Joint Stipulation

EFiled: Mar 3 2009 10:37PM EST Transaction ID 24039391 Case No. 4309-CC IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE ––––––––––––––––––––––––––––––––––––––––––––– x ROHM AND HAAS COMPANY, Plaintiff,

: : :

v. THE DOW CHEMICAL COMPANY and RAMSES ACQUISITION CORP.,

C.A. No. 4309-CC

: :

Defendants. : ––––––––––––––––––––––––––––––––––––––––––––– x JOINT PRE-TRIAL STIPULATION AND ORDER Pursuant to Court of Chancery Rule 16 and subject to the approval of the Court, the parties to this action, through their undersigned counsel, hereby submit this Joint Pre-Trial Stipulation and Order and state as follows: I.

NATURE OF THE ACTION On July 10, 2008, Plaintiff Rohm and Haas entered into an Agreement and Plan of

Merger (“the Merger Agreement”) with Defendants The Dow Chemical Company and Ramses Acquisition Corp. (collectively, “Dow”). Under the Merger Agreement, Dow agreed to acquire all outstanding shares of Rohm and Haas common stock for $78 per share in cash (plus additional consideration). Dow has not closed the Merger. On January 26, 2009, Rohm and Haas brought this action, seeking, among other things: (a) an order of specific performance requiring Dow to perform its obligations under the Merger Agreement and close the Merger immediately, and (b) an injunction preventing Dow from further breaching its obligations under the Merger Agreement.

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On February 3, 2009, Dow filed an Answer and Defenses denying Rohm and Haas’s claims, denying that Dow is in breach of the Merger Agreement and asserting frustration of purpose, commercial impracticability, impossibility of performance, undue hardship and adequacy of a legal remedy as defenses. Pursuant to the Court’s Orders of February 5 and February 6, 2009, an expedited trial is to be held, beginning on March 9, 2009, to address Rohm and Haas’s cause of action set forth in the Verified Complaint. II.

FACTS THAT ARE ADMITTED AND REQUIRE NO PROOF The following facts are admitted by the parties and require no proof, although in-

clusion of any fact herein is not an admission of its relevance or materiality to this proceeding: 1.

Plaintiff Rohm and Haas is a leading global specialty materials company.

In 2008, Rohm and Haas reported sales of $9.6 billion on a portfolio of global businesses including electronic materials, specialty materials and salt. Rohm and Haas is incorporated under the laws of Delaware. Its principal executive offices are in Philadelphia, Pennsylvania. 2.

Defendant The Dow Chemical Company is a diversified chemical com-

pany engaged in the manufacture and sale of chemicals, plastic materials, and agricultural and other specialized products and services. In 2008, it had annual sales of $57.6 billion and employed approximately 46,000 people worldwide. The Dow Chemical Company is incorporated under the laws of Delaware. Its principal executive offices are in Midland, Michigan. 3.

Defendant Ramses Acquisition Corp. is a Delaware corporation, wholly

owned by The Dow Chemical Company, which was formed solely for the purpose of facilitating the acquisition of Rohm and Haas.

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4.

On July 10, 2008, after a competitive auction, Rohm and Haas and Dow

executed the Merger Agreement, pursuant to which Dow agreed to acquire all outstanding shares of Rohm and Haas common stock for $78 per share in cash (plus additional consideration of a “ticking fee” if the Merger did not close by January 10, 2009). III.

STATEMENT OF ISSUES OF FACT AND LAW TO BE LITIGATED A.

Plaintiff 1.

Whether Dow has breached the Merger Agreement by failing to consum-

mate the Merger. 2.

Whether Section 8.5 of the Merger Agreement entitles Rohm and Haas to

an order of specific performance. 3.

Whether Rohm and Haas is entitled to an order of specific performance

under applicable equitable standards (in the event the Court finds that such a showing is required despite Section 8.5 of the Merger Agreement). 4.

Whether Section 8.5 of the Merger Agreement precludes Dow from argu-

ing that its breaches of the Merger Agreement have not caused irreparable harm to Rohm and Haas. 5.

Whether Dow has demonstrated that it will suffer legally cognizable

harms in amount and type sufficient to entitle it under the equities to avoid an order of specific performance. 6.

Whether Dow has met its burden of establishing its affirmative defenses of

frustration of purpose, commercial impracticability, impossibility of performance, undue hardship or adequacy of legal remedy, and whether those affirmative defenses permit the Court to excuse Dow from its obligations under the Merger Agreement. -3-

7.

Whether Dow’s inequitable conduct, including its acting with unclean

hands, bars its defenses to specific performance. Rohm and Haas’s arguments and contentions regarding the issues for trial will be set forth more fully in its pre-trial brief, which it incorporates by reference. B.

Defendants 1.

Whether Rohm and Haas has satisfied its burden of showing by clear and

convincing evidence that it is entitled to specific performance at this time. 2.

Whether Rohm and Haas has satisfied its burden of showing by clear and

convincing evidence that an award of specific performance at this time would not result in undue hardship on Dow, the merged enterprise (including Rohm and Haas), and other affected persons and entities. 3.

Whether Rohm and Haas has satisfied its burden of demonstrating by clear

and convincing evidence that it will suffer irreparable injury in the absence of the relief of specific performance. 4.

Whether Rohm and Haas has satisfied its burden of demonstrating by clear

and convincing evidence that the harms resulting from consummation of the merger – including the hardships upon Dow, the merged enterprise, the employees and retirees of the merged enterprise, the customers and suppliers of the merged enterprise, the affected communities, and the public – are outweighed by the benefit to Rohm and Haas that would result from specific performance at this time. 5.

Whether Rohm and Haas has satisfied its burden of demonstrating by clear

and convincing evidence that it has no adequate legal remedy. 6.

Whether Rohm and Haas has unclean hands. -4-

7.

Whether Rohm and Haas can recover damages or other relief on behalf of

its shareholders, in light of the parties’ agreement in Section 8.10 to exclude third-party beneficiary rights including those of shareholders. 8.

Whether Rohm and Haas has met its burden of proving that the conditions

precedent to closing have been satisfied. Dow’s arguments and contentions regarding the issues for trial will be set forth more fully in its pre-trial brief, which is incorporated by reference. IV.

STATEMENT OF RELIEF SOUGHT A.

Plaintiff Rohm and Haas respectfully requests that the Court enter judgment: 1.

Ordering Dow to specifically perform its obligations under the Merger

Agreement and to consummate the Merger immediately. 2.

Temporarily, preliminarily and permanently enjoining Dow and any of its

directors, officers, employees, affiliates or agents and any other person acting in concert with it or on its behalf from breaching Dow’s obligations under the Merger Agreement and directing Dow to perform its obligations under the Merger Agreement and consummate the Merger. 3.

Granting such other, further and different relief as the Court may deem

just and proper together with the costs and expenses of this action. B.

Defendants Dow respectfully requests that the Court enter judgment: 1.

Ordering that Rohm and Haas is not entitled to specific performance.

2.

Ordering that any remedy of Rohm and Haas shall be limited to damages

to Rohm and Haas. -5-

3.

Dismissing Plaintiff’s Complaint.

4.

Granting such other, further and different relief as the Court may deem

just and proper together with the costs and expenses of this action. V.

WITNESSES A.

Plaintiff Rohm and Haas presently intends to offer live testimony from the following wit-

nesses in its case-in-chief: 1.

Gary Barancik

2.

Pierre Brondeau

3.

Bill Chambers

4.

Andrew Dvoroscik

5.

Paul Graves

6.

Raj Gupta

7.

Robert Lonergan

8.

Alan Sheriff

Rohm and Haas presently intends to call Prof. Greg Jarrell and Stephanie Seligman as rebuttal witnesses. Identification of the foregoing witnesses represents those persons Rohm and Haas may call to testify, and is not a representation that those persons will definitely be present at trial. Rohm and Haas further reserves the right to call any of the witnesses listed below by Defendants (even if such witness is not called by Defendants at trial) and to revise its witness list after it has reviewed Dow’s pre-trial brief.

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B.

Defendants Defendants presently intend to offer testimony from the following witnesses at

trial: 1.

George Biltz

2.

George Cary

3.

Heinz Haller

4.

Charles Kalil

5.

David Kepler

6.

Andrew Liveris

7.

Geoffery Merszei

8.

Scott Petepiece

9.

James Ringler

10.

Fernando Ruiz

11.

Howard Ungerleider

12.

Kenneth Buckfire

13.

Daniel Fischel

14.

Todd Gray

15.

Jonathan Tyler

16.

Sandra Moose

Identification of the foregoing witnesses represents those persons Defendants may call to testify, and is not a representation that those persons will definitely be present at trial. Defendants further reserves the right to call any of the witnesses listed above by Plaintiff (even if

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such witness is not called by Plaintiff at trial) and to revise its witness list after it has reviewed Rohm and Haas’s pre-trial brief. C.

Presentation of Witnesses 1.

Subject to the time limitations imposed by the Court, each party reserves

the right to call additional witnesses or recall any witnesses for rebuttal or impeachment. 2.

Pursuant to Court of Chancery Rule 32(a)(2), the depositions of a party

may be used by an adverse party for any proper purpose. 3.

As to any witness, the scope of cross-examination shall not be limited to

the scope of the direct examination. Unless recalled for rebuttal, each witness will be called only once. 4.

The parties shall exchange the then-anticipated order of their trial wit-

nesses for their respective cases-in-chiefs at 5:00 p.m. EST on Friday, March 6, 2009. 5.

At 9:00 a.m. EST each day beginning on Saturday, March 7, 2009, the

parties shall provide notice of the witnesses they will call on the trial day starting forty-eight (48) hours later and the order of those witnesses. D.

Deposition Designations 1.

Plaintiff’s Proposal

In lieu of deposition designations, each side may lodge deposition transcripts with the Court at the start of trial. Each side may lodge deposition transcripts of any witness (including witnesses set forth in Section V hereto); provided, however, that neither party may seek to admit as evidence the deposition transcript of any witness the party actually calls as a live witness. If one side lodges a deposition transcript, the other party need not also lodge the same transcript. The parties may cite in their pretrial briefs to any deposition testimony that they in -8-

good faith believe to be admissible. The parties reserve their rights to object to the admissibility of any such testimony. 2.

Defendants’ Proposal

In lieu of deposition designations, each side may lodge deposition transcripts with the Court at the start of trial. If one side lodges a deposition transcript, the other party need not also lodge the same transcript. The parties may cite in their pretrial briefs to any deposition testimony that they in good faith believe to be admissible. The parties reserve their rights to object to the admissibility of any such testimony. VI.

AMENDMENT OF PLEADINGS A.

Plaintiff Rohm and Haas does not have any amendments to its pleadings at this time, but

reserves the right to amend the pleadings to conform to the evidence adduced at trial or otherwise. B.

Defendants Dow does not have any amendments to its pleadings at this time, but reserves the

right to amend the pleadings to conform to the evidence adduced at trial or otherwise. VII.

LIST OF EXHIBITS A.

Plaintiff The list of Rohm and Haas’s trial exhibits shall be submitted to the Court by 5:00

p.m. EST on Friday, March 6, 2009 (“Plaintiff’s Trial Exhibit List”). Rohm and Haas may admit into evidence each of the premarked exhibits listed on Plaintiff’s Trial Exhibit List; provided, however, that Dow may submit written objections, stating the basis for such objections, by Sun-

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day, March 8, 2009 at 5:00 p.m. EST. In addition, Rohm and Haas may use and rely upon any of the exhibits identified by Dow on Defendants’ Trial Exhibit List (even if any such exhibit is withdrawn by Dow), subject to the Court’s determination of admissibility. Rohm and Haas reserves the right to add or subtract documents from such lists on reasonable grounds. Rohm and Haas reserves the right to use documents not listed for cross-examination, impeachment or rebuttal purposes. B.

Defendants The list of Dow’s trial exhibits shall be submitted to the Court by 5:00 p.m. EST

on Friday, March 6, 2009 (“Defendants’ Trial Exhibit List”). Dow may admit into evidence each of the premarked exhibits listed on Defendants’ Trial Exhibit List; provided, however, that Rohm and Haas may submit written objections, stating the basis for such objections, by Sunday, March 8, 2009 at 5:00 p.m. EST. In addition, Dow may use and rely upon any of the exhibits identified by Rohm and Haas on Plaintiff’s Trial Exhibit List (even if any such exhibit is withdrawn by Rohm and Haas), subject to the Court’s determination of admissibility. Dow reserves the right to add or subtract documents from such lists on reasonable grounds. Dow reserves the right to use documents not listed for cross-examination, impeachment or rebuttal purposes. C.

Exhibit Numbering Plaintiff will assign each exhibit listed on Plaintiff’s Trial Exhibit List a unique

“PX” number and Defendants will assign each exhibit listed on Defendants’ Trial Exhibit List a unique “DX” number. Plaintiff’s Trial Exhibit List and Defendants’ Trial Exhibit List shall identify each exhibit respectively contained therein by bates number (where applicable) and a brief description of the document. The parties agree that the descriptions are to be used for identification purposes only. All exhibits appearing on both Plaintiff’s Trial Exhibit List and -10-

Defendants’ Trial Exhibit List shall be re-designated as Joint Exhibits and listed on a “Joint Trial Exhibit List” (which Rohm and Haas shall submit to the Court by 5:00 p.m. EST on Friday, March 6, 2009). Joint Exhibits shall retain the numeral assigned to them on Plaintiff’s Trial Exhibit List, but shall be re-designated as “JX” ___. (For instance, if “PX 7” and “DX 10” are the same document, they will become “JX 7.”). D.

Objections To Exhibits Prior to trial, the parties shall attempt in good faith to resolve any objections to the

proposed trial exhibits. Any objections to the proposed trial exhibits that are not resolved by the parties prior to the trial shall be presented to the Court for determination. VIII. DESCRIPTION OF ANY EVIDENTIARY ISSUES THAT WILL REQUIRE RESOLUTION A.

Plaintiff Plaintiff does not at this time have any evidentiary issues requiring resolution in

advance of trial. Plaintiff notes this Court’s decision in United Rentals, Inc. v. RAM Holdings, Inc., et al., No. 3360-CC (Del. Ch. Dec. 17, 2007), that “evidence of one side’s undisclosed, private mental impressions or understandings [of a contract] is useless” and should not be considered by the Court. Plaintiff objects to defendants’ offering at trial testimonial or documentary evidence about which it has asserted privilege objections, including attorney-client, work product and/or business strategy privilege. B.

Defendants Dow expects to file a motion in limine to exclude Goldman Sachs or its represen-

tatives from offering expert opinion testimony because Goldman Sachs’ Paul Graves was not disclosed as an expert witness.

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In addition, Dow anticipates making certain proposals for sealing the record in light of the material non-public information that Dow expects to be the subject of trial testimony, evidence, and exhibits. Dow expects to raise this issue at the pretrial conference. With regard to United Rentals, Dow agrees that subjective, undisclosed private mental impressions of a contract are irrelevant, but extrinsic evidence of what “both parties knew or should have known” is probative of the meaning of any ambiguous contract provision. IX.

ESTIMATED TIME FOR TRIAL The trial has been scheduled to commence on March 9, 2009 at 10:00 a.m. Pur-

suant to the Court’s February 5, 2009 Scheduling Order, the trial will take five (5) days. Pursuant to the Scheduling Order, trial time, in the aggregate, shall be divided equally between the parties. Each party’s direct examinations plus that party’s cross-examinations of witnesses called by the opposing party shall total not more than 50% of the total trial time allotted by the Court. Unless otherwise ordered by the Court, time spent addressing in-trial motions or evidentiary issues shall be split equally between each side. X.

OTHER ISSUES This Pretrial Order shall control the course of the trial in this action, unless modi-

fied by the Court to prevent manifest injustice.

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March 3, 2009 CONNOLLY BOVE LODGE & HUTZ LLP

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

__/s/ Collins J. Seitz, Jr.______________

__/s/ Kenneth J. Nachbar______________

Collins J. Seitz, Jr. (No. 2237) Henry E. Gallagher, Jr. (No. 495) David E. Ross (No. 5228) Bradley R. Aronstam (No. 5129) The Nemours Building 1007 North Orange Street P.O. Box 2207 Wilmington, Delaware 19899 Telephone: (302) 658-9141 Facsimile: (302) 658-5614

Martin P. Tully (No. 465) Kenneth J. Nachbar (No. 2067) J.R. Biondi (No. 3987) 1201 N. Market Street P.O. Box 1347 Wilmington, Delaware 19899 Telephone: (302) 658-9200 Facsimile: (302) 658-3989 Attorneys for Defendants The Dow Chemical Company and Ramses Acquisition Corp.

Attorneys for Plaintiff Rohm and Haas Company OF COUNSEL:

OF COUNSEL:

Kenneth B. Forrest Paul K. Rowe Marc Wolinsky George T. Conway III David C. Bryan Ian Boczko Elaine P. Golin Garrett B. Moritz Joshua A. Naftalis WACHTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, New York 10019 Telephone: (212) 403-1000 Facsimile: (212) 403-2000

David M. Bernick, P.C. Michael P. Foradas, P.C. John Donley KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 Telephone: (302) 861-2000 Facsimile: (302) 861-2200

Robert A. Lonergan ROHM AND HAAS COMPANY 100 Independence Mall West Philadelphia, Pennsylvania 19106 Telephone: (215) 592-3000 Facsimile: (215) 592-3377

Stephen C. Neal John C. Dwyer Scott D. Devereaux COOLEY GODWARD KRONISH LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 Phone: (650) 843-5000 Facsimile: (650) 857-0663

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Charles J. Kalil Duncan A. Stuart THE DOW CHEMICAL COMPANY 2030 Dow Center Midland, Michigan 48674 Telephone: (989) 636-1000

SO ORDERED: March __, 2009

______________________________________ Chancellor

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