EXHIBIT 2.3
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of December 19, 1999 (the
"Agreement"), by and between Pharmacia & Upjohn, Inc., a Delaware corporation
("Issuer"), and Monsanto Company, a Delaware corporation ("Grantee").
WHEREAS, Issuer and Grantee propose to enter into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement";
capitalized terms used but not defined herein shall have the meanings set
forth in the Merger Agreement), providing for, among other things, a merger
(the "Merger") of Issuer with a wholly-owned subsidiary of Grantee;
WHEREAS, as a condition and inducement to Grantee's willingness to
enter into the Merger Agreement and the Monsanto Stock Option Agreement,
Grantee has requested that Issuer agree, and Issuer has agreed, to grant
Grantee the Option (as defined below); and
WHEREAS, as a condition and inducement to Issuer's willingness to
enter into the Merger Agreement and this Agreement, Issuer has requested that
Grantee agree, and Grantee has agreed, to grant Issuer an option to purchase
shares of Grantee's common stock under the Monsanto Stock Option Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, Issuer and Grantee agree as follows:
SECTION 1. Grant of Options. Subject to the terms and conditions set
forth herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase up to 77,388,932 shares (the "Option Shares") of common
stock, par value $0.01 per share, of Issuer (the "Shares") (being 14.9% of the
number of Shares outstanding immediately before such grant), together with the
associated purchase rights (the "Rights") under the Shareholder Protection
Rights Agreement dated as of March 4, 1997, between Issuer and Xxxxxx Trust &
Savings Bank, as Rights Agent (references to the Option Shares shall be deemed
to include the associated Rights), at a purchase price of $50.25 per Option
Share (such price, as adjusted if applicable, the "Purchase Price"). The
number of Option Shares that may be received upon the exercise of the Option
and the Purchase Price are subject to adjustment as set forth herein.
SECTION 2. Exercise of Option. (a) Grantee may exercise the Option, in
whole or in part, at any time or from time to time following the occurrence of a
Purchase Event (as defined below); provided that, except as otherwise provided
herein, the Option shall terminate and be of no further force and effect upon
the earliest to occur of (i) the Effective Time, (ii) 6 months after the first
occurrence of a Purchase Event (or if, at the expiration of such 6 months
after the first occurrence of a Purchase Event, the Option cannot be exercised
by reason of any applicable judgment, decree, order, law or regulation, 10
business days after such impediment to exercise shall have been removed, but
in no event under this clause (ii) later than the first anniversary of the
Purchase Event), (iii) termination of the Merger Agreement under circumstances
which do not and cannot result in Grantee's becoming entitled to receive
termination fees from Issuer pursuant to Section 7.2(b) of the Merger
Agreement of $575 million or more, (iv) twelve months after the termination of
the Merger Agreement under circumstances which could result in Grantee's
becoming entitled to receive termination fees from Issuer pursuant to clause
(B), (D) or (E) of Section 7.2(b)(i) of the Merger Agreement, and (v) the date
Grantee shall have received the Maximum Repurchase Price pursuant to Section
7. The termination of the Option shall not affect any rights hereunder which
by their terms extend beyond the date of such termination.
(b) As used herein, a "Purchase Event" means an event the result of
which is that the total fee or fees required to be paid by Issuer to Grantee
pursuant to Section 7.2(b) of the Merger Agreement equals $575 million.
(c) In the event Grantee wishes to exercise the Option, it shall
send to Issuer a written notice (the "Exercise Notice"; the date of which
being herein referred to as the "Notice Date") specifying (i) the total number
of Option Shares it intends to purchase pursuant to such exercise and (ii) a
place and date not earlier than three business days nor later than 10 business
days from such Notice Date for the closing of such purchase (a "Closing"; and
the date of such Closing, a "Closing Date"); provided that such closing shall
be held only if (A) such purchase would not otherwise violate or cause the
violation of applicable law (including the HSR Act), (B) no law, rule or
regulation shall have been adopted or promulgated, and no temporary
restraining order, preliminary or permanent injunction or other order, decree
or ruling issued by a court or other governmental authority of competent
jurisdiction shall be in effect, which prohibits delivery of such Option
Shares (and the parties hereto shall use their reasonable best efforts to have
any such order, injunction, decree or ruling vacated or reversed) and (C) any
prior notification to or approval of any other regulatory authority in the
United States or elsewhere required in connection with such purchase shall
have been made or obtained, other than those which if not made or obtained
would not reasonably be expected to result in a significant detriment to the
Grantee and its Subsidiaries taken as a whole or the Issuer and its
Subsidiaries taken as a whole. If the Closing cannot be consummated by reason
of a restriction set forth in clause (A), (B) or (C) above, notwithstanding
the provisions of Section 2(a), the
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Closing shall be held within 5 business days following the elimination of such
restriction.
SECTION 3. Payment and Delivery of Certificates. (a) On each Closing
Date, Grantee shall pay to Issuer in immediately available funds by wire
transfer to a bank account designated by Issuer an amount equal to the
Purchase Price multiplied by the Option Shares to be purchased on such Closing
Date.
(b) At each Closing, simultaneously with the delivery of immediately
available funds as provided in Section 3(a), Issuer shall deliver to Grantee a
certificate or certificates representing the Option Shares to be purchased at
such closing, which Option Shares shall be free and clear of all liens,
charges or encumbrances ("Liens"), and Grantee shall deliver to Issuer a
letter agreeing that Grantee shall not offer to sell or otherwise dispose of
such Option Shares in violation of applicable law or the provisions of this
Agreement.
(c) Certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially as
follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT DATED AS OF DECEMBER 19,
1999. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF WITHOUT
CHARGE UPON RECEIPT BY THE ISSUER OF A WRITTEN REQUEST THEREFOR.
It is understood and agreed that (i) the reference to restrictions
arising under the Securities Act in the above legend shall be removed by
delivery of substitute certificate(s) without such reference if Grantee shall
have delivered to Issuer a copy of a letter from the staff of the SEC, or an
opinion of counsel in form and substance reasonably satisfactory to Issuer and
its counsel, to the effect that such legend is not required for purposes of
the Securities Act and (ii) the reference to restrictions pursuant to this
Agreement in the above legend shall be removed by delivery of substitute
certificate(s) without such reference if the Option Shares evidenced by
certificate(s) containing such reference have been sold or transferred in
compliance with the provisions of this Agreement under circumstances that do
not require the retention of such reference.
SECTION 4. Authorized Stock. Issuer hereby represents and warrants to
Grantee that Issuer has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, at all times from the date
hereof until the obligation to deliver Shares upon the exercise of the Option
terminates, will have
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reserved for issuance, upon exercise of the Option, Shares necessary for
Grantee to exercise the Option, and Issuer will take all necessary corporate
action to authorize and reserve for issuance all additional Shares or other
securities which may be issued pursuant to Section 6 upon exercise of the
Option. The Shares to be issued upon due exercise of the Option, including all
additional Shares or other securities which may be issuable upon exercise of
the Option pursuant to Section 6, upon issuance pursuant hereto, shall be duly
and validly issued, fully paid and nonassessable, and shall be delivered free
and clear of all Liens, including any preemptive rights of any stockholder of
Issuer.
SECTION 5. Purchase Not for Distribution. Grantee hereby represents
and warrants to Issuer that any Option Shares or other securities acquired by
Grantee upon exercise of the Option will not be taken with a view to the
public distribution thereof and will not be transferred or otherwise disposed
of except in a transaction registered or exempt from registration under the
Securities Act.
SECTION 6. Adjustment upon Changes in Capitalization, etc. (a) In the
event of any change in Shares by reason of reclassification, recapitalization,
stock split, split-up, combination, exchange of shares, stock dividend,
dividend, dividend payable in any other securities, or any similar event, the
type and number of Shares or securities subject to the Option, and the
Purchase Price therefor (including for purposes of repurchase thereof pursuant
to Section 7), shall be adjusted appropriately, and proper provisions shall be
made in the agreements governing such transaction, so that Grantee shall
receive upon exercise of the Option the number and class of shares or other
securities or property that Grantee would have received in respect of Shares
if the Option had been exercised immediately prior to such event or the record
date therefor, as applicable. If any additional Shares are issued after the
date of this Agreement (other than pursuant to an event described in the
immediately preceding sentence), the number of Shares subject to the Option
shall be adjusted so that immediately prior to such issuance, it equals 14.9%
of the number of Shares then issued and outstanding. In no event shall the
number of Shares subject to the Option exceed 14.9% of the number of Shares
issued and outstanding at the time of exercise (without giving effect to any
shares subject or issued pursuant to the Option)
(b) Without limiting the foregoing, whenever the number of Option
Shares purchasable upon exercise of the Option is adjusted as provided in this
Section 6, the Purchase Price per Option Share shall be adjusted by
multiplying the Purchase Price by a fraction, the numerator of which is equal
to the number of Option Shares purchasable prior to the adjustment and the
denominator of which is equal to the number of Option Shares purchasable after
the adjustment.
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(c) Without limiting the parties' relative rights and obligations
under the Merger Agreement, in the event that Issuer enters into an agreement
(i) to consolidate with or merge into any person, other than Grantee or one of
its Subsidiaries, and Issuer will not be the continuing or surviving
corporation in such consolidation or merger, (ii) to permit any Person, other
than Grantee or one of its Subsidiaries, to merge into Issuer and Issuer will
be the continuing or surviving corporation, but in connection with such
merger, the shares of Common Stock outstanding immediately prior to the
consummation of such merger will be changed into or exchanged for stock or
other securities of Issuer or any other Person or cash or any other property,
or (iii) to sell or otherwise transfer all or substantially all of its assets
to any Person, other than Grantee or one of its Subsidiaries, then, and in
each such case, the agreement governing such transaction will make proper
provision so that the Option will, upon the consummation of any such
transaction and upon the terms and conditions set forth herein, be converted
into, or exchanged for, an option with identical terms appropriately adjusted
to acquire the number and class of shares or other securities or property that
Grantee would have received in respect of Option Shares had the Option been
exercised immediately prior to such consolidation, merger, sale or transfer or
the record date therefor, as applicable. Issuer shall take such steps in
connection with such consolidation, merger, liquidation or other such
transaction as may be reasonably necessary to assure that the provisions
hereof shall thereafter apply as nearly as possible to any securities or
property thereafter deliverable upon exercise of the Option.
SECTION 7. Repurchase of Option. (a) Notwithstanding the provisions
of Section 2(a), at any time commencing upon the first occurrence of a
Purchase Event and ending upon termination of this Option in accordance with
Section 2, Issuer (or any successor entity thereof) shall at the request of
Grantee (any such request, a "Cash Exercise Notice"), repurchase from Grantee
the Option or a portion thereof (if and to the extent not previously exercised
or terminated) at a price which, subject to Section 10 below, is equal to the
excess, if any, of (x) the Applicable Price (as defined below) as of the
Section 7 Request Date (as defined below) for a Share over (y) the Purchase
Price (subject to adjustment pursuant to Section 6), multiplied by all or such
portion of the Option Shares subject to the Option as the Grantee shall
specify in the Cash Exercise Notice (the "Option Repurchase Price").
(b) Notwithstanding the provisions of Section 2(a), at any time
following the occurrence of a Purchase Event, Issuer (or any successor entity
thereof) may, at its election, repurchase the Option (if and to the extent not
previously exercised or terminated) at the Option Repurchase Price. For
purposes of this Agreement, an exercise of the Option shall be deemed to occur
on the Closing Date and not on the Notice Date relating thereto.
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(c) In connection with any exercise of rights under this Section 7,
Issuer shall, within 5 business days after the Section 7 Request Date, pay the
Option Repurchase Price in immediately available funds, and Grantee or such
owner, as the case may be, shall surrender to Issuer the Option. Upon receipt
by the Grantee of the Option Repurchase Price, the obligations of the Issuer
to deliver Option Shares pursuant to Section 3 of this Agreement shall be
terminated with respect to the number of Option Shares specified in the Cash
Exercise Notice or the number of Option Shares as to which the Option is
repurchased under Section 7(b).
(d) For purposes of this Agreement, the following terms have the
following meanings:
(i) "Applicable Price", as of any date, means the highest of (A)
the highest price per Share paid or proposed to be paid by any third
party for Shares or the consideration per Share received or to be
received by holders of Shares, in each case pursuant to any
Acquisition Proposal for or with Issuer made on or prior to such date
or (B) the average closing price per Share as reported on the New
York Stock Exchange, Inc. ("NYSE") Composite Tape or if the Shares
are not listed on the NYSE, the highest bid price per Share as quoted
on the National Association of Securities Dealers Automated Quotation
System or, if the Shares are not quoted thereon, on the principal
trading market on which such Shares are traded as reported by a
recognized source during the 10 trading days preceding such date. If
the consideration to be offered, paid or received pursuant to the
foregoing clause (A) shall be other than in cash, the value of such
consideration shall be determined in good faith by an independent
nationally recognized investment banking firm selected by Grantee and
reasonably acceptable to Issuer.
(ii) "Section 7 Request Date" means the date on which Issuer or
Grantee, as the case may be, exercises its rights under this Section.
(e) In no event shall the aggregate Option Repurchase Price paid
pursuant to this Section 7 be in excess of $635 million less any termination
fee paid by Issuer and received by Grantee pursuant to Section 7.2(b) of the
Merger Agreement (the "Maximum Repurchase Price").
SECTION 8. Registration Rights. Issuer shall, if requested by Grantee
or any Subsidiary of the Grantee which is the owner of Option Shares
(collectively with Grantee, the "Owners") at any time and from time to time
within two years of the first exercise of the Option, as expeditiously as
possible prepare and file up to two registration statements under the
Securities Act if such registration is
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necessary in order to permit the sale or other disposition of any or all
shares of securities that have been acquired by or are issuable to such Owners
upon exercise of the Option in accordance with the intended method of sale or
other disposition stated by such Owners, including a "shelf" registration
statement under Rule 415 under the Securities Act or any successor provision,
and Issuer shall use all reasonable efforts to qualify such shares or other
securities under any applicable state securities laws. Issuer shall use all
reasonable efforts to cause each such registration statement to become
effective, to obtain all consents or waivers of other parties which are
required therefor and to keep such registration statement effective for such
period at least 90 days from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sale or other
disposition. The obligations of Issuer hereunder to file a registration
statement and to maintain its effectiveness may be suspended for a period of
time not exceeding 90 days in the aggregate if the Board of Directors of
Issuer shall have determined in good faith that the filing of such
registration statement or the maintenance of its effectiveness would require
disclosure of nonpublic information that would materially and adversely affect
Issuer (but in no event shall Issuer exercise such postponement right more
than once in any month period). Any registration statement prepared and filed
under this Section 8, and any sale covered thereby, shall be at Issuer's
expense except underwriting discounts or commissions, brokers' fees and the
reasonable fees and disbursements of Owners' counsel related thereto. The
Owners shall provide all information reasonably requested by Issuer for
inclusion in any registration statement to be filed hereunder. If during the
time period referred to in the first sentence of this Section 8; provided
Issuer effects a registration under the Securities Act of Shares for its own
account or for any other stockholders of Issuer (other than on Form S-4 or
Form S-8, or any successor form), it shall allow the Owners the right to
participate in such registration, and such participation shall not affect the
obligation of Issuer to effect two registration statements for the Owners
under this Section 8; provided that, if the managing underwriters of such
offering advise Issuer in writing that in their opinion the number of Shares
requested to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the offering price, Issuer
and the Owners shall each reduce on a pro rata basis the Shares to be included
therein on their respective behalf. In connection with any registration
pursuant to this Section 8, Issuer and the Owners shall provide each other and
any underwriter of the offering with customary representations, warranties,
covenants, indemnification and contribution in connection with such
registration.
SECTION 9. Additional Covenants of Issuer. (a) If Shares or any other
securities to be acquired upon exercise of the Option are then listed on the
NYSE or any other securities exchange or market, Issuer, upon the request of
any Owner, will promptly file an application to list the Shares or other
securities to be
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acquired upon exercise of the Options on the NYSE or such other securities
exchange or market and will use its reasonable best efforts to obtain approval
of such listing as soon as practicable.
(b) Issuer will use its reasonable best efforts to take, or cause to
be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to permit the
exercise of the Option in accordance with the terms and conditions hereof, as
soon as practicable after the date hereof, including making any appropriate
filing pursuant to the HSR Act and any other applicable law, supplying as
promptly as practicable any additional information and documentary material
that may be requested pursuant to the HSR Act and any other applicable law,
and taking all other actions necessary to cause the expiration or termination
of the applicable waiting periods under the HSR Act as soon as practicable.
(c) Issuer agrees not to avoid or seek to avoid (whether by charter
amendment or through reorganization, consolidation, merger, issuance of
rights, dissolution or sale of assets, or by any other voluntary act) the
observance or performance of any of the covenants, agreements or conditions to
be observed or performed hereunder by it.
(d) Issuer shall use its reasonable best efforts to cause any
acquisitions by Grantee (or any affiliate who may become subject to the
reporting requirements of Section 16(a) of the Exchange Act) of any Shares
acquired in connection with this Agreement (through conversion or exercise of
the Option or otherwise) to be exempt under Rule 16b-3 promulgated under the
Exchange Act.
SECTION 10. Limitation of Grantee Profit. (a) Notwithstanding any
other provision in this Agreement, in no event shall Grantee's Total Profit
(as defined below) exceed $635 million (the "Maximum Profit") and, if it
otherwise would exceed such amount, Grantee, at its sole discretion, shall
either (i) reduce the number of Shares subject to the Option, (ii) deliver to
Issuer for cancellation Shares (or other securities into which such Option
Shares are converted or exchanged) previously purchased by Grantee, (iii) pay
cash to Issuer, or (iv) any combination of the foregoing, so that Grantee's
actually realized Total Profit shall not exceed the Maximum Profit after
taking into account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the
Option may not be exercised for a number of Option Shares as would, as of any
Notice Date, result in a Notional Total Profit (as defined below) of more than
the Maximum Profit and, if exercise of the Option otherwise would result in
the Notional Total Profit exceeding such amount, Grantee, at its discretion,
may (in addition to any of the actions specified in Section 10(a) above) (i)
reduce the
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number of Shares subject to the Option or (ii) increase the Purchase Price for
that number of Option Shares set forth in the Exercise Notice so that the
Notional Total Profit shall not exceed the Maximum Profit; provided that
nothing in this sentence shall restrict any exercise of the Option permitted
hereby on any subsequent date at the Purchase Price set forth in Section 1
hereof.
(c) For purposes of this Agreement, "Total Profit" shall mean: (i)
the aggregate amount (before taxes) of (A) any excess of (x) the net cash
amounts or fair market value of any property received by Grantee pursuant to a
sale of Option Shares (or securities into which such shares are converted or
exchanged) over (y) the Grantee's aggregate purchase price for such Option
Shares (or other securities), plus (B) any amounts received by Grantee on the
repurchase of the Option by Issuer pursuant to Section 7, plus (C) any
termination fee paid by Issuer and received by Grantee pursuant to Section
7.2(b) of the Merger Agreement, minus (ii) the amounts of any cash previously
paid by Grantee to Issuer pursuant to this Section 10 plus the value of the
Option Shares (or other securities) previously delivered by Grantee to Issuer
for cancellation pursuant to this Section 10.
(d) For purposes of this Agreement, "Notional Total Profit" with
respect to any number of Option Shares as to which Grantee may propose to
exercise the Option shall mean the Total Profit determined as of the Notice
Date assuming that the Stock Option was exercised on such date for such number
of Option Shares and assuming that such Option Shares, together with all other
Option Shares previously acquired upon exercise of the Option and held by
Grantee as of such date, were sold for cash at the closing price per Share on
the NYSE as of the close of business on the preceding trading day (less
customary brokerage commissions).
(e) Notwithstanding any other provision of this Agreement, nothing
in this Agreement shall affect the ability of Grantee to receive, nor relieve
Issuer's obligation to pay, any termination fee provided for in Section 7.2(b)
of the Merger Agreement; provided that if and to the extent the Total Profit
received by Grantee would exceed the Maximum Profit following receipt of such
payment, Grantee shall be obligated to promptly comply with the terms of
Section 10(a).
(f) For purposes of Section 10(a) and clause (ii) of Section 10(c),
the value of any Option Shares delivered by Grantee to Issuer shall be the
Applicable Price of such Option Shares.
SECTION 11. Loss, Theft, Etc. of Agreement (and the Option granted
hereby). This Agreement is exchangeable, without expense, at the option of
Grantee, upon presentation and surrender of this Agreement at the principal
office of Issuer for other Agreements providing for Options of different
denominations
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entitling the holder thereof to purchase in the aggregate the same number of
Shares purchasable hereunder. The terms "Agreement" and "Option" as used
herein include any other Agreements and related Options for which this
Agreement (and the Option granted hereby) may be exchanged. Upon receipt by
Issuer of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Agreement, and (in the case of loss, theft
or destruction) of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Agreement, if mutilated, Issuer will execute and
deliver a new Agreement of like tenor and date. Any such new Agreement
executed and delivered shall constitute an additional contractual obligation
on the part of Issuer, whether or not the Agreement so lost, stolen, destroyed
or mutilated shall at any time be enforceable by anyone.
SECTION 12. Miscellaneous. (a) Expenses. Except as otherwise provided
in Section 9 hereof or in the Merger Agreement, each of the parties hereto
shall bear and pay all expenses incurred by it or on its behalf in connection
with the transactions contemplated hereunder, including fees and expenses of
its own financial consultants, investment bankers, accountants and counsel.
(b) Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary; Severability.
Except as otherwise set forth in the Merger Agreement, this Agreement,
together with the Merger Agreement and the Monsanto Stock Option Agreement (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and (b) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or a federal or state regulatory agency to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. If for any reason such court
or regulatory agency determines that the Option does not permit Grantee to
acquire, or does not require Issuer to repurchase, the full number of Shares
as provided in Sections 2 and 7, as adjusted pursuant to Section 6, it is the
express intention of Issuer to allow Grantee to acquire or to require Issuer
to repurchase such lesser number of Shares as may be permissible without any
amendment or modification hereof.
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(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO
CHOICE OF LAW PRINCIPLES).
(e) Descriptive Headings. The descriptive headings contained herein
are for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
(f) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given as set forth in Section 8.2 of the Merger
Agreement.
(g) Counterparts. This Agreement and any amendments hereto may be
executed in two counterparts, each of which shall be considered one and the
same agreement and shall become effective when counterparts have been signed
by each of the parties and delivered to the other party, it being understood
that both parties need not sign the same counterpart.
(h) Assignment. Grantee may not, without the prior written consent
of Issuer (which shall not be unreasonably withheld), assign this Agreement or
the Option to any other person. This Agreement shall not be assignable by
Issuer except by operation of law. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
(i) Representations and Warranties. The representations and
warranties contained in Sections 3.1(a)(i) and 3.2(a)(i) of the Merger
Agreement, and, to the extent they relate to this Stock Option Agreement, in
Sections 3.1(b), (c), (f) and (g) and Section 3.2(c) of the Merger Agreement,
are incorporated herein by reference.
(j) Further Assurances. In the event of any exercise of the Option
by Grantee, Issuer and Grantee shall execute and deliver all other documents
and instruments and take all other action that may be reasonably necessary in
order to consummate the transactions provided for by such exercise.
(k) Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed
that the parties shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are entitled
at law or in equity. Both parties further agree to waive any requirement for
the securing or posting of any bond in
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connection with the obtaining of any such equitable relief and that this
provision is without prejudice to any other rights that the parties hereto may
have for any failure to perform this Agreement.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first above written.
PHARMACIA & UPJOHN, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
By: /s/ J. Xxxxx Xxxx
-----------------------------------
Name: J. Xxxxx Xxxx
Title: Chairman of the Board
MONSANTO COMPANY
By: /s/ R. Xxxxxxx Xxx, III
-----------------------------------
Name: R. Xxxxxxx Xxx, III
Title: Senior Vice President and
Secretary
