EXHIBIT 10(3)
EXECUTION COPY
PROTOCOL AGREEMENT
THIS PROTOCOL AGREEMENT, dated as of July 1, 2002 (this "Protocol
Agreement"), by and among Pharmacia Corporation, a Delaware corporation, Solutia
Inc., a Delaware corporation ("Solutia"), and Monsanto Company, a Delaware
corporation.
W I T N E S S E T H:
WHEREAS, Former Monsanto (as defined below) and Solutia are parties to
that certain Distribution Agreement, dated as of September 1, 1997 (the
"Distribution Agreement"), which was entered into in connection with the
distribution of the common stock of Solutia to the stockholders of Former
Monsanto (the "Solutia Distribution");
WHEREAS, pursuant to the Distribution Agreement, among other things,
Former Monsanto assigned and transferred the Chemical Assets (as defined in the
Distribution Agreement) to Solutia and Solutia assumed all of the Chemical
Liabilities (as defined in the Distribution Agreement) of Former Monsanto;
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of December 19, 1999 (the "Merger Agreement"), by and among the former
Monsanto Company (which is the Delaware corporation identified in the
introductory paragraph of this Protocol Agreement as "Pharmacia Corporation" and
which is referred to herein as either "Former Monsanto" or "Pharmacia," as the
context requires), MP Sub, Incorporated ("Merger Sub") and Pharmacia & Upjohn,
Inc. ("PNU"), the parties agreed that Merger Sub would be merged with and into
PNU with PNU surviving as a wholly owned subsidiary of Former Monsanto in the
merger (the "Merger");
WHEREAS, on February 9, 2000, the new Monsanto Company (which is the
Delaware corporation identified in the introductory paragraph of this Protocol
Agreement as "Monsanto Company" and which is referred to herein as either "New
Monsanto" or "Monsanto") was incorporated as a wholly owned subsidiary of Former
Monsanto under the name "Monsanto Ag Company;"
WHEREAS, on March 31, 2000, (i) the Merger was effective, (ii) Former
Monsanto changed its name from "Monsanto Company" to "Pharmacia Corporation,"
and (iii) New Monsanto changed its name from "Monsanto Ag Company" to "Monsanto
Company;"
WHEREAS, on September 1, 2000, New Monsanto and Pharmacia entered into
certain agreements, including that certain Separation Agreement, dated as of
September 1, 2000 (the "Separation Agreement"), pursuant to which, among other
things, Pharmacia assigned and transferred certain assets related to its
chemicals and agricultural businesses and certain other assets to New Monsanto
and New Monsanto assumed certain liabilities relating thereto and all
liabilities that were assumed by Solutia or any of its subsidiaries in
connection with the Solutia Distribution to the extent that Solutia fails to
pay, perform or discharge such liabilities;
WHEREAS, on or about October 23, 2000, New Monsanto completed an
initial public offering of its common stock in which New Monsanto sold
approximately 15% of its issued and outstanding shares of common stock to the
public;
WHEREAS, Pharmacia currently owns approximately 84% of the issued and
outstanding shares of common stock of New Monsanto;
WHEREAS, Pharmacia has announced its intention to distribute its entire
ownership interest in New Monsanto to the stockholders of Pharmacia or could
take some other action that will result in Pharmacia no longer controlling New
Monsanto (a "Possible Disposition"); and
WHEREAS, simultaneously with the execution of this Protocol Agreement,
(i) the parties hereto entered into a certain Amendment to the Distribution
Agreement (the "Distribution Agreement Amendment") pursuant to which the
assignment from Pharmacia to New Monsanto of certain assets and liabilities
contemplated pursuant to the Separation Agreement (including the Distribution
Agreement) was effectuated and the relationship among the parties was preserved
as nearly as possible with the original intent and terms of the Distribution
Agreement and (ii) Pharmacia and New Monsanto entered into that certain First
Amendment to the Separation Agreement (the "Separation Agreement Amendment")
subject to New Monsanto obtaining approval thereof from the Special Committee of
its Board of Directors ("New Monsanto Special Committee");
WHEREAS, pursuant to the Distribution Agreement, as amended by the
Distribution Agreement Amendment (the "Amended Distribution Agreement"), Solutia
agreed, among other things, to indemnify, defend and hold harmless the Monsanto
Group (as defined in the Amended Distribution Agreement) from and against all
Chemical Liabilities;
WHEREAS, pursuant to its obligations under the Amended Distribution
Agreement, Solutia has agreed to and has been defending Pharmacia in connection
with Xxxxxxx Xxxxxxxxx, et al. v. Monsanto Company, et al., Case No. CV01832
(the "Litigation");
WHEREAS, a jury verdict has been returned in the Litigation with
respect to the liability of Solutia and Pharmacia with respect to certain claims
at issue in the Litigation and proceedings have commenced to determine the
jury's verdict of damages on account of such liability;
WHEREAS, pursuant to the Amended Distribution Agreement, Solutia is
obligated, among other things, to post a bond in the Litigation in order to stay
execution of any judgment against Solutia and/or Pharmacia pending appeal of any
judgment (each, an "Appeal");
WHEREAS, Solutia has requested that Pharmacia commit to posting a bond
required to stay execution of any judgment in the Litigation pending an Appeal;
2
WHEREAS, Pharmacia is willing to use commercially reasonable efforts to
post a bond sufficient to stay the execution of any judgment against Pharmacia
and/or Solutia in the Litigation pending any Appeal, upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. Each capitalized term used in this Protocol Agreement and
not otherwise defined herein shall have the meaning ascribed thereto in the
Amended Distribution Agreement.
Section 2. This Protocol Agreement is a written, signed amendment and
modification of (i) the Amended Distribution Agreement, in satisfaction of the
requirements of Section 10.06 of the Amended Distribution Agreement and (ii)
only in the event that it is approved by the Monsanto Special Committee as
contemplated in Section 7 below, the Amended Separation Agreement (as defined
below), in satisfaction of the requirements of Section 11.07 of the Amended
Separation Agreement.
Section 3. In the event that Solutia does not, within 5 days of any
judgment, post a bond sufficient to stay the execution of any judgment rendered
in the Litigation pending any Appeal, Pharmacia shall post such bond, provided
that Pharmacia is able to obtain a bond upon commercially reasonable terms for a
company of Pharmacia's financial conditions and resources and provided further
that, as conditions precedent: (i) Solutia and New Monsanto each promptly and
fully perform all duties, fulfill all obligations and meet all requirements set
forth herein; and (ii) Solutia successfully completes the issuance and sale of
Senior Secured Notes (the "Senior Notes") contemplated in Solutia's Preliminary
Offering Memorandum dated June 18, 2002 ("POM"); and (iii) Solutia completes its
refinancing plan and the proceeds from the sale of the Senior Notes that will be
held in escrow by SOI Funding Corp. shall have been released to Solutia (other
than in connection with any redemption of the Senior Notes) as part of Solutia's
refinancing plan all upon such terms and conditions substantially as described
in the POM and in all material respects as described in the Final Offering
Memorandum relating to the Senior Notes.
Section 4. Solutia shall provide immediate notice of (and in no event
more than three business days after) any judgment in the Litigation that may be
appealed or that may give rise to a right by a party to the Litigation to
enforce such judgment against Solutia, Pharmacia or any other person or to
execute such judgment against any asset of Solutia, Pharmacia or any other
person.
Section 5. In the event Pharmacia posts a bond pursuant to Section 3
above, and subject to Section 7 below, the following shall apply:
(a) Solutia shall reimburse or pay directly, and in no event
later than thirty (30) days after receipt of an invoice or xxxx, Pharmacia's
and/or New Monsanto's Expenses (as defined hereinafter). "Expenses" means all of
Pharmacia's and/or new Monsanto's out-of-pocket expenses in connection with
obtaining any bond that are incurred no earlier than forty-five (45) days before
the bond is posted, including, without limitation: (i) the premium due on
3
the bond and /or the fees charged by the provider of any bond; (ii) the fees and
expenses relating to any third-party credit enhancement related to the bond;
(iii) all costs and expenses of securing Pharmacia's and/or New Monsanto's
obligations with respect to the bond; and (iv) fees and expenses of financial
advisors and attorneys retained by Pharmacia or New Monsanto in connection with
the foregoing. To the extent Solutia does not reimburse or pay directly
Pharmacia's Expenses in accordance with this Section 5(a), New Monsanto shall
reimburse or pay directly Pharmacia's Expenses within thirty (30) days after the
written notice of Solutia's failure to reimburse or pay such expenses.
(b) (i) If, pursuant to Section 3 above, Pharmacia is able to
obtain a bond sufficient to stay the execution of any judgment rendered in the
Litigation pending an Appeal without providing or posting any collateral or
third-party credit enhancement ("Collateral"), then Solutia, New Monsanto and
Pharmacia shall have shared control over decisions to compromise or settle any
and all claims at issue, or arguably at issue, in any Appeal and/or the
Litigation. If under this provision Solutia, New Monsanto and Pharmacia are
unable to unanimously agree with respect to any decision concerning the
compromise or settlement of any claim at issue, or arguably at issue, in any
Appeal and/or the Litigation, then the agreement of any two of the three parties
hereto shall be binding upon all parties hereto. If, pursuant to Section 3
above, Pharmacia is unable to obtain a bond sufficient to stay the execution of
any judgment rendered in the Litigation pending an Appeal without providing
Collateral, then control over decisions to compromise or settle any and all
claims at issue, or arguably at issue, in any Appeal and/or the Litigation shall
be determined pursuant to Sections 5(b)(ii)-(iv) below.
(ii) If, pursuant to Section 3 above, Pharmacia is unable
to obtain a bond sufficient to stay the execution of any judgment rendered in
the Litigation pending an Appeal without providing Collateral, then Solutia
shall have the first option to provide all Collateral necessary to obtain the
bond as contemplated by Section 3 above. If Solutia exercises this option and
provides all Collateral necessary for Pharmacia to post the bond, then Solutia
shall have sole and exclusive right to compromise or settle on a commercially
reasonable basis all claims at issue, or arguably at issue, in any Appeal and/or
the Litigation and Solutia need not receive the consent or approval of Pharmacia
or New Monsanto to settle all of the claims at issue, or arguably at issue, in
any Appeal and/or the Litigation, provided that the settlement includes as a
term thereof the delivery by the claimant(s) or plaintiff(s) to Pharmacia of a
written release of Pharmacia, New Monsanto and Solutia from all liability in
respect to the Litigation once payment of the settlement and fulfillment of any
other obligations of the settlement have been effectuated. Solutia shall
nevertheless have a duty of prior consultation with New Monsanto and Pharmacia
concerning any settlement decision as set forth in Section 6 below.
(iii) If, pursuant to Section 3 above, Pharmacia is unable
to obtain a bond sufficient to stay the execution of any judgment rendered in
the Litigation pending an Appeal without providing Collateral and Solutia does
not exercise (or fails to exercise within five (5) business days after receiving
a written request from Pharmacia) its first option as set forth in Section
5(b)(ii) above, then New Monsanto shall have the second option to provide all
Collateral necessary to obtain the bond as contemplated by Section 3 above. If
New Monsanto exercises this option and provides all Collateral necessary for
Pharmacia to post the bond, then New Monsanto shall have sole and exclusive
right to compromise or settle on a commercially reasonable basis all claims at
issue, or arguably at issue, in any Appeal and/or the Litigation and
4
New Monsanto need not receive the consent or approval of Pharmacia or Solutia to
settle all of the claims at issue, or arguably at issue, in any Appeal and/or
the Litigation, provided that the settlement includes as a term thereof the
delivery by the claimant(s) or plaintiff(s) to Pharmacia and Solutia of a
written release of Pharmacia, New Monsanto and Solutia from all liability in
respect to the Litigation once payment of the settlement and fulfillment of any
other obligations of the settlement have been effectuated. New Monsanto shall
nevertheless have a duty of prior consultation with Solutia and Pharmacia
concerning any settlement strategies or decision as set forth in Section 6
below.
(iv) If, pursuant to Section 3 above, Pharmacia is unable
to obtain a bond sufficient to stay the execution of any judgment rendered in
the Litigation pending an Appeal without providing Collateral and neither
Solutia nor Monsanto exercises (or if both fail to exercise their respective
options within five (5) business days after receiving a written request from
Pharmacia) its option as set forth in Section 5(b)(ii) and (iii) above, then
Pharmacia shall provide the Collateral necessary to obtain the bond as
contemplated by Section 3 above. In such case, Pharmacia shall have sole and
exclusive right to compromise or settle on a commercially reasonable basis any
and all claims at issue, or arguably at issue, in any Appeal and/or the
Litigation and need not receive the consent or approval of Solutia or New
Monsanto to settle all or some of the claims at issue, or arguably at issue, in
any Appeal and/or the Litigation, provided that the settlement includes as a
term thereof delivery by the claimant(s) or plaintiff(s) to Solutia and New
Monsanto of a written release of Pharmacia, New Monsanto and Solutia from all
liability in respect to the Litigation once payment of the settlement and
fulfillment of any other obligations of the settlement have been effectuated.
Pharmacia shall nevertheless have a duty or prior consultation with New Monsanto
and Solutia concerning any settlement strategies or decision.
(c) In the event that any claims at issue, or arguably at
issue, in any Appeal and/or the Litigation are settled, Solutia shall pay the
full settlement amount and perform any obligations of Solutia and/or Pharmacia
set forth in the settlement agreement. In the event that any claims at issue are
not settled and a final, non-appealable judgment is entered against Solutia
and/or Pharmacia, Solutia shall pay directly and otherwise fulfill all of
Solutia's and Pharmacia's obligations pursuant to such judgment. To the extent
that Solutia fails to promptly and fully meet its obligations with respect to
the payment of any judgment or settlement or with respect to other obligations
arising out of any settlement or judgment in any Appeal and/or the Litigation,
Solutia shall enter into a consent judgment in favor of Pharmacia and New
Monsanto against Solutia in the amount equal to the amount specified in the
judgment or settlement minus any amount paid by Solutia in satisfaction of the
judgment or settlement. To the extent that Solutia fails to promptly and fully
meet its obligations with respect to the payment of any judgment or settlement
or with respect to other obligations arising out of any settlement or judgment
in any Appeal and/or the Litigation, New Monsanto agrees to pay, perform or
discharge such liabilities and obligations when due and owing pursuant to the
terms of the Separation Agreement, as amended by the Separation Agreement
Amendment (the "Amended Separation Agreement"). To the extent that New Monsanto
fails to promptly and fully meet its obligations with respect to the payment of
any judgment or settlement when due and owing or with respect to other
obligations arising out of any settlement or judgment in any Appeal and/or the
Litigation, New Monsanto shall enter into a consent judgment in favor of
Pharmacia and against New Monsanto in the amount equal to the amount specified
in the judgment or settlement
5
minus any aggregate amount paid by Solutia and new Monsanto in satisfaction of
the judgment or settlement.
(d) For purposes of any Appeal and settlement of any Appeal
only, to the extent the rights, duties, commitments and obligations set forth in
this Section 5 of the Protocol Agreement and the Power of Attorney attached
hereto as Exhibit A differ from or conflict with the rights, duties, commitments
and obligations of the parties as set forth in the Amended Distribution
Agreement or in the Amended Separation Agreement, or any power of attorney
granted in connection therewith, the rights, duties, commitments and obligations
in this Section 5 shall supercede and take precedent over the rights, duties,
commitments and obligations set forth in the Amended Distribution Agreement or
the Amended Separation Agreement, or any power of attorney granted in connection
therewith, as the case may be.
(e) In the event that Solutia files or is subject to any
voluntary or involuntary bankruptcy proceeding, Solutia's rights hereunder and
Solutia's right to defend Pharmacia with respect to any Appeal and/or the
Litigation and the power of attorney with respect thereto attached hereto as
Exhibit A are automatically and immediately revoked. The parties further agree
that consent from relief from any automatic stay under section 362 of the Untied
States Bankruptcy Code is not necessary, but that should a court rule otherwise,
Solutia hereby consents to the entry of an order granting relief from the stay
in order to effectuate this paragraph and agrees to provide all necessary
cooperation. The parties further agree that the Power of Attorney with respect
to any Appeal and/or the Litigation shall be immediately revoked.
Section 6. The power of attorney attached as Exhibit 4.03(e) to the
Amended Distribution Agreement is hereby revoked and is of no further force or
effect and is replaced by the power of attorney attached hereto as Exhibit A,
which shall be executed by Pharmacia. Pursuant to the power of attorney attached
hereto as Exhibit A, the prosecution of any Appeal and continued defense of the
Litigation shall be managed by Solutia at Solutia's expense. Solutia shall
report to New Monsanto and Pharmacia all material developments concerning the
Litigation and any Appeal and shall provide all information and documents
reasonably requested by either New Monsanto or Pharmacia. At their expense, New
Monsanto and Pharmacia may associate with and advise Solutia in the prosecution
of any Appeal and continued defense of the Litigation and Solutia shall allow
Pharmacia and New Monsanto to consult with and advise Solutia in connection with
any decision or strategy in any Appeal and the Litigation. Solutia shall also
fully inform Pharmacia and New Monsanto on an immediate basis and in writing of
any settlement discussions regarding the Litigation and/or any Appeal and shall,
subject to Section 5(b) above, consult fully with Pharmacia and New Monsanto
concerning any settlement strategies or decision.
Section 7. Solutia, Pharmacia and New Monsanto acknowledge and agree
that this Protocol Agreement shall not be enforceable as to New Monsanto until
the earlier of July 11, 2002 or the date upon which the New Monsanto Special
Committee approves of the provisions of this Protocol Agreement and authorizes
New Monsanto's execution of this Protocol Agreement. In the event that the New
Monsanto Special Committee does not approve the provisions of, and does not
authorize New Monsanto's execution of, this Protocol Agreement on or before July
11, 2002, then Solutia, Pharmacia and New Monsanto agree that New Monsanto
6
will no longer be deemed to be a party under this Protocol Agreement and will
have no rights or obligations hereunder, except that New Monsanto shall
nevertheless retain the rights and obligations set forth in Section 5(b)(i)
above. Furthermore, in said event, Solutia and Pharmacia agree that, except with
respect to Section 5(b)(i) above: (i) all references to New Monsanto in this
Protocol Agreement (as well as any related text) shall be deemed deleted; (ii)
Sections 5(b)(iii), 9 and 12 of this Protocol Agreement shall be deemed to be
deleted in its entirety; (iv) Section 10 of this Protocol Agreement shall be
deemed amended by deleting everything after the text that reads "including,
without limitation, Article IV thereof".
Section 8. Other than as provided herein, neither Pharmacia, New
Monsanto nor Solutia has waived or compromised any of their respective rights
under the Amended Distribution Agreement. In addition, the running of any
limitations on the time for either Pharmacia, New Monsanto or Solutia to assert
any claims related to the Litigation under the Amended Distribution Agreement is
tolled until 120 days after final resolution of any Appeal.
Section 9. Other than as provided herein, neither Pharmacia nor New
Monsanto has waived or compromised any of their respective rights under the
Amended Separation Agreement. In addition, the running of any limitations on the
time for either Pharmacia or New Monsanto to assert any claims related to the
Litigation under the Amended Separation Agreement is tolled until 120 days after
final resolution of any Appeal.
Section 10. Nothing herein is intended to nor shall be construed to
waive or limit any of the commitments and obligations of Solutia to Pharmacia,
New Monsanto or the Monsanto Group (and each of their Representatives and
Affiliates) set forth in the Amended Distribution Agreement including, without
limitation, Article IV thereof, or to waive or limit any commitments and
obligations of New Monsanto to Pharmacia or the Pharmacia Group (and each of
their Representatives and Affiliates) set forth in the Amended Separation
Agreement including, without limitation, Article III thereof.
Section 11. Provided that Solutia promptly and fully complies with, as
conditions precedent, the commitments, obligations and duties set forth above,
Pharmacia and New Monsanto each agree that Solutia's failure to post a bond
pending an Appeal does not constitute a breach of Solutia's commitments and
obligations to Pharmacia or New Monsanto under the Amended Distribution
Agreement.
Section 12. Provided that New Monsanto promptly and fully complies
with, as conditions precedent, the commitments, obligations and duties set forth
above, Pharmacia agrees that New Monsanto's failure to post a bond pending an
Appeal does not constitute a breach of New Monsanto's commitments and
obligations to Pharmacia under the Amended Separation Agreement.
Section 13. Except as otherwise agreed between New Monsanto and
Pharmacia, each party hereto will pay its own costs and expenses incident to its
negotiation and preparation of this Protocol Agreement, including the fees,
expenses and disbursement of its counsel.
7
Section 14. This Protocol Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware (other than the laws
regarding choice of laws and conflicts of laws) as to all matters, including
matters of validity, construction, effect, performance and remedies.
Section 15. This Protocol Agreement may be amended, modified or
supplemented only by a written agreement signed by all of the parties hereto.
Section 16. This Protocol Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
successors, but neither this Protocol Agreement nor any of the rights, interests
and obligations hereunder shall be assigned by any party hereto.
Section 17. This Protocol Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 18. Any provision of this Protocol Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Each party acknowledges
that money damages would be an inadequate remedy for any breach of the
provisions of this Protocol Agreement and agrees that the obligations of the
parties hereunder shall be specifically enforceable.
[SIGNATURE PAGE IS NEXT PAGE]
8
IN WITNESS WHEREOF, the parties hereto have caused this Protocol
Agreement to be duly executed as of the date first above written.
PHARMACIA CORPORATION,
a Delaware corporation
By: // Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and General Counsel
MONSANTO COMPANY,
a Delaware corporation
By: // Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman and CEO
SOLUTIA INC.,
a Delaware corporation
By: // Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: CFO, SVP and Advisory
Director
9
EXECUTION COPY
EXHIBIT A
FORM OF
POWER OF ATTORNEY: LITIGATION
KNOW ALL MEN BY THESE PRESENTS:
That Pharmacia Corporation, a corporation organized and
existing under the laws of the State of Delaware or the applicable member of the
Monsanto Group ("Pharmacia") has made, constituted and appointed and by these
presents does make, constitute and appoint, Solutia Inc., a corporation
organized and existing under the laws of the State of Delaware or the applicable
member of the Chemicals Group ("Solutia") its true and lawful agent and
attorney, for Pharmacia and in Pharmacia's name, place and stead, for all
purposed with respect to Third Party Claims as to which Solutia has agreed to
indemnify Pharmacia, and such claims against Third parties which continue to be
held by Pharmacia in trust for Solutia, such Third Party Claims and claims
against Third Parties being collectively referred to herein as "Claims"; and its
attorney shall have, subject to the provisions of the Protocol Agreement, dated
July 1, 2002 (the "Protocol Agreement"), to which this power of attorney is
entered, full power and authorization to take all action with respect to such
Claims as Pharmacia can take and which said attorney, acting through its
officers or their delegates, who in each case, acting alone, in his or her sole
discretion, think best, including without limitation, (i) to represent Pharmacia
with respect to such Claims for so long as such Claims are unresolved; (ii) to
appear in Pharmacia's name and to execute, deliver and file all pleadings,
motions and other filings, at trial, on appeal, or in a proceeding, through
counsel retained by Solutia or by officers of Solutia or their delegates, acting
alone, or otherwise; (iii) to assert or waive any or all rights with respect to
such Claims; (iv) to engage in all phases of discovery with respect to such
Claims, including without limitation, to take depositions, defend depositions
and propound or respond to other discovery requests, such as interrogatories or
requests for production of documents; (iv) to direct and accept service of
process with respect to such Claims; (v) to execute and deliver affidavits as
may be necessary or desirable with respect to such Claims; (vi) to agree to and
to represent Pharmacia in alternative resolution proceedings, including
arbitration or mediation of Claims; (viii) to discuss or negotiate settlement
agreements and releases with Third Parties with respect to such Claims on such
terms and conditions as Solutia thinks best; (ix) to execute, deliver and, if
needed, file any and all settlement agreements, releases and other agreements,
documents and instruments as may be required and any and all modifications
thereof; and (x) to obtain and post bonds pending appeal; hereby giving and
granting to Pharmacia's said attorney full power and authority to do and perform
all and every act and thing whatsoever necessary to be done in the premises as
fully to all intents and purposes as Pharmacia might or could do, hereby
ratifying and confirming all that its said attorney may do pursuant to this
power.
Pharmacia hereby gives and grants to its said attorney full
power and authority to do and perform all and every act and thing whatsoever
necessary to be done in the premises, in
order fully to carry out and effectuate the authority herein granted, as fully
to all intents and purposes as Pharmacia might or could do if acting through its
own officers or delegates, and Pharmacia hereby ratifies and confirms all that
its said attorney may do pursuant to this power.
Pharmacia hereby further authorizes and empowers its said attorney to
substitute and appoint in the place and stead of its said attorney, or to employ
agents or sub-agents as Solutia thinks best, one or more attorney or attorneys
to exercise for Pharmacia as its attorney or attorneys any and all of the powers
and authorities hereby conferred; and to revoke such appointment or appointments
from time to time, and to substitute or appoint any other or others in the place
of such attorney or attorneys as Solutia shall from time to time think fit.
Unless specifically defined herein, capitalized terms shall have the
meaning defined in the Distribution Agreement, as amended.
The term "Distribution Date" when used herein means September 1, 1997.
The term "Governmental Authority" when used herein means any federal,
state, local, foreign or international court, government, department,
commission, board, bureau, agency, the NYSE, or other regulatory, administrative
or governmental authority.
The term "Third Party" when used herein means any individual,
partnership, joint venture, corporation, trust, limited liability company,
unincorporated organization or a government or any department or agency thereof
other than Pharmacia or Solutia or their wholly owned direct or indirect
subsidiaries or affiliates.
The term "Third Party Claims" when used herein means any claim, suit,
arbitration, inquiry, proceeding or investigation by or before any court, any
governmental or other regulatory or administrative agency or commission or any
arbitration tribunal asserted by a Third Party.
All references in this document to "its attorney" or "its said
attorney" or "its true and lawful attorney," or similar designations shall refer
to Solutia Inc. [or the appropriate member of the Chemicals Group] and each and
every person to whom Solutia delegates such power and also to each and every
substitute or successor attorney-in-fact appointed under the terms of this
instrument as herein provided.
All references in this document to "its attorney" or "its said
attorney" or "its true and lawful attorney," or similar designations shall refer
not only to Solutia or its delegates but also to each and every substitute or
successor attorney-in-fact appointed under the terms of this instrument as
herein provided.
In the event that Pharmacia posts a bond as contemplated in the
Protocol Agreement, this power of attorney shall automatically terminate without
notice, provided, however, this power of attorney may be renewed for additional
thirty (30) day periods at the written request of Pharmacia.
All persons dealing with Pharmacia's said attorney shall be protected
in relying upon a copy of this instrument and shall be protected in relying upon
the written certificate of
11
Solutia as to the Claims which are the subject of this power of attorney, the
identity and authority or its officers, their delegates and any substitute or
successor appointed pursuant to the terms hereof, and/or as to whether any of
the persons authorized to act hereunder is unavailable so to act, so as to
authorize some other person to act hereunder, and Pharmacia hereby declares that
as against it and all persons claiming under it everything which its attorney
shall do or cause to be done pursuant hereto shall be valid and effectual in
favor of any person claiming the benefit hereof who at the time of the doing
thereof shall have relied upon any such certification made by Solutia. If
required by applicable law or if Solutia desires for any reason to do so, an
executed copy of this Power of Attorney shall be filed for record with the
Governmental Authority wherein the Claim is pending or such other place as
required by law or whether Solutia thinks best. Pharmacia authorizes Solutia to
make all such filings.
This instrument may be executed in any number of counterparts, and all
of said counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 1st day
of July, 2002.
PHARMACIA CORPORATION
// Xxxxxxx X. Xxxxxxx
---------------------------------------
By: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
General Counsel
ATTEST:
//Xxxxxx X. Xxxxxxxxx
12
STATE OF NEW JERSEY )
)
COUNTY OF SOMERSET )
On this 1st day of July, 2002, before me the undersigned, a Notary
Public, in and for the County and State aforesaid, personally appeared Xxxxxxx
X. Xxxxxxx, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he/she executed the same as his/her
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in Peapack, NJ, the day and year last above written.
Xxxxx X. Xxxxxx
----------------------------------------------
Notary Public in and for said County and State
My Commission expires:
March 4, 2003
13