Exhibit 4.3
MONSANTO COMPANY
$500,000,000 Notes due 2001
$600,000,000 Notes due 2005
$200,000,000 Notes due 2008
$500,000,000 Debentures due 2018
$700,000,000 Debentures due 2028
REGISTRATION RIGHTS AGREEMENT
New York, New York
December 9, 1998
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Monsanto Company, a Delaware corporation (the "Company"), proposes to
issue and sell (the "Initial Placement") to Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxxx,
Xxxxx & Co. and the other purchasers listed in Schedule I to the Purchase
Agreement (the "Purchase Agreement") dated December 4, 1998 (collectively, the
"Initial Purchasers"), upon the terms set forth in the Purchase Agreement,
$500,000,000 principal amount of its 5.375% Notes due 2001, $600,000,000
principal amount of its 5.750% Notes due 2005, $200,000,000 principal amount of
its 5.875% Notes due 2008, $500,000,000 principal amount of its 6.500%
Debentures due 2018 and $700,000,000 principal amount of its 6.600% Debentures
due 2028 (each, a "Series of Offered Debt Securities" and, collectively, the
"Offered Debt Securities"). The Offered Debt Securities will be issued under a
Indenture dated as of December 1, 1998 (the "Indenture") between the Company and
The Bank of New York, as trustee (the "Trustee"). As an inducement to the
Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to your obligations thereunder, the Company agrees with you, (i) for
your benefit and (ii) for the benefit of the holders from time to time (each of
the foregoing a "Holder" and together the "Holders") of the Offered Debt
Securities or the Exchange Debt Securities (as defined herein), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
1
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" shall have the same meaning given to that term in Rule 405
of the Act of any successor rule thereunder.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Debt Securities" means the five Series of Exchange Debt
Securities, collectively.
"Exchange Debt Securities Indenture" means an indenture between the
Company and the Exchange Debt Securities Trustee, identical in all material
respects to the Indenture.
"Exchange Debt Securities Trustee" means The Bank of New York, as
Trustee, or another bank or trust company reasonably satisfactory to the Initial
Purchasers, as trustee with respect to the Exchange Debt Securities under the
Exchange Debt Securities Indenture.
"Exchange Offer Registration Period" means the 180-day period following
the issuance of the Exchange Debt Securities, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement
of the Company on an appropriate form under the Act with respect to the
Registered Exchange Offer, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include any Initial
Purchaser) which is a broker-dealer electing to exchange Offered Debt Securities
acquired for its own account as a result of market-making activities or other
trading activities for Exchange Debt Securities.
"Final Offering Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" has the meaning set forth in the preamble hereto.
2
"Indenture" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Letter of Transmittal" has the meaning set forth in Section 2(c)
hereof.
"Liquidated Damages" has the meaning set forth in Section 7(a) hereof.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Offered Debt Securities" has the meaning set forth in the preamble
hereto.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Offered Debt Securities or the Exchange Debt Securities, covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders, with respect to each Series of Offered Debt
Securities, a like principal amount of the corresponding Series of Exchange Debt
Securities, in exchange for the Offered Debt Securities.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Offered Debt
Securities or the Exchange Debt Securities pursuant to the provisions of this
Agreement, and amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Series of Offered Debt Securities" has the meaning set forth in the
preamble hereto.
"Series of Exchange Debt Securities" means, in respect of each Series
of Offered Debt Securities, a like principal amount of debt securities of the
Company identical in all
3
respects to, and entitled to substantially the same benefits of, such Series of
Offered Debt Securities.
"Shelf Registration" means a registration effected pursuant to Section
3 hereof.
"Shelf Registration Event" has the meaning set forth in Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Offered Debt Securities or the Exchange Debt Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Special Counsel" means Xxxxx, Brown & Xxxxx or such other single
counsel as shall be specified by the Majority Holders of securities included in
the relevant Registration Statement, the fees and expenses of which will be paid
by the Company pursuant to Section 5 hereof.
"Time of Delivery" has the meaning set forth in the Purchase Agreement.
"Trustee" has the meaning set forth in the preamble hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Underwriter" means any underwriter of Offered Debt Securities or
Exchange Debt Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offers; Resales of Exchange Debt Securities
by Exchanging Dealers. (a) The Company shall prepare and file with the
Commission the Exchange Offer Registration Statement. The Company shall use its
reasonable efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 180 days of the Time of Delivery.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offers,
it being the objective of such Registered Exchange Offers to enable each Holder
electing to exchange Offered Debt Securities for Exchange Debt Securities
(assuming that such Holder is not an Affiliate of the Company, acquires the
Exchange Debt Securities in the ordinary course of such Holder's
4
business and has no arrangements with any person to participate in the
distribution (within the meaning of the Act) of the Exchange Debt Securities) to
transfer such Exchange Debt Securities from and after their receipt without any
limitations or restrictions under the Act and without material restrictions
under the securities laws of a substantial portion of the several states of the
United States.
(c) In connection with the Registered Exchange Offers, the Company
shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents ("Letter of
Transmittal");
(ii) keep the Registered Exchange Offers open for not less
than 30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offers with an address in the Borough of Manhattan, The City
of New York; and
(iv) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of each of the Registered
Exchange Offers, the Company shall:
(i) accept for exchange all Offered Debt Securities validly
tendered and not withdrawn pursuant to the applicable Registered
Exchange Offer;
(ii) deliver to the Trustee for cancellation all Offered Debt
Securities so accepted for exchange; and
(iii) cause the Exchange Debt Securities Trustee promptly to
authenticate and deliver to each Holder of tendered Offered Debt
Securities, Exchange Debt Securities of the appropriate series equal in
principal amount to the Offered Debt Securities of such Holder so
accepted for exchange therefor.
(e) The Initial Purchasers and the Company acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each Exchanging Dealer
is required to deliver a Prospectus in connection with a sale of any Exchange
Debt Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offers in exchange for Offered Debt Securities acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Company shall:
5
(i) include the information set forth in Annex A hereto on
the cover of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in
a section setting forth details of the Registered Exchange Offers, and
in Annex C hereto in the underwriting or plan of distribution section
of the Prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in
each Letter of Transmittal delivered pursuant to each Registered
Exchange Offer; and
(ii) use its reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the Prospectus
forming a part thereof by Exchanging Dealers in connection with sales
of Exchange Securities received pursuant to the Registered Exchange
Offers, as contemplated by Section 4(h) below.
(f) In the event that the Initial Purchasers determine that they are
not eligible to participate in the Registered Exchange Offers with respect to
the exchange of Offered Debt Securities constituting any portion of their
initial unsold allotment, at the request of the Initial Purchasers, the Company
shall issue and deliver to the Initial Purchasers, in exchange for such Offered
Debt Securities, a like principal amount of Exchange Debt Securities (provided
that such Exchange Debt Securities shall include legends with respect to
restrictions on transfer), and the Company shall, starting on the date of
effectiveness of the Exchange Offer Registration Statement and ending on the
close of business on the 180th day following such date, make available as many
copies of the Exchange Offer Registration Statement prospectus, as amended or
supplemented, as reasonably requested by the Initial Purchasers. The Company
shall seek to cause the CUSIP Service Bureau to issue the same CUSIP number(s)
for such securities as for the corresponding Series of Exchange Debt Securities
issued pursuant to the Registered Exchange Offers. The Initial Purchasers agree
to promptly notify the Company in writing following the resale of their initial
allotment of Offered Debt Securities.
3. Shelf Registration. If, (i) because of any change in law or in
currently prevailing interpretations thereof by the Commission's staff, the
Company determines upon advice of its outside counsel that it is not permitted
to effect the Registered Exchange Offers as contemplated by Section 2 hereof, or
(ii) for any other reason the Registered Exchange Offers are not consummated
within 225 days of the Time of Delivery, or (iii) in the case of any Holder that
participates in any of the Registered Exchange Offers, such Holder does not
receive applicable freely tradeable Exchange Debt Securities on the date of the
exchange (other than due solely to the status of such Holder as an Affiliate of
the Company or as a broker-dealer) (it being understood that, for purposes of
this Section 3, (x) the requirement that the Initial Purchasers deliver a
Prospectus containing the information required by Items 507 and/or 508 of
Regulation S-K under the Act in connection with sales of Exchange Debt
Securities acquired in exchange for such Offered Debt Securities shall result in
such Exchange Debt Securities being not "freely tradeable" but (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection
6
with sales of Exchange Debt Securities acquired in the Registered Exchange
Offers in exchange for Offered Debt Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Debt Securities being not "freely tradeable") (the events described in
clauses (i), (ii) and (iii) of this paragraph are each referred to herein as a
"Shelf Registration Event"), the following provisions shall apply:
(a) The Company shall promptly deliver to the applicable Holders
written notice of a Shelf Registration Event and, as promptly as practicable,
file with the Commission and thereafter use its reasonable efforts to cause to
be declared effective under the Act, a Shelf Registration Statement relating to
the offer and sale of the applicable Offered Debt Securities or the applicable
Exchange Debt Securities, as the case may be, by the applicable Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement; provided, however,
that with respect to Exchange Debt Securities received by the Initial Purchasers
in exchange for Offered Debt Securities constituting any portion of an unsold
allotment, the Company may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Regulation S-K
Items 507 and/or 508, as applicable, in satisfaction of their obligations under
this paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration Statement.
(b) The Company shall use its reasonable efforts to keep such Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by such Holders for a period of two years (or,
if Rule 144(k) is amended to provide a shorter restrictive period, such shorter
period) or such shorter period that will terminate when all the Offered Debt
Securities or Exchange Debt Securities, as applicable, covered by such Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
Period").
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of any Shelf Registration
Statement and any Exchange Offer Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus included
therein and the Company shall, if reasonably requested, promptly incorporate in
such Registration Statement, such information and comments as the Initial
Purchasers reasonably agree with the Company and its counsel should be included
therein provided that the Company shall not be required to take any action under
this Section 4(a) that is not in the reasonable opinion of counsel for the
Company in compliance with applicable law.
7
(b) The Company shall ensure that, subject to Section 4(k), (i) any
Registration Statement and any amendment thereto and any Prospectus forming a
part thereof and any amendment or supplement thereto complies in all material
respects with the Act, (ii) any 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) any Prospectus forming
part of any Registration Statement, and any amendment or supplement to such
Prospectus, does not, during the period when delivery thereof is required,
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading.
(c)(1) The Company shall advise the Initial Purchasers and, in the case
of a Shelf Registration Statement, the Holders of securities covered thereby
and, if requested by you or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when a Registration Statement or
any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to a Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer that has provided in writing to the
Company a telephone or facsimile number and address for notices, and,
if requested by you or any such Holder or Exchanging Dealer, confirm
such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the suspension of the use of a Prospectus.
8
(d) Subject to Section 4(k), the Company shall use its reasonable
efforts to prevent the issuance or obtain the withdrawal of any order suspending
the effectiveness or use of any Registration Statement at the earliest possible
time.
(e) The Company shall furnish to each Holder of securities included
within the coverage of any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those incorporated by
reference).
(f) Subject to Section 4(k), the Company shall, during the Shelf
Registration Period, as promptly as is reasonably practicable deliver to each
Holder of securities included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request; and
subject to Section 4(k), the Company consents to the use of the Prospectus or
any amendment or supplement thereto as to which no notice has been given
pursuant to paragraph 4(c)(2) by each of the selling Holders of securities in
connection with the offering and sale of the securities covered by the
Prospectus or any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, any documents incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all exhibits (including those
incorporated by reference).
(h) Subject to Section 4(k), the Company shall, during the Exchange
Offer Registration Period, promptly deliver to each Exchanging Dealer, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Debt Securities received by it pursuant to
the Registered Exchange Offer; and subject to Section 4(k), the Company consents
to the use of the Prospectus or any amendment or supplement thereto as to which
no notice has been given pursuant to paragraph 4(c)(2) by any such Exchanging
Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offers or the effectiveness of
a Registration Statement, the Company shall, if required by applicable law,
register or qualify or cooperate with the Holders of securities included therein
and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holders reasonably request in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale
9
in such United States jurisdictions of the securities covered by such
Registration Statement; provided, however, that the Company will not be required
to (i) qualify generally to do business or 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 Section 4(i), (ii) file any general consent
to service of process in any jurisdiction where it is not as of the date hereof
so subject or (iii) subject itself to taxation in any jurisdiction where it is
not otherwise subject.
(j) Unless the applicable securities shall be in book-entry only
form, the Company shall cooperate with the Holders of Offered Debt Securities to
facilitate the timely preparation and delivery of certificates representing
Offered Debt Securities to be sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered in such
names as Holders may request prior to sales of Offered Debt Securities pursuant
to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraphs
(c)(1)(ii), (c)(2)(i) or (c)(2)(iii) above, the Company agrees to notify the
Initial Purchasers, and in the case of a Shelf Registration Statement, the
Holders of securities covered thereby, to suspend use of the Prospectus and the
Company shall prepare, using its reasonable efforts to do so as soon as
possible, a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and the Initial Purchasers, and in the case of a Shelf
Registration Statement, the Holders of securities covered thereby, shall suspend
use of such Prospectus until the Company has amended or supplemented such
Prospectus so that such Prospectus does not contain any such untrue statement or
omission.
(l) The Company shall use its reasonable efforts to cause The
Depository Trust Company ("DTC") on the first business day following the
effective date of any Shelf Registration Statement hereunder or as soon as
possible thereafter to remove (i) from any existing CUSIP number assigned to any
Series of Offered Debt Securities, any designation indicating that such Offered
Debt Securities are "restricted securities," which efforts shall include
delivery to DTC of a letter executed by the Company substantially in the form of
Annex E hereto and (ii) any other stop or restriction on DTC's system with
respect to such Offered Debt Securities. In the event the Company is unable to
cause DTC to take the actions described in the immediately preceding sentence,
the Company shall take such actions as the Initial Purchasers may reasonably
request to provide, as soon as practicable, a CUSIP number for each Series of
Offered Debt Securities registered under such Registration Statement and to
cause such CUSIP numbers to be assigned to such Offered Debt Securities (or to
the maximum aggregate principal amount of such Offered Debt Securities to which
such number(s) may be assigned). Upon compliance with the foregoing requirements
of this Section 4(1), the Company shall provide the
10
Trustee with printed certificates for each Series of Offered Debt Securities, in
a form eligible for deposit with DTC.
(m) The Company shall use its reasonable efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding such Holder and the distribution of such securities by
such Holder as the Company may from time to time reasonably require for
inclusion in such Registration Statement and securities of a Holder that does
not provide information necessary for inclusion in such Registration Statement
may be omitted from any Shelf Registration Statement.
(o) The Company shall, if reasonably requested, and in no event more
than three times, promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement, such information as
the Managing Underwriters and Holders of a majority in aggregate principal
amount of each Series of Offered Debt Securities reasonably agree with the
Company and its counsel should be included therein and shall make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment provided that the Company shall not be required to take
any action under this Section 4(o) that is not in the reasonable opinion of
counsel for the Company in compliance with applicable law.
(p) In the case of any Shelf Registration Statement, the Company
shall enter into such customary agreements (including underwriting agreements)
and take all other appropriate and reasonably required actions in connection
therewith in order to expedite or facilitate the registration or the disposition
of the applicable Offered Debt Securities or the applicable Exchange Debt
Securities, as the case may be, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures no less favorable than those set forth in Section 6 (or such
other provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of each applicable Series of Offered Debt Securities and the
Managing Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 6.
(q) In the case of any Shelf Registration Statement, the Company
shall (i) make reasonably available for inspection by the Holders of securities
to be registered thereunder, subject to their acceptance of the provisions of
this Section 4(q), any underwriter participating in any distribution pursuant to
such Registration Statement, and any Special Counsel, accountant or other agent
retained by such Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries as
11
shall reasonably be required in connection with the discharge of their due
diligence obligations; (ii) cause the Company's officers, directors and
employees and any relevant trustee to supply all relevant information reasonably
requested by such Holders or any such underwriter, Special Counsel, accountant
or agent in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that, in the case of
clause (i) and (ii) above, any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Holders and any such underwriter,
Special Counsel, accountant or agent, unless such disclosure is made in
connection with a court proceeding or as required by law after notice has been
given to the Company of such pending disclosure and a reasonable opportunity has
been provided, whenever reasonably possible, for the Company to obtain an
appropriate protective order for the information to be disclosed, or such
information becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality; and provided further,
however, that the foregoing inspection and information gathering shall be
coordinated on behalf of such Holders and the other parties entitled thereto by
the Special Counsel; (iii) make such representations and warranties to the
Holders of securities registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to underwriters in
secondary offerings and covering such matters as are customarily covered in
representations and warranties requested in secondary offerings; (iv) obtain
opinions of counsel to the Company and updates thereof addressed to each selling
Holder and the underwriters, if any, covering such matters and with such
exceptions as are customarily covered or taken in opinions requested in
secondary offerings; (v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if necessary,
any other independent certified 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 each selling Holder of securities
registered thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with secondary offerings; and (vi) deliver such documents and
certificates as may be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, or their counsel including those to evidence
compliance with Section 4(k) and with conditions customarily contained in the
underwriting agreement or other agreement entered into by the Company. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(q) shall be performed at (A) the effectiveness of such Registration Statement
and each post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
Notwithstanding the foregoing, the Company shall not be required to
comply with the foregoing actions set forth in clauses (i) through (vi) above
more than twice in connection with an underwritten offering pursuant to a Shelf
Registration Statement.
(r) In the case of any Exchange Offer Registration Statement, if
requested by the Initial Purchasers, the Company shall (i) make reasonably
available for inspection by the
12
Initial Purchasers, subject to their acceptance of the provisions of this
Section 4(r), and any Special Counsel, accountant or other agent retained by the
Initial Purchasers, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries as shall
reasonably be required in connection with the discharge of their due diligence
obligations; (ii) cause the Company's officers, directors and employees and any
relevant trustee to supply all relevant information reasonably requested by the
Initial Purchasers or any such Special Counsel, accountant or agent in
connection with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that, in the case of clause (i) and
(ii) above, any information that is designated in writing by the Company, in
good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Initial Purchasers and any such Special Counsel,
accountant or agent, unless such disclosure is made in connection with a court
proceeding or as required by law after notice has been given to the Company of
such pending disclosure and a reasonable opportunity has been provided, whenever
reasonably possible, for the Company to obtain an appropriate protective order
for the information to be disclosed, or such information becomes available to
the public generally or through a third party without an accompanying obligation
of confidentiality; and provided further, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of the Initial
Purchasers and other parties entitled thereto by the Special Counsel and other
parties; (iii) make such representations and warranties to the Initial
Purchasers, in form, substance and scope as are customarily made by issuers to
underwriters in secondary offerings and covering such matters as are customarily
covered in representations and warranties requested in secondary offerings; and
(iv) deliver such documents and certificates as may be reasonably requested by
the Initial Purchasers or their counsel, including those to evidence compliance
with Section 4(k) and with conditions customarily contained in underwriting
agreements. The foregoing actions set forth in clauses (iii) and (iv) of this
Section 4(r) shall be performed, if reasonably requested by the Initial
Purchasers, at the closing of each of the Registered Exchange Offers and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) The Company shall cause the Indenture or the Exchange Debt
Securities Indenture, as the case may be, to be qualified under the Trust
Indenture Act in a timely manner.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the applicable Holders for the reasonable fees and disbursements of
the Special Counsel designated in connection therewith.
6. Indemnification; Contribution.
-----------------------------
(a) The Company will indemnify and hold harmless each Holder and
each Exchanging Dealer against any losses, claims, damages or liabilities, joint
or several, to which such Holder or Exchanging Dealer may become subject, under
the Act or otherwise, insofar as
13
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any preliminary Prospectus, any preliminary
Prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Offered Debt Securities or
the Exchange Debt Securities, 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, and will reimburse each Holder and Exchanging Dealer for
any legal or other expenses reasonably incurred by such Holder or Exchanging
Dealer in connection with investigating or defending any such action or claim;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary Prospectus, any preliminary Prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Offered Debt Securities or
the Exchange Debt Securities, or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by any Holder or Exchanging Dealer expressly for inclusion in the
Prospectus; provided further, that if any preliminary Prospectus, any
preliminary Prospectus supplement, the Prospectus as amended or supplemented and
any other prospectus relating to the Offered Debt Securities or the Exchange
Debt Securities, or any amendment or supplement thereto, contained any alleged
untrue statement or allegedly omitted to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
and such statement or omission shall have been corrected in a revised
preliminary Prospectus, any preliminary Prospectus supplement, the Prospectus as
amended or supplemented and any other prospectus relating to the Offered Debt
Securities or the Exchange Debt Securities, or any amendment or supplement
thereto, the Company shall not be liable to any Holder or Exchanging Dealer
under this subsection (a) with respect to such alleged untrue statement or
alleged omission to the extent that any such loss, claim, damage or liability of
such Holder or Exchanging Dealer results from the fact that such Holder or
Exchanging Dealer sold Offered Debt Securities or Exchange Debt Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of a revised preliminary Prospectus (excluding
documents incorporated by reference), preliminary Prospectus supplement
(excluding documents incorporated by reference), the Prospectus (excluding
documents incorporated by reference), the Prospectus as amended or supplemented
(excluding documents incorporated by reference), any other amended prospectus
relating to the Offered Debt Securities or the Exchange Debt Securities
(excluding documents incorporated by reference) or any amendment or supplement
thereto relating to the Offered Debt Securities or the Exchange Debt Securities
(excluding documents incorporated by reference), as the case may be, containing
a correction of such alleged misstatement or omission, if the Company has made
available copies thereof to such Holder or Exchanging Dealer prior to the
confirmation of such sale; and provided, further, that the Company shall not be
liable to any Holder or Exchanging Dealer under this subsection (a) to the
extent that any such loss, claim, damage or liability of such Holder or
Exchanging Dealer results from the use by such Holder or Exchanging Dealer of
14
the Prospectus as amended or supplemented (excluding documents incorporated by
reference) or the Prospectus as amended or supplemented as it may be further
amended or supplemented (excluding documents incorporated by reference), as the
case may be (i) otherwise than in connection with an offer or sale of the
Offered Debt Securities or the Exchange Debt Securities, or (ii) at any time
nine months or more after the time of issue of the Prospectus as amended or
supplemented unless the Company has prior to such use amended or supplemented
the Prospectus as amended or supplemented to comply with Section 10(a)(3) of the
Act if required pursuant to Section 5(c) hereof and such Holder or Exchanging
Dealer uses the Prospectus as amended or supplemented as so further amended or
supplemented.
Each Holder and Exchanging Dealer acknowledges that the indemnity
agreement in this subsection (a) does not extend to any liability which such
Holder or Exchanging Dealer might have under Section 5(b) of the Act by reason
of the fact that such Holder or Exchanging Dealer sold Offered Debt Securities
or Exchange Debt Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference), the Prospectus as amended or
supplemented (excluding documents incorporated by reference), any other
prospectus relating to the Offered Debt Securities or the Exchange Debt
Securities (excluding documents incorporated by reference) or any amendment or
supplement relating thereto (excluding documents incorporated by reference), as
the case may be, if the Company has made available copies thereof to such Holder
or Exchanging Dealer.
For purposes of this subsection (a) the Prospectus (excluding documents
incorporated by reference), the Prospectus as amended or supplemented (excluding
documents incorporated by reference), any other prospectus relating to the
Offered Debt Securities or the Exchange Debt Securities (excluding documents
incorporated by reference) or any amendment or supplement relating thereto
(excluding documents incorporated by reference), shall not be deemed to have
been made available to a Holder or Exchanging Dealer until such Holder or
Exchanging Dealer has received the same.
(b) Each Holder and Exchanging Dealer will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained any preliminary Prospectus, any preliminary Prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Offered Debt Securities or
the Exchange Debt Securities, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any preliminary Prospectus, any preliminary Prospectus
supplement, the Registration Statement, the
15
Prospectus as amended or supplemented and any other prospectus relating to the
Offered Debt Securities or the Exchange Debt Securities, or any such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by such Holder or Exchanging Dealer expressly for
inclusion therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof, and in the event that such indemnified
party shall not so notify the indemnifying party within 30 days following
receipt of any such notice by such indemnified party, the indemnifying party
shall have no further liability under such subsection to such indemnified party
unless such indemnifying party shall have received other notice addressed and
delivered in the manner provided in Section 8(c) hereof of the commencement of
such action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof as provided above, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under subsection (a) or (b) above in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Holders and
Exchanging Dealers on the other from the offering of the Offered Debt Securities
or Exchange Debt Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Holders and Exchanging Dealers on the other in connection with the
16
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 benefits received by the Company shall be deemed
to be equal to the sum of (x) the total net proceeds from the Initial Placement
(before deducting expenses) as set forth on the cover page of the Final Offering
Memorandum and (y) the total amount of additional interest which the Company was
not required to pay as a result of registering the securities covered by the
Registration Statement which resulted in such losses, claims, damages or
liabilities. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover
page of the Final Offering Memorandum, and benefits received by any other
Holders or Exchanging Dealers shall be deemed to be equal to the value of
receiving Offered Debt Securities or Exchange Debt Securities, as applicable,
registered under the Act. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such Holders
or Exchanging Dealers on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Holders and Exchanging Dealers agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Holders and Exchanging Dealers
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Holder or Exchanging
Dealer shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Offered Debt Securities or
Exchange Debt Securities sold pursuant to the Registration Statement exceeds the
amount of any damages which such Holder or Exchanging Dealer has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Holders and Exchanging Dealers in this subsection (d) to
contribute are several and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of a Holder or
Exchanging Dealer and to each person, if any, who controls a Holder or
Exchanging Dealer within the meaning of the Act or the Exchange Act; and the
obligations of the Holders and Exchanging Dealers under this Section 6 shall be
in addition to any liability that the respective Holders and Exchanging Dealers
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the
17
Company and to each person, if any, who controls the Company within the meaning
of the Act or the Exchange Act.
7. Liquidated Damages Under Certain Circumstances. (a) Liquidated
damages ("Liquidated Damages") shall become payable in respect of the Offered
Debt Securities as follows if any of the following events occur (each such event
in clauses (i) through (iii) below, a "Registration Default"):
(i) in the event that the Company is permitted under the law
and currently prevailing interpretations of the Commission's staff to
effect the Registered Exchange Offers and the Exchange Offer
Registration Statement is not declared effective on or prior to the
180th day following the Time of Delivery;
(ii) the Registered Exchange Offers are not consummated or the
applicable Shelf Registration Statement is not declared effective on or
prior to the 225th day following the Time of Delivery; or
(iii) after a Shelf Registration Statement is declared
effective, (A) such Shelf Registration Statement ceases to be effective
prior to the end of the Shelf Registration Period (except as permitted
in paragraph (b) of this Section 7); (B) such Shelf Registration
Statement or the related Prospectus ceases to be useable in connection
with resales of Offered Debt Securities or Exchange Debt Securities, as
the case may be, covered by such Shelf Registration Statement prior to
the end of the Shelf Registration Period (except as permitted in
paragraph (b) of this Section 7) because (1) the Company determines
that any event occurs as a result of which the related Prospectus
forming part of such Shelf Registration Statement would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, (2) the
Company determines that it shall be necessary to amend such Shelf
Registration Statement, or supplement the related Prospectus, to comply
with the Act or the Exchange Act or the rules thereunder, or (3) the
Company determines that it is advisable to suspend use of the
Prospectus for a discrete period of time due to pending material
corporate developments or similar material events that have not yet
been publicly disclosed and as to which the Company believes public
disclosure will be prejudicial to the Company.
Liquidated Damages shall accrue on the applicable Offered Debt
Securities or the applicable Exchange Debt Securities, as the case may be, over
and above the interest rate set forth in the title to the applicable Offered
Debt Securities or the applicable Exchange Debt Securities, as the case may be,
following the occurrence of each Registration Default set forth in clauses (i)
and (ii) above from and including the next day following each such Registration
Default, in each case at a rate equal to 0.25% per annum; provided, however,
that in any case, if one or more Registration Defaults referred to in Section
7(a)(iii) occurs and continues for more
18
than 60 days (whether or not consecutive) in any twelve month period (the 61st
day being referred to as the "Default Day") then from the Default Day until the
earlier of (i) the date such Shelf Registration Statement is again deemed
effective or is useable, (ii) the date that is the second anniversary of the
Time of Delivery (or, if Rule 144(k) of the Act is amended to provide a shorter
restrictive period, such shorter period) or (iii) the date of which all the
Offered Debt Securities are sold pursuant to such Shelf Registration Statement,
Liquidated Damages shall accrue at a rate of 0.25% per annum; provided, further,
that the aggregate amount of Liquidated Damages payable pursuant to this Section
7 will in no event exceed 0.25% per annum. The Liquidated Damages attributable
to each Registration Default referred to in clauses (i) and (ii) above shall
cease to accrue from the date of effectiveness of the Exchange Offer
Registration Statement after such 180-day period, in the case of clause (i)
above, or the consummation of the Registered Exchange Offers or the date of
effectiveness of the applicable Shelf Registration Statement after such 225-day
period, in the case of clause (ii) above.
(b) A Registration Default referred to in Section 7(a)(iii) shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) the occurrence of other material
events or developments with respect to the Company that would need to be
described in such Registration Statement or the related Prospectus and (ii) in
the case of clause (y), the Company is proceeding promptly and in good faith to
amend or supplement such Registration Statement and related Prospectus to
describe such events.
(c) Any amounts of Liquidated Damages due pursuant to the foregoing
paragraphs will be payable in cash on June 1 and December 1 of each year to the
holders of record on the preceding May 15 and November 15, respectively.
8. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to the Offered Debt Securities that is inconsistent with
the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the then outstanding aggregate
principal amount of each Series of Offered Debt Securities (or, after the
consummation of any Exchange Offer in accordance with Section 2 hereof, of each
Series of
19
Exchange Debt Securities); provided, however, that, with respect to any matter
that affects the rights of any Initial Purchaser hereunder, the Company shall
obtain the written consent of the Initial Purchasers. Notwithstanding the
foregoing (except the foregoing proviso), a waiver or consent to departure from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Offered Debt Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Holders of a majority of each Series
of Offered Debt Securities, determined on the basis of Offered Debt Securities
being sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
8(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the registrar under the Indenture,
with a copy in like manner to the Initial Purchasers;
(ii) if to you, initially at the address set forth in the
Purchase Agreement; and
(iii) if to the Company, initially at the address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers or the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Offered Debt Securities and/or
Exchange Debt Securities. The Company hereby agrees to extend the benefits of
this Agreement to any Holders of Offered Debt Securities and/or Exchange Debt
Securities and any such Holder may enforce the provisions of this Agreement as
if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
20
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Offered
Debt Securities or Exchange Debt Securities is required hereunder, Offered Debt
Securities or Exchange Debt Securities, as applicable, held by the Company or
its Affiliates (other than subsequent Holders of Offered Debt Securities or
Exchange Debt Securities if such subsequent Holders are deemed to be Affiliates
solely by reason of their holdings of such Offered Debt Securities or Exchange
Debt Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
21
Please confirm that the foregoing correctly sets forth the agreement
among the Company and you.
Very truly yours,
MONSANTO COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Treasurer
Accepted, December 9, 1998
XXXXXXX XXXXX XXXXXX INC.
XXXXXXX, XXXXX & CO.
By: XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
ANNEX A
Annex A
-------
Each broker-dealer that receives Exchange Debt Securities for its own
account pursuant to the Exchange Offers must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Debt Securities. Each
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Debt Securities received in exchange for
Offered Debt Securities acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, ending on the close of business on the 180th day following the Expiration
Date (as defined herein), it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Xxxxx X
-------
Each broker-dealer that receives Exchange Debt Securities for its own
account in exchange for Offered Debt Securities, where such Offered Debt
Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Debt Securities. See
"Plan of Distribution."
ANNEX C
Plan of Distribution
--------------------
Each broker-dealer that receives Exchange Debt Securities for its own
account pursuant to the Exchange Offers must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Debt Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Debt Securities
received in exchange for Offered Debt Securities where such Offered Debt
Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the applicable Expiration Date and ending on the close of business on the 180th
day following such Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale.
The Company will not receive any proceeds from any sale of Exchange
Debt Securities by broker-dealers. Exchange Debt Securities received by
broker-dealers for their own account pursuant to the Exchange Offers may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange Debt
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such Exchange Debt Securities. Any broker-dealer that resells
Exchange Debt Securities that were received by it for its own account pursuant
to the Exchange Offers and any broker or dealer that participates in a
distribution of such Exchange Debt Securities may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
Exchange Debt Securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
Each Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the applicable Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offers other than commissions or concessions
of any brokers or dealers and will indemnify the holders of the Offered Debt
Securities (including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
ANNEX D
Rider A
-------
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:___________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________
Rider B
-------
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Debt Securities. If the undersigned is a broker-dealer that will
receive Exchange Debt Securities for its own account in exchange for Offered
Debt Securities, it represents that the Offered Debt Securities to be exchanged
for Exchange Debt Securities were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such Exchange Debt Securities;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act.
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
MONSANTO COMPANY
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
__________________, 199__
The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel's Office
Ladies and Gentlemen:
We refer to the Letter of Representations, dated December 7, 1998 (the
"Letter of Representations"), from Monsanto Company (the "Issuer") and The Bank
of New York, as trustee (the "Trustee") to The Depository Trust Company ("DTC")
regarding the Issuer's 5.375% Notes due 2001, 5.750% Notes due 2005, 5.875%
Notes due 2008, 6.500% Debentures due 2018 and 6.600% Debentures due 2028 (the
"Old Securities"). The CUSIP numbers of the Old Securities are 611662 AV 9,
611662 AY 3, 611662 BB 2, 611662 BE 8 and 611662 BH 9, respectively, for
qualified institutional buyers, U61166 AB 7,U61166 AC 5, U61166 AD 3, U61166 AE
1 and U61166 AF 8, respectively, for buyers who were sold Old Securities in
compliance with Regulation S under the Securities Act of 1933, as amended, and
611662 AW 7, 611662 AZ 0, 611662 BC 0, 611662 BF 3 and 611662 BJ 6,
respectively, for institutional accredited investors. The Issuer and the Trustee
hereby agree and notify DTC that as of ________ __, 199__, the Securities and
Exchange Commission declared effective a Registration Statement (File No. _____)
with respect to an offering of the Issuer's 5.375% Exchange Notes due 2001,
5.750% Exchange Notes due 2005, 5.875% Exchange Notes due 2008, 6.500% Exchange
Debentures due 2018 and 6.600% Exchange Debentures due 2028, (the "New
Securities") (CUSIP Nos. 611602 AX 5, 611662 BA 4, 611662 BD 0, 611662 BG 1 and
611662 BK 2, respectively) in exchange for the Old Securities. Following the
consummation of the exchange offer and the cancellation of the global securities
representing the Old Securities, the Issuer and the Trustee agree that, with the
exception of the Representations for Rule 144A Securities attached thereto, the
Letter of Representations and any applicable riders thereto shall remain in full
force and effect with respect to the New Securities.
Very Truly yours,
MONSANTO COMPANY
By:______________________________________
Name:
Title:
THE BANK OF NEW YORK
By:______________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:________________________________
Name:
Title:
