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Exhibit (c)(5)
Execution Copy
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REGISTRATION RIGHTS AGREEMENT
dated as of January 31, 1996
between
DEKALB GENETICS CORPORATION
and
MONSANTO COMPANY
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
January 31, 1996 between DEKALB GENETICS CORPORATION, a Delaware corporation
(the "Company"), and MONSANTO COMPANY, a Delaware corporation ("Holder").
RECITALS
WHEREAS, the Holder has agreed to purchase from the Company in
accordance with the terms and conditions of an Investment Agreement between the
Company and the Holder dated the date hereof (the "Investment Agreement")
certain newly issued shares of the Company's Class B Stock and Class A Stock and
may acquire additional shares of outstanding Class B Stock pursuant to a tender
offer as described in the Investment Agreement;
WHEREAS, the parties hereto desire to set forth the Holder's
rights and the Company's obligations to cause the registration of the
Registrable Securities pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the covenants and
agreements of the Holder and the Company contained herein and in the Investment
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
Agent. "Agent" shall mean the principal placement
agent on an agented placement of Registrable Securities.
Board. "Board" shall mean the Board of Directors of
the Company.
Class A Stock. "Class A Stock" shall mean (i)
the Class A Common Stock, without par value, of the Company; and (ii) shares of
capital stock of the Company issued by the Company in respect of or in exchange
for shares of such Class A Stock in connection with any stock dividend or
distribution, stock split-up, recapitalization, recombination or exchange by the
Company generally of shares of such Class A Stock.
Class B Stock. "Class B Stock" shall mean (i) the
Class B Common Stock, without par value, of the Company, and (ii) shares of
capital stock of the Company issued by the Company in respect of or in exchange
for shares of such Class B Stock in
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connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such Class B Stock.
Closing. "Closing" shall mean the closing for
the issuance and purchase of the Class A Stock and the Class B Stock as defined
in and pursuant to the Investment Agreement.
Closing Date. "Closing Date" shall mean the date of
the Closing.
Commission. "Commission" shall mean the Securities
and Exchange Commission.
Continuously Effective. "Continuously Effective",
with respect to a specified registration statement, shall mean that such
registration statement shall not cease to be effective and available for
Transfers of Registrable Securities thereunder for longer than either (i) any
ten (10) consecutive business days, or (ii) an aggregate of fifteen (15)
business days during the period specified in the relevant provision of this
Agreement.
Demand Registration. "Demand Registration" shall
have the meaning set forth in Section 2.1(i).
Exchange Act. "Exchange Act" shall mean the
Securities Exchange Act of 1934.
Holder. "Holder" shall mean HERB COMPANY.
Investment Agreement. "Investment Agreement" shall
have the meaning set forth in the first Recital to this Agreement.
Person. "Person" shall mean any individual,
corporation, partnership, limited liability company, joint venture, association,
trust, unincorporated organization or other entity.
Piggyback Registration. "Piggyback Registration"
shall have the meaning set forth in Section 3.
Register, Registered and Registration. "Register",
"registered", and "registration" shall refer to a registration effected by
preparing and filing a registration statement or similar document in compliance
with the Securities Act, and the declaration or ordering by the Commission of
effectiveness of such registration statement or document.
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Registrable Securities. "Registrable Securities"
shall mean the Class B Stock which the Holder acquires pursuant to the
Investment Agreement (including by way of the tender offer described therein and
any open market purchases permitted thereunder) and any Class B Stock which the
holder acquires upon exchange of Class A Stock acquired by the Holder pursuant
to the Investment Agreement, in either case owned by the Holder on the date of
determination; provided, however, that Registrable Securities shall not include
any security of the Company acquired by the Holder in violation of an express
covenant of the Holder contained in the Investment Agreement, and, provided
further, the Company shall have no obligation under Sections 2 and 3 to register
any Registrable Securities of the Holder if the Company shall deliver to the
Holder an opinion of counsel reasonably satisfactory to such Holder and its
counsel to the effect that the proposed sale or disposition of all of the
Registrable Securities for which registration was requested does not require
registration under the Securities Act for a sale or disposition in a single
public sale, and offers to remove any and all legends restricting transfer from
the certificates evidencing such Registrable Securities, subject to prior
compliance by the Holder with the provisions of Article 9 of the Investment
Agreement.
Registration Expenses. "Registration Expenses" shall
have the meaning set forth in Section 6.1.
Securities Act. "Securities Act" shall mean the
Securities Act of 1933.
Transfer. "Transfer" shall mean and include the act
of selling, giving, transferring, creating a trust (voting or otherwise),
assigning or otherwise disposing of (other than pledging, hypothecating or
otherwise transferring as security) (and correlative words shall have
correlative meanings); provided however, that any transfer or other disposition
upon foreclosure or other exercise of remedies of a secured creditor after an
event of default under or with respect to a pledge, hypothecation or other
transfer as security shall constitute a "Transfer".
Underwriters' Representative. "Underwriters'
Representative" shall mean the managing underwriter, or, in the case of a
co-managed underwriting, the managing underwriter designated as the
Underwriters' Representative by the co-managers.
Violation. "Violation" shall have the meaning set
forth in Section 7.1.
1.2. Usage.
(i) References to a Person are also
references to its successors in interest (by means of merger, consolidation or
sale of all or substantially all the assets of such Person or otherwise, as the
case may be) and permitted assigns.
(ii) References to a document are to it as
amended, waived and otherwise modified from time to time and references to a
statute or other governmental rule are to it as amended and otherwise modified
from time to time (and references to any provision thereof shall include
references to any successor provision).
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(iii) References to Sections or to Schedules
or Exhibits are to sections hereof or schedules or exhibits hereto, unless the
context otherwise requires.
(iv) The definitions set forth herein are
equally applicable both to the singular and plural forms and the feminine,
masculine and neuter forms of the terms defined.
(v) The term "including" and correlative
terms shall be deemed to be followed by "without limitation" whether or not
followed by such words or words of like import.
(vi) The term "hereof" and similar terms refer
to this Agreement as a whole.
(vii) The "date of" any notice or request given
pursuant to this Agreement shall be determined in accordance with Section 11.
Section 2. Demand Registration.
2.1.
(i) At any time on or after the third
anniversary of the Closing Date, or after such earlier date as the Holder shall
be entitled to transfer shares of Class B Stock pursuant to the provisions of
Section 9.1.2 of the Investment Agreement, if the Holder shall make a written
request to the Company, the Company shall cause to be filed with the Commission
a registration statement meeting the requirements of the Securities Act (a
"Demand Registration"), and the Holder shall be entitled to have included
therein all or such number of Holder's Registrable Securities, as the Holder
shall request in writing; provided, however, that no request may be made
pursuant to this Section 2.1 if within twelve (12) months prior to the date of
such request a Demand Registration Statement pursuant to this Section 2.1 shall
have been declared effective by the Commission. Any request made pursuant to
this Section 2.1 shall be addressed to the attention of the Secretary of the
Company, and shall specify the number of Registrable Securities to be
registered, the intended methods of disposition thereof and that the request is
for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to
postpone for up to 180 days the filing of any Demand Registration statement
otherwise required to be prepared and filed pursuant to this Section 2.1 (or
delay seeking effectiveness of a Registration Statement which has been filed),
if the Board determines, in its good faith reasonable judgment, that such
registration would materially interfere with, or require premature disclosure
of, any financing, acquisition, reorganization or other material matter
involving the Company or any of its subsidiaries and the Company promptly gives
the Holder notice of such determination; provided, however, that the Company
shall not have postponed pursuant to this Section 2.1(ii) the filing of any
other Demand Registration statement otherwise required to be
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prepared and filed pursuant to this Section 2.1 during the 180-day period ended
on the date of the relevant request pursuant to Section 2.1(i).
2.2. Following receipt of a request for a
Demand Registration, the Company shall:
(i) File the registration statement with the
Commission as promptly as practicable, and, subject to Section 2.1(ii), shall
use the Company's reasonable efforts to have the registration declared effective
under the Securities Act as soon as reasonably practicable, in each instance
giving due regard to the need to prepare current financial statements, conduct
due diligence and complete other actions that are reasonably necessary to effect
a registered public offering.
(ii) Use the Company's reasonable efforts to
keep the relevant registration statement Continuously Effective, if a Demand
Registration, for up to 60 days or until such earlier date as of which all the
Registrable Securities under the Demand Registration statement shall have been
disposed of in the manner described in the Registration Statement.
Notwithstanding the foregoing, if for any reason the effectiveness of a
registration pursuant to this Section 2 is suspended or, in the case of a Demand
Registration, filing of the Registration Statement or seeking effectiveness
thereof is postponed as permitted by Section 2.1(ii), the foregoing period shall
be extended by the aggregate number of days of such suspension or postponement.
2.3. The Company shall be obligated to effect
no more than two Demand Registrations. For purposes of the preceding sentence,
registration shall not be deemed to have been effected (i) unless a registration
statement with respect thereto has become effective, (ii) if after such
registration statement has become effective, such registration or the related
offer, sale or distribution of Registrable Securities thereunder is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason not attributable
to the Holder and such interference is not thereafter eliminated, or (iii) if
the conditions to closing specified in the underwriting agreement, if any,
entered into in connection with such registration are not satisfied or waived,
other than by reason of a failure on the part of the Holder. If the Company
shall have complied with its obligations under this Agreement, a right to demand
a registration pursuant to this Section 2 shall be deemed to have been satisfied
upon the earlier of (x) the date as of which all of the Registrable Securities
included therein shall have been disposed of pursuant to the Registration
Statement, and (y) the date as of which such Demand Registration shall have been
Continuously Effective for a period of [90] days, provided no stop order or
similar order, or proceedings for such an order, is thereafter entered or
initiated.
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2.4. A registration pursuant to this Section
2 shall be on such appropriate registration form of the Commission as shall (i)
be selected by the Company and be reasonably acceptable to the Holder, and (ii)
permit the disposition of the Registrable Securities in accordance with the
intended method or methods of disposition specified in the request pursuant to
Section 2.1(i).
2.5. If any registration pursuant to Section
2 involves an underwritten offering (whether on a "firm", "best efforts" or "all
reasonable efforts" basis or otherwise), or an agented offering, the Holder,
shall have the right to select the underwriter or underwriters and manager or
managers to administer such underwritten offering or the placement agent or
agents for such agented offering; provided, however, that each Person so
selected shall be reasonably acceptable to the Company.
Section 3. Piggyback Registration.
3.1. If at any time after the third
anniversary of the Closing Date, or after such earlier date as the Holder shall
be entitled to transfer shares of Class B Stock pursuant to the provisions of
Section 9.1.2 of the Investment Agreement, the Company proposes to register
(including for this purpose a registration effected by the Company for
shareholders of the Company other than the Holder) securities under the
Securities Act in connection with the public offering solely for cash on Form
X-0, X-0 or S-3 (or any replacement or successor forms), the Company shall
promptly give the Holder written notice of such registration (a "Piggyback
Registration"). Upon the written request of the Holder given within 20 days
following the date of such notice, the Company shall cause to be included in
such registration statement and use its reasonable efforts to be registered
under the Securities Act all the Registrable Securities that the Holder shall
have requested to be registered; provided, however, that such right of inclusion
shall not apply to any registration statement covering an underwritten offering
of convertible debt securities. The Company shall have the absolute right to
withdraw or cease to prepare or file any registration statement for any offering
referred to in this Section 3 without any obligation or liability to the Holder.
3.2. If the Underwriters' Representative or
Agent shall advise the Company in writing (with a copy to the Holder) that, in
its opinion, the amount of Registrable Securities requested to be included in
such registration would materially adversely affect such offering, or the timing
thereof, then the Company will include in such registration, to the extent of
the amount and class which the Company is so advised can be sold without such
material adverse effect in such offering: First, all securities proposed to be
sold by the Company for its own account; and second, the Registrable Securities
requested to be included in such registration by the Holder pursuant to this
Section 3 and third, any other securities being registered other than on behalf
of the Company or the Holder.
3.3. The Holder shall be entitled to have its
Registrable Securities included in up to five (5) Piggyback Registrations
pursuant to this Section 3.
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Section 4. Registration Procedures. Whenever required
under Section 2 or Section 3 to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as practicable:
4.1. Prepare and file with the Commission a
registration statement with respect to such Registrable Securities and, subject
to Section 3.1, use the Company's reasonable efforts to cause such registration
statement to become effective; provided, however, that before filing a
registration statement or prospectus or any amendments or supplements thereto,
including documents incorporated by reference after the initial filing of the
registration statement and prior to effectiveness thereof, the Company shall
furnish to counsel for the Holder, copies of all such documents in the form
substantially as proposed to be filed with the Commission prior to filing for
review and comment by such counsel.
4.2. Prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act and rules
thereunder with respect to the disposition of all securities covered by such
registration statement. If the registration is for an underwritten offering, the
Company shall amend the registration statement or supplement the prospectus
whenever required by the terms of the underwriting agreement entered into
pursuant to Section 5.2. Pending such amendment or supplement the Holder shall
cease making offers or Transfers of Registerable Shares pursuant to the prior
prospectus. In the event that any Registrable Securities included in a
registration statement subject to, or required by, this Agreement remain unsold
at the end of the period during which the Company is obligated to use its
reasonable efforts to maintain the effectiveness of such registration statement,
the Company may file a post-effective amendment to the registration statement
for the purpose of removing such Securities from registered status.
4.3. Furnish to the Holder, without charge,
such numbers of copies of the registration statement, any pre-effective or
post-effective amendment thereto, the prospectus, including each preliminary
prospectus and any amendments or supplements thereto, in each case in conformity
with the requirements of the Securities Act and the rules thereunder, and such
other related documents as the Holder may reasonably request in order to
facilitate the disposition of Registrable Securities owned by the Holder.
4.4. Use the Company's reasonable efforts (i)
to register and qualify the securities covered by such registration statement
under such other securities or Blue Sky laws of such states or jurisdictions as
shall be reasonably requested by the Underwriters' Representative or Agent (as
applicable, or if inapplicable, in up to ten states designated by the Holder),
and (ii) to obtain the withdrawal of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of the offer and transfer of any of the
Registrable Securities in any jurisdiction, at the earliest possible moment;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify
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to do business or to file a general consent to service of process in any such
states or jurisdictions.
4.5. In the event of any underwritten or
agented offering, enter into and perform the Company's obligations under an
underwriting or agency agreement (including indemnification and contribution
obligations of underwriters or agents in the form set forth in Section 7), in
usual and customary form, with the managing underwriter or underwriters of or
agents for such offering. The Company shall also cooperate with the Holder, and
the Underwriters' Representative or Agent for such offering in the marketing of
the Registrable Securities.
4.6. Promptly notify the Holder of any stop
order issued or threatened to be issued by the Commission in connection
therewith and take all reasonable actions required to prevent the entry of such
stop order or to remove it if entered.
4.7. Make available for inspection by the
Holder, any underwriter participating in such offering and the representatives
of the Holder and Underwriter all financial and other information as shall be
reasonably requested by them, and provide the Holder, any underwriter
participating in such offering and the representatives of the Holder and such
Underwriter the reasonable opportunity to discuss the business affairs of the
Company with its principal executives and independent public accountants who
have certified the audited financial statements included in such registration
statement, in each case all as necessary to enable them to exercise their due
diligence responsibility under the Securities Act; provided, however, that
information that the Company determines, in good faith, to be confidential and
which the Company advises such Person in writing, is confidential shall not be
disclosed unless such Person signs a confidentiality agreement reasonably
satisfactory to the Company or the Holder of Registrable Securities agrees to be
responsible for such Person's breach of confidentiality on terms reasonably
satisfactory to the Company.
4.8. Use the Company's reasonable efforts to
obtain a so-called "comfort letter" from its independent public accountants, and
legal opinions of counsel to the Company addressed to the Holder, in customary
form and covering such matters of the type customarily covered by such letters,
and in a form that shall be reasonably satisfactory to the Holder. The Company
shall furnish to the Holder a signed counterpart of any such comfort letter or
legal opinion. Delivery of any such opinion or comfort letter shall be subject
to the recipient furnishing such written representations or acknowledgements as
are customarily provided by selling shareholders who receive such comfort
letters or opinions.
4.9. Provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement.
4.10. Use reasonable efforts to cause the
Registrable Securities covered by such registration statement (i) if the Class B
Stock is then listed on a securities exchange or included for quotation in a
recognized trading market, to continue to be so listed or
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included for a reasonable period of time after the offering, and (ii) to be
registered with or approved by such other United States or state governmental
agencies or authorities as may be necessary by virtue of the business and
operations of the Company to enable the Holder to consummate the disposition of
the Registrable Securities which are included in such registration.
4.11. Take such other actions as are reasonably
required in order to expedite or facilitate the disposition of Registrable
Securities included in such registration
Section 5. Holder's Obligations. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Securities which are included in such
registration that the Holder shall:
5.1. Furnish to the Company such information
regarding the Holder, the number of the Registrable Securities owned by it, and
the intended method of disposition of such Registrable Securities as shall be
required to effect the registration of the Holder's Registrable Securities, and
to cooperate with the Company in preparing such registration.
Section 6. Expenses of Registration. Expenses in
connection with registrations pursuant to this Agreement shall be allocated and
paid as follows:
6.1. With respect to each Demand Registration
(except as otherwise provided in Sections 9.1.5, 9.1.6 and 9.1.7 of the
Investment Agreement), the Company shall bear and pay all expenses incurred in
connection with any registration, filing, or qualification of Registrable
Securities with respect to such Demand Registrations, including all
registration, filing and National Association of Securities Dealers, Inc. fees,
all fees and expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and delivery expenses,
and the reasonable fees and disbursements of counsel for the Company, and of the
Company's independent public accountants, including the expenses of "cold
comfort" letters required by or incident to such performance and compliance (the
"Registration Expenses"), but excluding underwriting discounts and commissions
relating to Registrable Securities or fees and expenses of Holder's counsel
(which shall be paid by the Holder) provided, however, that the Company shall
not be required to pay for any expenses of any registration begun pursuant to
Section 2 if the registration is subsequently withdrawn at the request of the
Holder (in which case the Holder shall bear such expense), unless the Holder
agrees that such withdrawn registration shall constitute one of the demand
registrations under Section 2 hereof.
6.2. The Company shall bear and pay all
Registration Expenses incurred in connection with any Piggyback Registrations
pursuant to Section 3 for the Holder, but excluding, except as otherwise
provided in Sections 9.1.5, 9.1.6 and 9.1.7 of the Investment Agreement,
underwriting discounts and commissions relating to Registrable Securities or
fees and expenses of the Holder's counsel (each of which shall be paid by the
Holder).
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6.3. Any failure of the Company to pay any
Registration Expenses as required by this Section 6 shall not relieve the
Company of its obligations under this Agreement.
Section 7. Indemnification; Contribution. If any
Registrable Securities are included in a registration statement under this
Agreement:
7.1. To the extent permitted by applicable
law, the Company shall indemnify and hold harmless the Holder, each Person, if
any, who controls such Holder within the meaning of the Securities Act, and each
officer, director, partner, and employee of the Holder and such controlling
Person, against any and all losses, claims, damages, liabilities and expenses
(joint or several), including reasonable attorneys' fees and disbursements and
expenses of investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any of the
foregoing Persons may become subject under the Securities Act, the Exchange Act
or other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein, or any
amendments or supplements thereto;
(ii) The omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or
(iii) Any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any applicable state securities
law or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any applicable state securities law;
provided, however, that the indemnification required by this Section 7.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or expense to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished to the Company by the indemnified party expressly for use in
connection with such registration; provided, further, that the indemnity
agreement contained in this Section 7 shall not apply to any underwriter to the
extent that any such loss is based on or arises out of an untrue statement or
alleged untrue statement of a material fact, or an omission or alleged omission
to state a material fact, contained in or omitted from any preliminary
prospectus if the final prospectus shall correct such untrue statement or
alleged untrue statement, or such omission or alleged omission, and a copy of
the final prospectus has not been sent or given to such person at or prior to
the confirmation of sale to such person if such
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underwriter was under an obligation to deliver such final prospectus and failed
to do so. The Company shall also indemnify underwriters and selling or placement
agents participating in the distribution, their officers, directors, agents and
employees and each person who controls such persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Holder
provided, however that no such underwriter or agent shall be entitled to
indemnification under this Agreement if such person shall have entered into a
separate underwriting agency or indemnification agreement with the Company.
7.2. To the extent permitted by applicable
law, the Holder shall indemnify and hold harmless the Company, each of its
directors, each of its officers who shall have signed the registration
statement, each Person, if any, who controls the Company within the meaning of
the Securities Act, and each officer, director, partner, and employee of the
Company and such controlling Person, against any and all losses, claims,
damages, liabilities and expenses (joint and several), including attorneys' fees
and disbursements and expenses of investigation, incurred by such party pursuant
to any actual or threatened action, suit, proceeding or investigation, or to
which any of the foregoing may otherwise become subject under the Securities
Act, the Exchange Act or other federal or state laws, insofar as such losses,
claims, damages, liabilities and expenses arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by the Holder expressly for use in connection with such registration;
provided, however, that the indemnification required by this Section 7.2 shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld.
7.3. Promptly after receipt by an indemnified
party under this Section 7 of notice of the commencement of any action, suit,
proceeding, investigation or threat thereof made in writing for which such
indemnified party may make a claim under this Section 7, such indemnified party
shall deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; subject to the rights of an indemnified
party to retain its own counsel as hereinafter provided. The failure to deliver
written notice to the indemnifying party within a reasonable time following the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 7 but shall not relieve the indemnifying
party of any liability that it may have to any indemnified party otherwise than
pursuant to this Section 7. Any fees and expenses incurred by the indemnified
party (including any fees and expenses incurred in connection with investigating
or preparing to defend such action or proceeding) owed by the indemnifying party
hereunder shall be paid to the indemnified party, as incurred, within thirty
(30) days of written notice thereof to the indemnifying party (subject to refund
if it is ultimately determined that an indemnified party is not entitled to
indemnification hereunder). Any such indemnified party shall have the right to
employ separate counsel in any such action, claim or proceeding and to
participate in the defense
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thereof, but the fees and expenses of such counsel shall be the expenses of such
indemnified party unless (i) the indemnifying party has agreed to pay such fees
and expenses or (ii) the indemnifying party shall have failed to promptly assume
the defense of such action, claim or proceeding or (iii) the named parties to
any such action, claim or proceeding (including any impleaded parties) include
both such indemnified party and the indemnifying party, and such indemnified
party shall have been advised by counsel that there may be one or more legal
defenses available to it which are different from or in addition to those
available to the indemnifying party and that the assertion of such defenses
would create a conflict of interest such that counsel employed by the
indemnifying party could not faithfully represent the indemnified party (in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels).
7.4. If the indemnification required by this
Section 7 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to in this Section 7:
(i) The indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any Violation has been committed by,
or relates to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such Violation. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 7.1 and Section 7.2, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(ii) The parties hereto agree that it would
not be just and equitable if contribution pursuant to this Section 7.4 were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in Section
7.4(i). No Person guilty of fraudulent
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misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
7.5. If indemnification is available under
this Section 7, the indemnifying parties shall indemnify each indemnified party
to the full extent provided in this Section 7 without regard to the relative
fault of such indemnifying party or indemnified party or any other equitable
consideration referred to in Section 7.4.
7.6. The obligations of the Company and the
Holder under this Section 7 shall survive the completion of any offering of
Registrable Securities pursuant to a registration statement under this
Agreement, and otherwise.
Section 8. Holdback. If so requested by the Underwriters'
Representative or Agent in connection with an offering of any securities covered
by a registration statement filed by the Company, whether or not Holder's
securities are included therein, the Holder shall agree not to effect any sale
or distribution of shares of Class B Stock or any securities convertible into or
exchangeable or exercisable for shares of Class B Stock, including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
underwritten or agented registration), during the 30-day period prior to, and
during the 150-day period beginning on, the date such registration statement is
declared effective under the Securities Act by the Commission, provided that the
Holder is timely notified of such effective date in writing by the Company or
such Underwriters' Representative or Agent. In order to enforce the foregoing
covenant, the Company shall be entitled to impose stop-transfer instructions
with respect to the Registrable Securities of the Holder until the end of such
period.
Section 9. Amendment, Modification and Waivers; Further
Assurances.
(i) This Agreement may be amended with the
consent of the Company and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent of the Holder to such amendment,
action or omission to act.
(ii) No waiver of any terms or conditions of
this Agreement shall operate as a waiver of any other breach of such terms and
conditions or any other term or condition, nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other provision
hereof. No written waiver hereunder, unless it by its own terms explicitly
provides to the contrary, shall be construed to effect a continuing waiver of
the provisions being waived and no such waiver in any instance shall constitute
a waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for all
other purposes to require full compliance with such provision.
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(iii) Each of the parties hereto shall execute all
such further instruments and documents and take all such further action as any
other party hereto may reasonably require in order to effectuate the terms and
purposes of this Agreement.
Section 10. Assignment; Benefit. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns; provided,
however, that neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned or delegated by the Holder to any Person
except a wholly owned direct or indirect subsidiary of the Holder to whom the
Holder shall have transferred all of the Registrable Securities then owned by
the Holder as permitted by, and subject to the terms of, Sections 9.1.1 or 9.1.2
of the Investment Agreement.
Section 11. Miscellaneous.
11.1. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
11.2. Notices. All notices and requests given
pursuant to this Agreement shall be in writing and shall be made by
hand-delivery, first-class mail (registered or certified, return receipt
requested), confirmed facsimile or overnight air courier guaranteeing next
business day delivery to the relevant address specified below:
If to Investor, to:
Monsanto Company
000 X. Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
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with a copy to:
General Counsel and Secretary
Fax: 000-000-0000
If to Company, to:
DEKALB Genetics Corporation
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Senior Vice President and General Counsel
Fax: 000-000-0000
with a copy to:
Xxxxx X. Xxxxxx
c/o Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
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Except as otherwise provided in this Agreement, the date of each such notice and
request shall be deemed to be, and the date on which each such notice and
request shall be deemed given shall be: at the time delivered, if personally
delivered or mailed; when receipt is acknowledged, if sent by facsimile; and the
next business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next business day delivery.
11.3. Entire Agreement; Integration. This
Agreement supersedes all prior agreements between or among any of the parties
hereto with respect to the subject matter contained herein and therein, and such
agreements embody the entire understanding among the parties relating to such
subject matter.
11.4. Injunctive Relief. Each of the parties
hereto acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that in the event of such a
breach hereof the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach hereof. By seeking or obtaining
any such relief, the aggrieved party shall not be precluded from seeking or
obtaining any other relief to which it may be entitled.
11.5. Section Headings. Section headings are for
convenience of reference only and shall not affect the meaning of any provision
of this Agreement.
11.6. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an original, and all of
which shall together constitute one and the same instrument. All signatures need
not be on the same counterpart.
11.7. Severability. If any provision of this
Agreement shall be invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity and enforceability of the remaining provisions of
this Agreement, unless the result thereof would be unreasonable, in which case
the parties hereto shall negotiate in good faith as to appropriate amendments
hereto.
11.8. Filing. A copy of this Agreement and of all
amendments thereto shall be filed at the principal executive office of the
Company with the corporate records of the Company.
11.9. Termination. If for any reason the Closing
does not occur and the Investment Agreement shall be terminated, this Agreement
shall terminate and be of no further force and effect. This Agreement may be
terminated at any time by a written instrument signed by the parties hereto.
Unless sooner terminated in accordance with the preceding sentences, this
Agreement (other than Section 7 hereof) shall terminate in its entirety on such
date as there shall be no Registrable Securities outstanding, provided that any
shares of Class B Stock previously subject to this Agreement shall not be
Registrable Securities following the sale of any such shares in an offering
registered pursuant to this Agreement.
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11.10. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the successful party shall be entitled
to recover reasonable attorneys' fees (including any fees incurred in any
appeal) in addition to its costs and expenses and any other available remedy.
11.11. No Third Party Beneficiaries. Nothing herein
expressed or implied is intended to confer upon any person, other than the
parties hereto or their respective permitted assigns, successors, heirs and
legal representatives, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first written above.
MONSANTO COMPANY
By: Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx
President, Ceregen
DEKALB GENETICS CORPORATION
By: Xxxxx X. Xxxxxxx
-------------------------
Xxxxx X. Xxxxxxx
Chairman and CEO
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