EXHIBIT 1.1
MONSANTO COMPANY
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
November 23, 1998
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Xxxxx Barney Inc.
As Representatives of the several
Underwriters named in Schedule I
hereto
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Monsanto Company, a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 22,500,000
common shares (the "Firm Shares") and, at the election of the Underwriters, up
to 2,456,250 additional shares (the "Optional Shares") of the common stock (the
"Common Stock") of the Company. The Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof being collectively
called the "Shares".
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-51919) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to you and, excluding exhibits to
the Initial Registration Statement, but including all documents incorporated by
reference in the prospectus contained therein, delivered to you for each of the
other Underwriters have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the offering
(a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, the documents incorporated by reference therein, any post-effective
amendment thereto and any preliminary prospectus filed pursuant to Rule 424(b),
no other document with respect to the Initial Registration Statement has
heretofore been filed or transmitted for filing with the Commission; and no stop
order suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission, (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, is
hereinafter called a "Preliminary
Prospectus," the various parts of the Initial Registration Statement, any post-
effective amendment thereto and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including all information contained in any
Preliminary Prospectus or in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such final
prospectus relating to the Shares, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the Prospectus; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Initial Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statement; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not 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, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not 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;
provided, however, that this representation and warranty shall
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not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through
you expressly for use therein;
(d) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through you expressly for use therein;
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
change in the capital stock (other than changes in treasury stock within limits,
or pursuant to employee plans, disclosed or incorporated by reference in the
Prospectus) or long-term debt of the Company and its subsidiaries considered as
a whole or any material adverse change, or any development known to the Company
involving a prospective material adverse change, in or affecting the financial
position, shareowners' equity or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as set forth or contemplated
in the Prospectus;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
state of the United States except Rhode Island; and X. X. Xxxxxx & Co.
(Delaware) ("Xxxxxx"), Monsanto International Sales Company, p.l.c. (Virgin
Islands), Monsanto p.l.c. (England) and Monsanto Europe S.A.N.V. (Belgium) (such
corporations being referred to herein as "Principal Subsidiaries") are each a
corporation duly incorporated and validly existing in good standing under the
laws of its jurisdiction of incorporation as set forth above;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable;
and all of the issued equity securities of each Principal Subsidiary of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for shares necessary to qualify directors or to
maintain any minimum number of shareholders required by law) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(h) The Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued and fully
paid and non-assessable and will conform to the description thereof in the
Prospectus as amended or supplemented;
(i) The issue and sale of the Shares and the compliance by the Company
with all of the provisions of this Agreement and the consummation by the Company
of the transactions herein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
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encumbrance upon any of the property or assets of the Company or any of its
Principal Subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company
or any of its Principal Subsidiaries is a party or by which the Company or any
of its Principal Subsidiaries is bound or to which any of the property or assets
of the Company or any of its Principal Subsidiaries is subject, or which would
cause a current or prospective material adverse change in or affecting the
financial position, shareowners' equity or results of operations of the Company
and its subsidiaries considered as a whole or affect the validity of the Shares
or the legal authority of the Company to comply with the Shares; nor will such
action result in any violation of the provisions of the Certificate of
Incorporation, as amended, or the By-laws of the Company, or in a violation of
any statute or any order, rule or regulation of any court or governmental agency
or body in the United States having jurisdiction over the Company or any of its
Principal Subsidiaries or any of their properties which would cause a current or
prospective material adverse change in or affecting the financial position,
shareowners' equity or results of operations of the Company and its subsidiaries
considered as a whole (except to the extent that the issue and sale of the
Securities as contemplated by this Agreement and the distribution of the Shares
by the Underwriters may result in violations of state securities or Blue Sky
laws); and no consent, approval, authorization, order, registration or
qualification of or with any such court or any such regulatory authority or
other governmental body in the United States having jurisdiction over the
Company is required for the issue and sale of the Shares or the consummation by
the Company of the transaction contemplated by this Agreement, except such as
have been, or will have been prior to the Time of Delivery, obtained under the
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares as contemplated by
this Agreement and the distribution of the Shares by the Underwriters;
(j) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, other than as set forth in
the Prospectus and other than those which in the aggregate will not have a
material adverse effect on the Company and its subsidiaries considered as a
whole; and, to the best of the Company's knowledge, no such proceedings are
contemplated by governmental authorities;
(k) Deloitte & Touche LLP, who have certified certain financial statements
of the Company and its subsidiaries, are, to the best of the Company's
knowledge, independent public accountants as to the Company as required by the
Act and the rules and regulations of the Commission thereunder; and
(l) The Company has developed and initiated a comprehensive Year 2000
Program which is designed to ensure that its business will not be adversely
affected by the Year 2000 computer problem. The Year 2000 Program consists of
remediation efforts with respect to the Company's internal systems, a survey and
review of its suppliers' Year 2000 programs and institution of appropriate
contingency plans. The Company expects its internal systems to be Year 2000
compliant and to have its contingency plans in place by the third quarter of
1999. In addition, the statements contained in the Prospectus under "III. Year
2000 Update" and in the Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1998 pertaining to the Year 2000 Program, are accurate and
complete statements of the information set forth therein.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $38.80, the number of Firm Shares
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set forth opposite the name of such Underwriter in Schedule I hereto and (b) in
the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Optional Shares the Underwriters elect to purchase by a
fraction, the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters the right to purchase at their
election up to 2,456,250 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering overallotments in
the sale of the Firm Shares. Any such election to purchase Optional Shares may
be exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement, setting forth the
aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as defined in Section 4(a) hereof) or,
unless you and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale to the public
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Xxxxxxx, Xxxxx & Co., through the facilities of the Depository Trust Company
("DTC") for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Xxxxxxx, Sachs & Co.
at least forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking at least twenty-four
hours prior to the Time of Delivery (as defined below) at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New
York City time, on November 30, 1998 or such other time and date as Xxxxxxx,
Xxxxx & Co. and the Company may agree upon in writing, and, with respect to the
Optional Shares, 9:30 a.m., New York time, on the date specified by Xxxxxxx,
Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as Xxxxxxx, Sachs & Co. and the Company may agree upon in writing. Such
time and date for delivery of the Firm Shares is herein called the "First Time
of Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery";
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(h) hereof, will be delivered at the offices of Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing
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Location"), and the Shares will be delivered at the Designated Office, all at
each Time of Delivery. A meeting will be held at the Closing Location at 1:00
p.m., New York City time, on the New York Business Day next preceding each Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in relation to
the applicable Shares in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule 424(b)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
of this Agreement and prior to the last Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof; to advise you
promptly of any such amendment or supplement after such Time of Delivery and
furnish you with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares, and during such same period to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Shares, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the use of any
prospectus relating to the Shares or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such United States jurisdictions as you may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to subject itself to taxation for
doing business in any jurisdiction, and provided further that the expense of
maintaining any such qualification more than one year from the date of this
Agreement shall be at your expense;
(c) No later than 5:00 p.m. on the New York business day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus as amended or supplemented in such quantities as
you may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
6
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and to
each other broker-dealer participating with them in the distribution of the
Shares as many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense such Underwriters or such other brokers, as the
case may be, to prepare and deliver to such Underwriter or such other broker-
dealer as many copies as you may request of an amended Prospectus or supplement
to the Prospectus complying with Section 10 (a) (3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Company Rule 158);
(e) During the period beginning from the date of this Agreement and
continuing to and including the date 90 days after the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of any securities of
the Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Shares or any substantially similar securities
(other than securities issued (i) in the Financings (as defined in the
Prospectus Supplement); (ii) pursuant to the merger of the Company with Delta
and Pine Land Company; (iii) pursuant to employee stock option plans existing
on; or (iv) upon the conversion or exchange of convertible or exchangeable
securities outstanding as of the date of this Agreement), without your prior
written consent; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall file
a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of the Pricing
Agreement relating to the Designated Securities, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act, and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
(except as otherwise expressly provided in Section 5(c) hereof) amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and any other broker-dealers participating in the distribution of
the Shares; (ii) the cost of producing and copying any Agreement among
Underwriters, this Agreement, any Blue Sky Memoranda, and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees (not to exceed $2,000 per fiscal year of the Company) and
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disbursements of counsel for the Underwriters in connection with such
qualifications and in connection with the Blue Sky and legal investment surveys;
(iv) all fees and expenses in connection with listing the Shares on the New York
Stock Exchange; (v) the cost of preparing stock certificates; and (vi) all other
costs and expenses incident to the performance of the Company's obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Shares by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters hereunder as to the Shares to be
delivered at each Time of Delivery shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company herein are, at and as of such Time of Delivery, true and correct in all
material respects, the condition that the Company shall have performed in all
material respects all of its obligations hereunder theretofore to be performed,
and the following additional conditions:
(a) The Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) hereof; if the Company has elected
to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., Washington, D.C. time,
on the date of this Agreement; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to you such
opinion or opinions, dated as of such Time of Delivery, with respect to the
incorporation of the Company, the validity of the Shares, the Registration
Statement, the Prospectus as amended or supplemented and such other related
matters as you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) Winston & Xxxxxx and the General Counsel or other counsel of the
Company satisfactory to you shall have furnished to you their written
opinions, dated as of such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented, and
has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the
laws of each other state of the United States except Rhode
Island;
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(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) Each of the Principal Subsidiaries is a corporation duly
incorporated and validly existing in good standing under the laws of
the jurisdiction of its incorporation;
(iv) The Company owns directly or indirectly through one or
more wholly-owned subsidiaries all of the issued and outstanding
equity securities of the Principal Subsidiaries (except as specified
in Section 1(g) of this Agreement), free and clear of liens,
encumbrances, equities and claims, and all such securities are validly
authorized, issued, fully paid and non-assessable, and neither the
Company nor any such subsidiary is subject to personal liability by
reason of being an owner thereof;
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
(vi) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject, other than as set forth in
the Prospectus and other than those which in the aggregate will not
have a material adverse effect on the Company and its subsidiaries
considered as a whole; and, to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities;
(vii) The Shares conform to the description thereof in the
Prospectus as amended or supplemented;
(viii) The issue and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement and the
consummation by the Company of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute or result in a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any
of its Principal Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or other similar agreement or
instrument known to such counsel, after such reasonable investigation
as such counsel deems necessary, to which the Company or any of its
Principal Subsidiaries is a party or by which the Company or any of
its Principal Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Principal Subsidiaries is subject
which would cause a current or
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prospective material adverse change in or affecting the financial
position, shareowners' equity or results of operations of the Company
and its subsidiaries considered as a whole or affect the validity of
the Shares or the legal authority of the Company to comply with the
Shares or this Agreement; nor will such actions result in a violation
of the provisions of the Certificate of Incorporation, as amended, or
the By-laws of the Company, or in a violation of any statute or any
order, rule or regulation of any court or governmental agency or body
in the United States having jurisdiction over the Company or any of
its subsidiaries or any of their properties which would cause a
current or prospective material adverse change in or affecting the
financial position, shareowners' equity or results of operations of
the Company and its subsidiaries considered as a whole (except to the
extent that the issue and sale of the Shares as contemplated by this
Agreement and the distribution of the Shares by the Underwriters may
result in violations of state securities or Blue Sky laws); and no
consent, approval, authorization, order, registration or qualification
of or with any such court or any such regulatory authority or other
governmental body in the United States having jurisdiction over the
Company is required for the issue and sale of the Shares of the
Company or the consummation by the Company of the other transactions
contemplated by this Agreement, except such as have been obtained
under the Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(ix) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(x) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to such Time of
10
Delivery (other than the financial statements and other financial data
contained or incorporated by reference therein or omitted therein as
to which such counsel need express no opinion) appear on their face to
be appropriately responsive in all material respects with the
requirements of the Act and the rules and regulations thereunder; and
the information included in the Registration Statement in response to
Item 10 (insofar as it relates to such counsel) of Form S-3 is to the
best of such counsel's knowledge an accurate statement of the matter
therein set forth and fairly presents the information called for with
respect to that matter by the Act and the rules and regulations
thereunder.
Such counsel may also state that he has not verified, and is not
passing upon and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained or incorporated
by reference in the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented, other than those mentioned in
subparagraph (vii) above, but such counsel shall confirm that he or
she has, however, participated in reviews and discussions in
connection with the preparation of the Registration Statements, the
Prospectus and the Prospectus as amended or supplemented and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery, and that in the course of such reviews and
discussions no facts came to his or her attention which led him or her
to believe that the Registration Statement or the Prospectus on the
effective date of the Registration Statement, or the Prospectus as
amended or supplemented on the date of such amendment or supplement or
at and as of such Time of Delivery for the Shares (in each case, apart
from the financial statements and other financial data contained or
incorporated by reference therein or omitted therefrom and from any
written information furnished to the Company by any Underwriter
expressly for use in the prospectus as amended or supplemented or any
omission therefrom) contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
In rendering the foregoing opinion, such counsel may rely upon
opinions of local counsel (which may include your counsel)
satisfactory in form and scope to your counsel.
(d) At each Time of Delivery, Deloitte & Touche LLP shall have
furnished you a letter dated such Time of Delivery, to the effect set forth
in Annex I hereto, and
11
as to such other matters as you may reasonably request and in form and
substance satisfactory to you;
(e) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented prior to the date of this
Agreement, there shall not have been any material change in the capital
stock (other than changes in treasury stock within limits, or pursuant to
employee plans, disclosed or incorporated by reference in the Prospectus
prior to the date of this Agreement) or long-term debt of the Company or
any of its subsidiaries or any material change, or any development
involving a prospective material change, in or affecting the financial
position, shareowners' equity or results of operations of the Company and
its subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date
of this Agreement, the effect of which is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of Shares on the terms and in the
manner contemplated in the Prospectus as amended or supplemented in
connection with the Shares;
(f) On or after the date of this Agreement relating to the Shares no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any one of the following statistical rating organizations:
Standard & Poor's Ratings Group, Xxxxx'x Investment Services, Inc. and Duff
& Xxxxxx LLC;
(g) On or after the date of this Agreement there shall not have
occurred any of the following events the effect of which is in your
reasonable judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of Shares
on the terms and in the manner contemplated in the Prospectus as amended or
supplemented in connection with the Shares: (i) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, (ii) a declaration of a banking
moratorium by either Federal or New York State authorities, (iii) a
suspension or halt in trading on the New York Stock Exchange in any
securities of the Company or (iv) a suspension or limitation in trading in
securities generally on the New York Stock Exchange or the establishment of
minimum prices on such Exchange;
(h) The Company shall have furnished or caused to be furnished to you
at each Time of Delivery a certificate or certificates of officers of the
Company satisfactory to you as to the accuracy in all material respects of
the representations and warranties of the Company herein at and as of such
Time of Delivery and as to the performance by the Company in all material
respects of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, and the Company also shall have furnished to you a
certificate of officers of the Company satisfactory to you as to the
matters set forth in subsection (a) of this Section; and
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
business day next succeeding the date of this Agreement.
8.(a) The Company will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under
12
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 in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any amendment or supplement thereto, or arising 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 Underwriter for any legal or other expenses
reasonably incurred by such Underwriter 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 Shares, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
expressly for use in the Prospectus as amended or supplemented relating to such
Shares; provided, further, that if any Preliminary Prospectus, any preliminary
prospectus supplement relating to the Shares, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Shares 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, preliminary prospectus supplement relating to
the Shares, the Prospectus, the Prospectus as amended or supplemented, any other
prospectus relating to the Shares or any amendment or supplement thereto
relating to the Shares, the Company shall not be liable to any Underwriter 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
Underwriter results from the fact that such Underwriter sold Shares 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 relating to the
Shares (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 Shares (excluding documents incorporated by
reference) or any amendment or supplement thereto relating to the Shares
(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 Underwriter prior to the confirmation of such
sale; and provided, further, that the Company shall not be liable to any
Underwriter under this subsection (a) to the extent that any such loss, claim,
damage or liability of such Underwriter results from the use by such Underwriter
of 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 Shares
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
Underwriter uses the Prospectus as amended or supplemented as so further amended
or supplemented.
Each Underwriter acknowledges that the indemnity agreement in this
subsection (a) does not extend to any liability which such Underwriter might
have under Section 5(b)(2) of the Act by reason of the fact that such
Underwriter sold Shares to a person to whom there was not sent or
13
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 Shares (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 Underwriter.
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
Shares (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 an Underwriter until (x) such
Underwriter has received the same or (y) such time after the receipt thereof by
the Representatives as would permit the Representatives with reasonable
diligence to deliver the same to such Underwriter.
(b) Each Underwriter 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 in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, 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 Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
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 the second paragraph of Section 12 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
14
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 8 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 Underwriters of the
Shares on the other from the offering of the Shares 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 Underwriters of the Shares on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. 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 Underwriters 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 Underwriters agree that
it would not be just and equitable if contributions pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters 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 Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter 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 Underwriters of Shares in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions,
15
to each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9.(a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase under this Agreement, you may in your
discretion arrange for you or another party or other parties to purchase such
Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter, you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed period, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for such Shares for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate amount of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate amount of the
Shares, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the amount of Shares which such Underwriter agreed to
purchase under this Agreement and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the amount of Shares which
such Underwriter agreed to purchase under this Agreement) of the Shares of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you or the Company as
provided in subsection (a) above, the aggregate amount of Shares which remains
unpurchased exceeds one-eleventh of the aggregate amount of the Shares, as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement relating to such Shares shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
16
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter with
respect to the Shares except as provided in Section 6 and Section 8 hereof; but,
if for any other reason Shares are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Shares, but the Company
shall then be under no further liability to any Underwriter with respect to such
Shares except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to your address as set forth in this Agreement; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement:
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
MONSANTO COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ Xxxxxxx, Sachs & Co.
------------------------
Xxxxxxx, Xxxxx & Co.
On behalf of each of the Underwriters
SCHEDULE I
NUMBER OF
OPTIONAL SHARES
TOTAL NUMBER TO BE DELIVERED
OF FIRM SHARES IF MAXIMUM
UNDERWRITER TO BE DELIVERED OPTION EXERCISED
----------- --------------- ----------------
Xxxxxxx, Sachs & Co. 8,425,000 919,729
Xxxxxxx Xxxxx Xxxxxx Inc. 8,425,000 919,729
BancBoston Xxxxxxxxx Xxxxxxxx Inc. 350,000 38,208
Bear, Xxxxxxx & Co. Inc. 350,000 38,208
Deutsche Bank Securities Inc. 350,000 38,208
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation 38,208
350,000
X.X. Xxxxxxx & Sons, Inc. 350,000 38,208
EVEREN Securities, Inc. 350,000 38,208
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated 350,000 38,208
X.X. Xxxxxx Securities, Inc. 350,000 38,208
Xxxxxx Xxxxxxx & Co. Incorporated 350,000 38,208
Xxxxxxxx & Co. Inc. 350,000 38,208
Xxxxxxx and X. Xxxxxxxxxxxx, Inc 225,000 24,563
XX Xxxxx Securities Corporation 350,000 38,208
Xxxxxx X. Xxxxx & Co. Incorporated 225,000 24,563
X.X. Xxxxxxxx & Co. 225,000 24,563
Gruntal & Co., L.L.C. 225,000 24,563
Xxxxxx X. Xxxxx & Co., L.P. 225,000 24,563
XxXxxxxx & Company Securities, Inc. 225,000 24,563
Xxxxxxxxx Xxxxxx, LLC 225,000 24,563
Xxxxxx, Xxxxxxxxx & Company, -
Incorporated 225,000 24,563
---------- ---------
Total ...................................... 22,500,000 2,456,250
19
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, Deloitte & Touche
LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review and issued a report in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data, pro
forma financial information and/or condensed financial statements derived
from audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, if any, and copies
of any such report have been furnished to the representatives of the
Underwriters (the "Representatives");
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Board of Directors and the Executive and Finance Committees of
the Company since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
financial position and cash flow included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act as it applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated statements of
income, financial position and cash flow included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(B) any other unaudited income statement data and statement of
financial position items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the
1
audited consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and statement of financial position items
included in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the capital stock
(other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which were
outstanding on the date of the latest statement of financial position
included or incorporated by reference in the Prospectus) or any
increase, excluding those changes due solely to fluctuations in
foreign currency exchange rates, in the consolidated long-term debt or
guaranteed obligations of the Company and its subsidiaries or any
decreases in consolidated net current assets or net assets, in each
case as compared with amounts shown in the latest consolidated
statement of financial position included or incorporated by reference
in the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur,
or, in the case of consolidated long-term debt or guaranteed
obligations, consolidated net current assets or net assets, for
changes decreases or increases, as the case may be, which are less
than $30,000,000, or which are described in such letter; and
(iv) In addition to the audits referred to in their opinions
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraph (iii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain references
to the Company's historical annual ratios of earnings to fixed charges
specified by the Representatives which references are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference) or
in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by reference
in the Prospectus specified by the Representatives, and have compared
certain of such amounts, percentages and financial information contained in
such references with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
2
All references in this Annex I to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter delivered on the
date of the Pricing Agreement for purposes of such letter and to the Prospectus
as amended or supplemented (including the documents incorporated by reference
therein) in relation to the applicable Securities for purposes of the letter
delivered at the Time of Delivery for such Securities.
3
