EXHIBIT 1.2
MONSANTO COMPANY
6.5% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $40 PER UNIT)
UNDERWRITING AGREEMENT
----------------------
November 23, 1998
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Xxxxx Barney Inc.
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Monsanto Company, a Delaware corporation (the "Company") proposes, subject
to the terms and conditions stated herein, to enter into the Purchase Contracts
(the "Purchase Contracts") with you on behalf of the Underwriters named in
Schedule I hereto (the "Underwriters"). The Purchase Contracts are evidenced by
the Unit Certificates and are governed by the Master Unit Agreement to be dated
as of November 30, 1998 (the "Master Unit Agreement"), between the Company and
The First National Bank of Chicago, as Master Unit Agent (the "Unit Agent"),
underlying an aggregate of 17,500,000 6.5% Adjustable Conversion-rate Equity
Security Units (the "Units"). In connection therewith, the Company proposes,
subject to the terms and conditions stated herein, that the Company issue and
sell to the Underwriters an aggregate of $700,000,000 principal amount of the
Company's 5.95% Junior Subordinated Deferrable Debentures (the "Debentures").
Further, in connection therewith, the Underwriters will, on behalf of the
initial holders of the Units (as defined herein), sell Call Options (the "Call
Options") to Xxxxxxx, Sachs & Co. (in its capacity as the holder of the Call
Options, the "Call Option Holder") which will entitle the Call Option Holder to
acquire such Debentures on or before the Call Option Expiration Date (as defined
in the Call Option Agreement, dated as of November 30, 1998, between the Call
Option Holder and the Unit Agent (the "Call Option Agreement")) in exchange for
the Aggregate Call Option Exercise Consideration (as defined in the Call Option
Agreement). In connection with the Master Unit Agreement and the Call Options,
pursuant to the Pledge Agreement, to be dated as of November 30, 1998 (the
"Pledge Agreement"), among the Company, the Unit Agent, the Call Option Holder
and First Union National Bank, as collateral agent (the "Collateral Agent"), the
Debentures underlying the Units will be pledged by the Unit Agent on behalf of
the holders of the Units to secure the holders' obligations to the Company and
the Call Option Holder under the Purchase Contract and Call Option,
respectively, underlying such Unit. The rights to purchase newly issued shares
of common stock of the Company (the "Common Stock") under a Purchase Contract,
together with the Debentures securing such Purchase Contract, subject to (a) the
obligations owed to the Company under such Purchase Contract, (b) the
obligations owed to the Call Option Holder under the Call Option relating to
such Debentures and (c) the
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pledge arrangements under the Pledge Agreement securing the foregoing
obligations, collectively constitute a Unit provided, however, that after the
Time of Delivery, Pledged Securities may replace the Debentures and shall be
considered part of a Unit. Unless the context otherwise requires, for purposes
of this Agreement, the act of entering into a Purchase Contract underlying a
Unit, purchasing a Debenture underlying a Unit and selling a Call Option with
respect to such Debenture shall be referred to as a "purchase" of such Unit.
Capitalized terms used herein without definition shall be used as defined
in the Master Unit Agreement (as defined herein).
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-51919) (the
"Initial Registration Statement") in respect of the Purchase Contracts, the
shares of Common Stock (the "Shares") to be issued upon settlement of the
Purchase Contracts and the Debentures, has been filed with the Securities
and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to you, and, excluding exhibits to
the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus contained therein, delivered to
you for each of the other Underwriters have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, the
documents incorporated by reference therein, any post-effective amendment
thereto and any preliminary prospectus filed pursuant to Rule 424(b), no
other document with respect to the Initial Registration Statement has
heretofore been filed or transmitted for filing with the Commission; and no
stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission, (any
preliminary prospectus included in the Initial Registration Statement or
filed with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement, any post-effective amendment thereto and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including all information contained in any Preliminary Prospectus or in the
form of final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by virtue
of Rule 430A under the Act to be part of the Initial Registration Statement
at the time it was declared effective and the documents incorporated by
reference in the prospectus contained in the Initial Registration Statement
at the time such part of the Initial Registration Statement became
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such
final prospectus relating to the Units, in the form first filed pursuant to
Rule 424(b) under the Act, is hereinafter called the Prospectus; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
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deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof, including any documents incorporated by reference therein as
of the date of such filing);
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
you expressly for use therein;
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(d) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in
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conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(e) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
material change in the capital stock (other than changes in treasury stock
within limits, or pursuant to employee plans, disclosed or incorporated by
reference in the Prospectus) or long-term debt of the Company and its
subsidiaries considered as a whole or any material adverse change, or any
development known to the Company involving a prospective material adverse
change, in or affecting the financial position, shareowners' equity or
results of operations of the Company and its subsidiaries considered as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other state of the United States except Rhode
Island; and X. X. Xxxxxx & Co. (Delaware) ("Xxxxxx"), Monsanto
International Sales Company, p.l.c. (Virgin Islands), Monsanto p.l.c.
(England) and Monsanto Europe S.A.N.V. (Belgium) (such corporations being
referred to herein as "Principal Subsidiaries") are each a corporation duly
incorporated and validly existing in good standing under the laws of its
jurisdiction of incorporation as set forth above;
(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable; and all of the issued equity securities of each
Principal Subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for shares
necessary to qualify directors or to maintain any minimum number of
shareholders required by law) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(h) The Debentures have been duly and validly authorized by the
Company, and, when issued and delivered pursuant to this Agreement, will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the indenture to be dated as of November 30, 1998
(the "Indenture") between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee"), under which they are to be issued,
which will be substantially in the form filed as an exhibit to the
Registration Statement delivered to you; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, at the
Time of Delivery for such Debentures, the Indenture will constitute a valid
and legally binding instrument, enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Debentures and the
Indenture will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Debentures;
(i) The Shares to be issued and sold by the Company pursuant to
the Purchase Contracts and the Master Unit Agreement have been duly
authorized and reserved for
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issuance and, when issued and delivered against payment therefor as
provided in the Purchase Contracts and the Master Unit Agreement, will be
validly issued and fully paid and non-assessable and currently conform to
the description of the thereof incorporated by reference in the Prospectus;
(j) The entry into the Purchase Contracts by the Company, the
issue and sale of the Debentures by the Company, the issue and sale of the
Shares by the Company pursuant to the Purchase Contracts, the compliance by
the Company with the provisions of this Agreement, such Purchase Contracts,
the Master Unit Agreement, the Pledge Agreement and the Indenture and the
consummation by the Company of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Company or any of its Principal
Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its Principal Subsidiaries is a party or by which the Company or
any of its Principal Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Principal Subsidiaries is subject,
or which would cause a current or prospective material adverse change in or
affecting the financial position, shareowners' equity or results of
operations of the Company and its subsidiaries considered as a whole or
affect the validity of the Units or the legal authority of the Company to
comply with the Units; nor will such action result in any violation of the
provisions of the Certificate of Incorporation, as amended, or the By-laws
of the Company, or in a violation of any statute or any order, rule or
regulation of any court or governmental agency or body in the United States
having jurisdiction over the Company or any of its Principal Subsidiaries
or any of their properties which would cause a current or prospective
material adverse change in or affecting the financial position,
shareowners' equity or results of operations of the Company and its
subsidiaries considered as a whole (except to the extent that the issue and
sale of the Units as contemplated by this Agreement and the distribution of
the Units by the Underwriters may result in violations of state securities
or Blue Sky laws); and no consent, approval, authorization, order,
registration or qualification of or with any such court or any such
regulatory authority or other governmental body in the United States having
jurisdiction over the Company is required for the entry into the Purchase
Contracts by the Company, the issue and sale of the Debentures by the
Company, the issue and sale of the Shares by the Company pursuant to the
Purchase Contracts, the compliance by the Company with all of the
provisions of this Agreement, such Purchase Contracts, the Master Unit
Agreement, the Pledge Agreement, or the Indenture or the consummation of
the transactions herein or therein contemplated, except (i) the
registration under the Act of the Units, the Debentures and the Shares to
be issued upon settlement of the Purchase Contracts, (ii) the approval and
registration of the Units with the New York Stock Exchange; (iii) such
consents as have been obtained under the Trust Indenture Act; and (iv) such
consents as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Units by the
Underwriters;
(k) The Purchase Contracts, which Purchase Contracts are
evidenced by the Unit Certificates, have been duly and validly authorized
by the Company and, when executed by the other parties thereto, will
constitute valid and binding obligations, enforceable in accordance with
their terms, subject, as the enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting
5
creditors' rights and to general equity principles; and the Purchase
Contracts will conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(l) The Master Unit Agreement and the Pledge Agreement, have been
duly and validly authorized by the Company and, when executed and delivered
by the other parties thereto, will constitute valid and binding
instruments, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; the Master Unit Agreement and the Pledge
Agreement conform or will conform to the descriptions thereof in the
Prospectus as amended or supplemented; and the Pledge Agreement creates, as
collateral security for the performance when due by the holders from time
to time of the Units of their respective obligations under the Purchase
Contracts and Call Options constituting part of such Units, a legal, valid
and perfected security interest (as that term is defined in the Uniform
Commercial Code, as adopted and currently in effect in the State of New
York), in favor of the Collateral Agent, in the right, title and interest
of such holders in the Pledged Securities (as defined in the Pledge
Agreement) constituting a part of such Units;
(m) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject, other
than as set forth in the Prospectus and other than those which in the
aggregate will not have a material adverse effect on the Company and its
subsidiaries considered as a whole; and, to the best of the Company's
knowledge, no such proceedings are contemplated by governmental
authorities;
(n) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are, to the best of the
Company's knowledge, independent public accountants as to the Company as
required by the Act and the rules and regulations of the Commission
thereunder; and
(o) The Company has developed and initiated a comprehensive Year
2000 Program which is designed to ensure that its business will not be
adversely affected by the Year 2000 computer problem. The Year 2000
Program consists of remediation efforts with respect to the Company's
internal systems, a survey and review of its suppliers' Year 2000 programs
and institution of appropriate contingency plans. The Company expects its
internal systems to be Year 2000 compliant and to have its contingency
plans in place by the third quarter of 1999. In addition, the statements
contained in the Prospectus under "III. Year 2000 Update" and in the
Company's Quarterly Report on Form 10-Q for the period ended September 30,
1998 pertaining to the Year 2000 program, are accurate and complete
statements of the information set forth therein.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Underwriters, severally and not jointly, agree to enter into the
Purchase Contracts underlying the number of Units set forth opposite the name of
such Underwriter in Schedule I hereto, and (b) the Company agrees that the
Company will issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of 97.25% of the principal amount thereof, the principal amount
of Debentures underlying the number of Units set forth opposite the name of such
Underwriter in Schedule I hereto.
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The Underwriters agree to pledge to the Collateral Agent, on behalf of the
initial purchasers of the Units, the Debentures underlying the Units. Such
pledge shall be effected by the delivery to the Collateral Agent in New York by
the Underwriters of the Debentures to be pledged at the Time of Delivery (as
defined below) in accordance with the Pledge Agreement.
The Underwriters further agree to sell, on behalf of the initial purchasers
of the Units, to the Call Option Holder a Call Option with respect to each
Debenture underlying the Units at a purchase price of $.10 per Call Option at
the Time of Delivery.
3. Upon the authorization by you of the release of the Units, the several
Underwriters propose to offer the Units for sale to the public upon the terms
and conditions set forth in the Prospectus as amended or supplemented.
4. (a) The Units to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Units in book-entry form which will
be deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or its designated custodian and delivered to Xxxxxxx, Xxxxx & Co., for
the account of each Underwriter, upon at least forty-eight hours' prior notice
to the Company by Xxxxxxx Sachs & Co. and against payment by or on behalf of
such Underwriter of the purchase price therefor by transfer of Federal (same
day) funds to the account designated by the Company and delivery to the
Collateral Agent of the Debentures relating to such Units at least forty-eight
hours in advance. The Company will cause the certificates representing the Units
to be made available for checking at least twenty-four hours prior to the Time
of Delivery (as defined below) at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Units, 9:30 a.m., New York time, on November 30, 1998 or
such other time and date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon
in writing. Such time and date for delivery of the Units is herein called the
"Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross-
receipt for the Units and any additional documents requested by the Underwriters
pursuant to Section 7(i) hereof, will be delivered at the offices of Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"),
and the Units will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 1:00 p.m., New York
City time, on the New York Business Day next preceding the Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in relation to
the Units in a form approved by you and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement or,
if applicable, such earlier time as may be required by Rule 424(b) under the
Act; to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of this
Agreement and prior to the Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly of any such
amendment or supplement after the Time of Delivery and
7
furnish you with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Units and during such same period to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Units, of the suspension of the qualification of
the Units for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the use of any
prospectus relating to the Units or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Units for offering and sale under the securities laws of
such United States jurisdictions as you may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Units, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to subject itself to taxation for
doing business in any jurisdiction, and provided further that the expense of
maintaining any such qualification more than one year from the date of this
Agreement shall be at your expense;
(c) No later than 5:00 p.m. on the New York business day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus, as amended or supplemented in such quantities as
you may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Units and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and to
each other broker-dealer participating with them in the distribution of the
Units as many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense such Underwriters or such other brokers, as the
case may be, to prepare and deliver to such Underwriter or such other broker-
dealer as many copies as you may request of an amended Prospectus or supplement
to the Prospectus complying with Section 10 (a) (3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its
8
subsidiaries (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including at the
option of the Company Rule 158);
(e) During the period beginning from the date of this Agreement and
continuing to and including the date 90 days after the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of any Units,
Debentures or Common Stock or securities of the Company that are substantially
similar to the Units, Debentures or Common Stock, including but not limited to
any securities that are convertible into or exchangeable for, or that represent
the right to receive, Common Stock or any such substantially similar securities
(other than securities issued (i) in the Financings (as defined in the
Prospectus Supplement); (ii) pursuant to the merger of the Company with Delta
and Pine Land Company; (iii) pursuant to employee stock option plans existing
on; or (iv) upon the conversion or exchange of convertible or exchangeable
securities outstanding as of the date of this Agreement), without your prior
written consent; and
(f) To use their best efforts to list, subject to notice of issuance, the
Units on the New York Stock Exchange (the "Exchange").
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Units under the Act, and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and (except as otherwise expressly
provided in Section 5(c) hereof) amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and any other
broker-dealers participating in the distribution of the Units; (ii) the cost of
producing and copying any Agreement among Underwriters, this Agreement, any Blue
Sky Memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Units; (iii) all expenses in connection with the
qualification of the Units for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees (not to exceed $2,000 per
fiscal year of the Company) and disbursements of counsel for the Underwriters in
connection with such qualifications and in connection with the Blue Sky and
legal investment surveys; (iv) all fees and expenses in connection with listing
the Units on the Exchange; (v) any fees charged by securities rating services
for rating the Units; (vi) the cost of preparing the Units, the Debentures and
any Shares; (vii) the fees and expenses of the Unit Agent, Collateral Agent and
Debenture Trustee and any agent of the Unit Agent, Collateral Agent and
Debenture Trustee and the fees and disbursements of any counsel for the Unit
Agent, Collateral Agent or Trustee in connection with the Master Unit Agreement,
the Pledge Agreement, the Call Option Agreement, the Indenture and the
Debentures, as the case may be; and (viii) all other costs and expenses incident
to the performance of the Company's obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Units by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Units to be
delivered at the Time of Delivery, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company herein are, at and as of the Time of Delivery, true and correct in all
material respects, the condition that the Company shall have performed in all
material respects all of its obligations hereunder theretofore to be performed,
and the following additional conditions:
9
(a) The Prospectus as amended or supplemented shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; if the Company has
elected to rely upon Rule 462(b) under the Act, the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to you such
opinion or opinions, dated as of the Time of Delivery, with respect to the
incorporation of the Company, the validity of the Units, the Registration
Statement, the Prospectus as amended or supplemented and such other related
matters as you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) Winston & Xxxxxx and the General Counsel or other counsel of
the Company satisfactory to you shall have furnished to you their written
opinions, dated as of the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other state of the United States except Rhode Island;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable;
(iii) Each of the Principal Subsidiaries is a corporation
duly incorporated and validly existing in good standing under the laws
of the jurisdiction of its incorporation;
(iv) The Company owns directly or indirectly through one or
more wholly-owned subsidiaries all of the issued and outstanding
equity securities of the Principal Subsidiaries (except as specified
in Section 1(g) of this Agreement), free and clear of liens,
encumbrances, equities and claims, and all such securities are validly
authorized, issued, fully paid and non-assessable, and neither the
Company nor any such subsidiary is subject to personal liability by
reason of being an owner thereof;
(v) The Shares to be issued and sold by the Company
pursuant to the Purchase Contracts and the Master Unit Agreement have
been duly authorized and reserved for issuance and, when issued and
delivered against payment therefor as provided in the Purchase
Contracts and the Master Unit Agreement, will be duly and
10
validly issued, fully paid and non-assessable and currently conform to
the description of the Common Stock in the Prospectus;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject, other than as set forth in
the Prospectus and other than those which in the aggregate will not
have a material adverse effect on the Company and its subsidiaries
considered as a whole and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities;
(viii) Each of the Master Unit Agreement, the Purchase
Contracts which are evidenced by the Unit Certificates, being
delivered at the Time of Delivery and the Pledge Agreement has been
duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the other parties
thereto, constitutes a valid and legally binding obligation of the
Company (and together they create, to the extent provided therein, a
valid interest of the holders of the Units in the Debentures)
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, provided, however, that the rights and
remedies of the Unit Agent and the Collateral Agent provided in
Sections 402 and 510 of the Master Unit Agreement and Section 5(a) of
the Pledge Agreement upon the occurrence of a Termination Event will
not be limited under the Bankruptcy Code (11 U.S.C. 101 et seq.)
because Section 365(e)(2) thereof should permit such termination
provisions to be enforced; the Pledge Agreement creates, as collateral
security for the performance when due by the holders from time to time
of the Units of their respective obligations under the Purchase
Contracts and Call Options constituting part of such Units, a valid
security interest (as that term is defined in the Uniform Commercial
Code, as adopted and then in effect in the State of New York (the "New
York UCC")), in favor of the Collateral Agent, in the right, title and
interest of such holders in the Pledged Securities (as defined in the
Pledge Agreement) constituting a part of such Units; and, in the case
of Pledged Securities that are certificated or in the form of
instruments (as defined in the New York UCC), such security interest
shall be perfected upon the delivery of such certificates or
instruments to the Collateral Agent, with accompanying stock or note
powers duly executed in blank or in favor of the Collateral Agent,
and, in the case of Pledged Securities that are credited by a
securities intermediary (as defined in the New York UCC) to a
securities account (as defined in the New York UCC) in the name of the
Collateral Agent, the Collateral Agent shall have a perfected security
interest in all securities entitlements (as defined in the New York
UCC) relating to such Pledged Securities; the Master Unit Agreement,
the Pledge Agreement and the Purchase Contracts conform to the
descriptions thereof in the Prospectus as amended or supplemented;
(ix) The Debentures underlying the Units have been duly
authorized by the Company; assuming that the facsimile signatures of
officers (specified in such opinion) of the Company and the facsimile
seal of the Company have been imprinted
11
on the Debentures and that the Debentures have been duly authenticated
by the Trustee under the Indenture (which assumptions such counsel
need not verify by an inspection of the Debentures underlying the
Units), the Debentures have been duly executed, issued and delivered
by the Company and constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture; and
the Debentures and the Indenture conform to the descriptions thereof
in the Prospectus as amended or supplemented;
(x) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company enforceable in accordance with its terms
except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or
affecting of creditors' rights and to general equity principles; the
Indenture has been duly qualified under the Trust Indenture Act; and
no taxes or recording fees under Delaware or Federal law are required
to be paid with respect to the execution of the Indenture and the
issuance of the Debentures underlying the Units;
(xi) The entry into the Purchase Contracts by the Company,
the issue and sale of the Debentures by the Company, the issue and
sale of the Shares by the Company pursuant to the Purchase Contracts,
the compliance by the Company with all of the provisions of this
Agreement, such Purchase Contracts, the Master Unit Agreement, the
Pledge Agreement, and the Indenture and the consummation by the
Company of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute or result in a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the property or assets of the Company or any of its Principal
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of
trust, loan agreement or other similar agreement or instrument known
to such counsel, after such reasonable investigation as such counsel
deems necessary, to which the Company or any of its Principal
Subsidiaries is a party or by which the Company or any of its
Principal Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Principal Subsidiaries is subject
which would cause a current or prospective material adverse change in
or affecting the financial position, shareowners' equity or results of
operations of the Company and its subsidiaries considered as a whole
or affect the validity of the Units or the legal authority of the
Company to comply with the Units or this Agreement; nor will such
actions result in a violation of the provisions of the Certificate of
Incorporation, as amended, or the By-laws of the Company, or in a
violation of any statute or any order, rule or regulation of any court
or governmental agency or body in the United States having
jurisdiction over the Company or any of its subsidiaries or any of
their properties which would cause a current or prospective material
adverse change in or affecting the financial position, shareowners'
equity or results of operations of the Company and its subsidiaries
considered as a whole (except to the extent that the issue and sale of
the Units as contemplated by this Agreement and the distribution of
the Units by the Underwriters may result in violations of state
securities or Blue Sky laws); and no consent, approval, authorization,
order, registration or qualification of or with any such court,
regulatory authority or other governmental body in the United States
having jurisdiction over the Company is required for the entry into
the Purchase Contracts underlying the Units by the Company, the issue
and sale of the Debentures underlying the Units by the Company, the
issue and sale of the Shares
12
by the Company pursuant to the Purchase Contracts, the compliance by
the Company with all of the provisions of this Agreement, such
Purchase Contracts, the Master Unit Agreement, the Pledge Agreement or
the Indenture or the consummation by the Company of the transactions
herein or therein contemplated, except for (A) the registration under
the Act of the Securities, the Debentures and the Shares to be issued
upon settlement of the Purchase Contracts, (B) the approval and
registration of the Units with the Exchange, which has been obtained,
(C) such consents as have been obtained under the Trust Indenture Act,
and (D) such consents as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Units by the Underwriters;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery (other than
the financial statements and other financial data contained or
incorporated by reference therein or omitted therein as to which such
counsel need express no opinion) appear on their face to be
appropriately responsive in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; and the information included in the
Registration Statement in response to Item 10 (insofar as it relates
to such counsel) of Form S-3 is to the best of such counsel's
knowledge an accurate statement of the matter therein set forth and
fairly presents the information called for with respect to that matter
by the Act and the rules and regulations thereunder.
Such counsel may also state that he has not verified, and is
not passing upon and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement, the
Prospectus or the Prospectus as amended or supplemented, other than
those mentioned in the last clause of subparagraph (ix) above, but
such counsel shall confirm that he or she has, however, participated
in reviews and discussions in connection with the preparation of the
Registration Statements, the Prospectus and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of
13
Delivery, and that in the course of such reviews and discussions no
facts came to his or her attention which led him or her to believe
that the Registration Statement or the Prospectus on the effective
date of the Registration Statement, or the Prospectus as amended or
supplemented on the date of such amendment or supplement or at and as
of the Time of Delivery for the Units (in each case, apart from the
financial statements and other financial data contained or
incorporated by reference therein or omitted therefrom and from any
written information furnished to the Company by any Underwriter
expressly for use in the prospectus as amended or supplemented or any
omission therefrom) contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
In rendering the foregoing opinion, such counsel may rely
upon opinions of local counsel (which may include your counsel)
satisfactory in form and scope to your counsel.
(d) Xxxxxx & Xxxxxx, special tax counsel for the Company, shall
have furnished to you their written opinion, dated the Time of Delivery, in
form and substance satisfactory to you, to the effect that the discussion
set forth in the Prospectus under the heading "Certain Federal Income Tax
Consequences", insofar as it relates to matters of United States federal
income tax law, is accurate in all material respects;
(e) At the Time of Delivery, Deloitte & Touche LLP shall have
furnished you a letter dated the Time of Delivery, to the effect set forth
in Annex I hereto, and as to such other matters as you may reasonably
request and in form and substance satisfactory to you;
(f) Since the respective dates as of which information is given
in the Prospectus as amended or supplemented prior to the date of this
Agreement, there shall not have been any material change in the capital
stock (other than changes in treasury stock within limits, or pursuant to
employee plans, disclosed or incorporated by reference in the Prospectus
prior to the date of this Agreement) or long-term debt of the Company or
any of its subsidiaries or any material change, or any development
involving a prospective material change, in or affecting the financial
position, shareowners' equity or results of operations of the Company and
its subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date
of this Agreement, the effect of which is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of Units on the terms and in the
manner contemplated in the Prospectus as amended or supplemented in
connection with the Units;
(g) On or after the date of this Agreement relating to the Units,
no downgrading shall have occurred in the rating accorded the Company's
debt securities by any one of the following statistical rating
organizations: Standard & Poor's Ratings Group, Xxxxx'x Investment
Services, Inc. and Duff & Xxxxxx LLC;
14
(h) On or after the date of this Agreement there shall not have
occurred any of the following events the effect of which is in your
reasonable judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of Shares
on the terms and in the manner contemplated in the Prospectus as amended or
supplemented in connection with the Shares: (i) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, (ii) a declaration of a banking
moratorium by either Federal or New York State authorities, (iii) a
suspension or halt in trading on the New York Stock Exchange in any
securities of the Company or (iv) a suspension or limitation in trading in
securities generally on the New York Stock Exchange or the establishment of
minimum prices on such Exchange;
(i) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery a certificate or certificates of officers of
the Company satisfactory to you as to the accuracy in all material respects
of the representations and warranties of the Company herein at and as of
the Time of Delivery and as to the performance by the Company in all
material respects of all of its obligations hereunder to be performed at or
prior to the Time of Delivery, and the Company also shall have furnished to
you a certificate of officers of the Company satisfactory to you as to the
matters set forth in subsection (a) of this Section;
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on the
New York business day next succeeding the date of this Agreement; and
(k) The Units shall have been duly listed, subject to notice of
issuance, on the Exchange.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Units, or any amendment or
supplement thereto, or arising out of or are based upon 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, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to such Units or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter expressly for use in the
Prospectus as amended or supplemented relating to such Units; provided, further,
that, if any Preliminary Prospectus, any preliminary prospectus supplement
relating to the Units, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Units contained any alleged untrue
statement or allegedly omitted to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and
such statement or
15
omission shall have been corrected in a revised Preliminary Prospectus,
preliminary prospectus supplement relating to the Units, the Prospectus, the
Prospectus as amended or supplemented, any other prospectus relating to the
Units or any amendment or supplement thereto relating to the Units, the Company
shall not be liable to any Underwriter under this subsection (a) with respect to
such alleged untrue statement or alleged omission to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact that
such Underwriter sold Units to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of a revised
Preliminary Prospectus (excluding documents incorporated by reference),
preliminary prospectus supplement relating to the Units (excluding documents
incorporated by reference), the Prospectus (excluding documents incorporated by
reference), the Prospectus as amended or supplemented (excluding documents
incorporated by reference), any other amended prospectus relating to the Units
(excluding documents incorporated by reference) or any amendment or supplement
thereto relating to the Units (excluding documents incorporated by reference),
as the case may be, containing a correction of such alleged misstatement or
omission, if the Company has made available copies thereof to such Underwriter
prior to the confirmation of such sale; and provided, further, that the Company
shall not be liable to any Underwriter under this subsection (a) to the extent
that any such loss, claim, damage or liability of such Underwriter results from
the use by such Underwriter of the Prospectus as amended or supplemented
(excluding documents incorporated by reference) or the Prospectus as amended or
supplemented as it may be further amended or supplemented (excluding documents
incorporated by reference), as the case may be, (i) otherwise than in connection
with an offer or sale of the Units or (ii) at any time nine months or more after
the time of issue of the Prospectus as amended or supplemented unless the
Company has prior to such use amended or supplemented the Prospectus as amended
or supplemented to comply with Section 10(a)(3) of the Act if required pursuant
to Section 5(c) hereof and such Underwriter uses the Prospectus as amended or
supplemented as so further amended or supplemented.
Each Underwriter acknowledges that the indemnity agreement in this
subsection (a) does not extend to any liability which such Underwriter might
have under Section 5(b)(2) of the Act by reason of the fact that such
Underwriter sold Units to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference), the Prospectus as amended or
supplemented (excluding documents incorporated by reference), any other
prospectus relating to the Units (excluding documents incorporated by reference)
or any amendment or supplement relating thereto (excluding documents
incorporated by reference), as the case may be, if the Company has made
available copies thereof to such Underwriter.
For purposes of this subsection (a) the Prospectus (excluding documents
incorporated by reference), the Prospectus as amended or supplemented (excluding
documents incorporated by reference), any other prospectus relating to the Units
(excluding documents incorporated by reference) or any amendment or supplement
relating thereto (excluding documents incorporated by reference), shall not be
deemed to have been made available to an Underwriter until (x) such Underwriter
has received the same or (y) such time after the receipt thereof by the
Representatives as would permit the Representatives with reasonable diligence to
deliver the same to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
16
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to such Units, or any amendment or supplement thereto,
or arise out of or are based upon 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to such Units, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein, and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof, and in the event that such indemnified party shall not so
notify the indemnifying party within 30 days following receipt of any such
notice by such indemnified party, the indemnifying party shall have no further
liability under such subsection to such indemnified party unless such
indemnifying party shall have received other notice addressed and delivered in
the manner provided in the second paragraph of Section 12 hereof of the
commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof as provided above, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters of the
Units on the other from the offering of the Units to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Units on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the
17
same proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable Units
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Units in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations with
respect to such Units and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Units which it has agreed to purchase under this Agreement, you may in your
discretion arrange for you or another party or other parties to purchase such
Units on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Units,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Units on such terms. In the event that, within the respective
prescribed period, you notify the Company that you have so arranged for the
purchase of such Units, or the Company notifies you that it has so arranged for
the purchase of such Units, you or the Company shall have the right to postpone
the Time of Delivery for such Units a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to this Agreement.
18
(b) If, after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate amount of such Units which
remains unpurchased does not exceed one-eleventh of the aggregate amount of the
Units, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the amount of Units which such Underwriter agreed to
purchase under this Agreement and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the amount of Units which
such Underwriter agreed to purchase under this Agreement) of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters made by you or the Company as
provided in subsection (a) above, the aggregate amount of the Units which
remains unpurchased exceeds one-eleventh of the aggregate amount of the Units as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Units of a defaulting Underwriter or Underwriters, then this
Agreement relating to such Units shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company and shall
survive delivery of and payment for the Units.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter with
respect to the Units except as provided in Section 6 and Section 8 hereof; but,
if for any other reason Units are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Units, but the Company
shall then be under no further liability to any Underwriter with respect to such
Shares except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to your address as set forth in this Agreement; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement:
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
19
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Units from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
20
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
MONSANTO COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ Xxxxxxx, Sachs & Co.
-----------------------------
Xxxxxxx, Xxxxx & Co.
On behalf of each of the Underwriters
------------------------------------------------------------------
SCHEDULE I
------------------------------------------------------------------
----------------------------------------------------
TOTAL NUMBER
OF UNITS TO BE
UNDERWRITER DELIVERED
----------- ---------
----------------------------------------------------
Xxxxxxx, Sachs & Co. 8,750,000
----------------------------------------------------
Xxxxxxx Xxxxx Xxxxxx Inc. 8,750,000
----------------------------------------------------
17,500,000
Total
----------------------------------------------------
----------------------------------------------------
22
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, Deloitte & Touche
LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review and issued a report in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data, pro
forma financial information and/or condensed financial statements derived
from audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, if any, and copies
of any such report have been furnished to the representatives of the
Underwriters (the "Representatives");
(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Board of Directors and the Executive and Finance Committees of
the Company since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, financial position and cash flow included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published
rules and regulations thereunder or are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with the basis for the audited consolidated
statements of income, financial position and cash flow included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(B) any other unaudited income statement data and statement
of financial position items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the
1
audited consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and statement of financial position
items included in the Prospectus and referred to in Clause (B) were
not determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the capital
stock (other than issuances of capital stock upon exercise of options
and stock appreciation rights, upon earn-outs of performance shares
and upon conversions of convertible securities, in each case which
were outstanding on the date of the latest statement of financial
position included or incorporated by reference in the Prospectus) or
any increase, excluding those changes due solely to fluctuations in
foreign currency exchange rates, in the consolidated long-term debt or
guaranteed obligations of the Company and its subsidiaries or any
decreases in consolidated net current assets or net assets, in each
case as compared with amounts shown in the latest consolidated
statement of financial position included or incorporated by reference
in the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur,
or, in the case of consolidated long-term debt or guaranteed
obligations, consolidated net current assets or net assets, for
changes, decreases or increases, as the case may be, which are less
than $30,000,000, or which are described in such letter; and
(iv) In addition to the audits referred to in their opinions
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraph (iii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain references
to the Company's historical annual ratios of earnings to fixed charges
specified by the Representatives which references are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference) or
in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by reference
in the Prospectus specified by the Representatives, and have compared
certain of such amounts, percentages and financial information contained in
such references with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
2
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Units for
purposes of the letter delivered at the Time of Delivery for such Units.
3
