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Exhibit (c)(4)
STOCKHOLDERS' AGREEMENT
dated as of January 31, 1996
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TABLE OF CONTENTS
Page
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ARTICLE 1 Definitions . . . . . . . . . . . . . . . . . . . . . 3
1.1 "Affiliate. . . . . . . . . . . . . . . . . . . . . . 3
1.2 "Board of Directors . . . . . . . . . . . . . . . . . 3
1.3 "Business Combination . . . . . . . . . . . . . . . . 3
1.4 "Bylaws . . . . . . . . . . . . . . . . . . . . . . . 3
1.5 "Class A Common Stock . . . . . . . . . . . . . . . . 4
1.6 "Class B Common Stock . . . . . . . . . . . . . . . . 4
1.7 "Closing Date . . . . . . . . . . . . . . . . . . . . 4
1.8 "Common Stock . . . . . . . . . . . . . . . . . . . . 4
1.9 "Company. . . . . . . . . . . . . . . . . . . . . . . 4
1.10 "Director . . . . . . . . . . . . . . . . . . . . . . 4
1.11 "Depositor. . . . . . . . . . . . . . . . . . . . . . 4
1.12 "Exchange Act . . . . . . . . . . . . . . . . . . . . 4
1.13 "Monsanto . . . . . . . . . . . . . . . . . . . . . . 4
1.14 "Monsanto Director. . . . . . . . . . . . . . . . . . 4
1.15 "hereto", "hereunder", "herein", "hereof. . . . . . . 4
1.16 "Involuntary Transfer Notice. . . . . . . . . . . . . 4
1.17 "Involuntary Transfer Stock . . . . . . . . . . . . . 5
1.18 "Indemnified Person . . . . . . . . . . . . . . . . . 5
1.19 "Investment Agreement . . . . . . . . . . . . . . . . 5
1.20 "Losses . . . . . . . . . . . . . . . . . . . . . . . 5
1.21 "Major A Stockholder. . . . . . . . . . . . . . . . . 5
1.22 "Offer Period . . . . . . . . . . . . . . . . . . . . 5
1.23 "Offered Stock. . . . . . . . . . . . . . . . . . . . 5
1.24 "Permitted Transferee . . . . . . . . . . . . . . . . 5
1.25 "Person . . . . . . . . . . . . . . . . . . . . . . . 6
1.26 "Pledge . . . . . . . . . . . . . . . . . . . . . . . 6
1.27 "Xxxxxxx Family Shareholder Agreement . . . . . . . . 6
1.28 "Xxxxxxx Family Voting Trust Agreement. . . . . . . . 6
1.29 "Selling Stockholder. . . . . . . . . . . . . . . . . 6
1.30 "Stock. . . . . . . . . . . . . . . . . . . . . . . . 6
1.31 "Transfer Notice. . . . . . . . . . . . . . . . . . . 6
1.32 "Transferring Stockholder . . . . . . . . . . . . . . 7
1.33 "Voting Trust . . . . . . . . . . . . . . . . . . . . 7
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ARTICLE 2 Election of Monsanto Directors;
Corporate Governance Provisions
in Certificate of Incorporation and Bylaws. . . 7
2.1 Monsanto Directors. . . . . . . . . . . . . . . . . 7
2.2 Amendment of Bylaws . . . . . . . . . . . . . . . . 7
2.3 Solicitation and Voting of Shares . . . . . . . . . 7
2.4 Amendment of Bylaws . . . . . . . . . . . . . . . . 8
2.5 Implementation of Investment Agreement. . . . . . . 8
2.6 Injunctive Relief . . . . . . . . . . . . . . . . . 8
2.7 Indemnification of Major A Stockholders . . . . . . 9
ARTICLE 3 Limitation on Certain Transfers . . . . . . . . . . . 11
3.1 General Limitations on Certain Transfers. . . . . . 11
3.2 Limitation on Certain Conversions and Transfers . . 11
3.3 Legend. . . . . . . . . . . . . . . . . . . . . . . 20
3.4 Nonrecognition of Certain Transfers . . . . . . . . 20
3.5 Exceptions. . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 4 Miscellaneous . . . . . . . . . . . . . . . . . . . . 22
4.1 Governing Law . . . . . . . . . . . . . . . . . . . 22
4.2 Successors and Assigns. . . . . . . . . . . . . . . 22
4.3 Entire Agreement. . . . . . . . . . . . . . . . . . 22
4.4 Notice. . . . . . . . . . . . . . . . . . . . . . . 23
4.5 Delays or Omissions . . . . . . . . . . . . . . . . 26
4.6 Counterparts. . . . . . . . . . . . . . . . . . . . 26
4.7 Severability. . . . . . . . . . . . . . . . . . . . 26
4.8 Sections and Articles . . . . . . . . . . . . . . . 26
4.9 Headings. . . . . . . . . . . . . . . . . . . . . . 26
4.10 Term. . . . . . . . . . . . . . . . . . . . . . . . 27
4.11 Effective Date. . . . . . . . . . . . . . . . . . . 27
Exhibits
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
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STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS AGREEMENT is made as of the 31st day of January, 1996,
by and among Xxxxxxx X. Xxxxxxx, individually and as Trustee of (i) the Xxxxxxx
X. Xxxxxxx Trust dated January 28, 1972, (ii) the Xxxxx Xxx Xxxxxxx 1989 Trust,
(iii) the Xxxxxx Xxx Xxxxxxx 1989 Trust, and (iv) the Xxxxxxx Xxxx Xxxxxxx 1989
Trust ("Xxxxxxx X. Xxxxxxx"); Xxxxxxxx X. Xxxx, individually and as Trustee of
(i) the Xxxxxxxx X. Xxxx Xxxxx xxxxx Xxxxxx 00, 0000, (xx) the Xxxxxx Xxxx Xxxx
1989 Trust, and (iii) the Xxxxx Xxxxxxxxx Xxxx 1989 Trust ("Xxxxxxxx X. Xxxx");
Xxxx X. Xxxxxxx, individually and as Trustee of (i) the Xxxx X. Xxxxxxx Trust
dated April 9, 1976, (ii) the Xxxxxxx Xxxxxxxxx Xxxxxxx 1989 Trust, and (iii)
the Xxxxxxxxx Xxxxx Xxxxxxx 1990 Trust Number 1 ("Xxxx X. Xxxxxxx"); Xxxxxxx X.
Xxxxxxx and Xxxx X. Xxxxxxx, as Trustees of (i) the Xxxxxxx X. and Xxxx
X. Xxxxxxx Living Trust dated October 15, 1991, (ii) the Trust F/B/O
Xxxxxxx X. Xxxxxxx under Xxxxxxx X. Xxxxxxx Charitable Trust Agreement dated
December 21, 1967, (iii) the Trust F/B/O Xxxxxxxx X. Xxxx under Xxxxxxx X.
Xxxxxxx Charitable Trust Agreement dated December 21, 1967, and (iv) the
Trust F/B/O Xxxx X. Xxxxxxx under Xxxxxxx X. Xxxxxxx Charitable Trust
Agreement dated December 21, 1967 ("Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx");
Xxxxx Xxxx Xxxxxxx, as Trustee of the Xxxxx Xxx Xxxxxxx Trust dated October
14, 1987 ("Xxxxx Xxxx Xxxxxxx"); Xxxxxxxx X. Xxxx, as Trustee of the Xxxxxx
Xxxx Xxxx Trust dated December 6, 1985 ("Xxxxxxxx X. Xxxx"); and Xxxxx X.
Xxxxxxx, as Trustee of (I) the Xxxxxxx Xxxxxxxxx Xxxxxxx Trust dated August
6, 1986, (ii) the Xxxxxxxxx Xxxxx Xxxxxxx Trust dated March 13, 1990, and
(iii) the Xxxxxxx Xxxxx Xxxxxxx Trust dated February 28, 1994 ("Xxxxx X.
Xxxxxxx"), and Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxxxxx X. Xxxx and Xxxx X. Xxxxxxx, as Voting Trustees under the Xxxxxxx
Family Voting Trust Agreement (collectively referred to as the "Major A
Stockholders" and individually as a "Major A Stockholder") and Monsanto
Company, a Delaware corporation, having its principal place of business at
000 X. Xxxxxxxxx Xxxx., Xx. Xxxxx, Xxxxxxxx 00000, ("Monsanto").
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RECITALS
WHEREAS, DEKALB Genetics Corporation, a Delaware corporation, having its
principal place of business at 0000 Xxxxxxxx Xxxx, XxXxxx, Xxxxxxxx 00000 (the
"Company") and Monsanto have entered into an Investment Agreement, dated as of
January 31, 1996 (the "Investment Agreement"), and certain other related
agreements whereby Monsanto will acquire shares of the Company's Class A Common
Stock, no par value ("Class A Common Stock") and shares of the Company's Class B
Common Stock, no par value ("Class B Common Stock" and, together with the Class
A Common Stock, the "Common Stock");
WHEREAS, the Major A Stockholders own shares of Class A Common Stock as
indicated on Exhibit "A" to this Agreement;
WHEREAS, pursuant to the Investment Agreement, the Company has agreed
that under certain circumstances Monsanto shall have the right to designate up
to two (2) directors on the Company's Board of Directors;
WHEREAS, pursuant to the Investment Agreement, the Company has agreed to
amend its Bylaws (as amended, the "Bylaws") and to provide notification to
Monsanto in the event the Company is considering certain business combination
transactions; and
WHEREAS, the Major A Stockholders have entered into the Xxxxxxx Family
Voting Trust Agreement in the form attached hereto as Exhibit B and the Xxxxxxx
Family Shareholder Agreement in the form attached hereto as Exhibit C.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the Major A Stockholders and Monsanto
hereby agree as follows:
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ARTICLE 1
Definitions
As used in this Agreement, the following terms shall have the following
respective meanings (all terms defined in this Article 1 or in other provisions
of this Agreement in the singular shall have the same meaning when used in the
plural and vice versa):
1.1 "Affiliate" has the same meaning as in Rule 12b-2 promulgated under
the Exchange Act.
1.2 "Board of Directors" means the Board of Directors of the
Company.
1.3 "Business Combination" shall mean a merger or consolidation in
which the Company is a constituent corporation and pursuant to which
the Common Stock is converted into or exchanged for cash, securities or
other property or a sale of all or substantially all of the assets of
the Company and its subsidiaries taken as a whole, or a sale of all or
substantially all the assets of the Company's United States seed corn
business; provided that a transaction in which the beneficial ownership
of the capital stock of the Company or of the sole surviving
corporation to the transaction (or of the ultimate parent of the
Company or of such sole surviving corporation) immediately after the
consummation of such transaction is substantially the same as the
beneficial ownership of the Company's capital stock immediately prior
to the consummation thereof shall not be deemed a Business Combination
unless such transaction shall result in the sale of all or
substantially all the assets of the Company and its subsidiaries taken
as a whole or all or substantially all of the assets of the Company's
United States seed corn business.
1.4 "Bylaws" has the meaning set forth in the recitals hereto.
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1.5 "Class A Common Stock" has the meaning set forth in the
recitals hereto.
1.6 "Class B Common Stock" has the meaning set forth in the
recitals hereto.
1.7 "Closing Date" means the closing of the purchase of Common Stock by
Monsanto from the Company pursuant to the terms of the Investment
Agreement.
1.8 "Common Stock" has the meaning set forth in the recitals
hereto.
1.9 "Company" has the meaning set forth in the first paragraph
hereof.
1.10 "Director" means a member of the Board of Directors.
1.11 "Depositor" means a depositor of shares of Common Stock under the
Voting Trust Agreement.
1.12 "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
1.13 "Monsanto" has the meaning set forth in the first
paragraph hereof.
1.14 "Monsanto Director" has the meaning set forth in Section
2.1.
1.15 "hereto", "hereunder", "herein", "hereof" and the like mean and
refer to this Agreement as a whole and not merely to the specific
article, section, paragraph or clause in which the respective word
appears.
1.16 "Involuntary Transfer Notice" has the meaning set forth in
Section 3.2(e).
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1.17 "Involuntary Transfer Stock" has the meaning set forth in
Section 3.2(e).
1.18 "Indemnified Person" has the meaning set forth in Section
2.7(b).
1.19 "Investment Agreement" means that certain Investment Agreement,
dated as of January 31, 1996 between the Company and Monsanto.
1.20 "Losses" has the meaning as set forth in Section 2.7(a).
1.21 "Major A Stockholder" has the meaning set forth in the first
paragraph hereof, together with any pledgees and Permitted Transferees
who become parties to this Agreement pursuant to Section 3.5 (a) and
(b).
1.22 "Offer Period" has the meaning set forth in Section 3.2(b).
1.23 "Offered Stock" has the meaning set forth in Section 3.2(b).
1.24 "Permitted Transferee" means (i) Xxxxxxx X. Xxxxxxx, Xxxxxxxx
Xxxxxxx Xxxx, Xxxx X. Xxxxxxx, or their parents, (ii) any Depositor,
(iii) any spouse, lineal descendant (including adopted descendants), or
spouse of a lineal descendant (including adopted descendants) of
Xxxxxxx X. Xxxxxxx, Xxxxxxxx Xxxxxxx Xxxx or Xxxx X. Xxxxxxx, (iv) any
trust or other entity the sole beneficiaries or owners of which are
Persons referred to in this definition, (v) any Person receiving any
interest in shares of Stock pursuant to a Major A Stockholder's last
will and testament or by distribution at a Major A Stockholder's death
from a trust established by a Major A Stockholder or according to the
laws of intestate succession, or (vi) any ex-spouse of Xxxxxxx X.
Xxxxxxx, Xxxxxxxx Xxxxxxx Xxxx or Xxxx X. Xxxxxxx or any ex-spouse of a
lineal descendant (including adopted descendants) of Xxxxxxx X.
Xxxxxxx, Xxxxxxxx Xxxxxxx Xxxx or Xxxx X. Xxxxxxx,
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to the extent (and only to the extent) that any such ex-spouse receives
any interest in Stock pursuant to a court order entered in connection
with a divorce proceeding.
1.25 "Person" means a corporation, association, partnership, joint
venture, limited liability company, individual, trust, unincorporated
organization, a government agency or political subdivision thereof and
any other entity.
1.26 "Pledge" when used as a verb means to pledge, hypothecate,
mortgage, create any security interests in or otherwise encumber and
when used as a noun means any resulting pledge, hypothecation,
mortgage, security interest or other encumbrance.
1.27 "Xxxxxxx Family Shareholder Agreement" means the agreement
attached hereto as Exhibit C.
1.28 "Xxxxxxx Family Voting Trust Agreement" means the agreement
attached hereto as Exhibit B.
1.29 "Selling Stockholder" has the meaning set forth in Section 3.2(b).
1.30 "Stock" means the following securities: (i) the Class A Common
Stock of the Company and any other common or preferred stock of the
Company entitled to vote generally in the election of directors whether
presently issued or hereafter authorized, designated and issued, now
owned or hereafter acquired by each Major A Stockholder, (ii) any
option, warrant or right to acquire Class A Common Stock (or any
security or other instrument referred to in this definition) and (iii)
any security or other instrument exchangeable for, or convertible into,
Class A Common Stock (or any security or other instrument referred to
in this definition).
1.31 "Transfer Notice" has the meaning set forth in Section 3.2(b).
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1.32 "Transferring Stockholder" has the meaning set forth in
Section 3.2(e).
1.33 "Voting Trust" means the trust established under the Xxxxxxx
Family Voting Trust Agreement.
ARTICLE 2
Election of Monsanto Directors; Corporate Governance Provisions
in Certificate of Incorporation and Bylaws
2.1 Monsanto Directors. As set forth in the Investment Agreement, depending
on its ownership percentage of the Company's Common Stock, Monsanto
shall have the right to nominate up to two (2) directors (together, the
"Monsanto Directors" and, individually, a "Monsanto Director") to the
Board of Directors. Initially, one Monsanto Director shall be nominated
by Monsanto within twenty (20) business days after the Closing Date and
shall have a term expiring at the Company's 1999 annual meeting of
stockholders. If Monsanto is entitled to nominate a second director,
then such second Monsanto Director shall be nominated for election at
the Company's 1997 annual meeting of stockholder and shall have a term
expiring at the Company's 2000 annual meeting of stockholders.
2.2 Amendment of Bylaws. As set forth in the Investment Agreement, prior to
the Closing, the Company has agreed to cause Article IX of the Bylaws
to be amended as provided in Exhibit "D" hereto.
2.3 Solicitation and Voting of Shares. In any election of Directors, each
Major A Stockholder shall use best efforts to attend such stockholder
meeting (in person or by proxy) for purposes of establishing a quorum
and shall vote (in person or by proxy) all its shares of Stock in favor
of any Monsanto Director nominated by Monsanto and
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recommended by the Board of Directors; provided that such Monsanto
Director is reasonably satisfactory to the Company.
2.4 Amendment of Bylaws. During the term of this Agreement and after the
adoption by the Company of the amendments to the Bylaws described in
Exhibit "D" hereto, without the prior written consent of Monsanto, the
Major A Stockholders shall not directly or indirectly initiate any
action that would result in the amendment of Section 9.3, 9.4, 9.5, 9.6
or 9.7 of the Bylaws.
2.5 Implementation of Investment Agreement. During the term of this
Agreement, each Major A Stockholder shall vote its shares of Stock in
favor of any proposed amendment to the Company's Certificate of
Incorporation increasing the Company's authorized capital stock, which
amendment is required in order for the Company to comply with the
provisions of Article 10 of the Investment Agreement.
2.6 Injunctive Relief. In the event of a breach of the provisions of this
Article 2 by any of the Major A Stockholders, Monsanto will suffer
irreparable harm and the total amount of monetary damages will be
impossible to calculate and will therefore be an inadequate remedy.
Accordingly, in such event, Monsanto shall be entitled to temporary and
permanent injunctive relief against the breaching party and to any
other rights and remedies to which Monsanto may be entitled to at law
or in equity.
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2.7 Indemnification of Major A Stockholders.
(a) Monsanto's Indemnification Agreement. Subject to
paragraph (b) below, Monsanto shall indemnify and hold the
Major A Stockholders and their respective affiliates,
trustees, trust beneficiaries, directors, officers,
stockholders, employees, agents, successors and assigns
(each an "Indemnified Person") harmless from and against any
and all claims, liabilities, fines, penalties, demands,
causes of action, suits, judgments, losses, injuries,
damages (including costs of defense, settlement and
reasonable attorneys' fees) (all of the foregoing
hereinafter collectively called "Losses") suffered or
incurred by any Indemnified Person which arise from or in
connection with actions or inactions of any Indemnified
Person in the performance of the obligations of any Major A
Stockholder under this Article 2.
(b) Procedure. In the event that, from and after the
Closing, a third person asserts any claim against any
Indemnified Person with respect to any matter to which the
foregoing indemnities apply, the Indemnified Person shall
give prompt written notice to Monsanto, and Monsanto shall
have the right, at its election, to take over the defense or
settlement of such claim at its own expense by giving prompt
written notice to the Indemnified Person; provided, however,
that, (i) if Monsanto does not give such notice and does not
proceed diligently to defend the claim within thirty (30)
days after receipt of such notice of the claim, then the
Indemnified Person may employ separate counsel to represent
it and defend it against such claim and Monsanto shall be
bound by any defense or settlement that the Indemnified
Person may make as to such claim and shall reimburse the
Indemnified Person for any and all Losses resulting
therefrom as such Losses are incurred and (ii) if Monsanto
elects to defend the claim, then Monsanto shall employ
counsel reasonably satisfactory to the Indemnified Person
and the
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Indemnified Person shall be entitled to participate in (but
not control) the defense of such claim and to employ separate
counsel at its own expense to assist in the handling of such
claim, unless the common counsel determines, in compliance
with the canons of ethics of the legal profession, that a
conflict of interest exists between Monsanto and an
Indemnified Person, in which event the Indemnified Person may
appoint separate counsel to represent or defend it against
the claim and Monsanto shall reimburse such Indemnified
Person for all Losses resulting therefrom as such Losses are
incurred. The Indemnified Person and Monsanto shall cooperate
in defending any such third person's claim, and Monsanto, to
the extent Monsanto elects to defend such claim, shall have
reasonable access to records, information and personnel in
the possession or control of any other party hereto which are
applicable to the subject matter of any claim or which are
otherwise pertinent to the defense of such claim and the
Indemnified Person shall otherwise cooperate with Monsanto in
all respects in connection therewith. Monsanto shall
reimburse the Indemnified Person for all of the Indemnified
Person's reasonable out-of-pocket costs as they are incurred
in connection with the activities set forth in the
immediately preceding sentence and in enforcing this
indemnification. Notwithstanding the foregoing, Monsanto
shall not settle or compromise any such claim without the
prior written consent of the Indemnified Person, such consent
not to be unreasonably withheld, unless, after consultation
between such parties, the terms of such settlement or
compromise release such Indemnified Person from any and all
liability with respect to such claim and do not in any manner
adversely affect the future operations or activities of such
Indemnified Person.
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ARTICLE 3
Limitation on Certain Transfers
3.1 General Limitations on Certain Transfers.
(a) Subject to Section 3.5, during the term of this
Agreement, no Major A Stockholder shall in any manner,
whether directly or indirectly, voluntarily or by operation
of law, sell, convey, transfer, assign, or otherwise
dispose of ("transfer") any interest in its Stock to any
Person or convert any of its Class A Common Stock to Class
B Common Stock except as provided under the terms of this
Agreement after complying with the provisions of this
Article 3.
(b) Notwithstanding any other provision of this Agreement
including this Article 3, in no event shall any Major A
Stockholder tender any of its shares of Stock in the tender
offer to purchase shares of Class B Common Stock to be made
by Monsanto pursuant to the terms described in the Investment
Agreement.
3.2 Limitation on Certain Conversions and Transfers.
(a) Limitation on Conversions. Except pursuant to a court
order entered in connection with a divorce proceeding to an
ex-spouse of Xxxxxxx X. Xxxxxxx, Xxxxxxxx Xxxxxxx Xxxx or
Xxxx X. Xxxxxxx or to an ex-spouse of a lineal descendant of
Xxxxxxx X. Xxxxxxx, Xxxxxxxx Xxxxxxx Xxxx or Xxxx X.
Xxxxxxx, no Major A Stockholder shall convert any of its
Class A Common Stock to Class B Common Stock until such
time as such Major A Stockholder has entered into a binding
agreement to sell or otherwise convey such Class B Common
Stock to a third party.
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(b) Limitations on Voluntary Transfers. Subject to Section
3.5, in the event that any Major A Stockholder desires to
transfer any interest in its Stock, including, without
limitation, a redemption of such Stock by the Company, such
Major A Stockholder (the "Selling Stockholder") shall make a
written offer (the "Transfer Notice") to Monsanto stating
(i) the number of shares of Stock proposed to be so
transferred (the "Offered Stock") and (ii) the price, form
of consideration and other material terms upon which the
Offered Stock are being offered; provided, however, that in
the event the Transfer Notice shall state that the Major A
Stockholder intends to dispose of such Offered Stock by
means of an underwritten public offering (a "Public
Offering"), in lieu of stating a price at which the Offered
Stock is being offered, the Major A Stockholder may state an
estimated price (less estimated underwriting discounts and
expenses of sale) at which the Major A Stockholder is
advised in writing by the managing underwriter as its good
faith estimate of the average between the estimated minimum
and maximum amounts at which such Offered Stock may be sold
in the Public Offering (the "Average Price"). For a period
of twenty-five (25) days (if the form of consideration
specified in the Transfer Notice only includes cash and/or
shares of stock traded in the NASDAQ National Market System
or on a U.S. securities exchange ("traded stock")), or
ninety (90) days (if the form of consideration specified in
the Transfer Notice includes property other than cash or
traded stock) following the date of the Transfer Notice (the
"Offer Period"), Monsanto shall have the irrevocable and
exclusive option (but not obligation) to purchase all (but
not less than all) of the Offered Stock in cash for the
price per share and upon the other terms specified in the
Transfer Notice; provided, however, in the event the
Transfer Notice shall have stated that the Major A
Stockholder intends to dispose of the Offered Stock in a
Public Offering, Monsanto may purchase the Offered Stock at
the Average Price (less the estimated amount of underwriting
discounts and expenses of offering) stated in the Transfer
Notice; provided, further, that if the proposed
consideration specified in the Transfer Notice includes
property
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other than cash, then Monsanto shall have the option to
purchase the Offered Stock for consideration other than cash
that is equal in value to the non-cash property specified in
the Transfer Notice; and provided, further, that if the
consummation of the transfer described in the Transfer Notice
would cause the Selling Stockholder to recognize less gain
for income tax purposes than the amount of taxable gain which
the Selling Stockholder would recognize as a result of a cash
sale to Monsanto, then the aggregate purchase price for the
Offered Stock payable by Monsanto shall be increased by an
amount equal to (A) the gain which would not have otherwise
been recognized for income tax purposes multiplied by a
fraction, the numerator of which is one and the denominator
of which is one minus the highest marginal income tax rate on
capital gains for individuals in effect at such time, minus
(B) the gain which would not have otherwise been recognized
for income tax purposes. The gain which would not have
otherwise been recognized for income tax purposes shall be
computed using the Selling Stockholder's actual tax basis in
the Offered Stock based upon (i) such records as Monsanto
shall reasonably request and (ii) as are certified by such
Selling Stockholder as true, complete, and correct.
Monsanto's option to purchase the shares of Offered Stock
shall be exercised by giving written notice to the Selling
Stockholder within the Offer Period. Alternatively, if
Monsanto rejects the Selling Shareholder's offer to sell the
Offered Stock for the price per share and upon the terms
specified in the Transfer Notice, then, for the remainder of
the Offer Period, Monsanto shall have the exclusive right to
propose alternative terms to the Selling Stockholder for the
purchase of the Offered Stock at such price per share and
upon such terms as the parties may agree upon.
Subject to Section 3.5, in the event a Selling
Stockholder proposes to dispose of Offered Stock in a
transaction subject to Article 3 hereof for consideration
that includes non-cash consideration other than traded stock,
such Selling Stockholder shall stipulate the value of such
property in the Transfer
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Notice and shall, at the request of Monsanto, provide to
Monsanto, at the Selling Stockholder's expense, a written
valuation of such property prepared by a
nationally-recognized firm experienced in appraising the
specified type of property , which sets forth the value of
such property. In the event that Monsanto does not agree with
such valuation, Monsanto shall deliver a written notice of
such disagreement to the Selling Stockholder within fifteen
(15) days of the receipt of the written valuation and shall
thereafter deliver to the Selling Stockholder within thirty
(30) days following delivery of such disagreement, at
Monsanto's expense, a written valuation of such property
prepared on the same basis by another nationally-recognized
firm experienced in appraising the specified type of
property, which sets forth the value of such property. The
Selling Stockholder may either accept such subsequent
valuation or deliver written notice of its disagreement with
such valuation to such Selling Stockholder. In the latter
event, the Selling Stockholder and Monsanto shall agree to
the appointment of a third nationally-recognized firm
experienced in appraising the specified type of property, who
shall be selected by mutual agreement of their respective
nationally-recognized firms, whose valuation shall establish
conclusively the price for purposes of the Transfer Notice.
The expense of such third firm shall be borne equally by the
parties.
If property to be received by a Selling
Stockholder includes shares of stock that are traded on the
NASDAQ National Market System or any other system then in
use, then the value of a share of such stock shall be deemed
to be the last reported sale price (or, if not available, the
average of the closing bid and ask price) per share during
the 30-day period immediately preceding the date of the
Transfer Notice. If the property to be received by a Selling
Stockholder includes shares of a stock that is listed on a
United States securities exchange registered under the
Exchange Act, then the value of a share of such stock shall
be deemed to be the average of the closing sale price per
share of such stock
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during the 30-day period immediately preceding the date of
the Transfer Notice on the principal United States securities
exchange registered under the Exchange Act on which such
stock is listed.
(c) Acceptance of Offer. If, during the Offer Period,
Monsanto exercises its right to purchase the Offered Stock
at the price per share and upon the terms specified in the
Transfer Notice or if the parties otherwise reach an
agreement regarding the price, terms and conditions of the
sale, then the Selling Stockholder shall sell the shares of
Offered Stock to Monsanto in accordance with the price per
share and terms specified in the Transfer Notice or pursuant
to such price, terms and conditions otherwise agreed upon by
the parties, including standard terms and conditions for a
stock purchase agreement. The closing of any such purchase
shall take place no later than twenty-five (25) days (if the
form of consideration specified in the Transfer Notice only
includes cash or traded stock) or ninety (90) days (if the
form of consideration specified in the Transfer Notice
includes property other than cash or traded stock) following
the expiration of the Offer Period.
(d) Nonacceptance of Offer. If, at the end of the Offer
Period, Monsanto has not exercised its right to purchase
the Offered Stock at the price per share and upon the terms
specified in the Transfer Notice and the parties have not
otherwise reached an agreement regarding the price, terms
and conditions of the Sale, then such Selling Stockholder
shall be entitled to offer and sell such shares of Offered
Stock to any Person (free and clear of any rights of
Monsanto) provided that the price, terms and conditions of
such sale, considered as a whole, are at least as favorable
to the Selling Stockholder as either (i) those set forth in
the Transfer Notice or (ii) those offered by Monsanto in any
counter offer, if any; provided, in the event the Transfer
Notice shall have stated an Average Price, the Offered Stock
may be disposed of in a Public Offering at a price no less
than the minimum
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amount used as a basis to calculate the Average Price (less
actual underwriting discounts and expenses). Notwithstanding
the foregoing, if the Selling Stockholder shall not have
signed a definitive agreement to sell the Offered Stock
within one hundred eighty (180) days immediately following
the expiration of the Offer Period, then the shares of
Offered Stock shall again be subject to the terms and
conditions of this Agreement in the same manner as if the
Transfer Notice had not been given.
(e) Limitations on Involuntary Transfers. Subject to Section 3.5,
if any involuntary transfer of any of the Stock owned by a
Major A Stockholder (a "Transferring Stockholder") shall
occur (such as, but not limited to, a sale by a Major A
Stockholder's trustee in bankruptcy, or a sale to a purchaser
at any creditor's or court sale) other than an involuntary
transfer to a Permitted Transferee:
(i) Transferee Takes Subject Hereto. The transferee
(which term, as used herein, shall include any and
all transferees and subsequent transferees of the
initial transferee) shall take and hold such Stock
subject to all of the restrictions, liabilities and
rights under this Agreement, which shall continue
in full force and effect.
(ii) Involuntary Transfer Notice. The Transferring
Stockholder (or, if it fails to do so, the
transferee) shall promptly give written notice
(the "Involuntary Transfer Notice") to Monsanto
and the Company stating (a) when the involuntary
transfer occurred or is to occur, (b) the
circumstances alleged to require such transfer,
(c) the number of shares of Stock involved and (d)
the name, address and capacity of the transferee.
If both the Transferring Stockholder and the
transferee shall fail to give the Involuntary
Transfer Notice, then the Involuntary Transfer
Notice may be given by the Company or by any other
stockholder of the Company and
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20
the Involuntary Transfer Notice so given may
contain only such portion of the information set
forth in the preceding sentence as shall be known
to the Person so giving the Involuntary Transfer
Notice.
(iii) Purchase Option. Monsanto shall have the
irrevocable and exclusive option (but not the
obligation) for a period of forty-five (45) days
immediately following receipt of the Involuntary
Transfer Notice to purchase all but not less than
all of the shares of Stock included in the
Involuntary Transfer Notice (the "Involuntary
Transfer Stock") in cash for the price per share
and upon the terms and conditions set forth in
this Section 3.2(e). An election to exercise
Monsanto's option shall be made by Monsanto by
giving written notice to the Company, the
transferee and the Transferring Stockholder.
(iv) Failure to Give Notice. Failure by Monsanto to give
the notice provided for in paragraph (e)(iii)
within the time period provided for therein shall
be deemed an election by Monsanto not to purchase
any shares of the Involuntary Transfer Stock.
(v) Closing. If the shares of Involuntary Transfer
Stock are to be purchased by Monsanto pursuant to
this Section 3.2(e), then such purchase shall,
unless the parties thereto otherwise agree, be
completed at the principal office of Monsanto on
the thirtieth (30th) day following the giving of
notice by Monsanto pursuant to paragraph (e)(iii)
of its election to exercise its option to purchase
the Involuntary Transfer Stock.
(vi) Purchase Price. The price per share of the
Involuntary Transfer Stock to be paid by Monsanto
upon exercise of its option to purchase such
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Involuntary Transfer Stock pursuant to paragraph
(e)(iii) shall be as follows:
(a) With respect to shares of Class A
Common Stock, if the shares of the
Company's Class B Common Stock are then
traded in the NASDAQ National Market
System or on a United States securities
exchange registered under the Exchange
Act, the price per share shall be the
average of the last reported sales price
(or, if not available, the average of
the closing bid and ask price) per
share of the Company's Class B Common
Stock on the NASDAQ National Market
System (or such other securities
exchange on which the Company's Class B
Common Stock is then listed) on each of
the thirty (30) trading days immediately
preceding the closing of the purchase of
such Class A Common Stock; and
(b) With respect to shares of any
Involuntary Transfer Stock other than
Class A Common Stock, or, with respect
to shares of Class A Common Stock if the
Company's Class B Common Stock is not
then listed on the NASDAQ National
Market System or on a United States
securities exchange registered under the
Exchange Act, the price per share shall
be the fair market value per share as
determined by an investment banking firm
of recognized standing selected by
mutual agreement of the transferee or
Transferring Stockholder, as the case
may be (depending on who is the legal
owner of the Involuntary Transfer
Stock), and Monsanto. If the transferee
or the Transferring Stockholder, as the
case may be, and Monsanto are unable to
agree upon an investment banking firm to
perform the valuation, then both
Monsanto and the transferee or the
Transferring Stockholder, as the case
may be, shall select an
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investment banking firm and the two investment
banking firms so selected shall select a third
investment banking firm to perform the valuation.
The determination of the third investment banking
firm as to the fair market value per share shall be
final and binding on the parties. If the parties
are unable to mutually agree upon an investment
banking firm to perform the valuation, then
Monsanto and the transferee or the Transferring
Stockholder, as the case may be, shall pay the fees
of the investment banking firm selected by each
such party. The fees of any investment banking firm
mutually agreed upon by the parties and the fees of
any third investment banking firm performing the
valuation in connection with the services provided
pursuant to this paragraph (e)(vi) shall be
paid fifty percent (50%) by Monsanto and fifty
percent (50%) by the transferee or the
Transferring Stockholder, as the case may be.
(vii) Delivery of Certificates. At the closing of the
purchase and sale of Involuntary Transfer Stock
pursuant to the exercise of options granted under
this Section 3.2, the Transferring Stockholder or
the transferee, as the case may be, shall deliver
to Monsanto duly endorsed for transfer, with all
required state or federal documentary tax stamps
affixed thereto, certificates representing all of
the shares of Involuntary Transfer Stock being
purchased and sold at such closing against payment
therefor in cash or certified or bank cashier's
check. In addition, the Transferring Stockholder
or the transferee, as the case may be, shall
deliver to Monsanto such signature guarantees and
other documents and certificates as may be
reasonably requested by Monsanto in order to
confirm the Transferring Stockholder's or the
transferee's, as the case may be,
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title to such Involuntary Transfer Stock and its
authority to act in connection with the sale
thereof.
3.3 Legend. A copy of this Agreement shall be filed with the Secretary of
the Company and shall be kept at its principal executive office. Upon
the execution of this Agreement, each of the Major A Stockholders shall
cause each certificate representing shares of Stock owned by such Major
A Stockholder to carry a legend as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, CONVEYED, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED,
MORTGAGED OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER
COMPLIES WITH THE PROVISIONS OF A STOCKHOLDERS' AGREEMENT
DATED AS OF JANUARY 31, 1996, A COPY OF WHICH IS ON FILE AT
THE OFFICES OF THE COMPANY.
Upon the acquisition of additional shares of Stock after the date
hereof, each Major A Stockholder shall cause each certificate
representing such additional shares of Stock to carry the above legend.
3.4 Nonrecognition of Certain Transfers. Any transfer, acquisition or
conversion of shares of Stock in violation of this Agreement shall be
null and void. Each Major A Stockholder agrees that any such transfer,
acquisition or conversion may and should be enjoined.
3.5 Exceptions. The provisions of this Article 3 shall not apply to:
(a) a Pledge of Stock or any interest therein to a bank or other
reputable lending institution in a bona fide loan transaction and not
made in bad faith to avoid the provisions of this Article 3; provided,
however, if the pledgee is not a party to this
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24
Agreement it shall execute a counterpart of this Agreement
acknowledging that it has become a party to this Agreement with respect
to the shares of Stock so pledged, after which such pledgee shall be
deemed a Major A Stockholder;
(b) a transfer, directly or indirectly, voluntarily or involuntarily,
of any interest in Stock to a Permitted Transferee (including transfers
of Voting Trust Certificates or interests in Stock pursuant to the
Xxxxxxx Family Voting Trust Agreement and the Xxxxxxx Family
Shareholder Agreement); provided, however, that the Permitted
Transferee, if not then a party to this Agreement, shall execute a
counterpart to this Agreement acknowledging that it has become a party
to this Agreement with respect to the shares of Stock so transferred,
after which such Permitted Transferee shall be deemed a Major A
Stockholder;
(c) the appointment of or transfer of any interest in Stock to any
trustee, guardian, executor, administrator, Voting Trustee of the
Voting Trust or other fiduciary acting solely for the benefit of one or
more Permitted Transferees;
(d) the granting of a proxy with respect to Stock solicited by the
Board of Directors;
(e) any exchange, conversion or transfer of Stock in connection with a
Business Combination; provided, however, that this clause (e) shall not
permit any agreement to sell or otherwise transfer any interest in
Stock (including the granting of any proxy to the acquiror) by any
Major A Stockholder prior to the Company's execution of an agreement
with respect to such Business Combination; or
(f) any tender or exchange of Stock in accordance with the terms of any
tender or exchange offer, which tender or exchange offer would result,
if consummated in accordance with its terms, in the beneficial
ownership by any Person or group (within the meaning of Rule 13d-3 of
the Exchange Act) of all of the Class A Common Stock and
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Class B Common Stock; provided, however, that this clause (f) shall not
permit any Major A Stockholder to surrender (or enter into a binding
agreement to sell or surrender) any Stock or interest therein in
connection with such tender or exchange offer unless the Company has
previously published to security holders of the Company a statement
pursuant to Rule 14e-2 (or any successor rule) under the Exchange Act.
ARTICLE 4
Miscellaneous
4.1 Governing Law. This Agreement shall be governed in all respects
by the laws of the State of Delaware (exclusive of such state's choice
of laws rules).
4.2 Successors and Assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned or
transferred, in whole or in part, by any of the parties without the
prior written consent of the other parties hereto, except that Monsanto
may, without the prior written consent of the other parties hereto,
assign all or any of its rights, interests, and obligations under this
Agreement to a wholly owned, direct or indirect, United States
subsidiary of Monsanto, provided that Monsanto (i) shall remain liable
for the performance by any such subsidiary of its obligations under
this Agreement, (ii) shall act as agent for any and all such
subsidiaries in connection with the receipt and giving of notices under
this Agreement and (iii) shall not cause or permit any such subsidiary
to be other than a wholly owned direct or indirect subsidiary of
Monsanto. Subject to the preceding sentence and as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, permitted assigns, heirs, executors, and
administrators of the parties hereto.
4.3 Entire Agreement. This Agreement constitutes the complete,
exclusive and final understanding and agreement between the parties
with regard to the subjects hereof.
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4.4 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing, and shall be deemed sufficiently given
when delivered in person or transmitted by telegram or telecopier
(confirmed by mail) or by a national overnight delivery service,
addressed as follows:
If to Monsanto: Monsanto Company
000 X. Xxxxxxxxx Xxxx.
Xx. Xxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy Number: (000) 000-0000
with a copy to:
Monsanto Company
000 X. Xxxxxxxxx Xxxx.
Xx. Xxxxx, XX 00000
Attention: General Counsel and Secretary
Telecopy Number: (000) 000-0000
If to Xxxxxxx X. Xxxxxxx X. Xxxxxxx
Xxxxxxx: DEKALB Genetics Corporation
0000 Xxxxxxxx Xxxx
XxXxxx, XX 00000
Telecopy Number: (000) 000-0000
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with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Pillsbury, Madison & Sutro LLP
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
If to Xxxxx Xxxx Xxxxxxx:
Xxxxx Xxxx Xxxxxxx
c/o Xxxxxxx X. Xxxxxxx
DEKALB Genetics Corporation
0000 Xxxxxxxx Xxxx
XxXxxx, XX 00000
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Pillsbury, Madison & Sutro LLP
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
If to Xxxxxxxx X. Xxxx:
Xxxxxxxx X. Xxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Pillsbury, Madison & Sutro LLP
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
If to Xxxxxxxx X. Xxxx:
Xxxxxxxx X. Xxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
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with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Pillsbury, Madison & Sutro LLP
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
If to Xxxx X. Xxxxxxx: Xxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Pillsbury, Madison & Sutro LLP
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
If to Xxxxx X. Xxxxx X. Xxxxxxx
Xxxxxxx: 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Pillsbury, Madison & Sutro LLP
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
or to such other address as may be specified from time to time in a
notice given by such party. The parties agree to acknowledge in writing
the receipt of any such notice delivered in person.
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4.5 Delays or Omissions. Except as otherwise provided in this Agreement, no
delay or omission to exercise any right, power or remedy accruing to
Monsanto, upon any breach or default of or any Major A Stockholder
under this Agreement, shall impair any such right, power or remedy of
Monsanto nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring. Any waiver, permit, consent or approval
of any kind or character on the part of any party or any waiver on the
part of any party of any provisions or conditions of this Agreement
must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, at law, in equity or otherwise afforded to any party, shall
be cumulative and not alternative.
4.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
4.7 Severability. In the event that any provision of this Agreement becomes
or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided, however, that no such
severability shall be effective if it materially changes the economic
benefit of this Agreement to any party.
4.8 Sections and Articles. All sections and articles referred to
herein are sections and articles of this Agreement.
4.9 Headings. Headings as to the contents of particular articles and
sections are for convenience only and are in no way to be construed as
part of this Agreement or as a limitation of the scope of the
particular articles or sections to which they refer.
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4.10 Term. The provisions of this Agreement shall be effective from the date
hereof until the earlier of (i) the termination of the Collaboration
Agreement and License between Monsanto and the Company dated of even
date herewith (except if the same is terminated by reason of a material
breach thereof by the Company or by reason of a governmental decree
caused by the voluntary action of the Company), (ii) such time as
Monsanto owns less than (A) five percent (5%) of the outstanding Class
A Common Stock or (B) less than fifty percent (50%) of the highest
percent of the outstanding Common Stock as is beneficially owned by
Monsanto after completion of the tender offer contemplated by the
Investment Agreement, the Closing and any purchases in the market of
Class B Common Stock by Monsanto as permitted under the Investment
Agreement during the one year period after the Closing, (iii) the date
on which the Investment Agreement is terminated and (iv) on the
eleventh anniversary of the Closing or any subsequent anniversary of
the Closing if either Monsanto on the one hand or a majority in
interest of Stock beneficially owned by the Persons who are then Major
A Stockholders on the other gives written notice to all other parties
hereto that this Agreement shall terminate on any such anniversary
which is more than 60 days after the date of such notice.
4.11 Effective Date. The provisions of this Agreement shall be effective as
of the consummation of the Closing. If the Investment Agreement is
terminated prior to the consummation of the Closing, then the
provisions of this Agreement shall be null and void and of no further
force or effect and this Agreement shall be deemed to be terminated.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
Monsanto Company
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx
President, Ceregen
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
---------------------
Xxxxxxx X. Xxxxxxx, individually and as
Trustee of (i) the Xxxxxxx X. Xxxxxxx
Trust dated January 28, 1972, (ii) the
Xxxxx Xxx Xxxxxxx 1989 Trust, (iii) the
Xxxxxx Xxx Xxxxxxx 1989 Trust, and (iv)
the Xxxxxxx Xxxx Xxxxxxx 1989 Trust
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Xxxxxxxx X. Xxxx
/s/ Xxxxxxxx X. Xxxx
---------------------
Xxxxxxxx X. Xxxx, individually and as
Trustee of (i) the Xxxxxxxx X. Xxxx
Xxxxx xxxxx Xxxxxx 00, 0000, (xx) the
Xxxxxx Xxxx Xxxx 1989 Trust, and (iii)
the Xxxxx Xxxxxxxxx Xxxx 1989 Trust
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Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxxx, individually
and as Trustee of (i) the Xxxx X.
Xxxxxxx Trust dated April 9, 1976, (ii)
the Xxxxxxx Xxxxxxxxx Xxxxxxx 1989
Trust, and (iii) the Xxxxxxxxx Xxxxx
Xxxxxxx 1990 Trust Number 1
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Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, as Trustee of (i)
the Xxxxxxx Xxxxxxxxx Xxxxxxx Trust
dated August 6, 1986, (ii) the
Xxxxxxxxx Xxxxx Xxxxxxx Trust dated
March 13, 1990, and (iii) the Xxxxxxx
Xxxxx Xxxxxxx Trust dated February 28,
1994
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Xxxxxxxx X. Xxxx
/s/ Xxxxxxxx X. Xxxx
--------------------
Xxxxxxxx X. Xxxx, as Trustee of
the Xxxxxx Xxxx Xxxx Trust dated
December 6, 1985
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Xxxxxxx X. Xxxxxxx and Xxxx X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------
/s/ Xxxx X. Xxxxxxx
-------------------
XXXXXXX X. Xxxxxxx and Xxxx
X. Xxxxxxx, as Trustees of (i) the
Xxxxxxx X.and Xxxx X. Xxxxxxx Living
Trust dated October 15, 1991, (ii) the
Trust F/B/O Xxxxxxx X. Xxxxxxx under
Xxxxxxx X. Xxxxxxx Charitable Trust
Agreement dated December 21, 1967,
(iii) the Trust F/B/O Xxxxxxxx X. Xxxx
under Xxxxxxx X. Xxxxxxx Charitable
Trust Agreement dated December 21,
1967, and (iv) the Trust F/B/O Xxxx X.
Xxxxxxx under Xxxxxxx X. Xxxxxxx
Charitable Trust Agreement dated
December 21, 1967
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Xxxxx Xxxx Xxxxxxx
/s/ Xxxxx Xxxx Xxxxxxx
----------------------
Xxxxx Xxxx Xxxxxxx, as Trustee
of the Xxxxx Xxx Xxxxxxx Trust dated
October 14, 1987
