EXHIBIT A
Form of Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated
as of ____________, 1997 between Pioneer Hi-Bred International,
Inc., an Iowa corporation (the "Company"), and E.I. du Pont de
Nemours and Company, a Delaware corporation (the "Holder").
RECITALS
WHEREAS, the Holder has purchased from the Company
pursuant to an Investment Agreement, dated as of _____________
___, 1997 (the "Investment Agreement"), between the Company and
the Holder, shares of the Company's Series A Convertible
Preferred Stock, par value $.01 per share (the "Series A
Convertible Preferred Stock");
WHEREAS, the parties hereto desire to set forth the
Holder's rights and the Company's obligations with respect to the
registration of the Registrable Securities pursuant to the
Securities Act; and
WHEREAS, the execution and delivery of this Agreement
by the parties hereto is a condition to the obligations of each
of the Company and the Holder under the Investment Agreement;
NOW, THEREFORE, in consideration of the covenants and
agreements of the Holder and the Company contained herein and in
the Investment Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions and Usage.
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As used in this Agreement:
1.1. Definitions.
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"Board" shall mean the Board of Directors of the
Company.
"Class B Common Stock" shall mean the Class B Common
Stock of the Company, if and when authorized and issued to the
Holder.
"Closing" shall mean the closing for the purchase of
the Series A Convertible Preferred Stock pursuant to the
Investment Agreement.
"Closing Date" shall mean the date of the Closing.
"Commission" shall mean the Securities and Exchange
Commission.
"Common Stock" shall mean the Common Stock, par value
$1.00 per share, of the Company.
"Continuously Effective," with respect to a specified
registration statement, shall mean that such registration
statement shall not cease to be effective and available for
transfers of Registrable Securities thereunder for longer than
either (i) any ten (10) consecutive business days, or (ii) an
aggregate of fifteen (15) business days during the period
specified in the relevant provision of this Agreement.
"Demand Registration" shall have the meaning set forth
in Section 2.1(i).
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Investment Agreement" shall have the meaning set forth
in the first Recital to this Agreement.
"Investor Group" shall have the meaning specified in
the Investment Agreement.
"Permitted Holder Group Transferee" shall mean any
wholly owned (other than directors' qualifying shares) United
States subsidiary of the Holder which, at the time of
determination, owns shares of Series A Convertible Preferred
Stock or Class B Common Stock acquired from the Holder during the
term of the Investment Agreement and in accordance with terms
thereof.
"Person" shall mean any individual, corporation,
partnership, limited liability company, joint venture,
association, trust, unincorporated organization or other entity.
"Piggyback Registration" shall have the meaning set
forth in Section 3.
"Register," "registered," and "registration" shall
refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the
Securities Act, and the declaration or ordering by the Commission
of effectiveness of such registration statement or document.
"Registrable Securities" shall mean the Common Stock
issuable upon conversion of the Series A Convertible Preferred
Stock or Class B Common Stock (which conversion shall be deemed
to occur upon the sale of such shares of Series A Convertible
Preferred Stock or Class B Common Stock to the underwriter or
underwriters in connection with any Registration hereunder) which
Series A Convertible Preferred Stock or Class B Common Stock the
Holder, or any Permitted Holder Group Transferee acquires in
accordance with the Investment Agreement and which is owned by
the Holder or such Permitted Holder Group Transferee on the date
of determination; provided, however, that Registrable Securities
shall not include any security of the Company acquired by the
Holder or any member of the Investor Group other than in
accordance with or in violation of the terms of the Investment
Agreement. In the event that the Common Stock is converted into
any other security pursuant to any merger, consolidation,
recapitalization, liquidation or other similar transaction, and
if any securities are distributed in respect of any Registrable
Securities, then all of such securities shall be considered
Registrable Securities for purposes of this Agreement.
"Registration Expenses" shall have the meaning set
forth in Section 7.1.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Shelf Registration" means a Registration Statement
effected pursuant to Section 4.
"Shelf Registration Event" means the receipt by the
Company from the Investor at any time following the occurrence of
a Surviving Change in Control Transaction, a Release Event or a
Trigger Event (each, as defined in the Investment Agreement) of a
written request to file a shelf registration statement in
accordance with Section 4 provided that in no event may the
Investor give such notice at any time that the Total Ownership
Percentage (or percentage ownership of the common equity of any
other company or entity surviving a Surviving Change in Control
Transaction) of the Investor Group is 10% or more. In the event
of a Surviving Change in Control Transaction, or in the event the
Company or other company or entity that survives a Surviving
Change in Control Transaction determines that the provisions of
Section 8.2(b)(i) of the Investment Agreement will not apply to
the Company or such surviving company or entity, references
herein to the Company shall apply to the Company or other entity
surviving such Change in Control Transaction (the "Standstill
Successor") but in the event of any other Change in Control
Transaction, the provisions of Section 4 herein shall terminate.
"Shelf Registration Statement" means a Registration
Statement of the Company filed with the Commission or Form S-3
(or any successor form) for an offering to be made on a
continuous basis pursuant to Rule 415 under the Securities Act
(or any similar rule that may be adopted by the Commission)
covering some or all of the Registrable Securities, as
applicable.
"Transfer" shall mean and include the act of selling,
giving, transferring, creating a trust (voting or otherwise),
assigning or otherwise disposing of (other than pledging,
hypothecating or otherwise transferring as security) (and
correlative words shall have correlative meanings); provided,
however, that any transfer or other disposition upon foreclosure
or other exercise of remedies of a secured creditor after an
event of default under or with respect to a pledge, hypothecation
or other transfer as security shall constitute a "Transfer."
"Underwriters' Representative" shall mean the managing
underwriter, or, in the case of a co-managed underwriting, the
managing underwriter designated as the Underwriters'
Representative by the co-managers.
"Violation" shall have the meaning set forth in Section
8.1.
1.2. Usage.
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(i) References to a Person are also references
to its successors in interest (by means of merger, consolidation
or sale of all or substantially all the assets of such Person or
otherwise, as the case may be) and permitted assigns.
(ii) References to a document are to it as
amended, waived and otherwise modified from time to time and
references to a statute or other governmental rule are to it as
amended and otherwise modified from time to time (and references
to any provision thereof shall include references to any
successor provision).
(iii) References to Sections, unless the context
otherwise requires.
(iv) The definitions set forth herein are
equally applicable both to the singular and plural forms and the
feminine, masculine and neuter forms of the terms defined.
(v) The term "including" and correlative terms
shall be deemed to be followed by "without limitation" whether
or not followed by such words or words of like import.
(vi) The term "hereof" and similar terms refer
to this Agreement as a whole.
(vii) The "date of" any notice or request given
pursuant to this Agreement shall be determined in accordance
with Section 12.2.
Section 2. Demand Registration.
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2.1. (i) At any time after the third anniversary of
the Closing Date, and subject to compliance by the Holder with
the provisions of Section 6 of the Investment Agreement, if the
Holder shall make a written request to the Company, the Company
shall cause to be filed with the Commission a registration
statement, including all exhibits required by the Commission to
be filed therewith (a "Demand Registration Statement") meeting
the requirements of the Securities Act for an underwritten public
offering of Registrable Securities (a "Demand Registration"), and
the Holder shall be entitled to have included therein all or such
number of Registrable Securities as the Holder shall request in
writing; provided, however, that no request may be made pursuant
to this Section 2.1 if within twelve (12) months prior to the
date of such request a Demand Registration Statement pursuant to
this Section 2.1 shall have been declared effective by the
Commission. Any request made pursuant to this Section 2.1 shall
be addressed to the attention of the Secretary of the Company,
and shall specify the number of Registrable Securities to be
registered (which shall be not less than 1,500,000 shares,
provided, however that the Holder may request registration of any
amount of Registrable Securities where the Holder requests
registration (i) of all of its remaining Registrable Securities,
or (ii) pursuant to its last Demand Registration right), the
intended method of distribution thereof and that the request is
for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone
for up to 180 days, but in no event more than 180 days during
any 24 month period and no sooner than 180 days after the end of
any prior postponement under this Section 2.1(ii) or any
holdback period described in the first sentence of Section 9.1
the filing of any Demand Registration Statement otherwise
required to be prepared and filed pursuant to this Section 2.1
(or delay seeking effectiveness of a Demand Registration
Statement which has been filed), if the Board determines, in its
reasonable good faith judgment, that such Demand Registration
would materially interfere with, or require premature disclosure
of, any material financing, acquisition, reorganization or other
material transaction involving the Company or any of its
subsidiaries and the Company promptly gives the Holder notice of
such determination.
2.2. Following receipt of a request for a Demand
Registration, the Company shall:
(i) File the Demand Registration Statement with
the Commission as promptly as reasonably practicable, and,
subject to Section 2.1(ii), shall use the Company's commercially
reasonable efforts to have the Demand Registration Statement
declared effective under the Securities Act as soon as
reasonably practicable, in each instance giving due regard to
the need to prepare current financial statements, conduct due
diligence and complete other actions that are reasonably
necessary to effect a registered public offering.
(ii) Use the Company's commercially reasonable
efforts to keep the relevant registration statement Continuously
Effective, if a Demand Registration Statement, for up to 60 days
or until such earlier date as of which all the Registrable
Securities under the Demand Registration Statement shall have
been disposed of in the manner described in the Registration
Statement, or such longer period (but in no event longer than
120 days) as in the judgment of counsel for the underwriters a
prospectus is required by law to be delivered in connection with
sales of Registrable Securities by an underwriter or dealer in
accordance with plan of distribution included in such Demand
Registration Statement. Notwithstanding the foregoing, if for
any reason the effectiveness of a Demand Registration Statement
pursuant to this Section 2 is delayed or suspended or filing of
the Demand Registration Statement or seeking effectiveness
thereof is postponed as permitted by Section 2.1(ii), the
commencement of the foregoing period shall be extended by the
aggregate number of days of such suspension or postponement.
2.3. The Company shall be obligated to effect not more
than six Demand Registrations, subject to the provisions of
Section 4.1. For purposes of the preceding sentence, a Demand
Registration shall not be deemed to have been effected (i) unless
a Demand Registration Statement with respect thereto has become
effective, (ii) if after such Demand Registration Statement has
become effective, such Demand Registration Statement or the
related offer, sale or distribution of Registrable Securities
thereunder is interfered with by any stop order, injunction or
other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to
the Holder and such interference is not thereafter eliminated, or
(iii) if the conditions to closing specified in the underwriting
agreement entered into in connection with such registration are
not satisfied or waived, other than by reason of a failure on the
part of the Holder. If the Company shall have complied with its
obligations under this Agreement, a right to demand a
registration pursuant to this Section 2 shall be deemed to have
been satisfied upon the earlier of (x) the date as of which all
of the Registrable Securities included therein shall have been
distributed pursuant to the Registration Statement, and (y) the
date as of which such Demand Registration shall have been
Continuously Effective for a 60-day period or other period
specified in 2.2(ii) following the effectiveness of such Demand
Registration Statement, provided no stop order or similar order,
or proceedings for such an order, is thereafter entered or
initiated.
2.4. A registration pursuant to this Section 2 shall
be on such appropriate registration form of the Commission as
shall (i) be selected by the Company and be reasonably acceptable
to the Holder, and (ii) permit the distribution of the
Registrable Securities in accordance with the intended method or
methods of distribution specified in the request pursuant to
Section 2.1(i).
2.5. The Holder shall have the right to select the
underwriter or underwriters and manager or managers to administer
such offering; provided, however, that each Person so selected
shall be acceptable to the Company in its reasonable judgment.
2.6. The Company may not include in a Demand
Registration pursuant to Section 2.1 shares of Common Stock for
the account of the Company or any subsidiary of the Company, but
may include shares of Common Stock for the account of any other
person or entity who holds shares of Common Stock; provided,
however, that if the Underwriters' Representative of any offering
described in this Section 2.6 shall have informed the Company in
writing that in its opinion the total number of shares of Common
Stock that the Holder, and any other persons or entities desiring
to participate in such registration intend to include in such
offering is such as to materially and adversely affect the
success or pricing of such offering, then the Company shall
include in such Demand Registration all Registrable Securities
requested to be included in such registration by the Holder
together with up to such additional number of shares of Common
Stock that any other persons or entities entitled to participate
in such registration desire to include in such registration and
that the Underwriters' Representative has informed the Company
may be included in such registration without adversely affecting
the success of pricing of such offering; provided that the number
of shares of Common Stock to be offered for the account of all
such other persons and entities participating in such
registration shall be reduced or limited pro rata in proportion
to the respective number of shares of Common Stock requested to
be registered by such persons and entities to the extent
necessary to reduce the respective total number of shares of
Common Stock requested to be included in such offering to the
number of shares of Common Stock recommended by such
Underwriters' Representative.
Section 3. Piggyback Registration.
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3.1. If at any time after the third anniversary of the
Closing Date, the Company proposes to register (including for
this purpose a registration effected by the Company for the
account of the Company or shareholders of the Company other than
the Holder) shares of Common Stock or securities convertible or
exercisable into shares of Common Stock under the Securities Act
in connection with the public offering solely for cash on Form S-
1, S-2 or S-3 (or any replacement or successor forms) as soon as
practicable (but in not event less than ten (10) business days
prior to the date of filing any related Registration Statement),
the Company shall promptly give the Holder written notice of such
registration (a "Piggyback Registration"). Upon the written
request of the Holder given within 10 days following the date of
such notice, the Company shall use commercially reasonable
efforts to cause to be included in such registration statement (a
"Piggyback Registration Statement," the Shelf Registration
Statement, the Demand Registration Statement and Piggyback
Registration Statement are hereinafter called collectively,
"Registration Statements" and, individually, a "Registration
Statement"), and use its commercially reasonable efforts to cause
to be registered under the Securities Act all the Registrable
Securities that the Holder shall have requested to be registered.
The Company shall have the absolute right to withdraw or cease to
prepare or file any Piggyback Registration Statement for any
offering referred to in this Section 3 without any obligation or
liability to the Holder; provided, that the Company shall
promptly notify the Holder in writing of any such action.
3.2. If the Piggyback Registration Statement relates
to an underwritten offering of Common Stock or securities
convertible or exercisable into shares of Common Stock and if the
Underwriters' Representative of such underwritten offering shall
inform the Company that in its opinion the inclusion in such
underwritten distribution of all or a specified number of such
Registrable Securities or of any other shares of Common Stock
requested to be included would materially and adversely effect
the success or pricing of such offering or of such distribution
by the underwriters, then the Company may, upon written notice to
the Holder, exclude from such underwritten offering (i) in the
event the Piggyback Registration Statement relates to an offering
for the account of the Company, shares of Common Stock requested
to be included by any persons or entities other than the Company,
pro rata in proportion to the respective number of shares of
Common Stock requested to be included by such persons and
entities, to the extent necessary to reduce the respective total
number of shares of Common Stock requested to be included in such
offering to the number of shares of Common Stock recommended by
such Underwriters' Representative and (ii) in the event the
Piggyback Registration Statement relates to an offering for the
account of any person or entity other than the Company,
(A) first, shares of Common Stock requested to be registered for
the account of any persons or entities other than the person or
entity making the initial request for such registration (the
"Requesting Party"), pro rata in proportion to the respective
number of shares of Common Stock requested to be registered by
such other persons and entities to the extent necessary to reduce
the respective total number of shares of Common Stock requested
to be included in such offering to the number of shares of Common
Stock recommended by such Underwriters' Representative,
(B) second, to the extent reduction as a result of clause (A) is
insufficient, shares of Common Stock requested to be registered
for the account of the Company, and (C) third, to the extent
reduction as a result of clauses (A) and (B) is insufficient,
shares of Common Stock requested to be registered for the account
of the Requesting Party.
The Company may decline to file a Piggyback
Registration Statement referred to in this Section 3.2 after
giving notice to the Holder, or withdraw such a Piggyback
Registration Statement after filing, or otherwise abandon any
such proposed underwritten offering; provided that the Company
shall promptly notify the Holder in writing of any such action.
3.3. The Holder may not participate in any
underwritten offering under Section 2.1 or Section 3.1 hereof
unless it completes and executes all customary questionnaires,
powers of attorney, custody agreements, underwriting agreements,
and other customary documents required under the customary terms
of such underwriting arrangements. In connection with any
underwritten offering under Section 2.1, 3.1 or 4.1, each of the
Holder and the Company shall be a party to the underwriting
agreement with the underwriters and may be required to make
certain customary representations and warranties (in the case of
the Holder only as to the Registrable Securities being sold by
the Holder and any Permitted Group Transferee in such
underwritten offering and the plan of distribution thereof) and
provide certain customary indemnifications for the benefit of the
underwriters.
3.4. The Holder shall be entitled to have its
Registrable Securities included in an unlimited number of
Piggyback Registrations pursuant to this Section 3.
Section 4. Shelf Registration.
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4.1. Upon the occurrence of a Shelf Registration
Event, the Company shall file with the Commission as promptly as
practicable, but in no event later than 20 business days after
the Shelf Registration Event, a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by
the Holder and the Permitted Holder Group Transferees from time
to time in accordance with the methods of distribution elected by
the Holder and set forth in such Shelf Registration Statement
and, thereafter, shall use its commercially reasonable efforts to
cause such Shelf Registration Statement to be declared effective
under the Securities Act as promptly as practicable. If, on the
occurrence of a Shelf Registration Event, the Company does not
qualify to file a Shelf Registration Statement, then the Holder
shall be entitled to one additional Demand Registration pursuant
to Section 3, but at any time thereafter that the Company does so
qualify, it shall, as promptly as practicable, file a Shelf
Registration Statement.
4.2. The Company shall use its commercially reasonable
efforts to keep the Shelf Registration Statement continuously
effective in order to permit the prospectus forming part thereof
to be usable by the Holder and the Permitted Holder Group
Transferees for a period ending on the date twenty-four months
(the "Shelf Maintenance Period") after the occurrence of the
Shelf Registration Event (such date to be extended by the
aggregate number of days any Shelf Registration Statement shall
be subject to a Shelf Suspension) or such shorter period as shall
terminate when all the Registrable Securities covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (but in no event prior to the applicable
period referred to in Section 4(3) of the Act and Rule 174
thereunder) (such period being the "Shelf Period").
4.3. The Company shall be entitled to postpone the
filing of any Shelf Registration Statement otherwise required to
be prepared and filed pursuant to this Section 4 (or delay
seeking, or maintaining continued, effectiveness of a Shelf
Registration Statement that has been filed) if the Board
determines in its reasonable good faith judgment, that such Shelf
Registration would materially interfere with, or require
premature disclosure of, any material financing, acquisition,
reorganization or other material transaction involving the
Company or any of its subsidiaries and the Company gives the
Holder notice of such determination (a "Shelf Suspension");
provided, however, that the Company shall not have postponed
pursuant to this Section 4.3, the commencement of the filing of,
delay the seeking the effectiveness of, or suspend the use of any
Shelf Registration Statement otherwise required to be prepared
and filed pursuant to this Section 4, (i) more than 180 days
during the Shelf Maintenance Period, (ii) for a period exceeding
180 days on any one occasion during or (iii) sooner than 90 days
after the end of any prior Shelf Suspension and provided,
further, that the Shelf Maintenance Period shall be extended by
the aggregate number of days of each Shelf Suspension. In the
case of a Shelf Suspension, the notice required above shall
request the Holder to suspend any sale or purchase, or offer to
sell or purchase the Registrable Securities, and to suspend any
sale or purchase, or offer to sell or purchase the Registrable
Securities, and to suspend use of the prospectus related to the
Shelf Registration in connection with any such sale or purchase
or offer to sell or purchase. The Company shall immediately
notify the Holder upon the termination of any Shelf Suspension,
shall amend or supplement the related prospectus, if necessary,
so it does not contain any untrue statement or omission therein
and shall furnish to the holders such numbers of copies of the
prospectus as so amended or supplemental as the Holder may
reasonably request. The Holder will advise the Company by at
least 5 business days' prior written notice if the Holder intends
to make any sale under the Shelf Registration Statement that
would constitute a "distribution" for purposes of Regulation M
under the Securities Act.
4.4. The Holder shall have the right to effect an
underwritten offering covering not fewer than 1,500,000 shares
pursuant to a Shelf Registration (in which case each such
underwritten offering shall constitute a Demand Registration for
purposes of Section 2.3) and to select the underwriter or
underwriters and manager or managers to administer any offering
pursuant to a Shelf Registration; provided, however, that each
Person so selected shall be acceptable to the Company in its
reasonable judgment.
Section 5. Registration Procedures.
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Whenever required under Section 2, Section 3 or Section
4 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as practicable:
5.1. Prepare and file with the Commission a
Registration Statement, including all exhibits required by the
Commission to be filed therewith, with respect to such
Registrable Securities and, subject to Section 2.1 and Section
4.3, use the Company's commercially reasonable efforts to cause
such Registration Statement to become effective; provided,
however, that before filing a Registration Statement or
prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of
the Registration Statement and prior to effectiveness thereof,
the Company shall furnish to counsel for the Holder and
underwriters, copies of all such documents in the form
substantially as proposed to be filed with the Commission at a
reasonable time prior to filing for review and comment by such
counsel.
5.2. Prepare and file with the Commission such
amendments and supplements to such Registration Statement and the
prospectus used in connection with such Registration Statement as
may be necessary to comply with the provisions of the Securities
Act and rules thereunder with respect to the distribution of all
securities covered by such Registration Statement and as may be
reasonably requested by the Holder or necessary to keep such
Registration Statement effective pursuant to Section 2.2(i) and
4.2. If the registration is for an underwritten offering, the
Company shall amend the Registration Statement or supplement the
prospectus whenever required by the terms of the underwriting
agreement. Pending such amendment or supplement the Holder and
all other members of the Investor Group, upon written notice by
the Company, shall cease making offers or Transfers of
Registrable Securities pursuant to the prior prospectus. In the
event that any Registrable Securities included in a Registration
Statement subject to, or required by, this Agreement remain
unsold at the end of the period during which the Company is
obligated to use its commercially reasonable efforts to maintain
the effectiveness of such Registration Statement, the Company may
file a post-effective amendment to the Registration Statement for
the purpose of removing such Securities from registered status.
5.3. Notify the Holder and the Underwriters'
Representative and (if requested) confirm such advise in writing,
as soon as practicable after notice thereof is received by the
Company (i) when the Registration Statement or any amendment
thereto has been filed or becomes effective, the prospectus or
any amendment or supplement to the prospectus included therein
has been filed, and, to furnish the Holder and the underwriters
with copies thereof, (ii) of any request by the Commission for
amendments or supplements to the Registration Statement or the
prospectus included therein or for additional information, (iii)
if at any time the representations and warranties of the Company
contemplated by Section 3.3 cease to be true and correct, and
(iv) of the receipt by the Company of any notification with
respect to the suspension or qualification of the Registrable
Securities for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
5.4. Promptly notify the Holder and the Underwriters'
Representative, if any, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act when
the Company becomes aware of the happening of any event as a
result of which the prospectus included in any Registration
Statement (as then in effect) contains any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein (in the case of the prospectus and any
preliminary prospectus, in light of the circumstances under which
they were made) when such prospectus was delivered not misleading
or, if for any other reason it shall be necessary during such
time period to amend or supplement the prospectus in order to
comply with the Securities Act and, in either case as promptly as
practicable thereafter, prepare and file with the Commission, and
furnish without charge to the Holder and the Underwriters'
Representative, if any, a supplement or amendment to such
prospectus which will correct such statement or omission or
effect such compliance.
5.5. If requested by the Underwriters' Representative
or the Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the Underwriters'
Representative and the Holder agree should be included therein
relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities
being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms
of the underwritten (or best efforts underwritten) offering of
Registrable Securities to be sold in such offering; and make all
required filings of such prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment.
5.6. Cooperate with the Holder and the Underwriters'
Representatives to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denomination and registered
in such names as the Underwriters' Representative may request at
least two business days prior to the sale of Registrable
Securities to the underwriters.
5.7. Cooperate with the Holders in connection with any
filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD"), and otherwise use its best
efforts to comply with the rules, by-laws and regulations of the
NASD as they apply to the registration.
5.8. Furnish to the Holder such numbers of copies of
the Registration Statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary
prospectus and any amendments or supplements thereto, in each
case in conformity with the requirements of the Securities Act
and the rules thereunder, and such other related documents as the
Holder may reasonably request in order to facilitate the
distribution of Registrable Securities owned by the Holder.
5.9. Use the Company's commercially reasonable efforts
(i) to register and qualify the securities covered by such
Registration Statement under such other securities or blue sky
laws of such states or jurisdictions as shall be reasonably
requested by the Underwriters' Representative, and (ii) to obtain
the withdrawal of any order suspending the effectiveness of a
Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of the offer and
transfer of any of the Registrable Securities in any
jurisdiction, at the earliest possible moment; provided, however,
that the Company shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or
jurisdictions.
5.10. In the event of any underwritten offering, enter
into and perform the Company's obligations under an underwriting
agreement (including indemnification and contribution obligations
of underwriters or agents in the form set forth in Section 8), in
usual and customary form, with the managing underwriter or
underwriters of or agents for such offering. The Company shall
also cooperate with the Holder, and the Underwriters'
Representative for such offering in the marketing, and customary
selling efforts relating to the Registrable Securities, including
participating in customary "road show" presentations as may be
reasonably requested by the Underwriters' Representative.
5.11. Promptly notify the Holder of any stop order
issued or threatened to be issued by the Commission in connection
therewith and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered.
5.12. Make available for inspection by the Holder, any
underwriter participating in such offering and the
representatives of the Holder and such underwriter all financial
and other information as shall be reasonably requested by them,
and provide the Holder, any underwriter participating in such
offering and the representatives of the Holder and such
underwriter the reasonable opportunity to discuss the business
affairs of the Company with its principal executives and
independent public accountants who have certified the audited
financial statements included in such registration statement, in
each case all as necessary to enable them to exercise their due
diligence responsibilities under the Securities Act; provided,
however, that information that the Company determines, in its
reasonable and good faith judgment, to be confidential and which
the Company advises such Person in writing, is confidential shall
not be disclosed unless such Person signs a confidentiality
agreement reasonably satisfactory to the Company and the Holder
of Registrable Securities agrees to be responsible for such
Person's breach of confidentiality on terms reasonably
satisfactory to the Company.
5.13. Use the Company's commercially reasonable
efforts to obtain a so-called "comfort letter" from its
independent public accountants, and legal opinions of counsel to
the Company addressed to the Holder, in customary form and
covering such matters of the type customarily covered by such
letters, and in a form that shall be reasonably satisfactory to
the Holder. The Company shall furnish to the Holder a signed
counterpart of any such comfort letter or legal opinion.
Delivery of any such opinion or comfort letter shall be subject
to the recipient furnishing such written representations or
acknowledgments as are customarily provided by selling
shareholders who receive such comfort letters or opinions.
5.14. Provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by
such Registration Statement from and after a date not later than
the effective date of such Registration Statement.
5.15. Use commercially reasonable efforts to cause the
Registrable Securities covered by such Registration Statement to
continue to be listed on all exchanges where the Company's Common
Stock is listed and to be Registered with or approved by such
other United States or state governmental agencies or authorities
as may be necessary by virtue of the business and operations of
the Company to enable the Holder to consummate the distribution
of the Registrable Securities which are included in such
registration.
5.16. Take such other actions as are reasonably
required in order to expedite or facilitate the registration of
Registrable Securities included in such registration.
Section 6. Holder's Obligations.
--------------------
6.1 It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Securities which are
included in such registration that the Holder shall furnish to
the Company such information regarding the Holder and any
participating Permitted Holder Group Transferee, the number of
the Registrable Securities owned by it and any participating
Permitted Holder Group Transferee, and the intended method of
distribution of such Registrable Securities as shall be required
to effect the registration of such Registrable Securities, and to
cooperate with the Company in preparing such registration.
6.2 The Holder agrees, and each Permitted Holder Group
Transferee shall be deemed by acceptance of Registrable
Securities to have agreed, that, upon receipt of any notice of
the Company pursuant to clauses (ii) through (iv) of Section 5.3
and Section 5.4 hereof, the Holder and each Permitted Holder
Group Transferee will discontinue disposition of such Registrable
Securities covered by such Registration Statement until such
Holder's or Permitted Holder Group Transferee's receipt of copies
of the supplemental or amended prospectus contemplated by Section
5.4 hereof, or until advised in writing (the "Advice") by the
Company that the use of the applicable prospectus may be resumed.
If the Company shall give any notice under clauses (ii) through
(iv) of Section 5.3 or Section 5.4 hereof during the period that
the Company is required to maintain an effective Registration
Statement (the "Effectiveness Period"), such Effectiveness Period
shall be extended by the number of days during such period from
and including the date of the giving of such notice to and
including the date when each seller of Registrable Securities
covered by such Registration Statement shall have received (x)
the copies of the supplemental or amended prospectus contemplated
by Section 5.4 (if an amended or supplemental prospectus is
required) or (y) the Advice (if no amended or supplemental
prospectus is required).
Section 7. Expenses of Registration. Expenses in
connection with registrations pursuant to this Agreement shall be
allocated and paid as follows:
7.1. With respect to the first two Demand
Registrations effected pursuant to Section 2 hereof, the Company
shall bear and pay, and with respect to each additional Demand
Registration, the Holder shall bear and pay, all expenses
incurred in connection with any registration, filing, or
qualification of Registrable Securities with respect to such
Demand Registration, including all registration, filing and
National Association of Securities Dealers, Inc. fees, all fees
and expenses of complying with securities or blue sky laws, all
word processing, duplicating and printing expenses, messenger and
delivery expenses, and the reasonable fees and disbursements of
counsel for the Company, and of the Company's independent public
accountants, including the expenses of "cold comfort" letters
required by or incident to such performance and compliance (the
"Registration Expenses"), but in no event shall the Company bear
underwriting discounts and commissions relating to Registrable
Securities or fees and expenses of Holder's counsel (which shall
be paid by the Holder) and provided that the Company shall not be
required to pay for any expenses of any registration begun
pursuant to Section 2 if the registration is subsequently
withdrawn at the request of the Holder (in which case the Holder
shall bear such expense), other than by reason of failure of the
Company to comply with Section 5.12 or if the proviso of such
section becomes applicable unless the Holder agrees that such
withdrawn registration shall constitute one of the Demand
Registrations under Section 2 hereof.
7.2. The Company shall bear and pay all Registration
Expenses incurred in connection with any Shelf Registrations
pursuant to Section 4 and any Piggyback Registrations pursuant to
Section 3 for the Holder, but excluding, incremental registration
and qualification fees and expenses (including underwriting
discounts and commissions relating to Registrable Securities) and
any incremental costs and disbursements (including fees and
expenses of the Holder's counsel) that result from the inclusion
of the Registrable Securities in any Piggyback Registrations
(each of which shall be paid by the Holder).
Section 8. Indemnification; Contribution. If any
Registrable Securities are included in a Registration Statement
under this Agreement:
8.1. To the extent permitted by applicable law, the
Company shall indemnify and hold harmless the Holder and each
Permitted Holder Group Transferee, each Person, if any, who
controls such Holder or Permitted Holder Group Transferee within
the meaning of the Securities Act, and each officer, director,
partner, and employee of the Holder and each Permitted Holder
Group Transferee, and any such controlling Person, against any
and all losses, claims, damages, liabilities and expenses (joint
or several), including reasonable attorneys' fees and
disbursements and expenses of investigation, incurred by such
party pursuant to any actual or threatened action, suit,
proceeding or investigation, or to which any of the foregoing
Persons may become subject under the Securities Act, the Exchange
Act or other federal or state laws, insofar as such losses,
claims, damages, liabilities and expenses arise out of or are
based upon any of the following statements, omissions or
violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue
statement of a material fact contained in such registration
statement, including any preliminary prospectus or final
prospectus contained therein, or any amendments or supplements
thereto;
(ii) 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; or
(iii) Any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any applicable
state securities law or any rule or regulation promulgated under
the Securities Act, the Exchange Act or any applicable state
securities law;
provided, however, that the indemnification required by this
Section 8.1 shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or expense if such settlement
is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage,
liability or expense to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in
conformity with written information furnished to the Company by
the indemnified party expressly for use in connection with such
registration; provided, further, that the indemnity agreement
contained in this Section 8 shall not apply to any underwriter to
the extent that any such loss is based on or arises out of an
untrue statement or alleged untrue statement of a material fact,
or an omission or alleged omission to state a material fact,
contained in or omitted from any preliminary prospectus if the
final prospectus shall correct such untrue statement or alleged
untrue statement, or such omission or alleged omission, and a
copy of the final prospectus has not been sent or given to such
person at or prior to the confirmation of sale to such person if
such underwriter was under an obligation to deliver such final
prospectus and failed to do so. The Company shall also indemnify
underwriters participating in the distribution, their officers,
directors, agents and employees and each person who controls such
persons (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Holder provided,
however, that no such underwriter shall be entitled to
indemnification under this Agreement if such person shall have
entered into a separate underwriting or indemnification agreement
with the Company.
8.2. To the extent permitted by applicable law, the
Holder shall indemnify and hold harmless the Company, each of its
directors, each of its officers who shall have signed the
registration statement, each Person, if any, who controls the
Company within the meaning of the Securities Act, and each
officer, director, partner, and employee of the Company and such
controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint and several), including
reasonable attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which
any of the foregoing may otherwise become subject under the
Securities Act, the Exchange Act or other federal or state laws,
insofar as such losses, claims, damages, liabilities and expenses
arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with information furnished in
writing by the Holder specifically for use in connection with
such registration; provided, further, however, that the
indemnification required by this Section 8.2 shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or expense if settlement is effected without the
consent of the Holder, which consent shall not be unreasonably
withheld; provided, further, however, in no event shall the
liability of the Holder be greater in amount than the dollar
amount of the net proceeds by the Holder upon sale of Registrable
Securities giving rise to such indemnification obligation.
8.3. Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action,
suit, proceeding, investigation or threat thereof made in writing
for which such indemnified party may make a claim under this
Section 8, such indemnified party shall deliver to the
indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the
parties; subject to the rights of an indemnified party to retain
its own counsel as hereinafter provided. The failure to deliver
written notice to the indemnifying party within a reasonable time
following the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party
under this Section 8 but shall not relieve the indemnifying party
of any liability that it may have to any indemnified party
otherwise than pursuant to this Section 8. Any fees and expenses
incurred by the indemnified party (including any fees and
expenses incurred in connection with investigating or preparing
to defend such action or proceeding) owed by the indemnifying
party hereunder shall be paid to the indemnified party, as
incurred, within thirty (30) days of written notice thereof to
the indemnifying party (subject to refund if it is ultimately
determined that an indemnified party is not entitled to
indemnification hereunder). Any such indemnified party shall
have the right to employ separate counsel in any such action,
claim or proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be the expenses
of such indemnified party unless (i) the indemnifying party has
agreed to pay such fees and expenses or (ii) the indemnifying
party shall have failed to promptly assume the defense of such
action, claim or proceeding or (iii) the named parties to any
such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying
party, and such indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to
it which are different from or in addition to those available to
the indemnifying party and that the assertion of such defenses
would create a conflict of interest such that counsel employed by
the indemnifying party could not faithfully represent the
indemnified party (in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the
defense of such action, claim or proceeding on behalf of such
indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such
action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified
parties, unless in the reasonable judgment of such indemnified
party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to
such action, claim or proceeding, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such
additional counsel or counsels).
8.4. If the indemnification required by this Section 8
from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to in this Section 8:
(i) The indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with the
actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to,
among other things, whether any Violation has been committed by,
or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
Violation. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set
forth in Section 8.1 and Section 8.2, any legal or other fees or
expenses reasonably incurred by such party in connection with any
investigation or proceeding; provided, however, that in no event
shall the Holder be required to contribute an amount greater than
the dollar amount of the net proceeds received by the Holder with
respect to the sale of any securities.
(ii) The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section
8.4 were determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable
considerations referred to in Section 8.4(i). No Person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent
misrepresentation.
8.5. If indemnification is available under this
Section 8 the indemnifying parties shall indemnify each
indemnified party to the full extent provided in this Section 8
without regard to the relative fault of such indemnifying party
or indemnified party or any other equitable consideration
referred to in Section 8.4.
8.6. The obligations of the Company, the Holder and
any Permitted Holder Group Transferee under this Section 8 shall
survive the completion of any offering of Registrable Securities
pursuant to a Registration Statement under this Agreement, and
otherwise.
Section 9. Holdback.
--------
9.1 If so requested by the Underwriters'
Representative in connection with an offering of any securities
covered by a registration statement filed by the Company, whether
or not securities of the Holder or any Permitted Holder Group
Transferee are included therein, the Holder shall agree not to
effect or permit any Permitted Holder Group Transferee to effect
any sale or distribution of shares of Common Stock including a
sale pursuant to Rule 144 under the Securities Act (except as
part of such underwritten registration) during the 7-day period
prior to, and during the 90-day period beginning on, the date
such registration statement is declared effective under the
Securities Act by the Commission, provided that the Holder is
timely notified of such effective date in writing by the Company
or such Underwriters' Representative. In order to enforce the
foregoing covenant, the Company shall be entitled to impose stop-
transfer instructions with respect to the Registrable Securities
of the Holder until the end of such period. The restrictions in
this Section 9 are in addition to and not in limitation of the
restrictions on transfer applicable to the Investor Group under
the Investment Agreement. The Holder shall not be subject to the
restrictions set forth in this Section 9.1 for longer than 90
days during any 12 month period.
9.2. If so requested by the Underwriters'
Representative in connection with an offering of any Registrable
Securities, the Company shall agree not to effect any sale or
distribution of shares of Common Stock during the 7-day period
prior to, and during the 90-day period beginning on, the date
such Registration Statement is declared effective under the
Securities Act by the Commission (or, in the case of an
underwriting under the Shelf Registration, the date of the
closing under the underwriting agreement). The Company agrees to
use its commercially reasonable efforts to obtain from each
holder of restricted securities of the Company the same as or
similar to those being registered by the Company on behalf of the
Holder, or any restricted securities convertible into or
exchangeable or exercisable for any of its securities, an
agreement not to effect any sale or distribution of such
securities (other than securities purchased in a public offering)
during any period referred to in this paragraph, except as part
of any such Registration Statement if permitted. Without
limiting the foregoing, if the Company grants any Person (other
than a holder of Registrable Securities) any rights to demand or
participate in a Registration, the Company agrees that the
agreement with respect thereto shall include such Person's
agreement as contemplated by the previous sentence.
Section 10. Amendment, Modification and Waivers;
Further Assurances.
------------------------------------
(i) This Agreement may be amended with the
consent of the Company and the Company may take any action herein
prohibited, or omit to perform any act herein required to be
performed by it, only if the Company shall have obtained the
written consent of the Holder to such amendment, action or
omission to act.
(ii) No waiver of any terms or conditions of this
Agreement shall operate as a waiver of any other breach of such
terms and conditions or any other term or condition, nor shall
any failure to enforce any provision hereof operate as a waiver
of such provision or of any other provision hereof. No written
waiver hereunder, unless it by its own terms explicitly provides
to the contrary, shall be construed to effect a continuing waiver
of the provisions being waived and no such waiver in any instance
shall constitute a waiver in any other instance or for any other
purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to
require full compliance with such provision.
(iii) Each of the parties hereto shall exercise
all such further instruments and documents and take all such
further action as any other party hereto may reasonably require
in order to effectuate the terms and purposes of this Agreement.
The Company shall cause the Standstill Successor to be bound by
the terms of this Agreement.
Section 11. Assignment; Benefit. This Agreement and
all of its provisions hereof shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns; provided, however, that neither
this Agreement nor any of the rights, interests or obligations
hereunder may be assigned or delegated by the Holder to any
Person except a wholly owned direct or indirect subsidiary of the
Holder to whom the Holder shall have transferred all of the
Registrable Securities then owned by the Holder as permitted by,
and subject to the terms of, the Investment Agreement.
Section 12. Miscellaneous.
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12.1 Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and interpreted in accordance
with, the laws of the State of Iowa applicable to contracts made
and to be performed in that state. The parties hereto
irrevocably (a) submit to the exclusive personal jurisdiction of
any state or federal court in the State of Illinois in any suit,
action or other legal proceeding relating to this Agreement;
(b) agree that all claims in respect of any such suit, action or
other legal proceeding may be heard and determined in, and
enforced in and by, any such court; and (c) waive any objection
that they may now or hereafter have to venue in any such court or
that such court is an inconvenient forum.
12.2 Notices. All notices and requests given pursuant
to this Agreement shall be in writing and shall be made by hand-
delivery, first-class mail (registered or certified, return
receipt requested), confirmed facsimile or overnight air courier
guaranteeing next business day delivery to the relevant address
specified below:
(a) If to the Company, to:
Pioneer Hi-Bred International, Inc.
700 Capital Square
Des Moines, Iowa 50309
Attention: General Counsel
Telephone: 515-248-4800
Telecopier: 515-248-4844
With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10044
Attention: Stephen Fraidin, Esq.
Telephone: 212-859-8000
Telecopier: 212-859-4000
(b) If to the Investor, to:
E.I. du Pont de Nemours and Company
Agricultural Products
Barley Mill Plaza #38
P.O. Box 80038
Wilmington, DE 19880-0038
Attention: William F. Kirk,
Vice President and
General Manager
Telephone: 302-774-1000
Telecopier: 302-992-6184
With a copy to:
Skadden, Arps, Slate, Meagher
& Flom, LLP
919 Third Avenue
New York, New York 10022
Attention: Lou R. Kling, Esq.
Telephone: 212-735-3000
Telecopier: 212-735-2000
Except as otherwise provided in this Agreement, the date of each
such notice and request shall be deemed to be, and the date on
which each such notice and request shall be deemed given shall
be: at the time delivered, if personally delivered or mailed;
when receipt is acknowledged, if sent by facsimile; and the next
business day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next business day delivery.
12.3. Entire Agreement; Integration. This Agreement
supersedes all prior agreements between or among any of the
parties hereto with respect to the subject matter contained
herein and therein, and such agreements embody the entire
understanding among the parties relating to such subject matter.
12.4. Injunctive Relief. Each of the parties hereto
acknowledges that in the event of a breach by any of them of any
material provision of this Agreement, the aggrieved party may be
without an adequate remedy at law. Each of the parties therefore
agrees that in the event of such a breach hereof the aggrieved
party may elect to institute and prosecute proceedings in any
court of competent jurisdiction to enforce specific performance
or to enjoin the continuing breach hereof. By seeking or
obtaining any such relief, the aggrieved party shall not be
precluded from seeking or obtaining any other relief to which it
may be entitled.
12.5. Section Headings. Section headings are for
convenience of reference only and shall not affect the meaning of
any provision of this Agreement.
12.6. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original,
and all of which shall together constitute one and the same
instrument. All signatures need not be on the same counterpart.
12.7. Severability. If any provision of this
Agreement shall be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity and enforceability
of the remaining provisions of this Agreement, unless the result
thereof would be unreasonable, in which case the parties hereto
shall negotiate in good faith as to appropriate amendments
hereto.
12.8. Filing. A copy of this Agreement and of all
amendments thereto shall be filed at the principal executive
office of the Company with the corporate records of the Company.
12.9. Termination. This Agreement may be terminated
at any time by a written instrument signed by the parties hereto.
Unless sooner terminated in accordance with the preceding
sentences, this Agreement (other than Section 8 hereof) shall
terminate in its entirety on such date as the Total Ownership
Percentage (as defined in the Investment Agreement) of the Holder
shall be less than 2%, provided that any shares of Common Stock
previously subject to this Agreement shall not be Registrable
Securities following the sale of any such shares in an offering
registered pursuant to this Agreement.
12.10. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, or where any
provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees
(including any fees incurred in any appeal) in addition to its
costs and expenses and any other available remedy.
12.11. No Third Party Beneficiaries. Nothing herein
expressed or implied is intended to confer upon any person, other
than the parties hereto or their respective permitted assigns,
successors, heirs and legal representatives, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement; provided, however, that any Permitted Holder Group
Transferee shall be entitled to any rights, remedies, obligations
or liabilities conferred under or by reason of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties hereto as of the date first written
above.
E.I. DU PONT DE NEMOURS AND COMPANY
By: -----------------------------
Name:
Title:
PIONEER HI-BRED INTERNATIONAL, INC.
By: -----------------------------
Name:
Title: