Exhibit10.4 Execution Copy The DowChemical Company 2030 DowCenter Midland,Michigan 48674

Paulson & Co. Inc.

1251 Avenue of the Americas, 50th Floor

New York, NY  10020

Attn:	Michael Waldorf
	Senior Vice President

 

    

 

 

In consideration of you entering into the Investment Agreement dated as of March 9, 2009 (the “Investment Agreement”), among The Dow Chemical Company (“Parent”) and the Investors named therein (the “Investors”), Parent and Ramses Acquisition Corp. (“Ramses”) hereby agree with you to use their respective best efforts to consummate by April 1, 2009, the merger (the “Merger”) in accordance with the terms and conditions of the Agreement and Plan of Merger dated as of July 10, 2008 (the “Merger Agreement”), among the Company, Ramses and Rohm and Haas Company, including, without limitation, using best efforts to cause the lenders party to the Term Loan Agreement (the “Term Loan Agreement”) dated as of September 8, 2008, as amended as of March 4, 2009 to provide funds necessary to consummate the Merger and, if for any reasons such funds shall not be available or are insufficient in amount, arrange for such additional or substitute funding as may be necessary to do so.

 

In addition to and without limiting the foregoing, Parent and Ramses hereby agree with you to consummate by April 1, 2009 the Merger, subject only to (a) the condition set forth in Section 6.1(b) of the Merger Agreement, (b) the condition set forth in Section 6.3(b) insofar as it relates to compliance on and after the date hereof by the Company with any covenants contained in the Merger Agreement that by their terms contemplate performance on or after the date hereof and (c) the condition that each of the Investors fund its obligations under Sections 1.01 and 1.03 of the Investment Agreement.

 

The liability of Parent and Ramses for any breach of the second paragraph of this letter agreement shall not exceed $500,000,000.  In addition, neither Parent nor Ramses shall have any liability under the second paragraph of this letter agreement in the event that (x) funds are not made available under the Term Loan Agreement because either (A) one or more of the conditions contained in the Merger Agreement to Parent’s obligations to consummate the Merger is not satisfied or waived and one or more of the banks assert that such failure of such conditions relieves such bank or banks of their obligations under the Term Loan Agreement to fund loans or (B) such banks fail to fund in violation of the Term Loan Agreement or (y) any of the banks with the four largest funding commitments under the Term Loan Agreement files for bankruptcy or becomes subject to similar proceedings and the trustee in bankruptcy (or comparable entity)

rejects the obligation of such bank under the Term Loan Agreement to fund loans, so long as in the case of either clause (x)(B) or clause (y) Parent and Ramses have complied with their obligations under the first paragraph of this letter agreement.

 

This letter agreement may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the parties hereto.  This letter agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one agreement.  Delivery of an executed counterpart of a signature page of this letter agreement by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this letter agreement.

 

This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware.  The parties hereto agree that any dispute arising out of this agreement shall be litigated exclusively in the Court of Chancery of the State of Delaware.

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