FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit
10yy
FORM OF
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of
[ ],
2007 by and between Solutia Inc., a Delaware corporation (the
“Company”), and Monsanto Company, a Delaware
corporation (“Monsanto”).
R E C
I T A L S
The Company will issue to Monsanto shares of Common Stock (as
defined below) pursuant to the Solutia Inc. Fourth Amended Joint
Plan of Reorganization (the “Plan”) dated
[ ],
2007.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises herein contained, the parties hereby agree as
follows:
AGREEMENT
1. Definitions. Unless the context
otherwise requires, the terms defined in this Section 1
shall have the meanings herein specified for all purposes of
this Agreement, applicable to both the singular and plural forms
of any of the terms herein defined.
“Agreement” means this Registration Rights
Agreement.
“Automatic Shelf Registration Statement” means
an automatic shelf registration statement as defined under
Rule 405 of the Securities Act.
“Board” means the Board of Directors of the
Company.
“Commission” means the Securities and Exchange
Commission.
“Common Stock” means the common stock, par
value $.01, of the Company.
“Exchange Act” means the Securities Exchange
Act of 1934, as amended.
“Free Writing Prospectus” means a free writing
prospectus, as defined in Rule 405 under the Securities Act.
“Holder” means Monsanto or any record or
beneficial owner of Registrable Securities who became a party to
this Agreement in accordance with Section 12 hereof.
“Holders of a Majority of Registrable
Securities” means the Person or Persons who are the
Holders of greater than 50% of the Registrable Securities then
outstanding.
“Initiating Holder” means any Holder of
Registrable Securities requesting registration pursuant to and
in accordance with this Agreement. .
“NASD” means the National Association of
Securities Dealers, Inc.
“Person” means any natural person, corporation,
trust, association, company, partnership, limited liability
company, joint venture and other entity and any government,
governmental agency, instrumentality or political subdivision.
The terms “register,”
“registered” and
“registration” refer to a registration effected
by preparing and filing a registration statement in compliance
with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
“Registration Date” means the earlier of
(i) the date upon which the Company first files on a
Form 10-K
or
Form 10-Q
as promulgated under the Exchange Act, or any amendment to such
a
Form 10-K
or
Form 10-Q,
financial statements that include a balance sheet for a date and
income statements for a period for which the
Company has adopted fresh-start accounting in accordance with
SOP 90-7
and (ii) the 135th day following the Effective Date
(as defined in the Plan).
“Registrable Securities” means (i) the
shares of Common Stock issued or to be issued to Monsanto, and
(ii) any shares of Common Stock or other securities issued
or issuable in respect of the Common Stock or the other
securities referred to in clause (i) above by way of a
spin-off, split-off, dividend, stock split or other distribution
or in connection with a combination of shares, reclassification,
merger, consolidation, reorganization or similar transaction;
provided, however, that such shares of Common Stock or
other securities shall constitute Registrable Securities only so
long as (x) they have not been sold by a Holder to or
through a broker or dealer or underwriter in a public
distribution or a public securities transaction pursuant to an
effective registration statement under the Securities Act,
(y) they have not been sold by a Holder in a transaction
exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions and restrictive
legends with respect to such Common Stock or other securities
are removed upon the consummation of such sale and the seller
and purchaser of such Common Stock or other securities receive
an opinion of counsel for the Company, which shall be in form
and content reasonably satisfactory to the seller and purchaser
and their respective counsel, to the effect that such Common
Stock or other securities in the hands of the purchaser are
freely transferable without restriction or registration under
the Securities Act in any public or private transaction, or
(z) they are not capable of being sold by the holder
thereof under Rule 144 (without giving effect to
subsection (k) of Rule 144) in a single
transaction.
“Rule 144” means Rule 144 as
promulgated under the Securities Act.
“Securities Act” means the Securities Act of
1933, as amended.
“WKSI” means a well-known seasoned issuer as
defined under Rule 405 of the Securities Act.
2. Demand Registration.
(a) Following the Registration Date, Holders of a Majority
of Registrable Securities shall have the right to request, by
delivery of a written notice to the Company (a “Demand
Notice”), that the Company file a registration
statement under the Securities Act (a “Demand
Registration Statement”) covering all or a portion of
the Registrable Securities for the purpose of effecting an
offering of such Registrable Securities, whether underwritten or
otherwise (a “Demand Registration”);
provided, however, that no Initiating Holder shall be
entitled to demand a Demand Registration Statement during the
period when the Company is exercising its right to defer a
Demand Registration pursuant to Section 2(b). Any such
Demand Notice must request the registration of Registrable
Securities having an aggregate market value, based on the
average per share closing price of the Common Stock as reported
on the principal exchange or market on which it is then traded
over the ten (10) consecutive trading days prior to the
date of the Demand Notice, of not less than twenty-five million
dollars ($25,000,000), or, if the registration statement will be
on
Form S-3,
not less than ten million dollars ($10,000,000). Subject to
Section 6(b)(i), as soon as reasonably practicable, but in
no event later than sixty (60) days (or thirty
(30) days if the registration statement will be a shelf
registration statement on
Form S-3)
after receiving a Demand Notice, the Company shall file with the
Commission a registration statement covering the Registrable
Securities subject to the Demand Notice. Subject to
Sections 2(b) and 4, the Company shall use its reasonable
best efforts to cause such registration statement to become
effective as expeditiously as possible. Any registration under
this Section 2 shall reflect such plan or method of
distribution of the applicable securities as shall be designated
by the Initiating Holder.
(b) Notwithstanding the provisions of Section 2(a), if
the Company shall furnish to the Initiating Holder a certificate
signed by the President and Chief Executive Officer of the
Company stating that such officer has made a good faith
determination that a registration would (i) require the
disclosure of material nonpublic information concerning the
Company, its business or prospects and that such premature
disclosure would be materially adverse to the Company,
and/or
(ii) materially interfere with a pending transaction
involving the Company or a subsidiary or affiliate of the
Company, then the Company shall have the right to defer such
filing or the effectiveness hereunder for a period ending not
more than ninety (90) days after the Company’s receipt
of the applicable Demand Notice, provided, that the
Company may not exercise its right under this
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Section 2(b) more than twice in any
24-month
period; and provided further, that the Company may not exercise
its rights under this Section 2(b) for two consecutive
90-day
periods.
(c) Notwithstanding the provisions of Section 2(a),
the Company shall not be obligated to (i) file or effect a
Demand Registration Statement for an underwritten offering of
Registrable Securities (an “Underwritten Demand
Registration Statement”) within a period of
90 days after the effective date of any other Underwritten
Demand Registration Statement or an underwritten offering
pursuant to a Shelf Demand Registration Statement (as defined
below) or (ii) file or effect more than a total of two
Underwritten Demand Registration Statements within any
12-month
period; provided, however, that each Shelf Demand
Registration Statement filed during the applicable
12-month
period will reduce by one the number of Underwritten Demand
Registration Statements the Company is obligated to file during
such
12-month
period.
(d) The Company may elect to register in any underwritten
Demand Registration (an “Underwritten Demand
Registration”) any additional shares of Common Stock
(including, without limitation, any shares of Common Stock to be
distributed in a primary offering made by the Company) so long
as the inclusion of such Common Stock by the Company would not
(as determined in the Initiating Holder’s reasonable
discretion), (i) be reasonably likely to delay in any
material respect the Initiating Holder’s ability timely to
sell the Registrable Securities pursuant to the Underwritten
Demand Registration Statement or (ii) cause a reduction in
the number of Registrable Securities included in the
Underwritten Demand Registration as a result of the
Company’s election to so register additional shares of
Common Stock. Such election of the Company, if made, shall be
made by the Company giving written notice to the Initiating
Holder prior to the effectiveness of the Underwritten Demand
Registration Statement stating (A) that the Company
proposes to include additional shares of Common Stock in such
Underwritten Demand Registration Statement, and (B) the
number of shares of Common Stock proposed to be included.
3. Shelf Registration.
(a) Following the Registration Date, any Initiating Holder
shall have the right to request, by delivery of a written notice
to the Company (a “Shelf Demand Notice”), that
(i) the Company file a shelf registration statement (a
“Shelf Registration Statement”) pursuant to
Rule 415 under the Securities Act covering all or a portion
of the Registrable Securities to enable the resale on a delayed
or continuous basis of such Registrable Securities (a
“Shelf Demand Registration”) or (ii) if
the Company is a WKSI and has an outstanding effective
Form S-3
Registration Statement, the Company file a post-effective
amendment to such
Form S-3
Registration Statement covering all or a portion of the
Registrable Securities; provided, however, that no
Initiating Holder shall be entitled to demand a Shelf
Registration Statement during the period when the Company is
exercising its right to defer a Demand Registration pursuant to
Section 2(b). Subject to Section 6(b)(i), as soon as
reasonably practicable, but in no event later than forty-five
(45) days after receiving a Shelf Demand Notice (or fifteen
(15) days if the Company is a WKSI and then has an
effective
Form S-3
Registration Statement), the Company shall file with the
Commission a Shelf Registration Statement on
Form S-3
of the Commission or, if the Company is a WKSI and has an
effective
Form S-3
Registration Statement, a post-effective amendment thereto.
Subject to Sections 3(b) and 3(c), the Company shall use
its commercially reasonable best efforts to cause the Shelf
Registration Statement to become effective as expeditiously as
possible and to remain effective until the earlier of
(x) the time all Registrable Securities subject thereto
have been sold and (y) the third anniversary of the initial
effective time, including by filing necessary post-effective
amendments and prospectus supplements reasonably required by a
Holder, subject to any blackout periods described in
subparagraph (b) below. The Initiating Holder shall have
the right to determine the plan and method of distribution for
the Registrable Securities to be reflected in the Shelf
Registration Statement in respect of which it is the Initiating
Holder. Notwithstanding anything contained herein to the
contrary, the Holders of Registrable Securities may not file, or
request that the Company file, as required by Rule 424 of
the Securities Act, more than three (3) prospectuses or
prospectus supplements in connection with any Shelf Registration
Statement in any thirty (30) day period.
(b) Notwithstanding the provisions of Section 3(a), if
the Company is required to effect a Shelf Registration Statement
or make any filing with the Commission pursuant to this
Section 3 or if the Company has a Shelf Registration
Statement in effect pursuant to this Section 3, and the
Company furnishes to the
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Initiating Holder requesting such registration or filing or to
the Holders of Registrable Securities included in such Shelf
Registration Statement, as applicable, a certificate signed by
the President and Chief Executive Officer of the Company stating
that such officer has made a good faith determination that a
registration would (i) require the disclosure of material
nonpublic information concerning the Company, its business or
prospects and that such disclosure would be materially adverse
to the Company,
and/or
(ii) materially interfere with a pending transaction
involving the Company or a subsidiary or affiliate of the
Company, then, the Company shall have the right to defer such
filing or the effectiveness thereof for a period of not more
than ninety (90) days after the Company’s receipt of
the applicable Shelf Demand Notice or prevent Holders of
Registrable Securities from selling Registrable Securities
pursuant to an effective Shelf Registration Statement for a
period of not more than ninety (90) days after the Company
delivers such certificate to the applicable Holder and demands
that such Holder cease sales of securities under the Shelf
Registration Statement (and during such period the Company shall
not be obligated to file another Shelf Registration Statement
during the period such sales under an effective Shelf
Registration Statement are not allowed); provided, that
the Company may not exercise its rights under this
Section 3(b) more than two times in any
18-month
period; and provided further, that the Company may not exercise
its rights under this Section 3(b) for two consecutive
90-day
periods.
(c) Notwithstanding the provisions of Section 3(a),
the Company shall not be obligated to file a Shelf Registration
Statement within a period of ninety (90) days after the
effective date of any Underwritten Demand Registration Statement
or an underwritten offering pursuant to a Shelf Registration
Statement or (ii) file or effect more than a total of three
(3) Shelf Registration Statements within any
12-month
period; provided, however, that each filing of an
Underwritten Demand Registration Statement during the
12-month
period will reduce by one the number of Shelf Registration
Statements that the Company is obligated to file during such
12-month
period.
(d) Upon the receipt by the Company of a Shelf Demand
Notice given in accordance with and subject to Section 3(a)
hereof, the Company shall give prompt written notice to all
Holders of Registrable Securities (other than the Initiating
Holder) that a Shelf Registration Statement pursuant to this
Section 3 is being effected. In the event that any such
Holder delivers to the Company a written request within fifteen
(15) days after the delivery of such written notice to the
Holder by the Company, to include in such Shelf Registration
Statement Registrable Securities of the Holder the Company shall
include such Registrable Securities in the Shelf Registration
Statement, including by means of a pre-effective or
post-effective amendment thereto; provided, however, that
if the inclusion of the Registrable Securities of such Holders
in such registration statement would, in the opinion of the
Initiating Holders, be reasonably likely to delay in any
material respect the Initiating Holder’s ability timely to
sell the Registrable Securities pursuant to the Shelf
Registration Statement, the Company shall not include such
Holders’ Registrable Securities in the Shelf Registration
Statement without the prior written consent of the Initiating
Holder.
(e) Following the Registration Date, any Initiating Holder
shall have the right to request, by delivery of a written notice
to the Company (a “Shelf Underwritten Demand
Notice”), that the Company effect an underwritten
offering of all or a portion of the Registrable Securities
included in an existing Shelf Registration Statement. Any such
Shelf Underwritten Demand Notice must request an underwritten
offering of Registrable Securities having an aggregate market
value, based on the average per share closing price of the
Registrable Securities as reported on the principal exchange or
market on which the Common Stock is then traded over the ten
(10) consecutive trading days prior to the date of the
Shelf Demand Notice, of not less than thirty million dollars
($30,000,000). Subject to Section 6(b)(i), as soon as
reasonably practicable after receiving a Shelf Underwritten
Demand Notice, but in no event later than twenty (20) days
after receiving a Shelf Underwritten Demand Notice, the Company
shall file with the Commission such amendments to the applicable
Shelf Registration Statements and such prospectus supplements or
other filings as are necessary in connection with the
underwritten offering of the Registrable Securities subject to
the Shelf Underwritten Demand Notice, subject to
Sections 3(b) and Section 4. Any prospectus supplement
or other filing with the Commission including a plan or method
of distribution of the securities subject to an underwritten
offering pursuant to this Section 3 shall reflect the plan
or method of distribution of such securities as shall be
designated by the managing underwriter of the offering.
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(f) The Company may elect to register in any Shelf
Registration Statement any additional shares of Common Stock
(including, without limitation, any shares of Common Stock to be
distributed in a primary offering made by the Company) so long
as the inclusion of such Common Stock by the Company would not
(as determined in the Initiating Holder’s reasonable
discretion), (i) be reasonably likely to delay in any
material respect the Initiating Holder’s ability timely to
sell the Registrable Securities pursuant to the Shelf
Registration Statement or (ii) cause a reduction in the
number of Registrable Securities included in the Shelf Demand
Registration as a result of the Company’s election to so
register additional shares of Common Stock. Such election of the
Company, if made, shall be made by the Company giving written
notice to the Initiating Holder stating (A) that the
Company proposes to include additional shares of Common Stock in
such Shelf Registration Statement, and (B) the number of
shares of Common Stock proposed to be included.
4. Underwritten Offerings.
(a) The Initiating Holder shall have the right to select
the book-running managers and the co-managers (collectively, the
“managing underwriter”) in connection with any
underwritten offering pursuant to Section 2 or
Section 3, provided, that the selection of the
managing underwriter by the Initiating Holder shall be subject
to the reasonable approval of the Company. In connection with
any underwritten offering, the Company and the Initiating Holder
shall enter into an underwriting agreement with the underwriter
or underwriters selected for such underwriting, provided,
that such underwriting agreement is in customary form and
provides for customary compensation, expense reimbursement and
indemnification.
(b) Upon the receipt by the Company of an Underwritten
Demand Notice or a Shelf Underwritten Demand Notice given in
accordance with this Agreement, the Company shall give prompt
written notice to all Holders of Registrable Securities (other
than the Initiating Holder) that an underwritten offering
pursuant to Section 2 or Section 3, as applicable is
being effected. In the event that any such Holder delivers to
the Company, within fifteen (15) days after the delivery of
such written notice to the Holder by the Company, a written
request to include in such underwritten offering any Registrable
Securities of the Holder, the Company shall include such
Registrable Securities in the registration statement; provided
that the Company need not include in an underwritten offering
pursuant to Section 3 any Registrable Securities that are
not then included in the applicable Shelf Registration Statement
(unless the Company is then a WKSI). The right of any Holder to
include Registrable Securities in any underwritten offering
shall be conditioned upon such Holder’s willingness to
enter into an underwriting agreement with the underwriter or
underwriters selected for such offering (in each case, unless
otherwise mutually agreed by such Holder, the Initiating Holders
and the Company).
(c) Notwithstanding the foregoing, if the managing
underwriter of an underwritten offering in connection with any
registration pursuant to Section 2 or Section 3
advises the Company and the Holders of Registrable Securities
participating in such offering in writing that in its good faith
judgment the number of Registrable Securities requested to be
included in such offering exceeds the number of Registrable
Securities which can be sold in such offering at a price
acceptable to the applicable Initiating Holder, then
(i) the number of Registrable Securities so requested to be
included in such offering shall be reduced to that number of
shares which in the good faith judgment of the managing
underwriter can be sold in such offering at such price and
(ii) this reduced number of Registrable Securities shall be
allocated among all Holders of Registrable Securities in
proportion, as nearly as practicable, to the respective number
of shares of Registrable Securities then held by such Holders.
(d) Those Registrable Securities which are excluded from an
underwriting in connection with any registration pursuant to
Section 2 or Section 3 hereof by reason of the
managing underwriter’s marketing limitation and all other
Registrable Securities not originally requested to be so
included shall not be included in such offering and shall be
withheld from the market by the Holders thereof for a period
(not to exceed ninety (90) days) which the managing
underwriter reasonably determines is necessary to effect the
underwritten offering.
(e) If the managing underwriter has not limited the number
of Registrable Securities to be included in an underwritten
offering pursuant to Section 2 or Section 3, the
Company and, subject to the requirements of Section 8
hereof, the other holders of the Company’s securities may
include securities for its (or their) own
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account in such registration if the managing underwriter so
agrees and if the number of Registrable Securities which would
otherwise have been included in such offering will not thereby
be limited. The Company shall not grant registration rights to
any holders of the Company’s securities that are more
favorable to such holders without the prior written consent of
Holders of a Majority of Registrable Securities. Without
limiting the foregoing sentence, in the event that the Company
grants or has previously granted registration rights to any
holders of the Company’s securities that are more favorable
to such holders (including, without limitation, in connection
with the backstop of the rights offering to creditors
contemplated under the Plan), the Company shall promptly amend
this Agreement to provide such more favorable terms to the
Holders of Registrable Securities.
5. Piggyback Registration.
(a) Each time the Company shall determine to file a
registration statement under the Securities Act (other than on
Form S-4
or
Form S-8
or a registration statement on
Form S-1
or
Form S-3
covering solely an employee benefit plan) in connection with the
proposed offer and sale of any of its securities of the same
class as the Registrable Securities either for its own account
or on behalf of any other security holder (other than a
registration pursuant to Section 2 or Section 3), the
Company agrees to give prompt written notice of its
determination to all Holders of Registrable Securities. In the
event that any such Holder delivers to the Company, within
fifteen (15) days after the delivery of such written notice
to the Holder by the Company, a written request to include in
such registration statement any Registrable Securities of the
Holder, the Company shall include such Registrable Securities in
such registration statement, all to the extent required to
permit the sale or other disposition by the prospective seller
or sellers of the Registrable Securities to be so registered.
(b) If the registration of which the Company gives written
notice pursuant to Section 5(a) is for a public offering
involving an underwriting, the Company shall so advise the
Holders as a part of its written notice. In such event the right
of any Holder to registration pursuant to this Section 5
shall be conditioned upon such Holder’s participation in
such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting to the extent
provided herein. Holders proposing to distribute their
Registrable Securities through such underwriting agree to enter
into (together with the Company and the other Holders
distributing their securities through such underwriting) an
underwriting agreement with the underwriter or underwriters
selected for such underwriting by the Company.
(c) Notwithstanding any other provision of this
Section 5, if the managing underwriter of an underwritten
offering in connection with the registration pursuant to this
Section 5 advises the Company and the Holders of the
Registrable Securities participating in such registration in
writing that in its good faith judgment the number of
Registrable Securities and the other securities requested to be
registered (i) exceeds the number of Registrable Securities
and other securities which can be sold in such offering at a
price acceptable to the Company, or (ii) would jeopardize
the success of the offering, then (A) the number of
Registrable Securities and other securities proposed to be
included in the offering shall be reduced to that number which
in the good faith judgment of the managing underwriter can be
sold in such offering at a price acceptable to the Company and
(B) such reduced number shall be allocated:
A. If the registration is on behalf of the Company:
a. First, to the Company, such that all securities proposed
to be registered by or on behalf of the Company are included in
the registration statement;
b. Next, among all Holders of Registrable Securities in
proportion, as nearly as practicable to the respective number of
Registrable Securities held by such Holders at the time of the
filing of the registration statement; and
c. Last, among all other participating holders proposing to
register securities other than Registrable Securities, in the
manner determined by the Company.
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B. If the registration is on behalf of holders of Common
Stock other than any Holder of Registrable Securities:
a. First, among all participating holders other than any
stockholder participants in the manner determined by the Company
and among all Holders of Registrable Securities in proportion,
as nearly as practicable to the respective number of Registrable
Securities and other shares of Common Stock held by such persons
at the time of the filing of the registration statement; and
b. Last, to the Company, for such number of shares of
Common Stock as may be included in the registration statement.
(d) Those Registrable Securities which are excluded from
the underwriting by reason of the managing underwriter’s
marketing limitation and all other Registrable Securities not
originally requested to be so included shall not be included in
such registration.
6. Registration Procedures.
(a) If and whenever the Company is required by the
provisions of Section 2 or 3 to effect the registration of
Registrable Securities under the Securities Act, the Company, at
its expense and as expeditiously as possible shall use its
reasonable best efforts to effect such registration and so as to
permit the sale of the applicable Registrable Securities in
accordance with the intended method or methods of distribution
thereof in conformity with any required time period set forth
therein, and in connection therewith the Company agrees to:
(i) in accordance with the Securities Act and all
applicable rules and regulations promulgated thereunder, prepare
and file with the Commission a registration statement with
respect to such securities and use its reasonable best efforts
to cause such registration statement to become and remain
effective for a period of 120 consecutive days (unless the
registration is a Shelf Registration Statement in which case
such period shall extend until the earlier of (x) the time
all Registrable Securities subject thereto have been sold and
(y) the third anniversary of the initial effectiveness
thereof, subject to the Company’s rights to cause Holders
of Registrable Securities to cease sales under an effective
Shelf Registration Statement pursuant to Section 3(b)), and
prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
contained therein as may be necessary to keep such registration
statement effective and such registration statement and
prospectus accurate and complete and to permit the Holders of
Registrable Securities subject to such registration statement to
sell such securities; provided, that the Company shall provide
counsel selected by the Holders of a majority of the Registrable
Securities being registered in such registration
(“Holders’ Counsel”) with a reasonable
opportunity to participate in the preparation of such
registration statement and each prospectus included therein (and
each amendment or supplement thereto) to be filed with the
Commission.
(ii) if an offering is to be underwritten in whole or in
part, enter into a written underwriting agreement in form and
substance reasonably satisfactory to the Company, the managing
underwriter of the offering, the Initiating Holder (in the case
of a underwritten offering pursuant to Section 2 or
Section 3) and to Holders of a majority of the
Registrable Securities participating in such offering (in the
case of a registration pursuant to Section 3);
(iii) furnish to the Holders of securities participating in
such registration and to the underwriters of the securities
being registered such number of copies of the registration
statement and each amendment and supplement thereto, preliminary
prospectus, final prospectus, prospectus supplement and such
other documents as such underwriters and Holders may reasonably
request;
(iv) use its reasonable best efforts to register and
qualify the securities covered by such registration statement
under such state securities or blue sky laws of such
jurisdictions as such participating Holders of Registrable
Securities and underwriters may reasonably request, except that
the Company shall not for any purpose be required to execute a
general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction where it
is not so qualified;
(v) notify the Holders of Registrable Securities
participating in such registration, promptly after it shall
receive notice thereof, of the date and time when (i) such
registration statement and each post-
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effective amendment thereto has become effective or a prospectus
or supplement to any prospectus relating to a registration
statement has been filed and (ii) any registration or
qualification has become effective under a state securities or
blue sky law or any exemption thereunder has been obtained;
(vi) notify such Holders of Registrable Securities promptly
of any request by the Commission for the amending or
supplementing of such registration statement or prospectus or
for additional information;
(vii) notify such Holders of Registrable Securities
promptly upon learning of the occurrence of any event as the
result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading;
(viii) prepare and file promptly with the Commission, and
notify such Holders of Registrable Securities prior to the
filing of, such amendments or supplements to such registration
statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus
relating to such securities is required to be delivered under
the Securities Act, when any event has occurred as the result of
which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(ix) in case any of such Holders of Registrable Securities
or any underwriter for any such Holders is required to deliver a
prospectus at a time when the prospectus then in circulation is
not in compliance with the Securities Act or the rules and
regulations promulgated thereunder, the Company shall use
reasonable best efforts to prepare promptly upon request such
amendments or supplements to such registration statement and
such prospectus as may be necessary in order for such prospectus
to comply with the requirements of the Securities Act and such
rules and regulations;
(x) advise such Holders of Registrable Securities and
Holders’ Counsel (if any), promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceeding for that purpose and promptly use its reasonable best
efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such stop order should be issued;
(xi) at the request of any Holder of Registrable Securities
covered by such registration statement, (i) furnish to such
Holder on the effective date of the registration statement, upon
the filing of a prospectus supplement with respect to such
registration statement or, if such registration includes an
underwritten offering, at the closing provided for in the
underwriting agreement, an opinion dated such date of the
counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the
Holder or Holders making such request, covering such matters
with respect to the registration statement, the prospectus and
each amendment or supplement thereto, proceedings under state,
federal and other securities laws, other matters relating to the
Company, the securities being registered and the offer and sale
of such securities as are customarily the subject of opinions of
issuer’s counsel provided to underwriters in underwritten
public offerings, and such opinion of counsel shall additionally
cover such legal matters with respect to the registration as
such requesting Holder or Holders may reasonably request, and
(ii) use its reasonable best efforts to furnish to such
Holders letters dated each of such effective date, the date of
the filing of a prospectus supplement and such closing date,
from the independent certified public accountants of the
Company, addressed to the underwriters, if any, and to the
Holder or Holders making such request, stating that they are
independent certified public accountants within the meaning of
the Securities Act and dealing with such customary matters as
the underwriters may request, or if the offering is not
underwritten that in the opinion of such accountants the
financial statements and other financial data of the Company
included in the registration statement or the prospectus or any
amendment or supplement thereto comply in all material respects
with the applicable accounting requirements of the Securities
Act, and additionally covering such other accounting and
financial matters as such requesting Holder or Holders may
reasonably request;
8
(xii) list the Registrable Securities (and to maintain such
listing during the pendency of the relevant registration period)
on any exchange on which the securities of the Company of the
same class with Registrable Securities are listed;
(xiii) make available for inspection by any Holder of
Registrable Securities covered by the registration statement,
any managing underwriter participating in any disposition
pursuant to such registration statement, Holders’ Counsel
(if any) and any attorney, accountant or other agent retained by
any such Holder or any managing underwriter (each, an
“Inspector” and collectively, the
“Inspectors”), during regular business hours
and upon reasonable advance notice, all financial and other
records, pertinent corporate documents and properties of the
Company (collectively, the “Records”) as shall
be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company’s officers,
directors and employees, and the independent public accountants
of the Company, to supply all information reasonably requested
by any such Inspector in connection with such registration
statement, subject to obligations of confidentiality;
(xiv) no more than once in any 120 day period, make
senior executives of the Company available, upon reasonable
prior notice and subject to reasonable scheduling flexibility,
to assist the underwriters with respect to, and to accompany the
underwriters on the so-called “road show” in
connection with, marketing efforts for the distribution and sale
of Registrable Securities pursuant to an underwritten offering
so long as the fulfillment of this Section 6(a)(xiv) shall not
materially impair such senior executives’ management of the
Company and other activities on behalf of the Company and so
long as any related expenses (including, without limitation,
expenses of the Company and participating senior executives) not
required to be paid by the Company pursuant to Section 7(b)
are paid by the Holders requesting such “road
show” participation and assistance; and
(xv) prepare other offering materials in a form customarily
used in similar transactions or on the request of any Holder of
Registrable Securities or any managing underwriter.
(b) Each Holder of Registrable Securities included for
registration agrees to:
(i) provide the Company with such information and
assistance as reasonably requested by the Company to effect such
registration under the Securities Act;
(ii) keep confidential that the Company has exercised its
rights under Sections 2(b), 3(b) and any other confidential
information provided by the Company in connection with this
Agreement; and
(iii) comply, with the prospectus delivery requirements and
other provisions of the Securities Act and the Exchange Act and
the respective rules and regulations promulgated thereunder,
particularly Regulation M thereunder (or any successor
rules or regulations), in connection with any offering of
Registrable Securities.
(c) Certain legal consequences arise from being named as a
selling securityholder in a registration statement and related
prospectus. Accordingly, each Holder of Registrable Securities
acknowledges that it has been advised to consult its own
independent securities law counsel regarding the consequences of
demanding or requesting registration of Registrable Securities
hereunder or being named or not being named as a selling
securityholder in the registration statement and related
prospectus.
7. Expenses.
(a) With respect to each inclusion of shares of Registrable
Securities in a registration statement pursuant to
Section 2 or Section 3, the Company agrees to bear all
fees, costs and expenses of such registration and any public
offerings in connection therewith (including without limitation
the fees and expenses of Holder’s Counsel, if any, which
shall not exceed $35,000 in respect of any one such inclusion or
$70,000 in the aggregate, and all registration and qualification
fees and printing expenses); provided, however, that Holders of
Registrable Securities participating in any such registration
agree to bear their pro rata share of the underwriting discount
and commissions, and any expenses associated or incurred in
connection with the “road show” or other
marketing efforts, the expenses of which are not required to be
paid by the Company pursuant to subparagraph (b) below
shall be paid by the Holders of Registrable Securities
requesting the same.
9
(b) The fees, costs and expenses of registration to be
borne as provided in paragraph (a) above, shall consist of
(i) all registration, filing and NASD fees, printing
expenses, fees and disbursements of counsel and accountants for
the Company, (ii) all legal fees and disbursements and
other expenses of the Company complying with state securities or
blue sky laws of any jurisdictions in which the securities to be
offered are to be registered or qualified and (iii) the
company’s expenses associated with the “road
show” or other marketing efforts for the distribution and
sale of Registrable Securities registered under two underwritten
registration statements filed pursuant to either Section 2
or 3.
(c) Notwithstanding the foregoing, the Company shall pay
the expenses of a registration statement requested pursuant to
Section 2 or Section 3 only with respect to the first
five (5) registration statements so filed (and then only to
the extent provided for in this Section 7) and all
expenses related to any additional registration statements,
including those fees and expenses set forth in
Section 7(b), shall be paid by the Initiating Holder
and/or the
Holders of Registrable Securities on a pro rata basis; provided
that, in the event that a registration pursuant to
Section 2 or 3 is requested by an Initiating Holder and
such request is withdrawn prior to the filing of a registration
statement by the Company, or the Holders of Registrable
Securities cause the Company to withdraw a registration
statement prior to its effectiveness, then either (at the
election of the Initiating Holder), (i) the Initiating
Holder and other Holders of Registrable Securities requesting
inclusion of their shares in such registration shall bear pro
rata all fees, costs and expenses of the registration and
preparation of the registration statement and such requested
registration statement shall not be deemed to be one of the
registration statements for which the Company is required to pay
expenses pursuant to this Section 7, or (ii) such
requested registration statement shall be deemed to be one of
the registration statements for which the Company is required to
pay the expenses pursuant to this Section 7; provided,
further, that if at the time of such withdrawal, the Holders
have learned of a material adverse change in the condition,
business, or prospects of the Company as of the date of their
request for such registration statement not known to the
Initiating Holder or publicly available at the time of its
request and have withdrawn their request solely on such basis
and with reasonable promptness after learning of such material
adverse change, then the Holders shall not be required to pay
any of such expenses and such requested registration statement
shall not be deemed to be one of the registration statements for
which the Company is required to pay expenses pursuant to this
Section 7.
8. Indemnification.
(a) The Company hereby agrees to indemnify and hold
harmless each Holder of Registrable Securities which are
included in a registration statement pursuant to the provisions
of this Agreement and each of such Holder’s officers,
directors, partners, members, legal counsel and accountants, and
each Person who controls such Holder within the meaning of the
Securities Act and any underwriter (as defined in the Securities
Act) for such Holder, and any Person who controls such
underwriter within the meaning of the Securities Act, from and
against, and agrees to reimburse such Holder, its officers,
directors, partners, members, legal counsel, accountants and
controlling Persons and each such underwriter and controlling
Person of such underwriter with respect to, any and all claims,
actions (actual or threatened), demands, losses, damages,
liabilities, costs and expenses to which such Holder, its
officers, directors, partners, members, legal counsel,
accountants or controlling Persons, or any such underwriter or
controlling Person of such underwriter who may become subject
under the Securities Act or otherwise, insofar as such claims,
actions, demands, losses, damages, liabilities, costs or
expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus related
thereto, or any amendment or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or
(iii) any violation or alleged violation by the Company of
the Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any federal or state
securities law in connection with the offering covered by such
registration statement; provided, however, that the
Company will not be liable to any such Person to the extent that
any such claim, action, demand, loss, damage, liability, cost or
expense is caused by an untrue statement or alleged untrue
statement or omission or alleged omission of material fact so
made in strict conformity with written information
10
furnished by such Holder, such underwriter or such controlling
Person specifically for use in the preparation thereof.
(b) Each Holder of shares of Registrable Securities which
are included in a registration statement pursuant to the
provisions of this Agreement hereby agrees (severally and not
jointly) to indemnify and hold harmless the Company, its
officers, directors, legal counsel and accountants and each
Person who controls the Company within the meaning of the
Securities Act, from and against, and agrees to reimburse the
Company, its officers, directors, legal counsel, accountants and
controlling Persons with respect to, any and all claims,
actions, demands, losses, damages, liabilities, costs or
expenses to which the Company, its officers, directors, legal
counsel, accountants or such controlling Persons may become
subject under the Securities Act or otherwise, insofar as such
claims, actions, demands, losses, damages, liabilities, costs or
expenses are caused by any untrue or alleged untrue statement of
any material fact contained in such registration statement, any
prospectus related thereto or any amendment or supplement
thereto, or are caused by the omission or the alleged omission
to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances in which they were made, 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 so made in reliance upon and in strict conformity
with written information furnished by such Holder specifically
for use in the preparation thereof and such untrue statement or
omission of material fact was not subsequently corrected in a
subsequent writing from such Holder to the Company at least
36 hours prior to sale of Registrable Securities to the
Person asserting the claim or loss; provided, however,
that the indemnity agreement contained in this subsection 8(b)
shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is
effected without the consent of the Holder, which consent shall
not be unreasonably withheld or delayed; provided, further, that
the total amounts payable in indemnity by a Holder under this
subsection 8(b) shall not exceed the net proceeds received by
such Holder in the registered sale out of which such claim,
action, demand, loss, damage, liability, cost, or expense arises.
(c) Promptly after receipt by a party indemnified pursuant
to the provisions of subsection (a) or (b) of this
Section 8 of notice of the commencement of any action
involving the subject matter of the foregoing indemnity
provisions, such indemnified party will, if a claim therefore is
to be made against the indemnifying party pursuant to the
provisions of subsection (a) or (b), notify the
indemnifying party of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any
liability which it may have to an indemnified party otherwise
than under this Section 8 and shall not relieve the
indemnifying party from liability under this Section 8
unless such indemnifying party is actually and materially
prejudiced by such omission. In case any such action is brought
against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it
may wish, jointly with any other indemnifying parties similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may
be legal defenses available to it
and/or other
indemnified parties which are different from, conflict with or
additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select
separate counsel (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of
the indemnified party or parties). Upon the permitted assumption
by the indemnifying party of the defense of such action, and
approval by the indemnified party of counsel, the indemnifying
party shall not be liable to such indemnified party under
subsection (a) or (b) for any legal or other expenses
subsequently incurred by such indemnified party in connection
with the defense thereof (other than reasonable costs of
investigation) unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of
legal defenses in accordance with the proviso to the next
preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable
time, (iii) the indemnifying party and its counsel do not
actively and vigorously pursue the defense of such action, or
(iv) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the
indemnifying party. No indemnifying party shall be liable to an
indemnified party for any settlement of any action or claim
without the consent of the indemnifying party and no
indemnifying party may unreasonably withhold its consent to any
such settlement. No indemnifying party will consent to
11
entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release
from all liability with respect to such claim or litigation.
(d) If the indemnification provided for in
subsection (a) or (b) of this Section 8 is held
by a court of competent jurisdiction to be unavailable to a
party to be indemnified with respect to any claims, actions,
demands, losses, damages, liabilities, costs or expenses
referred to therein, then each indemnifying party under any such
subsection, in lieu of indemnifying such indemnified party
thereunder, hereby agrees to contribute to the amount paid or
payable by such indemnified party as a result of such claims,
actions, demands, losses, damages, liabilities, costs or
expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of
the indemnified party on the other in connection with the
statements or omissions which resulted in such claims, actions,
demands, losses, damages, liabilities, costs or expenses, as
well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified
party 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 indemnifying party
or by the indemnified party and the parties’ relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding
the foregoing, the amount any Holder of Registrable Securities
shall be obligated to contribute pursuant to this
subsection (d) shall be limited to an amount equal to the
per share sale price (less any underwriting discount and
commissions) multiplied by the number of shares of Registrable
Securities sold by such Holder pursuant to the registration
statement which gives rise to such obligation to contribute
(less the aggregate amount of any damages which such Holder has
otherwise been required to pay in respect of such claim, action,
demand, loss, damage, liability, cost or expense or any
substantially similar claim, action, demand, loss, damage,
liability, cost or expense arising from the sale of such
Registrable Securities).
(e) No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution hereunder from any person who
was not guilty of such fraudulent misrepresentation.
(f) The obligations of the Company and Holders under this
Section 8 shall survive the completion of any offering of
Registrable Securities in a registration statement and
termination of this Agreement.
9. Stockholder Information.
The Company may request each Holder of Registrable Securities as
to which any registration is to be effected pursuant to this
Agreement to furnish the Company with such information with
respect to such Holder and the distribution of such Registrable
Securities as the Company may from time to time reasonably
request in writing and as shall be required by law or by the
Commission in connection therewith, and each Holder of
Registrable Securities as to which any registration is to be
effected pursuant to this Agreement agrees to promptly furnish
the Company with such information.
10. Forms.
All references in this Agreement to particular forms of
registration statements are intended to include, and shall be
deemed to include, references to all successor forms which are
intended to replace, or to apply to similar transactions as, the
forms herein referenced.
11. Agreements of the Holders of Registrable
Securities.
(a) Each Holder of Registrable Securities agrees in
connection with any registration of the Company’s
securities that, upon the request of the managing underwriter of
any underwritten offering of the Company’s securities, it
or he or she shall not sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any
capital stock of the Company (other than the securities included
in such registration) without the prior written consent of such
managing underwriter for a period not to exceed ninety
(90) days ) (the
“Lock-Up
Period”), provided, however, that each
Holder of Registrable Securities also agrees that such
Lock-Up
Period may be automatically extended by an additional eighteen
(18) days pursuant to the terms of the agreement entered
into with such managing underwriter. The Company may impose stop
transfer
12
instructions with respect to the Registrable Securities subject
to the foregoing restriction until the end of the
Lock-Up
Period.
(b) Each Investor represents that it has not prepared or
had prepared on its behalf or used or referred to, and agrees
that it will not prepare or have prepared on it behalf or use or
refer to, any Free Writing Prospectus, and has not distributed
and will not distribute any written materials in connection with
the offer or sale of the Common Stock without the prior express
written consent of the Company and, in connection with any
underwritten offering, the underwriters.
12. Transfer of Registration Rights.
The rights to cause the Company to register securities granted
to the Holders of Registrable Securities pursuant to this
Agreement may be transferred or assigned only to (i) an
affiliate or immediate family member of a Holder of Registrable
Securities or (ii) an immediate or remote transferee of the
Holder of Registrable Securities who, after such transfer, is
the Holder of not less than 5% of the number of shares of
Registrable Securities outstanding as of the date of this
Agreement; provided that the transferee first agrees in writing
to be bound by the terms of this Agreement.
13. Miscellaneous.
13.1. Waivers and Amendments.
(a) With the written consent of the Holders of a Majority
of the Registrable Securities, the obligations of the Company
and the rights of the Holders of Registrable Securities under
this Agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively and
either for a specified period of time or indefinitely), and with
such consent the Company may enter into a supplementary
agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of
this Agreement or of any supplemental agreement or modifying in
any manner the rights and obligations hereunder of the Holders
of Registrable Securities and the Company; provided,
however, that no such waiver or supplemental agreement shall
reduce the aforesaid proportion of Registrable Securities, the
Holders of which are required to consent to any waiver or
supplemental agreement, without the consent of the Holders of
all of the Registrable Securities.
(b) Upon the effectuation of each such waiver, consent or
agreement of amendment or modification, the Company agrees to
give prompt written notice thereof to the Holders of the
Registrable Securities who have not previously consented thereto
in writing.
(c) Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally or by course of
dealing, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or
termination is sought. Specifically, but without limiting the
generality of the foregoing, the failure of any party hereunder
at any time or times to require performance of any provision
hereof by the Company shall in no manner affect the right of
such party at a later time to enforce the same. No waiver by any
party of the breach of any term or provision contained in this
Agreement, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such
breach, or a waiver of the breach of any other term or covenant
contained in this Agreement.
13.2. Effect of Waiver or Amendment.
(a) Each Holder of Registrable Securities acknowledges that
by operation of Section 13.1 hereof the Holders of a
Majority of the Registrable Securities will, subject to the
limitations contained in Section 13.1, have the right and
power to diminish or eliminate certain rights of such Holder
under this Agreement.
13.3. Rights of Holders of Registrable
Securities.
(a) Each Holder of Registrable Securities shall have the
absolute right to exercise or refrain from exercising any right
or rights which such Holder may have by reason of this Agreement
or any
13
Registrable Security, including, without limitation, the right
to consent to the waiver of any obligation of the Company under
this Agreement and to enter into an agreement with the Company
for the purpose of modifying this Agreement or any agreement
effecting any such modification, and such Holder shall not incur
any liability to any other Holder with respect to exercising or
refraining from exercising any such right or rights.
13.4. Notices.
(a) All notices, requests or consents required or permitted
under this Agreement shall be made in writing and shall be given
to the other parties by personal delivery, registered or
certified mail (with return receipt), overnight air courier
(with receipt signature) or facsimile transmission (with
“answerback” confirmation of transmission), sent to
such party’s addresses or telecopy numbers as follows:
If to the Company:
with a copy to:
Xxxxxxxx & Xxxxx LLP
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxxxx
Xxxxxxxxx X. Xxxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxxxx
Xxxxxxxxx X. Xxxxxx
If to Monsanto:
[ ]
with a copy to:
[ ]
Each such notice, request or consent shall be deemed effective
upon the date of actual receipt, receipt signature or
confirmation of transmission, as applicable (or if given by
registered or certified mail, upon the earlier of
(i) actual receipt or (ii) three days after deposit
thereof in the United States mail (with respect to addresses
within the United States) or ten (10) days after deposit
thereof in the United States mail (with respect to addresses
outside of the United States).
13.5. Severability.
(a) Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this
Agreement be determined to be illegal or unenforceable, all
other provisions of this Agreement and of each other agreement
entered into pursuant to this Agreement, shall be given effect
separately from the provision or provisions determined to be
illegal or unenforceable and shall not be affected thereby.
13.6. No Third Parties.
(a) Subject to Section 8 hereof, this Agreement shall
not run to the benefit of or be enforceable by any Person other
than a party to this Agreement or, with respect to the Company,
any successor thereto.
14
13.7. Headings.
(a) The headings of the sections, subsections and
paragraphs of this Agreement have been inserted for convenience
of reference only and do not constitute a part of this Agreement.
13.8. Choice of Law.
(a) It is the intention of the parties that the internal
substantive laws, and not the laws of conflicts, of the State of
New York should govern the enforceability and validity of this
Agreement, the construction of its terms and the interpretation
of the rights and duties of the parties.
13.9. Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, with the same
effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed
together and shall constitute one and the same instrument.
13.10. Reports Under the Exchange
Act. In order to provide the Holders the use
of Sections 2 and 3 hereof, and so long as there are
Registrable Securities outstanding, the Company will
(i) file in a timely manner (giving effect to any delay
permitted by the Securities Act and the Exchange Act and the
rules and regulations promulgated thereunder) the reports
required to be filed by it pursuant to the Securities Act and
the Exchange Act and the rules and regulations promulgated
thereunder; (ii) make and keep public information
available, as those terms are understood and defined in the
General Instructions to
Form S-3,
or any successor or substitute form, and in Rule 144 under
the Securities Act, or (iii) will take such further action
as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such
Holder to sell Registrable Securities on
Form S-3
(or any successor or substitute form) or without registration
under the Securities Act within the limitation of the exemptions
provided by Rule 144 or Rule 144A under the Securities
Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission.
Upon the request of any holder of Registrable Securities, the
Company will deliver to such holder a written statement as to
whether it has complied with such information and requirements
and, to the extent available, with a copy of the most recent
annual or quarterly report of the Company, and such other
reports and documents of the Company as a Holder may reasonably
request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell securities without
registration only if such report is not available at xxx.xxx.xxx
or on the Company’s website.
13.11. Entire Agreement/Effectiveness.
This Agreement contains the entire understanding of the parties
hereto in respect of its subject matter and supersedes all prior
and contemporaneous agreements and understandings, oral and
written, between the parties with respect to such subject matter.
[signature
page follows]
15
[REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto, intending to be bound by
the terms of this agreement, have caused this Registration
Rights Agreement to be executed by its duly authorized officer
as of the date first above written.
| By: |
Name:
| Title: |
Monsanto Company
| By: |
Name:
Title:
16
