Exhibit 10.10
CORPORATE AGREEMENT
THIS CORPORATE AGREEMENT, dated as of September 1, 2000 (this
"Agreement"), is by and between Pharmacia Corporation, a Delaware corporation
("Pharmacia"), and Monsanto Company, a Delaware corporation (the "Company").
Certain capitalized terms used herein are defined in Article VIII.
WHEREAS, the Company is currently a wholly-owned subsidiary of
Pharmacia, and Pharmacia and the Company contemplate that the Company will make
an initial public offering (the "IPO") of a portion of its common stock pursuant
to a registration statement on Form S-1 filed under the Securities Act;
WHEREAS, upon consummation of the IPO (the "IPO Closing Date"),
Pharmacia will own no less than 80.1% of the shares of Common Stock, par value
$.01 per share ("Common Stock"), of the Company outstanding on a Fully Diluted
Basis; and
WHEREAS, in connection with the IPO, the parties desire to enter
into this Agreement to provide Pharmacia with certain continuing shareholder
rights with respect to the Company following the IPO.
NOW, THEREFORE, in consideration of the above premises and mutual
agreements set forth in this Agreement and subject to the terms and conditions
stated herein, the parties hereby agree as follows:
ARTICLE I
PREEMPTIVE RIGHT
1.1 Grant of Preemptive Right.
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The Company hereby grants to Pharmacia, on the terms and conditions
set forth herein, a continuing right, exercisable by Pharmacia, in whole or in
part, at any time and from time to time (the "Preemptive Right") to purchase
from the Company, at the times set forth herein, such number of shares of Common
Stock as is necessary to allow the Pharmacia Entities (as defined in Section 7.3
below) to own in the aggregate no less than 80.1% of the Company's outstanding
equity and voting power on a Fully Diluted Basis. The Preemptive Right shall be
assignable, in whole or in part and from time to time, by Pharmacia to any
Pharmacia Entity. The exercise price for the shares of Common Stock purchased
pursuant to the Preemptive Right shall be the volume-weighted average of the
prices per share of Common Stock for all trades reported on the New York Stock
Exchange, Inc. (the "NYSE") during the 20 consecutive trading days ending on
(and including) the trading day immediately prior to the date of delivery of the
related notice of exercise of the Preemptive Right by Pharmacia (or its
permitted assignee) to the Company, as reported by Bloomberg Financial Markets
(or such other source as the parties shall agree in writing), or in the case of
any public offering of Common Stock for cash, a price per share equal to the
initial public offering price per share in such offering, less underwriting
discounts and commissions per share. Consecutive trading days shall mean all
regularly
scheduled NYSE trading days, whether or not shares of Common Stock actually
trade on such day.
1.2 Notice.
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Not fewer than 20 Business Days prior to the issuance of any Equity
Securities that would cause the Pharmacia Entities to own less than 80.1% of the
Company's outstanding equity or voting power on a Fully Diluted Basis, the
Company will notify the chief financial officer or treasurer of Pharmacia in
writing delivered by facsimile with telephone confirmation (a "Preemptive Right
Notice"). Each Preemptive Right Notice must specify (i) the date on which the
Company proposes to issue such Equity Securities (such issuance being referred
to herein as an "Issuance Event" and the date of such issuance or event as an
"Issuance Event Date"), (ii) the number and type of Equity Securities the
Company proposes to issue and the other terms and conditions of such Issuance
Event and (iii) the number of shares of Common Stock that Pharmacia would have
to purchase in order for the Pharmacia Entities to own 80.1% of the Company's
outstanding equity or voting power on a Fully Diluted Basis after giving effect
to the proposed issuance of Equity Securities.
The Company shall not take any action that would cause the Pharmacia
Entities to own less than 80.1% of the Company's outstanding equity or voting
power on a Fully Diluted Basis prior to the 20th Business Day following the
receipt by the chief financial officer or treasurer of Pharmacia of a Preemptive
Right Notice relating thereto.
1.3 Preemptive Right Exercise and Price.
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The Preemptive Right may be exercised by Pharmacia (or any Pharmacia
Entity to which all or any part of the Preemptive Right has been assigned) for a
number of shares of Common Stock equal to or less than the number of shares that
are necessary for the Pharmacia Entities to maintain, in the aggregate, no less
than 80.1% of the Company's outstanding equity and voting power on a Fully
Diluted Basis after giving effect to the proposed issuance. The Preemptive Right
may be exercised at any time within 10 Business Days after receipt of a
Preemptive Right Notice by the delivery to the Company of a written notice to
such effect specifying (i) the number of shares of Common Stock to be purchased
by Pharmacia, or any of the Pharmacia Entities, and (ii) a calculation of the
exercise price for such shares. Upon any such exercise of the Preemptive Right,
the Company will, on the Issuance Event Date, deliver to Pharmacia (or any
Pharmacia Entity designated by Pharmacia), against payment therefor,
certificates (issued in the name of Pharmacia or its permitted assignee
hereunder) representing the shares of Common Stock being purchased upon such
exercise. Payment for such shares shall be made by wire transfer or intrabank
transfer of immediately available funds to such account as shall be specified by
the Company, by written notice to Pharmacia at least two Business Days prior to
such payment date, for the full purchase price for such shares.
1.4 Termination of Preemptive Right.
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The Preemptive Right shall terminate at such time as the aggregate
ownership interest of the Company's outstanding equity or voting power by the
Pharmacia Entities is less than 80.1% on a Fully Diluted Basis.
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ARTICLE II
REGISTRATION RIGHTS
2.1 Demand Registration.
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(a) Pharmacia shall have the right, exercisable on multiple
occasions from time to time during the term of this Agreement, but together with
Unregistered Demands (as defined in Section 3.1(a) below) no more frequently
than twice during any twelve-month period, to require the Company to register
for offer and sale under the Securities Act (a "Demand") all or a portion of the
Common Stock held by the Pharmacia Entities, subject to the restrictions set
forth herein; provided that Pharmacia shall not be entitled to make a Demand
hereunder unless the Common Stock subject to such Demand represents at least 5%
of the aggregate shares of Common Stock then issued and outstanding. As promptly
as practicable after the Company receives from Pharmacia a notice pursuant to
this Section 2.1(a) (a "Demand Notice"), demanding that the Company register
part or all of the Common Stock held by the Pharmacia Entities for offer and
sale under the Securities Act, but in no event later than 30 days after such
demand, subject to Section 2.1(b), the Company shall (i) use reasonable best
efforts to file as promptly as reasonably practicable with the Commission a
Registration Statement relating to the offer and sale of the Applicable
Securities on such form as Pharmacia may reasonably deem appropriate and,
thereafter, (ii) after the filing of an initial version of the Registration
Statement, use reasonable best efforts to cause such Registration Statement to
be declared effective under the Securities Act as promptly as practicable after
the date of filing of such Registration Statement. Subject to Section 2.1(b),
the Company shall use reasonable best efforts to keep each Registration
Statement continuously effective in order to permit the Prospectus forming a
part thereof to be usable by Pharmacia for resales of the Applicable Securities
for a period ending on the earlier of (i) 120 days from the Effective Time of
such Registration Statement and (ii) such time as all of such securities have
been disposed of by Pharmacia. Subject to Section 2.1(b), the Company shall use
reasonable best efforts to prepare and file with the Commission such amendments,
post-effective amendments and supplements to the Registration Statement as may
be necessary to maintain the effectiveness of the Registration Statement for
such period and to cause the Prospectus forming a part thereof (and any
amendments or supplements thereto) to be filed pursuant to Rules 424 and 430A
under the Securities Act and/or any successor rules that may be adopted by the
Commission, as such rules may be amended from time to time; and comply with the
provisions of the Securities Act with respect to the disposition of all
Applicable Securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution thereof, as specified in writing by Pharmacia.
(b) The Company shall have the right to postpone the filing, or
delay the effectiveness, of a Registration Statement, or fail to keep such
Registration Statement continuously effective or not amend or supplement the
Registration Statement or included Prospectus, if the Board of Directors of the
Company determines in good faith that (i) based upon the advice of counsel,
filing such Registration Statement or causing the Registration Statement to go
effective would require disclosure of material nonpublic information concerning
a planned or proposed financing, acquisition, disposition, business combination
or other similar transaction or other material event involving the Company or
its Subsidiaries and (ii) disclosure
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at such time would be adverse to the Company or its stockholders; provided that
no one such postponement shall exceed 30 days in any six-month period and all
such postponements with respect to any Registration Statement shall not exceed
60 days in the aggregate. Any such postponement shall terminate immediately upon
public disclosure by the Company or public admission by the Company of such
material nonpublic information. The Company shall advise Pharmacia of any such
determination as promptly as practicable after such determination.
(c) Pharmacia shall have the right to withdraw any Demand at any
time, provided that any such withdrawn Demand after a Registration Statement has
been filed shall still be counted as a Demand for determining the frequency of
Demands under Section 2.1(a).
(d) In the event that any Registration pursuant to this Section 2.1
shall involve, in whole or in part, an underwritten offering, the lead managing
underwriter (book runner) shall be selected by Pharmacia and shall be reasonably
acceptable to the Company, and a co-managing underwriter shall be selected by
the Company and shall be reasonably acceptable to Pharmacia.
2.2 Piggy-back Registration.
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(a) If at any time the Company intends to file on its behalf or on
behalf of any of its securityholders a Registration Statement in connection with
a public offering of any securities of the Company on a form and in a manner
that would permit the registration for offer and sale of Common Stock held by
the Pharmacia Entities, other than a registration statement on Form S-8 or Form
S-4, then the Company shall give written notice (an "Intended Offering Notice")
of such intention to Pharmacia at least 20 Business Days prior to the
anticipated filing date of such Registration Statement. Such Intended Offering
Notice shall offer to include in such Registration Statement for offer to the
public such number of shares of Common Stock as Pharmacia may request, subject
to the conditions set forth herein, and shall specify, to the extent then known,
the number and class of securities proposed to be registered, the proposed date
of filing of such Registration Statement, any proposed means of distribution of
such securities, any proposed managing underwriter or underwriters of such
securities and a good faith estimate by the Company of the proposed maximum
offering price of such securities, as such price is proposed to appear on the
facing page of such Registration Statement. Pharmacia shall advise the Company
in writing (such written notice being a "Piggy-back Notice") not later than 10
Business Days after the Company's delivery to Pharmacia of the Intended Offering
Notice, if Pharmacia desires to participate in such offering. The Piggy-back
Notice shall set forth the number of shares of Common Stock Pharmacia desires to
have included in the Registration Statement and offered to the public. Upon the
request of the Company, Pharmacia shall enter into such underwriting, custody
and other agreements as are customary in connection with registered secondary
offerings or necessary or appropriate in connection with the offering.
(b) In connection with an underwritten offering pursuant to this
Section 2.2, if the managing underwriter or underwriters advise the Company and
Pharmacia in writing that in its or their opinion the number of securities
proposed to be registered exceeds the number that can be sold in such offering,
the Company shall include in such Registration the number of securities that, in
the opinion of such managing underwriter or underwriters, can be sold as
follows: (i) first, the securities that the Company proposes to sell, (ii)
second, Applicable
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Securities requested to be included in such Registration by Pharmacia and (iii)
third, other securities requested to be included in such Registration.
(c) The rights of Pharmacia pursuant to Section 2.1 hereof and this
Section 2.2 are cumulative, and the exercise of rights under one such Section
shall not exclude the subsequent exercise of rights under the other Section
(except to the extent expressly provided otherwise herein). Notwithstanding
anything herein to the contrary, the Company may abandon and/or withdraw any
Registration as to which any right under Section 2.2 may exist at any time and
for any reason without liability hereunder. In such event, the Company shall
notify Pharmacia to the extent that it has delivered a Piggy-back Notice to the
Company to participate therein.
2.3 Registration Procedures.
-----------------------
In connection with a Registration Statement, the following
provisions shall apply:
(a) Before filing a Registration Statement or the Prospectus
included therein, the Company will furnish to Pharmacia and the managing
underwriter or underwriters, if any, draft copies of all such documents proposed
to be filed at least three (3) days prior to such filing, which documents will
be subject to the reasonable review of Pharmacia and the managing underwriter or
underwriters, if any, and their respective agents and representatives and (x)
the Company will not include in any Registration Statement information
concerning or relating to Pharmacia to which Pharmacia shall reasonably object
(unless the inclusion of such information is required by applicable law or the
regulations of any securities exchange to which the Company may be subject), and
(y) the Company will not file any Registration Statement pursuant to Section 2.1
or amendment thereto or any Prospectus or any supplement thereto to which
Pharmacia shall reasonably object.
(b) The Company shall furnish to Pharmacia, prior to the time the
Registration Statement has been declared effective, a copy of the Registration
Statement as initially filed with the Commission, and each amendment thereto and
each amendment or supplement, if any, to the Prospectus included therein.
(c) Subject to Section 2.1(b) and in respect of a Registration
Statement under Section 2.1, the Company shall use reasonable best efforts to
take promptly such action as may be necessary so that (i) each of the
Registration Statement and any amendment thereto and the Prospectus forming part
thereof and any amendment or supplement thereto (and each report or other
document incorporated therein by reference in each case), when it becomes
effective, complies in all material respects with the Securities Act and the
Exchange Act and the rules and regulations thereunder, (ii) each of the
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) each of the Prospectus forming part of the
Registration Statement, and any amendment or supplement to such Prospectus, does
not at any time during the period during which the Company is required to use
reasonable best efforts to keep a Registration Statement effective under Section
2.1(a) include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances
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under which they were made, not misleading.
(d) The Company shall, promptly upon learning thereof, advise
Pharmacia and the managing underwriter or underwriters, if any, thereof, of the
following, and shall confirm such advice in writing if so requested:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information with respect to the
Registration Statement and Prospectus;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
securities included in the Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose;
and
(v) following the effectiveness of any Registration
Statement, of the happening of any event or the existence of any
state of facts that requires the making of any changes in the
Registration Statement or the Prospectus included therein so that,
as of such date, such Registration Statement and Prospectus do not
contain an untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to Pharmacia to
suspend the use of the Prospectus until the requisite changes have
been made, which instruction Pharmacia agrees to follow).
(e) In respect of a Registration Statement under Section 2.1 (and
not Section 2.2), the Company shall use reasonable best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any stop order suspending
the effectiveness of the Registration Statement at the earliest possible time.
(f) The Company shall furnish to Pharmacia, without charge, at least
one copy of the Registration Statement and all post-effective amendments
thereto, including financial statements and schedules, and, if Pharmacia so
requests in writing, all reports, other documents and exhibits that are filed
with or incorporated by reference in the Registration Statement.
(g) The Company shall, during the period during which the Company is
required to use reasonable best efforts to keep a Registration Statement
continuously effective under Section 2.1(a) or elects to keep a Registration
Statement effective under Section 2.2, deliver to Pharmacia without charge, as
many copies of the Prospectus (including each
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preliminary Prospectus) included in the Registration Statement and any amendment
or supplement thereto as Pharmacia may reasonably request, and the Company
consents (except during the continuance of any event described in Section 2.1(b)
or Section 2.3(d)(v) hereof) to the use of the Prospectus, with any amendment or
supplement thereto, by Pharmacia in connection with the offering and sale of the
Applicable Securities covered by the Prospectus and any amendment or supplement
thereto during such period.
(h) In connection with the rights provided by this Article II, the
Company shall, except during any postponement pursuant to Section 2.1(b), make
available for inspection by Pharmacia or by any attorney, accountant or other
agent retained by Pharmacia (collectively, the "Inspectors") financial and other
records and pertinent corporate documents of the Company (collectively, the
"Records"), provide the Inspectors with opportunities to discuss the business of
the Company with its officers, and provide opportunities to discuss the business
of the Company with the independent public accountants who have certified its
most recent annual financial statements, in each case to the extent but only to
the extent reasonably necessary to enable Pharmacia to conduct a "reasonable
investigation" for purposes of Section 11(a) of the Securities Act. Records
which the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement of a material fact or omission to state a material fact
in the Registration Statement, (ii) the disclosure of such Records is required
by any court or governmental body with jurisdiction over Pharmacia or the
Inspectors or (iii) all of the information contained in such Records has been
made generally available to the public . Pharmacia agrees that I will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction or by any governmental body, promptly give prior notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of those Records deemed confidential.
(i) Prior to any offering of Applicable Securities pursuant to the
Registration Statement, the Company shall use reasonable best efforts to (i)
register or qualify or cooperate with Pharmacia and its counsel in connection
with the registration or qualification of such Applicable Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions within
the United States as Pharmacia may reasonably request, (ii) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers and sales in such jurisdictions for the period
during which the Company is required to use reasonable best efforts to keep a
Registration Statement continuously effective under Section 2.1(a), and (iii)
take any and all other reasonable actions requested by Pharmacia which are
necessary to enable the disposition in such jurisdictions of such Applicable
Securities; provided, however, that in no event shall the Company be obligated
to (1) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
Agreement or (2) file any general consent to service of process or subject
itself to tax in any jurisdiction where it is not so subject.
(j) The Company shall cooperate with Pharmacia to facilitate the
timely preparation and delivery of certificates representing Applicable
Securities to be sold pursuant to the Registration Statement, which certificates
shall comply with the requirements of any United States securities exchange upon
which any Applicable Securities are listed (provided that nothing
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herein shall require the Company to list any Applicable Securities on any
securities exchange on which they are not currently listed) or the NASD Rules,
as applicable, and which certificates shall be free of any restrictive legends
and in such permitted denominations and registered in such names as Pharmacia
may request in connection with the sale of Applicable Securities pursuant to the
Registration Statement.
(k) The Company shall:
(i) make such reasonable representations and warranties
in the applicable underwriting agreement to the underwriters, in
form, substance and scope as are customary and as are consistent
with the representations and warranties made in the underwriting
agreement related to the IPO;
(ii) in connection with any underwritten offering, use
reasonable best efforts to obtain opinions of counsel to the Company
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the underwriters) addressed to the
underwriters, covering such matters as are customary to the extent
reasonably required by the applicable underwriting agreement;
(iii) in connection with any underwritten offering, use
reasonable best efforts to obtain "cold comfort" letters and updates
thereof from the independent public accountants of the Company (and,
if necessary, from the independent public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed
to Pharmacia and the underwriters, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with secondary underwritten offerings of equity
securities;
(iv) in connection with any underwritten offering, use
reasonable best efforts to deliver such documents and certificates
as may be reasonably requested by Pharmacia and the underwriters, if
any, including, without limitation, certificates to evidence
compliance with any conditions contained in the underwriting
agreement or other agreements entered into by the Company; and
(v) undertake such obligations relating to expense
reimbursement, indemnification and contribution as provided in
Section 2.4 and Article IV hereof.
(l) The Company shall comply with all applicable rules and
regulations of the Commission and make available to its security holders and
earning statement, as soon as reasonably practicable but in no event later than
90 days after the end of the period of twelve months commencing on the first day
of any fiscal quarter next succeeding each sale by Pharmacia of Applicable
Securities after the date hereof, which earning statement shall cover such
twelve-month period and shall satisfy the provisions of Section 11(a) of the
Securities Act and may be prepared in accordance with Rule 158 under the
Securities Act.
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(m) In respect of a Registration Statement under Section 2.1 (and
not Section 2.2), the Company shall use reasonable best efforts to take all
other steps reasonably necessary to effect the timely registration, offering and
sale of the Applicable Securities covered by the Registration Statements
contemplated hereby.
2.4 Registration Expenses.
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The Company shall bear the Registration Expenses in connection with
the performance of its obligations under Section 2.1, Section 2.2 and Section
2.3. Pharmacia shall bear all of the fees and expenses of counsel to Pharmacia,
any applicable underwriting discounts or commissions, and registration or filing
fees with respect to the Applicable Securities being sold by Pharmacia.
2.5 Other Provisions; Cooperation; Filing of Reports.
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(a) The respective agreements and other provisions set forth in this
Article II or made pursuant to this Article II shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of Pharmacia, any director, officer or partner of
Pharmacia, any agent or underwriter, any director, officer or partner of such
agent or underwriter, or any Affiliate of any of the foregoing, and shall
survive the registration, offering and sale of the Applicable Securities.
(b) Pharmacia shall cooperate with respect to any Registration
effected under this Agreement and shall provide such information, documents, and
instruments as may be reasonably requested in connection therewith.
(c) The Company shall use reasonable best efforts to file all
reports required to be filed with respect to the Company under Section 13 or
Section 15(d) of the Exchange Act during such time as Pharmacia has rights
remaining under this Article II.
ARTICLE III
UNREGISTERED OFFERINGS
3.1 Unregistered Demand.
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(a) Pharmacia shall have the right, exercisable on multiple
occasions from time to time during the term of this Agreement, but together with
any Demand no more frequently than twice during any twelve-month period, to
require the Company to prepare an offering memorandum or similar document,
(each, an "Offering Memorandum") (an "Unregistered Demand") in connection with
any offer or sale of Common Stock held by the Pharmacia Entities, subject to the
restrictions set forth herein, that is not registered under the Securities Act
(each, an "Unregistered Offering"); provided that Pharmacia shall not be
entitled to make an Unregistered Demand hereunder unless the Common Stock
subject to such Unregistered Demand represents at least 5% of the aggregate
shares of Common Stock then issued and outstanding. As promptly as practicable
after the Company receives from Pharmacia
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a notice pursuant to this Section 3.1(a) (an "Unregistered Notice"), demanding
that the Company prepare an Offering Memorandum with respect to part or all of
the Common Stock held by the Pharmacia Entities for offer and sale, but in no
event later than 30 days after such demand, subjection to Section 3.1(b), the
Company shall use reasonable best efforts to prepare such Offering Memorandum.
(b) The Company shall have the right to postpone the preparation or
distribution of an Offering Memorandum if the Board of Directors of the Company
determines in good faith that (i) based upon the advice of counsel, distributing
such Offering Memorandum would require disclosure in the Offering Memorandum of
material nonpublic information concerning a planned or proposed financing,
acquisition, disposition, business combination or similar transaction or other
material event involving the Company and (ii) disclosure at such time would be
adverse to the Company or its stockholders; provided that no one such
postponement shall exceed 30 days in any six-month period and all such
postponements with respect to any Offering Memorandum shall not exceed 60 days
in the aggregate. Any such postponement shall terminate immediately upon public
disclosure by the Company or public admission by the Company of such material
nonpublic information. The Company shall advise Pharmacia of any such
determination as promptly as practicable after such determination.
(c) Anything in this Agreement to the contrary notwithstanding, the
Company shall not be obligated to prepare any Offering Memorandum or may
postpone and delay the preparation and distribution of any Offering Memorandum
if the Company shall determine, based on advice of recognized U.S. securities
counsel which counsel shall be available to the Pharmacia to discuss the basis
of such advice, that the proposed offer and sale of Applicable Securities in
Pharmacia's intended method of distribution would require registration under the
Securities Act. In making such determination, the Company shall be entitled to
take into account any offerings or anticipated offerings by it of its securities
that may be deemed a part of the Unregistered Offering. In such event, such
proposed Unregistered Offering shall not be counted as an Unregistered Demand
for determining the frequency of Unregistered Demands under Section 3.1(a). In
addition, Pharmacia shall be entitled to exercise any Piggy-Back Registration
rights subject to the terms and conditions of Section 2.2, or alternatively, to
require the Company to undertake a Demand subject to the terms and conditions of
Section 2.1.
(d) Pharmacia shall have the right to withdraw any Unregistered
Demand at any time, provided that any such withdrawn Unregistered Demand shall
still be counted as an Unregistered Demand for determining the frequency of
Unregistered Demands under Section 3.1(a).
3.2 Unregistered Offering Procedures.
--------------------------------
In connection with an Offering Memorandum, the following provisions
shall apply:
(a) Before distributing an Offering Memorandum or any amendments or
supplements thereto, the Company will furnish to Pharmacia, and the placement
agent or agents, if any, for the Applicable Securities, draft copies of all such
documents proposed to be distributed at least three (3) days prior to such
distribution, which documents will be subject to
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the reasonable review of Pharmacia, the placement agent or agents, if any, for
the Applicable Securities, and their respective agents and representatives and
(x) the Company will not include in any Offering Memorandum information
concerning or relating to Pharmacia to which Pharmacia shall reasonably object
(unless the inclusion of such information is required by applicable law or the
regulations of any securities exchange to which the Company may be subject), and
(y) the Company will not distribute any Offering Memorandum pursuant to Section
3.1 or any amendment thereto or any supplement thereto to which Pharmacia shall
reasonably object;
(b) Subject to Section 3.1(b) and (c) and in respect of an Offering
Memorandum under Section 3.1, the Company shall use reasonable best efforts to
take promptly such action as may be necessary so that each of the Offering
Memorandum and any amendment thereto does not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(c) The Company shall, promptly upon learning thereof, advise
Pharmacia of the following, and shall confirm such advice in writing if so
requested:
(i) of the issuance by the Commission of any stop order
suspending the use of any Offering Memorandum or the initiation of
any proceedings for such purpose;
(ii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Applicable Securities for sale in any jurisdiction or the initiation
of any proceeding for such purpose; and
(iii) of the happening of any event or the existence of
any state of facts that requires the making of any changes in the
Offering Memorandum so that such Offering Memorandum does not
contain an untrue statement of a material fact and does not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading (which advice shall be
accompanied by an instruction to Pharmacia to suspend the use of the
Offering Memorandum until the requisite changes have been made,
which instruction Pharmacia agrees to follow).
(d) The Company shall furnish to Pharmacia, without charge, at least
one copy of the Offering Memorandum and all amendments and supplements thereto,
including financial statements and schedules, and, if Pharmacia so requests in
writing, all reports, other documents and exhibits that are filed with or
incorporated by reference in the Offering Memorandum.
(e) During the distribution of the Offering Memorandum pursuant to
Section 3.1, the Company shall deliver to Pharmacia without charge as many
copies of the Offering Memorandum and any amendment or supplement thereto as
Pharmacia may reasonably request, and the Company consents (except during the
continuance of any event described in Section 3.1(b), Section 3.1(c) or Section
3.2(c)(iii) hereof) to the use of the Offering Memorandum, with any amendment or
supplement thereto, by Pharmacia in connection with the offering and sale of
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the Applicable Securities covered by the Offering Memorandum and any amendment
or supplement thereto during such distribution period.
(f) Prior to any offering of Applicable Securities pursuant to the
Offering Memorandum, the Company shall use reasonable best efforts to (i)
qualify or cooperate with Pharmacia and its counsel in connection with the
qualification of such Applicable Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions in the United States as
Pharmacia may reasonably request, (ii) keep such qualifications in effect and
comply with such laws so as to permit the continuance of offers and sales in
such jurisdictions for the period during which the Company is required to use
reasonable best efforts to prepare an Offering Memorandum under Section 3.1(a),
and (iii) take any and all other reasonable actions requested by Pharmacia which
are necessary to enable the disposition in such jurisdictions of such Applicable
Securities; provided, however, that in no event shall the Company be obligated
to (1) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
Agreement or (2) file any general consent to service of process or subject
itself to tax in any jurisdiction where it is not so subject.
(g) The Company shall cooperate with Pharmacia to facilitate the
timely preparation and delivery of certificates representing Applicable
Securities to be sold pursuant to the Offering Memorandum, which certificates
shall comply with the requirements of any United States securities exchange upon
which any Applicable Securities are listed (provided that nothing herein shall
require the Company to list any Applicable Securities on any securities exchange
on which they are not currently listed) or the NASD Rules, as applicable, and
which certificates shall contain customary legends and be in such permitted
denominations and registered in such names as Pharmacia may request in
connection with the sale of Applicable Securities pursuant to the Offering
Memorandum.
(h) The Company shall use reasonable best efforts to make such
reasonable representations and warranties in the applicable placement agency
agreement to the placement agents, in form, substance and scope as are
customary.
(i) In connection with any Unregistered Offering pursuant to Rule
144A under the Securities Act, the Company shall, to the extent customary in
connection with transactions comparable to such Unregistered Offering, undertake
to enter into a registration rights agreement containing customary terms and
conditions with the purchasers in such Unregistered Offering.
(j) In respect of an Offering Memorandum under Section 3.1, the
Company shall use reasonable best efforts to take all other steps reasonably
necessary to effect the timely distribution, offering and sale of the Applicable
Securities covered by the Offering Memorandum contemplated hereby.
3.3 Other Provisions; Cooperation.
-----------------------------
(a) The respective agreements and other provisions set forth in this
Article III or made pursuant to this Article III shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of Pharmacia, any
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director, officer or partner of Pharmacia, any placement agent, any director,
officer or partner of such placement agent, or any Affiliate of any of the
foregoing, and shall survive the distribution, offering and sale of the
Applicable Securities.
(b) Pharmacia shall cooperate with respect to any Offering
Memorandum effected under this Agreement and shall provide such information,
documents, and instruments as may be reasonably requested in connection
therewith.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification by the Company.
------------------------------
Upon the effectiveness of the Registration of Applicable Securities
pursuant to Section 2.1 or Section 2.2, or the distribution of the Offering
Memorandum pursuant to Section 3.1, the Company shall indemnify and hold
harmless Pharmacia and each underwriter, selling agent or placement agent, and
their respective officers and directors and each Person who controls Pharmacia
or such underwriter, selling agent or placement agent within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
Person being sometimes referred to as an "Indemnified Person") from and against
any losses, claims, damages or liabilities, joint or several (or actions in
respect thereof), to which such Indemnified Person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any Prospectus contained therein) or
Offering Memorandum, as the case may be, under which such Applicable Securities
are registered under the Securities Act or distributed, respectively, or
furnished by the Company to any Indemnified Person, or any amendment or
supplement thereto in each case relating to the sale of Applicable Securities,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company hereby agrees to reimburse
such Indemnified Person for any reasonable legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage or liability (or action in respect thereof) as such expenses are
incurred; provided, however, that (i) the Company shall not be liable to any
such Indemnified Person in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement, Prospectus or Offering Memorandum, or amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Indemnified Person expressly for use therein;
(ii) the Company shall not be liable to the extent that any loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon (a) the use of any Prospectus after such time as the obligation
of the Company to keep the same effective and current has expired, or (b) the
use of any Prospectus after such time as the Company has advised Pharmacia in
writing that a post-effective amendment or supplement thereto is required,
except such Prospectus as so amended or supplemented.
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4.2 Indemnification by Pharmacia.
----------------------------
Pharmacia agrees, as a consequence of the inclusion of Applicable
Securities in such Registration Statement or Offering Memorandum, to (i)
indemnify and hold harmless the Company and its directors and officers and each
Person, if any, who controls the Company, within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities (or actions in respect thereof) to which the
Company or such other Persons may become subject, under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement, Prospectus or Offering Memorandum, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by Pharmacia
expressly for use therein, and (ii) subject to the limitation set forth
immediately preceding this clause (ii), reimburse the Company for any legal or
other expenses reasonably incurred by it in connection with investigating or
defending any such action or claim as such expenses are incurred.
4.3 Procedure for Indemnification.
-----------------------------
Promptly after receipt by any Person entitled to indemnity (an
"Indemnitee") under Section 4.1 or Section 4.2 hereof of notice of the
commencement of any action or claim, such Indemnitee shall, if a claim in
respect thereof is to be made against an indemnitor (an "Indemnitor") under this
Article IV, notify such Indemnitor in writing of the commencement thereof, but
any omission or delay in notifying the Indemnitor shall not relieve it from any
liability which it may have to any Indemnitee except to the extent of any actual
prejudice. In case any such action shall be brought against any Indemnitee, it
shall notify an Indemnitor of the commencement thereof, such Indemnitor shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other Indemnitor similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such Indemnitee, and, after notice from
the Indemnitor to such Indemnitee of its election so to assume the defense
thereof, such Indemnitor shall not be liable to such Indemnitee under this
Article IV for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such Indemnitee, in connection with the
defense thereof. No Indemnitor shall, without the prior written consent of the
Indemnitee, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the Indemnitee is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the Indemnitee from all liability arising out of such
action or claim and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any Indemnitee.
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Notwithstanding the foregoing, an Indemnitee shall have the right to
employ separate counsel reasonably acceptable to the Indemnitor in any such
proceeding and to participate in (but not control, other than as provided in (3)
below) the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Indemnitee unless (1) the Indemnitor has agreed to pay
such fees and expenses; (2) the Indemnitor shall have failed after notice to
assume the defense of such proceeding; or (3) the named parties to any such
proceeding (including any impleaded parties) include both such Indemnitee and
the Indemnitor or any of its Affiliates or controlling persons, and a conflict
of interest may reasonably be expected to exist if such counsel represents such
Indemnitee and the Indemnitor (or such Affiliate or controlling person) and in
the case of (3), the Indemnitee shall have the right to control the Indemnitee's
defense and in each of the cases, if such Indemnitee notifies the Indemnitor in
writing that it elects to employ separate counsel, the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnitor; it being
understood, however, that the Indemnitor shall not, in connection with any one
such proceeding or separate but substantially similar or related proceedings in
the same jurisdiction, arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (together with appropriate local counsel) at any time
for all such Indemnitees, which firm shall be designated by the Indemnitee that
had the largest number of shares included in the applicable Registration
Statement. An Indemnitor shall not be liable for any settlement of an action
effected without its written consent.
4.4 Contribution.
------------
If the indemnification provided for in this Article IV is
unavailable to or insufficient to hold harmless an Indemnitee under Section 4.1
or Section 4.2 hereof in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each Indemnitor shall
contribute to the amount paid or payable by such Indemnitee as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnitor and
the Indemnitee in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative fault of such
Indemnitor and Indemnitee shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such Indemnitor or by such Indemnitee, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 4.4 were determined
solely by pro rata allocation (even if Pharmacia or any underwriters, selling
agents or placement agents or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 4.4. The amount paid or
payable by an Indemnitee as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
Indemnitee in connection with investigating or defending any such action or
claim. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The obligations
of Pharmacia, the Company and any underwriters, selling agents or placement
agents in this Section 4.4 to contribute shall be
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several in proportion to the number of Applicable Securities registered or
underwritten or sold, as the case may be, by them and not joint.
Notwithstanding any other provision of this Section 4.4, Pharmacia
shall not be required to contribute any amount in excess of the amount by which
the net proceeds received by Pharmacia from the sale of Common Stock pursuant to
a Registration Statement or Offering Memorandum exceeds the amount of damages
which Pharmacia has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
4.5 Other Provisions.
----------------
(a) The obligations of the Company under this Article IV shall be in
addition to any liability that it may otherwise have and shall extend, upon the
same terms and conditions, to each Indemnified Person; and the obligations of
Pharmacia and any agents or underwriters contemplated by this Article IV shall
be in addition to any liability that Pharmacia or its respective agent or
underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each Person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act.
(b) The indemnities set forth in this Article IV or made pursuant to
this Article IV shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of Pharmacia, any director, officer or partner of Pharmacia, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any Affiliate of any of the foregoing, and shall survive the registration,
offering and sale of the Applicable Securities.
ARTICLE V
AUDITING PRACTICES
Each party agrees that, for so long as Pharmacia is required or
permitted in accordance with U.S. generally accepted accounting principles to
consolidate the Company's results of operations and financial position in
Pharmacia's financial statements:
5.1 Selection Of Auditors.
---------------------
Subject to requirements of law, the Company shall not select a
different accounting firm than Deloitte & Touche LLP to serve as its (and its
Subsidiaries') independent certified public accountants (the "Monsanto
Auditors") for purposes of providing an opinion on its financial statements
without Pharmacia's prior written consent.
5.2 Date of Auditors' Opinion and Quarterly Reviews.
-----------------------------------------------
The Company shall use its reasonable best efforts to enable the
Monsanto Auditors to complete their audit such that they will date their opinion
on the Company's audited
-16-
annual financial statements on the same date that Pharmacia's independent
certified public accountants (the "Pharmacia Auditors") date their opinion on
Pharmacia's audited annual financial statements, and to enable Pharmacia to meet
its timetable for the printing, filing and public dissemination of Pharmacia's
annual financial statements. The Company shall use its reasonable best efforts
to enable the Monsanto Auditors to complete their quarterly review procedures on
the Company's quarterly financial statements on the same date that the Pharmacia
Auditors complete their quarterly review procedures on Pharmacia's quarterly
financial statements.
5.3 Annual and Quarterly Financial Statements.
-----------------------------------------
The Company shall provide to Pharmacia on a timely basis all
information that Pharmacia reasonably requires to meet its schedule for the
preparation, printing, filing, and public dissemination of Pharmacia's annual
and quarterly financial statements. Without limiting the generality of the
foregoing, the Company will provide all required financial information with
respect to the Company and its Subsidiaries to the Monsanto Auditors in a
sufficient and reasonable time and in sufficient detail to permit the Monsanto
Auditors to take all steps and perform all reviews necessary to provide
sufficient assistance to the Pharmacia Auditors with respect to financial
information to be included or contained in Pharmacia's annual and quarterly
financial statements.
5.4 Identity of Personnel Performing the Annual Audit and Quarterly Reviews.
-----------------------------------------------------------------------
The Company shall authorize the Monsanto Auditors to make available
to the Pharmacia Auditors both the personnel who performed or will perform the
annual audits and quarterly reviews of the Company's financial statements and
work papers related to the annual audits and quarterly reviews of the Company's
financial statements, in all cases within a reasonable time prior to the
Monsanto Auditors' opinion date, so that the Pharmacia Auditors are able to
assure the coordination of their activities with those of the Monsanto Auditors
in order to achieve a proper review of matters affecting the consolidating or
combining of accounts in Pharmacia's financial statements, all within sufficient
time to enable Pharmacia to meet its timetable for the printing, filing and
public dissemination of Pharmacia's annual and quarterly statements.
5.5 Access to Books and Records.
---------------------------
The Company shall provide Pharmacia's internal auditors and their
designees access to the Company's and its Subsidiaries' books and records so
that Pharmacia may conduct reasonable audits relating to the financial
statements provided by the Company pursuant hereto as well as to the internal
accounting controls and operations of the Company and its Subsidiaries.
5.6 Notice of Change in Accounting Principles.
-----------------------------------------
The Company shall give Pharmacia as much prior notice as reasonably
practical of any proposed significant changes in its accounting estimates or
accounting principles from those in effect on the Separation Date (as defined in
the Separation Agreement, dated as of the date hereof, between Pharmacia and the
Company). The Company will consult with Pharmacia
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and, if requested by Pharmacia, the Company will consult with the Pharmacia
Auditors with respect thereto.
ARTICLE VI
OTHER COVENANTS
6.1 No Discrimination.
-----------------
The Company hereby covenants and agrees that, for so long as the
Pharmacia Entities own at least 50% of the outstanding shares of Common Stock,
the Company shall not, without the prior written consent of Pharmacia (which it
may withhold in its sole and absolute discretion), take, or cause to be taken,
directly or indirectly, any action, including making or failing to make any
election under the law of any state, which has the effect, directly or
indirectly, of restricting or limiting the ability of Pharmacia to freely sell,
transfer, assign, pledge or otherwise dispose of shares of Common Stock or would
restrict or limit the rights of any transferee of Pharmacia as a holder of
Common Stock. Without limiting the generality of the foregoing, the Company
shall not, without the prior written consent of Pharmacia (which it may withhold
in its sole and absolute discretion), (i) adopt or thereafter amend, supplement,
restate, modify or alter any stockholder rights plan in any manner that would
result in (a) the ownership of Common Stock by Pharmacia causing the rights
thereunder to detach or become exercisable and/or (b) Pharmacia and its
transferees not being entitled to the same rights thereunder as other holders of
Common Stock or (ii) take any action, or take any action to recommend to its
stockholders any action, which would among other things, limit the legal rights
of, or deny any benefit to, Pharmacia as a stockholder of the Company in a
manner not applicable to the Company's stockholders generally without regard to
the number of shares of Common Stock held by such stockholders.
6.2 Accounting Treatment.
--------------------
The Company agrees that it shall refrain from taking, and shall
cause its Subsidiaries not to take, any actions that could adversely affect
Pharmacia's ability to account for its recent merger, consummated pursuant to
the Agreement and Plan of Merger, dated as of December 19, 1999 and amended as
of February 18, 2000, among Monsanto Company, MP Sub, Incorporated and Pharmacia
& Upjohn, Inc., as a pooling of interests in accordance with U.S. generally
accepted accounting principles and applicable securities regulations.
6.3 Limitations on Subsequent Registration Rights.
---------------------------------------------
The Company shall not enter into any agreement with any holder or
prospective holder of any Equity Securities of the Company that would allow such
holder or prospective holder to include such Equity Securities in any
Registration Station filed pursuant to Section 2.1 hereof, unless, under the
terms of such agreement, such holder or prospective holder may include such
Equity Securities in any such Registration Statement only to the extent that
their inclusion would not reduce the amount of the Applicable Securities of
Pharmacia included therein.
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ARTICLE VII
MISCELLANEOUS
7.1 Termination.
-----------
The term of Article II and Article III shall extend from the date
hereof to the first date on which the Pharmacia Entities cease to hold in the
aggregate at least 5% of the Company's outstanding equity and voting power on a
Fully Diluted Basis and may not be terminated prior to such date without the
consent of the parties hereto.
7.2 Specific Performance and Other Equitable Rights.
-----------------------------------------------
Each of the parties hereto recognizes and acknowledges that a breach
by a party or by any assignee thereof of any covenants or other commitments
contained in this Agreement will cause the other party to sustain injury for
which it would not have an adequate remedy at law for money damages. Therefore,
each of the parties hereto agrees that in the event of any such breach, the
aggrieved party shall be entitled to the remedy of injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity, and the parties hereto further agree to waive any requirement
for the securing or posting of any bond in connection with the obtaining of any
such injunctive or other equitable relief.
7.3 Assignment.
----------
No party to this Agreement may assign this Agreement, nor any of its
rights or obligations under this Agreement, without the prior written consent of
the other parties hereto, and any such purported assignment shall be null and
void, except that the rights and obligations of Pharmacia under this Agreement
may be assigned by Pharmacia without the consent of the Company to (i) a
wholly-owned Subsidiary of Pharmacia (other than the Company and its
Subsidiaries), (ii) an entity owning all of the capital stock of Pharmacia or
(iii) a wholly-owned Subsidiary of an entity owning all of the capital stock of
Pharmacia (other than the Company and its Subsidiaries) (collectively, the
"Pharmacia Entities").
7.4 Further Assurances.
------------------
Each party shall provide (at the expense of the requesting party)
such further documents or instruments reasonably requested by any other party as
may be necessary or desirable to effect the purpose and intention of this
Agreement and carry out its provisions.
7.5 Notices.
-------
All notices, requests, claims, demands and other communications
hereunder shall be given in accordance with Section 10.06 of the Separation
Agreement, except as otherwise expressly provided in this Agreement.
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7.6 Reclassification, Reorganization, Merger, Etc.
---------------------------------------------
The rights and restrictions contained in this Agreement with respect
to Common Stock apply to all Common Stock held on the date hereof by Pharmacia
and any Common Stock acquired in the future by any Pharmacia Entity whether by
purchase, exchange, reclassification, reorganization, stock split, dividend, any
other change in the Company's capital structure or otherwise.
7.7 Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies.
--------------------------------------------------------------------------
This Agreement may be amended, superseded, cancelled, renewed or
extended, and the terms hereof may be waived only by a written instrument signed
by the parties or in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof except as expressly provided herein.
No waiver on the part of any party of any right, power or privilege, nor any
single or partial exercise of any such right, power or privilege, shall preclude
any further exercise thereof or the exercise of any other such right, power or
privilege. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at law or
in equity.
7.8 Governing Law; Consent to Jurisdiction.
--------------------------------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware (without giving effect to any conflict of laws
principles). The parties hereto unconditionally and irrevocably agree and
consent to the exclusive jurisdiction of the United States District Court and
the courts of the State of New York located in the County of New York, State of
New York, and waive any objection with respect thereto, for the purpose of any
action, suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby and further agree not to commence any such
action, suit or proceeding except in any such court. Each party irrevocably
waives any objections or immunities to jurisdiction to which it may otherwise be
entitled or become entitled (including sovereign immunity, immunity to
pre-judgment attachment, post-judgment attachment and execution) in any legal
suit, action or proceeding against it arising out of or relating to this
Agreement or the transactions contemplated hereby which is instituted in any
such court.
7.9 No Third Party Beneficiaries; Binding Effect.
--------------------------------------------
Except for Indemnitees (which are intended third party beneficiaries
of this Agreement) and as otherwise expressly provided herein, there shall be no
third party beneficiaries hereto. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective legal successors and permitted assigns of the parties hereto.
7.10 Counterparts.
------------
This Agreement may be executed by the parties in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall
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together constitute one and the same instrument. Each counterpart may consist of
a number of copies hereof each signed by less than all, but together signed by
all of the parties.
7.11 Headings.
--------
The headings in the Agreement are for reference only, and shall not
affect the interpretation of this Agreement.
7.12 Severability.
------------
It is the intention of the parties that if any portion of this
Agreement shall be deemed unenforceable, the remaining portions shall be valid
and enforceable.
7.13 Time of Essence.
---------------
Time is of the essence for each and every provision of this
Agreement.
ARTICLE VIII
DEFINITIONS
8.1 Definitions.
-----------
Any capitalized terms that are used in this Agreement but not
defined herein shall have the meanings set forth in the Separation Agreement,
and, as used herein, the following terms shall have the following meanings:
(a) "Affiliate" or "Affiliates" as applied to any Person, means any
other Person directly or indirectly controlling, controlled by, or under common
control with that Person. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
(b) "Applicable Securities" means in relation to a Registration
Statement the Common Stock identified in the related Demand Notice or Piggy-back
Notice and, in relation to an Offering Memorandum, the Common Stock identified
in the related Unregistered Demand Notice.
(c) "Business Day" means any day other than a Saturday, a Sunday or
a day on which banking institutions located in the States of Delaware, Missouri,
New Jersey or New York are authorized or obligated by law or executive order to
close.
(d) "Commission" means the Securities and Exchange Commission.
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(e) "Equity Securities" means all classes of equity securities of
the Company, and any options or other securities exercisable for, convertible
into or exchangeable for the Company's equity securities.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(g) "Fully Diluted Basis" means the number of shares of all classes
of equity securities of the Company that would be outstanding assuming the
exercise or conversion of all outstanding options and securities exercisable
for, convertible into or exchangeable for the Company's equity securities.
(h) "Person" means and includes natural persons, corporations,
limited partnerships, LLCs, general partnerships, joint stock companies, joint
ventures, associations, companies, trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof.
(i) "Prospectus" means the prospectus (including, without
limitation, any preliminary prospectus, any final prospectus and any prospectus
that discloses information previously omitted from a prospectus filed as part of
an effective Registration Statement in reliance upon Rule 430A under the
Securities Act or any successor rule thereto) included in a Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Applicable Securities covered
by a Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
(j) "Registration" means a registration under the Securities Act
effected pursuant to Section 2.1 or Section 2.2.
(k) "Registration Expenses" means all expenses incident to the
Registration of Common Stock pursuant to this Agreement, including, without
limitation, National Association of Securities Dealers, Inc. fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "comfort" letters
required by or incident to such performance and compliance, premiums and other
costs of policies of insurance obtained by the Company against liabilities
arising out of the public offering of Common Stock being registered, but
excluding fees and disbursements of counsel retained by Pharmacia, premiums and
other costs of policies of insurance obtained by Pharmacia or its agents or
underwriter against liabilities arising out of the public offering of the Common
Stock being registered, all underwriting discounts and commissions and transfer
taxes, if any, and registration and filing fees relating to the Common Stock
being registered.
(l) "Registration Statement" means a registration statement filed
under the Securities Act by the Company pursuant to the provisions of Section
2.1 or Section 2.2, including the Prospectus contained therein, any amendments
and supplements to such
-22-
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such registration statement.
(m) "Securities Act" means the Securities Act of 1933, as amended.
(n) "Subsidiary" means any corporation, association partnership,
limited partnership, limited liability partnership, limited liability company,
business trust or other business entity of which 50% or more of the total voting
power of shares of stock entitled to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by the Company or one or more of the other subsidiaries of the Company or a
combination thereof.
-23-
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed on the date first above written.
MONSANTO COMPANY
By:
-------------------------
Name:
Title:
PHARMACIA CORPORATION
By:
-------------------------
Name:
Title:
