that it will not redeem
shares of the Convertible Preferred Stock pursuant to this Section 6(d) unless
it has received proceeds from the sale of securities that have equal or greater
equity-like characteristics during the 180 days prior to the date of
redemption.

       

      (e) Redemption Following Certain
Conversion Events.  In the event that in connection with a
conversion of Convertible Preferred Stock the number of shares of Common Stock
to be issued upon such conversion exceeds the amount that the Company is
permitted to issue under the New York Stock Exchange listing standards without a
vote of the holders of the Common Stock, then any Convertible Preferred Stock
that remains outstanding following such conversion as contemplated by Section
8(c) shall be subject to redemption at the Company’s option for cash (i) within
180 days of the relevant conversion date at price per share equal to the price
provided in clause (x) of Section 6(e) above using the proceeds of equity
securities of the Company that have equal or greater equity characteristics to
the Convertible Preferred Stock and (ii) thereafter, at a price per share equal
to the greater of (a) the sum of the Original Purchase Price, plus all accrued
but unpaid dividends (including any Past Due Dividends) on the shares being
redeemed and (b) the Fixed Conversion Value using the proceeds of equity
securities of the Company that have equal or greater equity characteristics to
the Convertible Preferred Stock.

       

      (f) Notice of Company’s
Redemption. In the event the Company shall redeem shares of Convertible
Preferred Stock pursuant to Section 6(e), notice of such redemption shall be
given to each Holder of Convertible Preferred Stock at least 30 days and not
more than 60 days prior to the proposed redemption date.  Each notice
shall state:

       

      (i)  the
redemption date;

       

      (ii)  the
number of shares of Convertible Preferred Stock to be redeemed and, if fewer
than all the shares of a Holder are to be redeemed, the number of such shares to
be redeemed;

       

      (iii)  the
redemption price, provided, however, that if the Company has not filed an
Automatic Shelf Registration Statement or the Effective Shelf Registration Date
occurs on June 1, 2009 or a later date, then the notice shall state the Original
Purchase Price, plus all accrued but unpaid dividends (including any Past Due
Dividends) on the

       

       

      
        
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      shares
being redeemed, calculated pursuant to Section 6(e)(ii);

       

      (iv)  the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price; and

       

      (v)  that
Dividends on the shares of Convertible Preferred Stock to be redeemed will cease
to accrue on the redemption date.

       

      (g) Partial
Redemption.  In case of any redemption of only part of the
shares of Convertible Preferred Stock outstanding at the time of any redemption
election by the Company pursuant to Section 6(e), the shares of Convertible
Preferred Stock to be redeemed shall be selected pro rata from the Holders in
proportion to the number of shares of Convertible Preferred Stock held by such
Holders, by lot or in such other manner as the Board of Directors, the Executive
Committee of the Board of Directors or any other duly authorized committee
thereof may determine to be fair and equitable.

       

      (h) Effectiveness of
Redemption.  If notice of redemption has been duly given and if
on or before the redemption date specified in the notice all funds necessary for
the redemption have been set aside by the Company, separate and apart from its
other assets, in trust for the pro rata benefit of the Holders of the shares
called for redemption, so as to be and continue to be available therefor, or
deposited by the Company with a bank or trust company selected by the Board of
Directors, the Preferred Stock Committee or any other duly authorized committee
thereof (the “Trust”) in trust for the pro rata benefit of the Holders of the
shares called for redemption, then, notwithstanding that any certificate for any
share so called for redemption has not been surrendered for cancellation, on and
after the redemption date all shares so called for redemption shall cease to be
outstanding, all dividends with respect to such shares shall cease to accrue on
such redemption date, and all rights with respect to such shares shall forthwith
on such redemption date cease and terminate, except only the right of the
Holders thereof to receive the amount payable on such redemption from the Trust
at any time after the redemption date from the funds so deposited, without
interest.  The Company shall be entitled to receive, from time to
time, from the Trust any interest accrued on such funds, and the Holders of any
shares called for redemption shall have no claim to any such
interest.  Any funds so deposited and unclaimed at the end of three
years from the redemption date shall, to the extent permitted by law, be
released or repaid to the Company, and in the event of such repayment to the
Company, the Holders of the shares so called for redemption shall be deemed to
be unsecured creditors of the Company for an amount equivalent to the amount
deposited as stated above for the redemption of such shares and so repaid to the
Company, but shall in no event be entitled to any interest.

       

      (i) Restrictions on Other
Payments. After the receipt by the Company of a redemption request
pursuant to Section 6(a) or 6(b), unless and until the full redemption price for
the shares of Convertible Preferred Stock to be redeemed on any redemption date
has been paid to the Holders requesting such redemption, (i) no dividends shall
be paid or declared or set aside for payment or other distribution upon any
Junior Stock, and (ii) no shares of Junior Stock shall be redeemed, retired,
purchased or otherwise acquired for any consideration (or any payment made to or
available for a sinking fund for the redemption of any such shares) by the
Company or any of its subsidiaries.

       

      (j) Status of Reacquired Shares.
Any shares of Convertible Preferred Stock redeemed in

       

       

      
        
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      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.

       

      (k) Unredeemed Shares Remain
Outstanding.  If a Holder does not elect to exercise the Change
of Control Redemption option pursuant to Section 6(b), the shares of Convertible
Preferred Stock held by it will remain outstanding until otherwise subsequently
redeemed.  In the event of a Change of Control in which the Company’s
Common Stock shall be changed into or exchanged for other securities or property
(including cash), the successor or acquiring corporation shall expressly assume
the due and punctual observation and performance of each and every covenant and
condition contained in this Certificate of Designation to be performed and
observed by the Company and all the obligations and liabilities hereunder, with
such modifications and adjustments as equitable and appropriate in order to
place the Holders in the equivalent economic position as prior to such Change of
Control.

       

      Section
7.  Right of
the Holders to Convert.

       

      (a) Each
Holder shall have the right, at such Holder’s option, to convert all or any
portion of such Holder’s Convertible Preferred Stock (i) at any time following
ten full Trading Days after the Initial Closing Date and prior to June 1, 2009,
at the Floating 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 9(i) and
(ii) in the event that the date on which the Automatic Shelf Registration
Statement becomes effective (the “Effective Shelf Registration Date”) occurs on
or after June 1, 2009, at the Fixed Conversion Rate per share (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 9(i).

       

      (b)           So
long as the Effective Shelf Registration Date occurs prior to June 1, 2009, all
of the shares of Convertible Preferred Stock shall automatically convert at the
Automatic Conversion Rate, plus cash in lieu of fractional shares as set out in
Section 9(i), on the date (the “Automatic Conversion Date”) immediately
following expiration of the first full Conversion Pricing Period commencing on
the Effective Shelf Registration Date (the “Automatic Conversion Pricing
Period”), provided that a prospectus under the Investment Agreement shall have
been available during the entire Automatic Conversion Pricing
Period.  Effective immediately prior to the close of business on the
Automatic Conversion Date, 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.

       

      Section
8.  Conversion
Procedures and Effect of Conversion.

       

      (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;

       

       

      
        
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      (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 19; and

       

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

       

      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 Fixed
Conversion Rate or Floating 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 9, 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 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

       

       

      
        
          16

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      Company,
will resume the status of authorized and unissued preferred stock, undesignated
as to series and available for future issuance.

      


      (f) In
the event that in connection with a conversion of Convertible Preferred Stock
the number of shares of Common Stock to be issued upon such conversion exceeds
the amount that the Company is permitted to issue under the New York Stock
Exchange listing standards without a vote of the holders of the Common Stock,
then such number of shares of Convertible Preferred Stock shall be converted as
may be satisfied through the issuance of the number of shares of Common Stock
that complies with such listing standards and any unconverted shares of
Convertible Preferred Stock shall be subject to the same terms and conditions
hereunder as apply during the Fixed Conversion Ratio Period (except as otherwise
provided in Section 7(f) above).

      


      Section
9.  Anti-Dilution
Adjustments.

       

      (a)
Adjustments.  The Fixed 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 Fixed
Conversion Rate will be adjusted based on the following formula:

       

       

      CR1 = CR0 x (OS1 / OS0)

       

      where,

      


      
        
          	
                  CR0

                	
                  =

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

                
	 
      	 
      	 
      
	
                  CR1

                	
                  =

                	
                  the
      Fixed 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
Fixed Conversion Rate shall be readjusted, effective as of the date the Board of
Directors announces that such event shall not occur, to the Fixed 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

       

       

      
        
          17

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      (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 Fixed Conversion Rate
will be adjusted based on the following formula:

       

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

       

      where,

      


      
        
          	
                  CR0

                	
                  =

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

                
	 
      	 
      	 
      
	
                  CR1

                	
                  =

                	
                  the
      Fixed 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.

       

      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 Fixed 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 Fixed 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 Fixed Conversion Rate shall be
readjusted to the Fixed 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.

       

       

      
        
          18

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      (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 11), in which event the
Fixed Conversion Rate will be adjusted based on the following
formula:

       

       

      CR1 = CR0 x SP0 / (SP0 – FMV)

       

      where,

      


       

      
        
          	
                  CR0

                	
                  =

                	
                  the
      Fixed 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
      Fixed 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 Fixed Conversion Rate will instead be adjusted based
on the following formula:

       

      CR1 = CR0 x (FMV0 + MP0) / MP0

       

      where,

       

      
        	
                CR0

              	
                =

              	
                the
      Fixed Conversion Rate in effect at the close of business on the
      last

              


      

       

       

      
        
          19

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        
          
            	
                     

                  	
                     

                  	
                    Trading
      Day of the five consecutive Trading Days commencing on and including the
      Ex-Date for such Spin-Off

                  
	
                     
      

                  	 
      	 
      
	
                    CR1

                  	
                    =

                  	
                    the
      Fixed 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 Fixed 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 Fixed 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 Fixed 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 Fixed Conversion Rate will

       

       

      
        
          20

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      be
adjusted based on the following formula:

       

       

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

       

      where,

      
        
          	
                  CR0

                	
                  =

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

                
	 
      	 
      	 
      
	
                  CR1

                	
                  =

                	
                  the
      Fixed 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 9(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 Fixed Conversion Rate is adjusted
pursuant to this Section 9;  provided, that no
adjustment will be made to the Dividend Threshold Amount or the Aggregate
Dividend Amount for any adjustment made to the Fixed 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
Fixed 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
Fixed 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 Fixed
Conversion Rate will be adjusted based on the following formula:

       

       

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

       

       

      
        
          21

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      where,

      


      
        
          	
                  CR0

                	
                  =

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

                
	 
      	 
      	 
      
	
                  CR1

                	
                  =

                	
                  the
      Fixed 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

                
	 
      	 
      	 
      
	
                  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
Fixed Conversion Rate shall be readjusted to be the Fixed 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 Fixed 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 Fixed 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 9, the applicable 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

       

       

      
        
          22

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      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 9(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.

       

      (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
March 1, 2009; 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 9(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

       

       

      
        
          23

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      adjustment
would result in the Conversion Price being less than the par value of the Common
Stock.

       

      (d)
 Successive
Adjustments.  After an adjustment to the Fixed Conversion Rate
under this Section 9, any subsequent event requiring an adjustment under
this Section 9 shall cause an adjustment to such Fixed Conversion Rate as
so adjusted.

       

      (e)
 Multiple
Adjustments.  For the avoidance of doubt, if an event occurs
that would trigger an adjustment to the Fixed Conversion Rate pursuant to this
Section 9 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 9 is applicable to a single event, the subsection shall be
applied that produces the largest adjustment.

       

      (f)
 Other
Adjustments.  The Company may, but shall not be required to,
make such increases in the Fixed Conversion Rate, in addition to those required
by this Section 9, 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 Fixed Conversion Rate is adjusted as
provided under Section 9, 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 9(f):

       

      


      (i)  compute
the adjusted applicable Fixed Conversion Rate in accordance with this
Section 9 and prepare and transmit to the Conversion Agent an Officer’s
Certificate setting forth the applicable Fixed 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 Fixed Conversion Rate was determined and setting forth the adjusted
applicable Fixed 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 9(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

       

       

      
        
          24

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      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 9.

       

      (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 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
10.  Adjustment for Reorganization
Events.

       

       

      (a)
Reorganization Events.  In the event of:

       

      (i)   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;

       

      (ii)  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

       

      (iii)  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

       

       

      
        
          25

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      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 10(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 10.

      


      (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 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 10 shall
similarly apply to successive Reorganization Events and the provisions of
Section 9 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 10.

       

      


      Section
11.  Voting
Rights.

       

      (a) General.  The
Holders shall not be entitled to vote on any matter except as set forth in
Sections 11(b) and 11(c) 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

       

       

      
        
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      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 11(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 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 11(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 11(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 11(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

       

       

      
        
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      outstanding
shares of the Convertible Preferred Stock (together with holders of any class of
the Company’s authorized and preferred stock having equivalent voting rights and
entitled to vote thereon) when they have the voting rights described in this
Section 11(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 66 2/3% of the
shares of Convertible Preferred Stock at the time outstanding, given in person
or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose at which the Holders shall vote separately as a single
class, will be necessary for authorizing, 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, including by way of
merger, that would alter or change the voting powers, dividend rights,
preferences or special 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 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),
including by way of merger, 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 parent entity, are converted into or exchanged for Equivalent
Preference Securities, and (y) 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.

       

      The
Company shall not provide consideration to any Holder in exchange for such
Holder’s vote or consent pursuant to this Section 11(c) without offering, on
identical terms, to provide all Holders who then hold Convertible Preferred
Stock with the same consideration in exchange for votes or consents per share of
Convertible Preferred Stock.

       

       

      
        
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      Section
12.  Preemption.

       

      The
Holders shall not have any preemptive rights.

       

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

       

      For so
long as any Convertible Preferred Stock is outstanding, the Company will not
issue any preferred stock (other than the Convertible Preferred Stock) with
terms (exclusive of any conversion feature) more favorable to the holders
thereof, in the aggregate, than the terms of the Convertible Preferred Stock
without amending this Certificate of Designations to concurrently modify the
terms of the Convertible Preferred Stock to give the Holders the benefit of such
more favorable terms.  Without limiting the generality of the
foregoing, any series of preferred stock containing (i) a dividend in excess of
the Dividend Rate, (ii) more favorable make-whole payments or other redemption
premiums or (iii) additional covenants not contained in this Certificate of
Designations shall be considered more favorable.

       

      Section
14.  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;
provided, further, however, that the Company
shall not purchase any Convertible Preferred Stock from any Investor (as defined
in the Investment Agreement) without offering, upon identical terms, to purchase
shares of Convertible Preferred Stock from all Investors who then hold
Convertible Preferred Stock, and in the event that the shares of Convertible
Preferred Stock sought to be sold in response to such offer exceeds the amount
the Company is willing to purchase, then the amount purchased by the Company
from each such Investor shall be pro rated based on the number of shares of
Convertible Preferred Stock sought to be sold by such Investors.

       

      Section
15.  Unissued
or Reacquired Shares.

       

      Shares of
Convertible Preferred Stock not issued or which have been issued and converted,
redeemed, 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).

       

       

      
        
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      Section
16.  No
Sinking Fund.

       

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

       

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

       

      The duly
appointed Transfer 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
18.  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) Partial
Redemption.  In the event that a redemption 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 redemption the
Company shall execute and the Transfer 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 redemption was not effected.

       

      Section
19.  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 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

       

       

      
        
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      be
treated as received by Holders.

       

      Section
20.  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.

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      
        
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      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 ______________, 2009.

       

      
         

        
          	 	THE
      DOW CHEMICAL COMPANY	 
	 	 	 	 	 
	 	 	 	 	 
	 	By: 
      	 	 
	 	 	Name: 
      	 	 
	 	 	Title: 
      	 	 
	 	 	 	 	 


        

      

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

    Annex B

     

    
       

       

      CERTIFICATE
OF DESIGNATIONS

       

      OF

       

      CUMULATIVE
PERPETUAL PREFERRED STOCK, SERIES B

       

      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 [●], 2009, adopted
resolutions (i) authorizing the issuance and sale of up to 2,500,000 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 Perpetual Preferred Stock, Series B 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 Perpetual Preferred Stock, Series B, and the Executive
Committee of the Board of Directors, by action duly taken on [●], 2009 adopted
resolutions (i) approving this final form of the Certificate of
Designations of Cumulative Perpetual Preferred Stock, Series B and
(ii) fixing the designations, powers, preferences and rights of the shares
of this Cumulative Perpetual Preferred Stock, Series B and the qualifications,
limitations or restrictions thereof as follows:

       

      Section 1.  Designation.

       

      The
designation of the series of preferred stock shall be “Cumulative Perpetual
Preferred Stock, Series B” (the “Perpetual Preferred Stock”).  Each
share of Perpetual Preferred Stock shall be identical in all respects to every
other share of Perpetual Preferred Stock.  Perpetual 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 Perpetual Preferred Stock shall be
2,500,000.  That number from time to time may be decreased (but not
below the number of shares of Perpetual 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 Perpetual

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      Preferred
Stock.

       

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

       

      “Additional
Dividends” has the meaning set forth in Section 4(a).

      


      “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.

       

      “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.

       

      “Cash
Dividends” has the meaning set forth in Section 4(a).

      


      “Change
of Control” means the occurrence 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 Change of
Control 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.

       

      “Change
of Control Redemption” has the meaning set forth in
Section 7(b).

       

      “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

       

       

      
        
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      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.

       

      “Convertible
Preferred Stock” means the Cumulative Convertible Perpetual Preferred Stock,
Series A, and the Cumulative Convertible
Perpetual Preferred Stock, Series C, of the Company.

      


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

      


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

       

      “Dividends”
has the meaning set forth in Section 4(a).

      


      “Equivalent
Preference Securities” means, in the event of a merger or consolidation of the
Company with another corporation or another entity in which the Company is not
the surviving or resulting parent entity, preference securities of the surviving
or resulting entity or its ultimate parent, as the case may be, having such
rights, preferences, privileges and voting powers, and limitations and
restrictions, taken as a whole, that are not less favorable to the holders
thereof than the rights, preferences, privileges and voting powers, and
limitations and restrictions, of the Perpetual Preferred Stock immediately prior
to such merger or consolidation, taken as a whole.

      


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

       

      “Holder”
means the Person in whose name the shares of the Perpetual Preferred Stock are
registered, which may be treated by the Company, Transfer Agent, Registrar and
paying agent as the absolute owner of the shares of Perpetual 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 Perpetual Preferred
Stock.

       

      “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 Perpetual 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.

      


      “Liquidation
Preference” per share of Perpetual Preferred Stock on any date of determination
means the Original Purchase Price, as the same may have been increased up to the
date of determination in accordance with Section 4(a) hereof.

      


      “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 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.

       

       

      
        
          3

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      “Nonpayment”
has the meaning set forth in Section 8(b)(i).

       

      “Original
Purchase Price” means $1,000.00 per share of Perpetual Preferred
Stock.

       

      “Parity
Stock” means the Convertible Preferred Stock and any class or series of stock of
the Company hereafter authorized that expressly ranks equally with the Perpetual
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(a).

       

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

      


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

       

      “PIK
Dividends” has the meaning set forth in Section 4(a).

      


      “Preferred
Stock Director” has the meaning set forth in Section 8(b)(i).

       

      “Record
Date” means, with respect to any dividend, distribution or other transaction or
event in which the holders of the Perpetual Preferred Stock have the right to
receive any cash, securities or other property or in which the Perpetual
Preferred 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 Perpetual Preferred Stock entitled to receive
such cash, securities or other property (whether such date is fixed by the Board
of Directors or by statute, contract or otherwise).

       

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

       

      “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 Perpetual Preferred Stock and has preference
or priority over the Perpetual 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.

       

      “Trust”
has the meaning set forth in Section 7(g).

      


      “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, (i) cumulative cash dividends with respect to each
Dividend Period (defined below) at an annual rate per share equal to 7% of the
Liquidation Preference, which may only be paid in cash (the “Cash Dividends”),
plus (ii) additional cumulative dividends with respect to each Dividend Period
at an annual rate per share equal to 8% of the Liquidation Preference, which may
be paid in cash or, if not so paid, will be added to the Liquidation Preference
(the “PIK Dividends”, and together with the Cash Dividends, the “Dividends”)
(each such applicable rate, a “Dividend Rate”).  Dividends shall be
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

       

       

      
        
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      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 including
any Dividend Payment Date (or, prior to the first Dividend Payment Date, from
and including the date of issuance of the Perpetual Preferred Stock) to, but
excluding, the next Dividend Payment Date is a “Dividend
Period.”  Dividends on each share of Perpetual Preferred Stock will
accrue daily and be cumulative from the date such share of Perpetual Preferred
Stock is issued, shall compound quarterly, and shall be 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 Perpetual 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.

       

      If the
Company fails to pay a full Cash Dividend on the Perpetual Preferred Stock, then
the Cash Dividends and the PIK Dividends on the Perpetual Preferred Stock shall
continue to accrue and cumulate at their respective Dividend Rates and,
commencing on the day after such failure to pay occurs, the Perpetual Preferred
Stock shall, in addition, accrue and cumulate additional dividends (“Additional
Dividends”) at an annual rate equal to 3.0%, compounded quarterly, on the
aggregate accrued amount of any such unpaid Cash Dividends (such aggregate
accrued amount of all such unpaid Cash Dividends being referred to herein as the
“Past Due Dividends”) with the amount of such Additional Dividend accrual being
added to the Liquidation Preference up to and including the date that all such
Past Due Dividends shall have been declared and paid in full.

       

      (b) Priority of
Dividends.  Except as provided in this Section 4(b), so long as
any share of Perpetual Preferred Stock remains outstanding, unless full
Dividends (including Past Due Dividends) on all outstanding shares of the
Perpetual 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 Dividend Record Date, the Company will
not, and will cause its subsidiaries not to, declare or pay any dividend in
excess of $0.01 per share on any Junior Stock, 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:

       

      (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
were no Past Due Dividends;

       

      (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.

       

      For so
long as any share of Perpetual Preferred Stock remains outstanding, if Dividends
are not declared and paid in full upon the shares of Perpetual Preferred Stock
or 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
Perpetual 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 Perpetual 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 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

       

       

      
        
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      those
dividends.

       

      Section 5.  Liquidation
Rights.

       

      (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 an amount per share equal to the Liquidation
Preference.  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.  No Conversion or Exchange
Rights.

       

      The
Holders of shares of the Perpetual Preferred Stock will not have any rights to
convert such shares into or exchange such shares for shares of any other class
or series of stock or obligations of the Company.

       

      Section 7.  Redemption.

       

      (a) Redemption at Holder’s
Option.  On or at any time after March 31, 2069, each Holder of
Perpetual Preferred Stock shall have the right to require the Company to redeem
all or a portion of such Holder’s Perpetual Preferred Stock, for cash or for
shares of Common Stock, or any combination thereof, at the Company’s discretion,
at a redemption price per share equal to the sum of the Original Purchase Price
plus all accrued but unpaid Dividends (including any Past Due Dividends) on the
shares being redeemed through the date of redemption.  If, pursuant to
this Section 7(a), the Company elects to redeem all or a portion of a Holder’s
Perpetual Preferred Stock for shares of Common Stock, such shares shall be
valued for such purpose at the average 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.

      


      (b) Redemption on a Change of
Control.  Upon the occurrence of a Change of Control, each
Holder of Perpetual Preferred Stock shall have the right, beginning on the
effective date of the Change of Control and ending on the date that is 45 days
after the later of (x) the effective date of the Change of Control and (y)
receipt of notice of the Change of Control from the Company as provided in this
Section 7(b), to, at its option, require the Company or its successor to redeem
all or a portion of such Holder’s Perpetual Preferred Stock (a “Change of
Control Redemption”) for an amount in cash per share equal to the sum of (i)
101% of the Original Purchase Price plus (ii) all accrued but unpaid Dividends
(including any Past Due Dividends) on the shares of Perpetual Preferred Stock
being redeemed pursuant to such Change of Control Redemption through the date of
redemption.  On or before the twentieth day prior to the date on which
the Company anticipates consummating the Change of Control (or, if later, or in
the case of a Change of Control referred to in clause (i) of the definition
thereof, promptly after the Company discovers that the Change of Control 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 (which may include the records of the Transfer
Agent).  Such notice shall contain the date on which the Change of
Control is anticipated to be effected or, in the case of a Change of Control
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.

       

       

      
        
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      (c) Any
Holder of Perpetual Preferred Stock may exercise the Holder’s redemption right
under Section 7(a) or 7(b) by delivering to the Company at its principal office
a written notice stating the Holder’s intention to exercise the holder’s
redemption right and the number of the Holder’s shares of Perpetual Preferred
Stock to be redeemed.  The Company shall be obligated to redeem the
total number of shares of Perpetual Preferred Stock specified in the Holder’s
redemption notice on or before the earlier of (i) the 30th Business Day
following its receipt of the Holder’s notice of a redemption pursuant to Section
7(a) or (ii) the date of the Change of Control if notice is given at least
10 days prior to such Change of Control.

      


      (d) Redemption at Company’s
Option. On or at any time after March 31, 2014, the Company shall have
the right to redeem all or any portion of the outstanding shares of Perpetual
Preferred Stock at a redemption price per share of Perpetual Preferred Stock for
an amount in cash per share equal to the sum of the Original Purchase Price plus
all accrued and unpaid Dividends (including any Past Due Dividends) on the
shares of Perpetual Preferred Stock being redeemed through the date of
redemption; provided
that no partial redemption of shares of Perpetual Preferred Stock by the Company
pursuant to this Section 7(d) shall be permitted unless (i) the aggregate amount
of the Original Purchase Price in respect of all shares of Perpetual Preferred
Stock to be redeemed equals or exceeds $50,000,000 and (ii) the aggregate amount
of the Original Purchase Price in respect of all outstanding shares of Perpetual
Preferred Stock after giving effect to the redemption equals or exceeds
$50,000,000.  It is understood and agreed that the Company shall
covenant for the benefit of certain of its debt holders that it will not redeem
shares of the Perpetual Preferred Stock pursuant to this Section 7(d) unless it
has received proceeds from the sale of securities that have equal or greater
equity-like characteristics during the 180 days prior to the date of
redemption.

      


      (e) Notice of Company’s
Redemption. In the event the Company shall redeem shares of Perpetual
Preferred Stock pursuant to Section 7(d), notice of such redemption shall
be given to each Holder of Perpetual Preferred Stock at least 30 days and not
more than 60 days prior to the proposed redemption date.  Each notice
shall state:

      


      (i)         the
redemption date;

      


      (ii)         the
number of shares of Perpetual Preferred Stock to be redeemed and, if fewer than
all the shares of a Holder are to be redeemed, the number of such shares to be
redeemed;

      


      (iii)         the
redemption price;

      


      (iv)         the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price; and

      


      (v)         that
Dividends on the shares of Perpetual Preferred Stock to be redeemed will cease
to accrue on the redemption date.

      


      (f) Partial
Redemption.  In case of any redemption of only part of the
shares of Perpetual Preferred Stock outstanding at the time of any redemption
election by the Company pursuant to Section 7(d), the shares of Perpetual
Preferred Stock to be redeemed shall be selected pro rata from the Holders in
proportion to the number of shares of Perpetual Preferred Stock held by such
Holders, by lot or in such other manner as the Board of Directors, the Executive
Committee of the Board of Directors or any other duly authorized committee
thereof may determine to be fair and equitable.

      


      (g) Effectiveness of
Redemption.  If notice of redemption has been duly given and if
on or before the redemption date specified in the notice all funds necessary for
the redemption have been set aside by the Company, separate and apart from its
other assets, in trust for the pro rata benefit of the Holders of the shares of
Perpetual Preferred Stock called for redemption, so as to be and continue to be
available therefor, or deposited by the Company with a bank or trust company
selected by the Board of Directors, the Preferred Stock Committee or any other
duly authorized committee thereof (the “Trust”) in trust for
the pro rata benefit of the Holders of the shares called for redemption, then,
notwithstanding that any certificate for any share of Perpetual Preferred Stock
so called for redemption has not been surrendered for cancellation, on and after
the redemption date all shares of Perpetual Preferred Stock so called for
redemption shall cease to be outstanding, all dividends with respect to such
shares of Perpetual Preferred Stock shall cease to accrue on such redemption
date, and all rights with respect to such shares shall forthwith on such
redemption date cease and terminate, except only the right of the Holders
thereof to receive the amount payable on such redemption from the Trust at any
time after the redemption date from the funds so deposited, without
interest.  The Company shall be entitled to receive, from time to
time, from the Trust any interest accrued on such funds, and the Holders of any
shares called for redemption shall have no claim to any such
interest.  Any funds so deposited and unclaimed at the
end

       

       

      
        
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      of three
years from the redemption date shall, to the extent permitted by law, be
released or repaid to the Company, and in the event of such repayment to the
Company, the Holders of the shares so called for redemption shall be deemed to
be unsecured creditors of the Company for an amount equivalent to the amount
deposited as stated above for the redemption of such shares and so repaid to the
Company, but shall in no event be entitled to any interest.

      


      (h) Restrictions on Other
Payments. After the receipt by the Company of a redemption request
pursuant to Section 7(a) or 7(b), unless and until the full redemption price for
the shares of Perpetual Preferred Stock to be redeemed on any redemption date
has been paid to the Holders requesting such redemption, (i) no dividends
shall be paid or declared or set aside for payment or other distribution upon
any Junior Stock, and (ii) no shares of Junior Stock shall be redeemed,
retired, purchased or otherwise acquired for any consideration (or any payment
made to or available for a sinking fund for the redemption of any such shares)
by the Company or any of its subsidiaries.

      


      (i) Status of Reacquired Shares.
Any shares of Perpetual Preferred Stock redeemed 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.

       

      (h) Unredeemed Shares Remain
Outstanding.  If a Holder does not elect to exercise the Change
of Control Redemption option pursuant to Section 7(b), the shares of Perpetual
Preferred Stock held by it will remain outstanding until otherwise subsequently
redeemed.  In the event of a Change of Control in which the Company’s
Common Stock shall be changed into or exchanged for other securities or property
(including cash), the successor or acquiring corporation shall expressly assume
the due and punctual observation and performance of each and every covenant and
condition contained in this Certificate of Designation to be performed and
observed by the Company and all the obligations and liabilities hereunder, with
such modifications and adjustments as equitable and appropriate in order to
place the Holders in the equivalent economic position as prior to such Change of
Control.

        

      Section 8.  Voting Rights.

       

      (a) General.  The
Holders shall not be entitled to vote on any matter except as set forth in
Sections 8(b) and 8(c) or as required by Delaware law.

       

      (b) Special Voting
Right.

       

      (i)         Voting Right.  If
and whenever dividends on the Perpetual 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 8(b)(i) above, the
secretary of the Company may, and upon the written request of the Holders of at
least 20% of the Perpetual 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 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 8(b)(iii).  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

       

       

      
        
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      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 8(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 8(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 Perpetual 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 8(b).

       

      (c) Senior Issuances; Adverse
Changes.  So long as any shares of Perpetual Preferred Stock
are outstanding, the vote or consent of the Holders of at least 66 2/3% of the
shares of Perpetual Preferred Stock at the time outstanding, given in person or
by proxy, either in writing without a meeting or by vote at any meeting called
for the purpose at which the Holders shall vote separately as a single class,
will be necessary for authorizing, 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 Perpetual
Preferred Stock) or the Company’s by-laws, including by way of merger, that
would alter or change the voting powers, dividend rights, preferences or special
rights of the Perpetual 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 or issued preferred stock (other than Perpetual
Preferred Stock or Senior Stock) or any securities convertible into preferred
stock (other than Perpetual 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 Perpetual Preferred Stock or Senior Stock) or any
securities convertible into Parity Stock (other than Perpetual 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
Perpetual 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 Perpetual Preferred Stock),
including by way of merger, 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 Perpetual Preferred Stock or Senior Stock; or

       

      (iii)    any
consummation of a binding share exchange or reclassification involving the
Perpetual 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
Perpetual 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 parent entity, are converted into or exchanged for Equivalent
Preference Securities, and (y) if such shares of Perpetual Preferred Stock
do not remain outstanding, immediately prior to or concurrent with the
consummation thereof, all Past Due Dividends on the Perpetual Preferred Stock to
the date of consummation, whether or not declared, have been paid in
full.

      


      The
Company shall not provide consideration to any Holder in exchange for such
Holder’s vote or consent pursuant to this Section 8(c) without offering, on
identical terms, to provide all Holders who then hold Perpetual Preferred Stock
with the same consideration in exchange for votes or consents per share of
Perpetual Preferred Stock.

       

      Section 9.  Preemption.

       

      The
Holders shall not have any preemptive rights.

       

       

      
        
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      Section 10.  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, without the vote of the Holders, may authorize and issue
additional shares of Junior Stock or Parity Stock, other than Perpetual
Preferred Stock.

      


      For so
long as any Perpetual Preferred Stock is outstanding, the Company will not issue
any preferred stock (other than the Convertible Preferred Stock) with terms
(exclusive of any conversion feature) more favorable to the holders thereof, in
the aggregate, than the terms of the Perpetual Preferred Stock without amending
this Certificate of Designations to concurrently modify the terms of the
Perpetual Preferred Stock to give the Holders the benefit of such more favorable
terms.  Without limiting the generality of the foregoing, any series
of preferred stock containing (i) a dividend in excess of the Dividend Rate,
(ii) more favorable make-whole payments or other redemption premiums or
(iii) additional covenants not contained in this Certificate of Designations
shall be considered more favorable.

       

      Section 11.  Repurchase.

       

      Subject
to the limitations imposed herein, and subject to the provisions of
Section 7, the Company may purchase and sell Perpetual 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
Perpetual Preferred Stock, voting rights in respect of such Perpetual Preferred
Stock shall not be exercisable.

       

      Section 12.  Unissued or Reacquired
Shares.

       

      Shares of
Perpetual Preferred Stock not issued or which have been issued and redeemed, 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 Perpetual Preferred
Stock may be reissued only as shares of a series other than Perpetual Preferred
Stock).

       

      Section 13.  No Sinking Fund.

       

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

       

      Section 14.  Transfer Agent, Conversion Agent,
Registrar and Paying Agent.

       

      The duly
appointed Transfer Agent, Registrar and paying agent for the Perpetual 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 15.  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) Partial
Redemption.  In the event that a redemption is effected with
respect to shares of Perpetual Preferred Stock representing less than all the
shares of Perpetual Preferred Stock held by a Holder, upon redemption the
Company shall execute and the Transfer 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 Perpetual Preferred Stock held
by the Holder as to which a redemption was not effected.

       

      Section 16.  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 Perpetual Preferred Stock or shares of
Common

       

       

      
        
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      Stock or
other securities issued on account of Perpetual 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
Perpetual Preferred Stock, shares of Common Stock or other securities in a name
other than that in which the shares of Perpetual 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 Perpetual
Preferred Stock 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 17.  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.

      


      


      


      


      


       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      
 

      
        
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      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 ______________, 2009.

      


      
        
           

          
            	 	THE
      DOW CHEMICAL COMPANY	 
	 	 	 	 	 
	 	 	 	 	 
	 	By: 
      	 	 
	 	 	Name: 
      	 	 
	 	 	Title: