Exhibit 10.9
SERVICES AGREEMENT
Services Agreement ("Agreement"), dated as of September 1, 2000, by
and between PHARMACIA CORPORATION, a Delaware corporation ("Pharmacia"), and
MONSANTO COMPANY, a Delaware corporation ("Monsanto").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of a Separation Agreement, dated as
of September 1, 2000, by and between the parties hereto (the "Separation
Agreement"), Pharmacia will, contemporaneously with the effectiveness of this
Agreement, contribute and transfer to Monsanto, and Monsanto will receive and
assume, directly or indirectly, substantially all of the assets and liabilities
currently associated with the Monsanto Business and the stock, investments or
similar interests currently held by Pharmacia in subsidiaries and other entities
that conduct such business; and
WHEREAS, the parties wish to provide each other with the services
described on each of the Term Sheets from time to time attached hereto as
exhibits and made a part hereof and numbered sequentially (collectively, the
"Services" and individually, a "Service") from the Separation Date through the
Service Termination Date (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
1. SERVICES; LIMITATIONS.
---------------------
A. Subject to the terms and conditions of this Agreement, the party
identified on a particular Term Sheet as the party to provide a specified
Service (in such capacity, "Service Provider") shall provide to the party
identified on such Term Sheet as the user of such service (in such capacity,
"Service User"), the Service described on such Term Sheet.
B. Service Provider shall not be obligated under this Agreement to
perform any Service (i) unless otherwise specified in the applicable Term Sheet,
in a volume, quantity or level of quality which exceeds the applicable
historical volumes, quantities or quality of such Service provided by Pharmacia
or its subsidiaries or affiliates to the Monsanto Business or by the Monsanto
Business to Pharmacia or its subsidiaries or affiliates, as the case may be,
prior to the Separation Date, (ii) if to do so would unreasonably interfere with
the conduct of Service Provider's continuing business or operations, or (iii) if
to do so would be in violation or cause a breach of any law or regulation to
which Service Provider is subject or any agreement to which Service Provider is
a party. In the event of non-performance pursuant to the foregoing sentence, the
parties shall work together in good faith to arrange for an alternative means by
which Service User may obtain, at Service User's sole cost, the Services so
affected. In no event shall Service Provider be required to perform any Service
(i) to the extent such Service does not relate to the continued conduct of
Service User's business as it was conducted prior to the Separation Date; or
(ii) for the benefit of any third party or any entity other than Service User or
a subsidiary or affiliate thereof or an assignee permitted under this terms of
this Agreement.
C. In providing the Services, Service Provider, as it deems
necessary or appropriate in its sole discretion, shall have the right (i) to use
the personnel of such Service Provider or any of its subsidiaries or affiliates,
or (ii) to employ the services of third parties to the extent such third party
services are routinely utilized to provide similar services to Service
Provider's own business or are reasonably necessary for the efficient
performance of any Service.
D. Pharmacia and Monsanto shall each designate in writing a
representative to act as its primary contact person for the provision of all
Services (each such person being a "Responsible Person"). The initial
Responsible Person for Pharmacia shall be Xxxxxxxxxxx X. Xxxxxxxx or his
designee and for Monsanto shall be Xxxxxxx X. Xxxxx or his designee.
2. TERM OF AGREEMENT/SERVICES. This Agreement shall commence on the
--------------------------
Separation Date and continue through the last Service Termination Date. The
provision of each Service by Service Provider shall commence on the Separation
Date and continue through the earliest to occur of: (i) the date specified on
the applicable Term Sheet, which shall, unless otherwise specified by the
parties hereto in such Term Sheet, be a date no later than December 31, 2001,
(ii) the early termination date on not less than the number of days' prior
notice by Service User to Service Provider, both as specified in such Term
Sheet, or (iii) the date on which the parties hereto, by written agreement,
terminate such Service (the date referred to in (i), (ii) and (iii) above,
whichever is applicable, the "Service Termination Date"); provided, however,
that, if, in the case of (ii) above, such Term Sheet does not state a specific
number of days' prior notice for early termination, at least sixty (60) days'
prior notice shall be required; provided further that, if such Term Sheet does
not expressly provide for, and does not prohibit, early termination, either
party shall have the right to terminate the provision of any or all of the
Services described in such Term Sheet at any time by providing at least sixty
(60) days' prior notice to the other party; provided further that Service
Provider may terminate the provision of any or all Services, other than the
Services described on the Term Sheets as non-terminable or non-cancelable
(collectively, the "Non-Cancelable Services"), in the event that (iv) (a) there
occurs a fifty percent (50%) or greater change in the ownership or beneficial
control of Service User within any three hundred and sixty-five (365)-day period
(a "Change in Control"), notwithstanding the fact that Service Provider may have
consented to the assignment of this Agreement, and (b)(I) after the Change in
Control, fifty percent (50%) or more of the ownership or beneficial control of
Service User is vested in an entity or group of entities (a "New Entity") that
is, or within the remaining term of this Agreement, is expected to be, a direct
or indirect competitor of Service Provider, as reasonably determined by Service
Provider, or (II) in the sole reasonable judgment of Service Provider, the
provision of such Service or Services to the New Entity could have a material
adverse effect on the financial condition or business of Service Provider, or
(v) Service User materially breaches the terms of this Agreement (including, but
not limited to, any failure to pay, when due, the charges for any Service
pursuant to Section 4 hereof) and fails to cure such breach within the notice
period. Service Provider shall give Service User at least ninety (90) days'
prior notice of a termination of one (1) or more Services pursuant to clause
(iv) of the preceding sentence, and shall give Service User at least thirty (30)
days' prior notice of such a termination pursuant to clause (v) of the preceding
sentence. Once the provision of a Service is terminated for any reason, Service
Provider shall not be obligated to reinstate such Service.
-2-
3. COSTS. In consideration for the performance of each Service during
-----
the period commencing on the Separation Date and ending on December 31, 2000,
unless otherwise specified by the parties hereto in an applicable Term Sheet,
Service User shall pay to Service Provider fees equal to the "Budgeted Cost" of
such Service in Pharmacia's 2000 Budget adjusted for synergy targets or, if
there is no Budgeted Cost in such 2000 Budget for such Service or if such
Budgeted Cost cannot be determined from such 2000 Budget and the supporting
documentation for such budget as a result of the organizational changes
resulting from the Separation, Budgeted Cost shall be deemed to mean a good
faith estimate by Service Provider of the cost incurred in providing such
Service. In consideration for the performance of each Service during any year
after 2000, unless otherwise specified by the parties hereto in an applicable
Term Sheet, Service User shall pay to Service Provider fees equal to the
"Budgeted Cost" of such Service in Pharmacia's or Monsanto's, whichever is
applicable, budget for such year (to be finalized in the fall of the year
preceding the year in question) or, if there is no Budgeted Cost in such budget
for such Service or if such Budgeted Cost cannot be determined from such budget
and the supporting documentation for such budget as a result of the
organizational changes resulting from the Separation, Budgeted Cost shall be
deemed to mean a good faith estimate by Service Provider of the cost incurred in
providing such Service. Promptly after December 31, 2000 (for Services performed
in 2000) and after December 31 of any year after 2000 (for Services performed in
such year), the parties hereto shall perform a true-up of the applicable fees
versus actual budget results in the applicable year.
4. INVOICE; AUDIT; DISPUTES.
------------------------
A. Service Provider shall invoice Service User monthly for Services
provided during the preceding month and any associated costs and expenses, and
all invoices shall reflect in reasonable detail the nature and quantity of the
Services rendered during the previous month and the charges therefor. Service
User shall pay via wire transfer each invoice within fifteen (15) days after
Service User's receipt of each such invoice. All payments shall be based on U.S.
dollars with actual payments to be made in local currency to mitigate against
any currency/translation gains or losses. Service User shall have the right, at
any time not later than six (6) months after the termination of any Service,
upon reasonable prior notice to Service Provider, to have an audit performed by
outside auditors (who shall execute confidentiality agreements reasonably
acceptable to Service Provider) of the books and records of Service Provider to
the extent that they relate to such Service in order to verify the accuracy of
invoices that have not been previously audited as provided below. Costs shall be
considered final after the later of (i) six (6) months after termination of the
provision of the relevant Service in the absence of an audit or (ii) the
conclusion of the foregoing audit.
B. Service User shall timely pay to Service Provider all charges and
amounts on each invoice as provided in subsection 4(A) and shall not withhold
any disputed amounts for any reason. If Service User shall in good faith dispute
any material item(s) on an invoice, the Responsible Person of each of Service
Provider and Service User shall attempt to resolve such dispute within a
reasonable period of time. In the event that the Responsible Persons are unable
to resolve such dispute, the matter shall be resolved in accordance with the
terms of Article VII of the Separation Agreement.
-3-
C. To the extent that Service Provider has audit rights with respect
to a Service supplied by a Third Party Supplier (as hereinafter defined),
Service Provider shall cooperate with Service User, at Service User's expense
and reasonable request, to exercise such audit rights with respect to Costs paid
by Service User in connection with such Service.
5. COOPERATION, INFORMATION AND ASSISTANCE. The parties hereto shall
---------------------------------------
use good faith efforts to cooperate with each other in all matters relating to
the provision and receipt of Services. In particular, during the term of this
Agreement, Service User shall furnish Service Provider with information in its
possession and control and such other reasonable assistance necessary to enable
Service Provider to perform the Services. If Service User's failure to furnish
such information and assistance renders Service Provider's performance of any
Services unreasonably difficult, Service Provider shall have the right to
refuse, or to terminate its obligation, to perform such Services without
liability or penalty to Service Provider.
6. CONFIDENTIALITY. Except as provided herein, the receiving party
---------------
shall treat as the disclosing party's confidential property and not use or
disclose to others, except as may be necessary in the supply or performance of
Services, during the term hereof and for ten (10) years thereafter, any
information of, or in the possession of, the disclosing party which has or may
come within the knowledge of the receiving party in connection with this
Agreement, including, without limitation, the disclosing party's plans, plants,
processes, products, costs, equipment, operations, wastewater treatment
techniques, customers, intellectual property, business information and other
similar items. The obligations set forth in this Section 6 shall not apply to
(i) information of the disclosing party that is, or, through no fault of the
receiving party, becomes, publicly available, and (ii) information which
lawfully becomes available, without restriction on disclosure or use, from a
third party. In addition, the receiving party shall have the right to disclose
information of the disclosing party to comply with any law, governmental
regulation or order of a court or administrative agency having competent
jurisdiction.
7. COMPLIANCE WITH LAWS AND REGULATIONS. Service User shall use, and
------------------------------------
Service Provider shall perform or provide, the Services only in accordance with
all applicable federal, state and local laws, regulations and tariffs, and in
accordance with the conditions, rules, regulations and specifications which may
be set forth in any manuals, materials, documents or instructions of Service
Provider or an applicable Third Party Supplier. Each party shall have the right
to take all actions, including termination of any particular Service, upon as
much notice to the other party as reasonably possible, without penalty or
liability to the other party, that it reasonably believes to be necessary to
assure compliance with applicable laws, regulations and tariffs, or to avoid
being subjected to regulation as a common carrier or utility, or to avoid claims
or actions by third parties.
8. MODIFICATION OF PROCEDURES; TERMINATION OF SERVICES. Service
---------------------------------------------------
Provider shall have the right (i) to make modifications from time to time in its
standards and procedures for performing a Service such that it does not affect
the quality or quantity of the Service provided or (ii) except for the Non-
Cancelable Services, terminate the provision of a Service, in each case, on the
terms and conditions in the next succeeding sentence. Unless required by law,
Service Provider shall not implement any substantial modifications affecting the
provision of a relevant Service or terminate the provision of such Service
unless Service Provider (a) has furnished Service User
-4-
reasonable notice, (b) modifies such procedures, or terminates the provision of
such Service, as the case may be, for its own business at the same time, and (c)
in case of a modification in procedures, gives Service User a reasonable period
of time for Service User to adapt its operations to accommodate such
modifications or, in the case of termination of Service (unless Service User has
provided Service Provider with notice no later than five (5) Business Days after
Service User receives notice of such termination of Service that Service User
elects not to receive such Service from a Third Party Supplier and instead
agrees to the termination of such Service), uses its best efforts to assist
Service User in obtaining a similar Service (in both quality and quantity) from
a Third Party Supplier commencing at or prior to the date of termination of the
provision of such Service by Service Provider; provided, however, that the Cost
of such Service to Service User shall not exceed the Cost thereof had Service
Provider continued to provide such Service.
9. NO WARRANTIES; LIMITATION ON LIABILITY; INDEMNIFICATION.
-------------------------------------------------------
A. SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO ANY SERVICE.
B. Service Provider, its subsidiaries and affiliates, and their
respective directors, officers, employees, and agents (collectively, "DOEAs"),
shall not be liable to Service User (or any of its subsidiaries or affiliates)
for, and Service User releases and discharges (and Service User shall cause its
subsidiaries and affiliates to so release and discharge) Service Provider, its
subsidiaries and affiliates, and their respective DOEAs, from, any and all
claims, losses, damages, liabilities, actions, suits, proceedings, judgments,
orders, fines, penalties, injuries, direct or liquidated damages, costs
(including costs of defense and investigation) and expenses, including special,
incidental, consequential, exemplary, indirect or punitive damages, of, to or
suffered or incurred by, Service User, its subsidiaries or affiliates, or their
respective DOEAs arising out of or connected with (i) any act or omission,
negligent or otherwise, of Service Provider, its subsidiaries or affiliates, or
their respective DOEAs with respect to any Service, (ii) the receipt, delivery,
use, possession, consumption, supply or performance of any Service, or (iii) any
failure of Service Provider to supply or perform any Service to the extent that
Service Provider reasonably believes such failure is permitted by the terms of
this Agreement (it being understood that Service Provider shall be liable to
Service User for damages resulting from any intentional, knowing breach of the
terms of this Agreement); provided, however, that the foregoing shall not apply
to any claims, losses, damages, liabilities or expenses to the extent caused by
Service Provider's willful misconduct or fraud, and shall not constitute a
release or discharge of any third party not affiliated with Service Provider. It
is the express intention of the parties hereto that the release provided for in
this subsection 9(B), to the extent of the terms hereof, is to include, but not
be limited to, a release by Service User and its subsidiaries and affiliates of
Service Provider, its subsidiaries and affiliates, and their respective DOEAs
from the consequences of SERVICE PROVIDER'S, SERVICE PROVIDER'S SUBSIDIARIES'
AND AFFILIATES', AND THEIR RESPECTIVE DOEAS' OWN NEGLIGENCE, to the extent that
such negligence is the sole, concurring or joint cause of the claims, losses,
damages, liabilities and expenses suffered by Service User, its subsidiaries and
affiliates, and their respective DOEAs.
-5-
C. Service User shall indemnify and hold harmless Service Provider,
its subsidiaries and affiliates, and their respective DOEAs from and against any
and all third party claims, losses, damages, liabilities, actions, suits,
proceedings, judgments, orders, fines, penalties, injuries, direct or liquidated
damages, costs (including costs of defense and investigation) and expenses,
including special, incidental, consequential, exemplary, indirect or punitive
damages (hereinafter, a "Third Party Claim"), actually incurred by Service
Provider, its subsidiaries or affiliates, or their respective DOEAs arising out
of or connected with: (i) any act or omission, negligent or otherwise, of
Service Provider, Service User or their respective subsidiaries or affiliates,
or their respective DOEAs, with respect to Service User's facilities or any
Services, (ii) the receipt, delivery, use, possession, consumption, supply or
performance of any Services, (iii) any failure to supply or perform any Services
to the extent such failure is permitted by the terms of this Agreement (it being
understood that Service Provider shall be liable to Service User for damages
resulting from any intentional, knowing breach of the terms of this Agreement),
(iv) any failure of Service User, its subsidiaries or affiliates, or their
respective DOEAs, to observe, fulfill and comply with any duties or obligations
of Service User, its subsidiaries or affiliates, or their respective DOEAs,
under this Agreement; provided, however, that the foregoing indemnity shall not
apply to any such claims, losses, liabilities, damages and expenses to the
extent caused by Service Provider's willful misconduct or fraud. The above
indemnity includes, but is not limited to any Third Party Claim for: (a) any
injury to or death of any persons or damage to or loss or destruction of any
property, (b) any contamination of or injury or damage to or adverse effect upon
persons, animals, aquatic life or wildlife, vegetation, air, land, water, or the
environment, and (c) any governmental agency related claims, losses,
liabilities, damages and expenses. It is the express intention of the parties
hereto that the indemnity provided for in this subsection 9(C), to the extent of
the terms hereof, is to include, but not be limited to, indemnity by Service
User to indemnify and protect Service Provider, its subsidiaries and affiliates,
and their respective DOEAs from the consequences of SERVICE PROVIDER'S, SERVICE
PROVIDER'S SUBSIDIARIES' AND AFFILIATES', AND THEIR RESPECTIVE DOEAS' OWN
NEGLIGENCE, to the extent that such negligence is the sole, concurring or joint
cause of the Third Party Claim.
D. Service Provider shall indemnify and hold harmless Service User,
its subsidiaries and affiliates, and their respective DOEAs from and against any
and all claims, losses, damages, liabilities, actions, suits, proceedings,
judgments, orders, fines, penalties, injuries, direct or liquidated damages,
costs (including costs of defense and investigation) and expenses, including
special, incidental, consequential, exemplary, indirect or punitive damages,
actually incurred by Service User, its subsidiaries and affiliates, and their
respective DOEAs to a third party (including a contractor or agent of Service
User, its subsidiaries or affiliates, or their respective DOEAs), to the extent
caused by Service Provider's, Service Provider's subsidiaries' and affiliates',
and their respective DOEAs' willful misconduct or fraud in connection with the
provisions of Services hereunder.
E. Except as expressly set forth in this Agreement, including
subsection 9(D) above, Service Provider shall not be liable in any way to
Service User, its subsidiaries or affiliates, or their respective DOEAs, for any
failure or defect in the supply or character of any Services furnished hereunder
by reason of any requirement, act or omission of any public utility or Third
Party Supplier to Service User.
-6-
F. The provisions of this Section 9 shall survive the expiration or
termination of this Agreement.
10. FORCE MAJEURE. Neither party shall have any obligation to perform
-------------
its obligations pursuant to this Agreement (other than Service User for payment
for Services provided) if its failure to do so is caused by or results from any
act of God; war; riot; fire; explosion; accident; flood; sabotage; lack of
(despite reasonable efforts of such party to obtain) adequate fuel, power, raw
materials, labor, containers or transportation facilities; compliance with
governmental requests, laws, regulations, orders or actions; breakage or failure
of machinery or apparatus; national defense requirements; failure of a third
party to perform; or any other use or circumstances beyond the reasonable
control of the affected party, including, but not limited to, the failure after
the exercise of reasonable efforts to obtain consent of third parties to
continue to use software or any other property, whether real or personal or
tangible or intangible, to provide Services hereunder. The party which is
rendered unable to perform its obligations as a result of the foregoing shall
notify the other party as soon as reasonably possible to discuss the
circumstances and potential solutions to such force majeure event, including
reasonable efforts as to mitigation of such force majeure event and the
provision of substitute Services by a third party at Service User's sole cost
and the parties shall reasonably cooperate in respect thereto.11.
THIRD PARTY SUPPLIERS. A. Service User understands that the
---------------------
provision of some Services may involve services historically provided by an
unaffiliated third party (a "Third Party Supplier") to Service Provider or the
lease or license of property (including, but not limited to, computer software)
to Service Provider by a Third Party Supplier. If permitted by the agreement
governing the provision of such services or property by a Third Party Supplier
(a "Third Party Agreement"), Service Provider shall provide, or arrange for such
Third Party Supplier to provide, such Service for Service User in accordance
with the terms of this Agreement; provided, however, that, if (i) the provision
of such Service would result in the breach of the terms of such Third Party
Agreement, (ii) in the sole opinion of Service Provider, the Third Party
Agreement is unclear as to the ability of Service Provider to provide such
Service to Service User without resulting in the breach of such Third Party
Agreement, or (iii) a Third Party Supplier objects (whether before or after the
Separation Date) to the provision of such Service by Service Provider as a
violation of the terms of the relevant Third Party Agreement, then Service
Provider shall be thereafter relieved of its obligation to provide such Service
and shall instead use its best efforts to assist Service User in obtaining an
amendment to such Third Party Agreement or such other authorization from such
Third Party Supplier which would allow Service Provider to provide such Service
in accordance with the terms of this Agreement. In the event that Service
Provider is unable to obtain an amendment of such Third Party Agreement or an
authorization from such Third Party Supplier that would allow Service Provider
to provide such Service to Service User, Service Provider shall use its best
efforts to assist Service User in obtaining a similar Service (in both quality
and quantity) from a Third Party Supplier. In no event shall the Cost of any
Service provided to Service User by such a Third Party Supplier exceed the Cost
thereof had Service Provider provided such Service.
B. Service Provider shall not be responsible or liable for the
provision of the Services by any Third Party Supplier, it being understood that
Service User has been granted the opportunity to review all Third Party
Agreements. In the event that Service User violates the terms of a Third Party
Agreement (including, but not limited to, by its use of the related Service
-7-
without proper authorization), Service User shall indemnify Service Provider for
all damages incurred by Service Provider as a result of such violation in
accordance with the indemnification provisions of this Agreement.
C. In the event that Service Provider suffers damages or increased
costs such as the decrease or termination of volume or usage discounts or
termination penalties in connection with a Third Party Agreement directly
related to Service User's cancellation of its receipt of a Service prior to the
relevant Service Termination Date or Service User's decreased demand for such
Service in relation to historical levels during its Service term, Service User
shall indemnify Service Provider for such damages or costs actually incurred by
Service Provider in accordance with the payment provisions contained in Section
4 hereof.
D. At its option and upon reasonable advance notice to Service User,
Service Provider shall have the right to cause any Service that it is required
to provide hereunder to be provided by any Third Party Supplier that is
providing, or may from time to time provide, the same or similar Service for
Service Provider unless Service User has provided Service Provider with notice
no later than five (5) Business Days after Service User receives notice of such
outsourcing of Service that Service User elects not to receive such Service from
a Third Party Supplier and instead agrees to the termination of such Service.
Service Provider shall remain responsible, in accordance with the terms of this
Agreement, for performance of any Service it causes to be so provided.
E. At its option and upon reasonable advance notice to Service User,
Service Provider shall have the right to terminate or to fail to renew any Third
Party Agreement and contract with another Third Party Supplier to provide the
affected Service or, alternatively, to perform such Service itself on terms and
conditions no less favorable to Service User, except with respect to the charges
of any Third Party Supplier negotiated on an arm's-length basis by Service
Provider.
12. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This Agreement
----------------------------------------------------
and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their successors and permitted assigns, but neither
this Agreement nor any of the rights, interests and obligations hereunder shall
be assigned by either party hereto without the prior written consent of the
other party (which consent shall not be unreasonably withheld or delayed).
Except for the provisions of Section 9 hereof, which are also for the benefit of
the entities and persons specified therein, this Agreement is solely for the
benefit of the parties hereto and their subsidiaries and affiliates and is not
intended to confer upon any other person or entity any rights or remedies
hereunder.
13. NOTICES. All notices, requests, claims and demands hereunder shall
-------
be in writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by cable, telegram, facsimile, electronic
mail or other standard form of telecommunications (provided confirmation is
delivered to the recipient the next Business Day in the case of facsimile,
electronic mail or other standard form of telecommunications) or by registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
-8-
If to Pharmacia: Xxxxxxxxxxx X. Xxxxxxxx
Pharmacia Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: General Counsel
Pharmacia Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Monsanto: Xxxxxxx X. Xxxxx
Monsanto Company
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: General Counsel
Monsanto Company
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as either party may have furnished to the other party
by a notice in writing delivered in accordance with this Section 13.
14. INCORPORATION OF PROVISIONS OF THE SEPARATION AGREEMENT. Except as
-------------------------------------------------------
otherwise provided herein, the following provisions of the Separation Agreement
are hereby incorporated herein by reference, and, unless otherwise expressly
specified herein, such provisions shall apply as if they are fully set forth
herein: (i) Section 3.04 (Procedure for Indemnification), (ii) Article VI
(Dispute Resolution), (iii) Section 11.05 (Governing Law), (iv) Section 11.07
(Amendment and Modification), (v) Section 11.10 (Interpretation), and (vi)
Section 11.11 (Legal Enforceability).
15. OTHER SERVICES, MODIFIED SERVICES. If services are being negotiated as
---------------------------------
of the date hereof for inclusion hereunder or if, within three (3) months after
such date, (i) additional services are identified and such services would have
been included as Services hereunder had the parties hereto given consideration
to such services as of such date or (ii) such parties jointly determine that the
Services as described herein need to be deleted or modified due to changes in
personnel assignments, a need for better definition or other circumstances, such
parties shall negotiate in good faith with the intent to amend this Agreement to
reflect inclusion of the services being
-9-
negotiated (and fees therefor) as Services hereunder, to add such additional
services (and fees therefor) as Services hereunder, to delete such Services or
to modify such description(s), whichever is applicable, and, if agreement is
reached, such parties shall so amend this Agreement. In addition, within three
(3) months after such date, this Agreement may be amended by mutual agreement of
such parties to add or modify Services and fees therefor.
16. FUTURE SERVICES. The parties hereto contemplate that some or all of
---------------
the Services will be provided after the term of this Agreement and, if such
parties jointly determine that such provision is desirable, they shall negotiate
the terms (including, but not limited to, the fees for such Services) for such
provision in good faith and, if agreement is reached, such parties shall either
amend this Agreement or enter into a new agreement to such effect. In no event
shall either such party be obligated to agree to any such amendment.
17. COUNTERPARTS. This Agreement and the Term Sheets may be executed in
------------
two (2) or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one (1) and the same instrument.
18. CAPITALIZED AND OTHER DEFINED TERMS. Appendix A sets forth any
-----------------------------------
additional defined terms used in the exhibits and is attached hereto and made a
part hereof. Capitalized terms used in this Agreement and not otherwise defined
herein shall be as defined in the Separation Agreement.
19. INCONSISTENT TERMS. In the event of inconsistencies between the terms
------------------
of this Agreement and those of the Term Sheets, the former shall apply except
where the latter expressly specify otherwise.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized representatives as of the date
hereof.
-10-
PHARMACIA CORPORATION
By:__________________________
Name:
Title:
MONSANTO COMPANY
By:__________________________
Name:
Title:
-11-
