Exhibit 10.37
REDEMPTION AGREEMENT
dated as of
May 28, 2002
among
D&M International, L.L.C.,
D&PL International Technology Corp.,
Pharmacia Corporation,
solely for the purposes of Section 1.2(c) and Articles II and III hereof,
Monsanto Company,
and,
solely for the purposes of Section 3.2 hereof,
Delta and Pine Land Company
ffny03\sorabwi\458892.8
TABLE OF CONTENTS
Page
ARTICLE I REDEMPTION OF INTERESTS; CLOSING...................................2
1.1. Redemption................................................2
1.2. The Closing; Deliveries...................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES.....................................2
2.1. Representations and Warranties of the Parties.............3
2.2. Representations and Warranties of Pharmacia...............3
2.3. Representations and Warranties of DITC....................4
2.4. Representations and Warranties of New Monsanto............4
ARTICLE III ESCROW AGREEMENT...................................................4
3.1. Escrow Agreement..........................................4
3.2. Good Faith Negotiations...................................5
3.3. Release...................................................5
ARTICLE IV MISCELLANEOUS......................................................5
4.1. Defined Terms; Interpretations............................5
4.2. Survival of Representation and Warranties.................6
4.3. Successors and Assigns....................................6
4.4. Entire Agreement..........................................6
4.5. Notices...................................................7
4.6. Counterparts..............................................8
4.7. Headings..................................................8
4.8. Governing Law.............................................8
4.9. Exclusive Jurisdiction and Consent to Service of Process..8
4.10. Severability..............................................9
Execution Copy
REDEMPTION AGREEMENT
REDEMPTION AGREEMENT (this "Agreement"), dated as of May 28,
2002, among D&M International, L.L.C., a Missouri limited liability company (the
"Company"), D&PL International Technology Corp. (f/k/a D&PL Technology Corp.), a
Delaware corporation ("DITC"), Pharmacia Corporation, a Delaware corporation
("Pharmacia"), solely for purposes of Section 1.2(c) and Articles II and III
hereof, Monsanto Company, a Delaware corporation (including all subsidiaries,
"New Monsanto"), and, solely for purposes of Section 3.2 hereof, Delta and Pine
Land Company, a Delaware Corporation ("DPL"). The Company, DITC, Pharmacia, New
Monsanto and DPL are sometimes hereinafter referred to as the "Parties" and each
is sometimes referred to as a "Party".
W I T N E S S E T H :
WHEREAS, DITC and Pharmacia (formerly known as Monsanto
Company) are parties to that certain Operating Agreement of D&M International,
L.L.C., dated as of March 10, 1995 (the "Operating Agreement"); and
WHEREAS, Pharmacia is the owner and holder of the Interests
(as defined herein), which Interests are held by Pharmacia in trust for the
benefit of New Monsanto; and
WHEREAS, on April 25, 2002, Pharmacia delivered a notice to
DITC that, as a Member (as defined in the Operating Agreement) of the Company,
it intends to rely on Section 9.5 of the Operating Agreement (such notice, the
"Offering Notice"), and on May 10, 2002 (the "Election Date"), in response to
the Offering Notice, DITC delivered a notice to Pharmacia of DITC's election
pursuant to Section 9.5(b)(ii) of the Operating Agreement to cause the Company
to redeem the Interests (as hereinafter defined); and
WHEREAS, Section 9.5(d) of the Operating Agreement provides
that Pharmacia will deliver documents upon the closing of the transactions
contemplated by Section 9.5 of the Operating Agreement conveying the Interests
to the Company free and clear of any liens or encumbrances; and
WHEREAS, as an inducement to the Parties to enter into this
Agreement, DITC, New Monsanto and an escrow agent shall enter into the Escrow
Agreement (as defined herein) to provide for the allocation of funds among the
parties thereto pending the outcome of certain negotiations among the Parties
hereto;
NOW, THEREFORE, for consideration of the promises and the
mutual representations, warranties, covenants and agreements set forth in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
ARTICLE I
REDEMPTION OF INTERESTS; CLOSING
1.1. Redemption. Upon the terms and subject to the conditions
set forth herein, at the Closing, (a) DITC shall pay to the Company by wire
transfer of immediately available funds to an account designated by the Company
prior to the Closing an amount equal to the Purchase Amount; (b) Pharmacia shall
convey all of the Interests to the Company free and clear of any Encumbrances;
and (c) the Company shall (i) redeem all of the Interests and (ii) pay to
Pharmacia by wire transfer of immediately available funds to an account
designated by Pharmacia prior to the Closing an amount equal to $1,351,662.00
(the "Purchase Amount"), which amount the Parties acknowledge is the sum of (i)
the amount Pharmacia would receive if the assets of the Company were sold for
the Specified Dollar Amount (as defined in the Operating Agreement and provided
in the Offering Notice) and the proceeds distributed pursuant to Section 9.2 of
the Operating Agreement (the "Purchase Price"), plus (ii) the interest payable
on the Purchase Price computed at the Prime Rate (as defined in the Operating
Agreement) for the period beginning on the Election Date and ending on the
Closing Date, as provided by Section 9.5(c) of the Operating Agreement (all such
actions collectively, the "Redemption").
1.2. The Closing; Deliveries. (a) The closing of the
Redemption hereunder and any and all other transactions contemplated hereby and
by the Operating Agreement in connection with the Redemption (the "Closing")
shall take place at 5:00 p.m. (local time) on May 28, 2002 (the "Closing Date")
at the office of Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza,
New York, New York 10004.
(b) At the Closing, (i) Pharmacia shall deliver to the Company
certificates, if any, representing the Interests or an assignment document
conveying the Interests as provided herein and (ii) the Secretary of the Company
(or such other employee of the Company as may be designated by the Secretary, an
Assistant Secretary or a Managing Member of the Company) shall register the
Redemption in the transfer records of the limited liability interests of the
Company. The Redemption of the Interests shall be deemed effective as of the
Election Date.
(c) At the Closing, the Company, DITC, Pharmacia and New
Monsanto shall each deliver a secretary's certificate customary for such
transactions, which shall (i) certify that each individual signing on behalf of
such Party is a duly elected officer of such Party and (ii) have attached
thereto (A) a copy of such Party's certificate of incorporation or other
appropriate organizational document certified by the secretary of state of the
state of incorporation or organization of such Party, (B) a true, complete and
correct copy of such Party's bylaws, if applicable, and (C) a true, complete and
correct copy or copies of the resolutions of the board of directors or other
governing body of such Party authorizing the transactions contemplated hereby,
if applicable.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of the Parties. Each
Party hereby represents and warrants to each other Party, severally and
not jointly, as of the date hereof and as of the Closing, as follows:
(a) Organization. Such Party is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has the requisite power and authority to carry
on its business as it is now being conducted.
(b) Due Authorization. Such Party has all right, power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by such Party of this Agreement,
the compliance by such Party with each of the provisions of this Agreement, and
the consummation by such Party of the transactions contemplated hereby (i) are
within the power and authority of such Party and (ii) have been duly authorized
by all necessary action on the part of such Party. This Agreement constitutes a
valid and binding agreement of such Party enforceable against such Party in
accordance with its respective terms, except as such enforcement is limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally and for limitations imposed by general principles of
equity.
(c) Consents; No Violations. Neither the execution, delivery
or performance by such Party of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with, or result in a breach
or a violation of, any provision of (A) the organizational documents of such
Party, (B) the bylaws, if applicable, of such Party or (C) any Law of which such
Party has Knowledge, or (ii) require any consent, approval or authorization of,
notification to, filing with, or exemption or waiver by, any Governmental Entity
or any other Person of which such Party has Knowledge on the part of such Party.
(d) No Effect on License. The Redemption and the other
transactions contemplated hereby (except the License (as defined in the Escrow
Agreement), if executed) shall have no effect on the license between New
Monsanto, on the one hand, and D&M, DITC and DPL, on the other hand, relating to
insect and herbicide tolerance technologies, including, without limitation, the
existence or non-existence of such license, the terms thereof, as evidenced by
the Parties' past conduct and practice, and the payment of accrued technology
fees that may become due and payable thereunder.
2.2. Representations and Warranties of Pharmacia.
Pharmacia hereby represents and warrants to each other Party as of the date
hereof and as of the Closing, as follows:
(a) Pharmacia has good, valid and marketable title to 50.00
percent of the total outstanding membership interests in the Company, which
membership interests were originally issued and conveyed to Old Monsanto (the
"Interests"), subject to its holding the Interests in trust for the benefit of
New Monsanto. The Interests are not subject to any Encumbrance. Pharmacia has
complete and unrestricted power and the unqualified right to convey, sell,
assign, transfer and deliver the Interests to the Company, except as expressly
provided in Section 8.1 of the Operating Agreement, and upon the consummation of
the transactions contemplated hereby, the Company will acquire good and
marketable title to the Interests, free and clear of any and all Encumbrances.
(b) Pharmacia agrees that at no time prior to the Closing
shall it sell, transfer or otherwise dispose of the Interests nor will it agree
to take any of the foregoing actions.
2.3. Representations and Warranties of DITC. DITC hereby
represents and warrants to each other Party as of the date hereof and as of the
Closing, as follows: DITC has available sufficient or committed funds to pay the
Purchase Amount as provided in this Agreement and the Escrow Amount (as defined
in the Escrow Agreement) as provided in the Escrow Agreement.
2.4. Representations and Warranties of New Monsanto.
New Monsanto hereby represents and warrants to each other Party as follows:
(a) As of the date hereof, the Interests are held in trust by
Pharmacia for the benefit of New Monsanto, and, as of the Closing, New Monsanto
will not have any right, title or interest whatsoever in, to or relating to the
Interests.
(b) New Monsanto hereby unconditionally consents to and
acknowledges the Redemption of the Interests held in trust by Pharmacia for its
benefit as contemplated hereby and hereby waives any and all claims and causes
of action New Monsanto has or may have against any Party which may assert or
claim any right, title or interest whatsoever in or to the Interests.
ARTICLE III
ESCROW AGREEMENT
3.1. Escrow Agreement. Each of DITC and New Monsanto shall use
reasonable best efforts to identify and retain an independent escrow agent
reasonably acceptable to DITC and New Monsanto (the "Escrow Agent") as promptly
as possible and shall execute and deliver an escrow agreement among themselves
and the Escrow Agent in the form attached hereto as Exhibit A, which form shall
be changed only as required by the Escrow Agent (the "Escrow Agreement"), and
DITC and New Monsanto hereby agree to be bound thereby notwithstanding any
changes made to the Escrow Agreement at the request of the Escrow Agent or in
connection with the negotiations with such Escrow Agent; provided that if DITC
and New Monsanto are not able to agree upon an independent escrow agent to serve
as the escrow agent under the Escrow Agreement or are unable to agree with the
Escrow Agent on the terms of the Escrow Agreement on or before May 30, 2002,
DITC and New Monsanto hereby consent to have Fried, Frank, Harris, Shriver &
Jacobson ("Fried Frank") serve as the Escrow Agent acting on behalf of both DITC
and New Monsanto and Fried Frank will not request any changes as to the
substance of the Escrow Agreement except to add an acknowledgement of Fried
Frank's representation of DITC. In the event Fried Frank shall serve as the
Escrow Agent, the fees of Fried Frank with respect to such services shall be
paid by DITC. In no event shall the failure of the Parties to enter into any
agreements contemplated by Paragraphs 4 and 5 of the Escrow Agreement be deemed
to nullify, modify or amend this Agreement or the Redemption. All or any portion
of the Escrow Amount (as defined in the Escrow Agreement) released by the Escrow
Agent to New Monsanto shall be deemed to be an adjustment to the purchase price
paid for the Interests for purposes of the accounting treatment thereof and the
Parties hereby agree to account for the payment of such released amounts in
accordance with the same.
3.2. Good Faith Negotiations. (a) Each Party hereby agrees to
use its reasonable best efforts and to negotiate in good faith to reach
agreement with all other relevant Parties and execute all necessary
documentation by June 4, 2002 to satisfy or waive all of the conditions relevant
to such Party set forth in Paragraph 4(a) of the Escrow Agreement. Each of DITC
and New Monsanto hereby agree to deliver the First Satisfaction Notice (as
defined in the Escrow Agreement) to the Escrow Agreement by June 4, 2002 or such
mutually agreed upon later date upon satisfaction or waiver of all of the
conditions set forth in Paragraph 4(a) of the Escrow Agreement.
(b) Each Party hereby agrees to use its reasonable best
efforts and to negotiate in good faith and to cause each of the Existing D&M
Joint Ventures (as defined in the Escrow Agreement) to use its reasonable best
efforts and to negotiate in good faith, to reach agreement with all other
relevant Parties and/or the Existing D&M Joint Ventures and execute all
necessary documentation by June 17, 2002 to satisfy or waive all of the
conditions relevant to such Party set forth in Paragraph 5(a) of the Escrow
Agreement. Each of DITC and New Monsanto hereby agree to deliver the Second
Satisfaction Notice (as defined in the Escrow Agreement) to the Escrow Agreement
by June 17, 2002 or such mutually agreed upon later date upon satisfaction or
waiver of all of the conditions set forth in Paragraph 5(a) of the Escrow
Agreement.
3.3. Release. Pharmacia and New Monsanto hereby waive any and
all claims and causes of action they have or may have against DITC and/or the
Company relating to any operations or practices of the Company that may have
differed from the manner of operations or practices of the Company or either of
the members thereof as provided in the Operating Agreement. DITC and the Company
hereby agree to indemnify, defend and hold harmless Pharmacia and New Monsanto
from any claim, loss, charge, liability, expense, tax, obligation to pay money
or other obligation (each, a "Loss") which may arise out of or relate to any
operations or practices of the Company or DITC that may have differed from the
manner of operations or practices of the Company or either of the members
thereof as provided in the Operating Agreement; provided, however, that neither
DITC nor the Company shall have any obligation to indemnify either Pharmacia or
New Monsanto hereunder for any Loss caused by their gross negligence or their
willful misconduct.
ARTICLE IV
MISCELLANEOUS
4.1. Defined Terms; Interpretations. The following
capitalized terms, as used in this Agreement, shall have the following meanings:
"Capital Lease" shall mean a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Encumbrance" shall mean, with respect to any Person, any
mortgage, lien, pledge, charge, claim, defect, objection, option, proxy, voting
trust, security interest, or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"GAAP" shall mean United States generally accepted accounting
principles.
"Governmental Entity" shall mean any supernational, national,
foreign, federal, state or local judicial, legislative, executive,
administrative or regulatory body or authority.
"Knowledge", with respect to each Party, shall mean the
knowledge of any executive officer of such Party and the knowledge that any of
the executive officers of such Party would have after due and reasonable inquiry
and reasonable investigation.
"Laws" shall mean all foreign, federal, state, and local laws,
statutes, ordinances, rules, regulations, orders, judgments, decrees and bodies
of law.
"Person" shall mean any individual, firm, corporation, limited
liability company, partnership, company, trust or other entity, and shall
include any successor (by merger or otherwise) of such entity.
4.2. Survival of Representation and Warranties. The
representations and warranties of the Parties contained in this Agreement shall
survive the Closing hereunder, and such representations and warranties shall be
unaffected by any investigation, including due diligence, made prior to or
subsequent to the Closing by or on behalf of any Party and shall continue in
full force and effect until the tenth (10th) anniversary of the Closing.
4.3. Successors and Assigns. This Agreement shall bind and
inure to the benefit of the Parties and their respective successors, permitted
assigns, heirs and personal representatives, provided that no Party may assign
its rights or obligations under this Agreement to any Person without the prior
written consent of all other Parties hereto, which consent shall not be
unreasonably withheld or delayed.
4.4. Entire Agreement. This Agreement and the Operating
Agreement contain the entire agreement among the Parties with respect to the
Redemption and supersede all prior and contemporaneous arrangements or
understandings with respect thereto. Notwithstanding anything to the contrary
contained herein, in the Escrow Agreement or in any transaction contemplated
hereby or thereby, none of this Agreement, the Escrow Agreement nor any of the
transactions contemplated hereby or thereby shall preclude or restrict the
Parties in presenting their respective positions with respect to the January 18
Suit (as defined in DPL's Annual Report on Form 10-K for the fiscal year ended
August 31, 2001), including, without limitation, any Party's rights, claims,
allegations, causes of action, defenses, liabilities, damages or rights of
appeal relating to or arising out of the January 18 Suit.
4.5. Notices. All notices, requests, consents and other
communications hereunder to any Party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such Party at the
address set forth below or such other address as may hereafter be designated in
writing by such Party to the other Parties:
(i) if to the Company, to:
D&M International, L.L.C.
One Cotton Row, P.O. Box 157
Scott, Mississippi 38772
Telecopy: (662) 742-3795
Attention: F. Murray Robinson
D&PL International Technology Corp.,
Managing Member
(ii) if to DITC or DPL, to:
c/o D&PL International Technology Corp.
One Cotton Row, P.O. Box 157
Scott, Mississippi 38772
Telecopy: (662) 742-3795
Attention: F. Murray Robinson
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
Telecopy: (212) 859-4000
Attention: Thomas W. Christopher, Esq.
(iii) if to Pharmacia, to:
Pharmacia Corporation
100 Route 206 North
Peapack, New Jersey 07977
Telecopy: (908) 901-1810
Attention: Richard T. Collier
(iv) if to New Monsanto, to:
Monsanto Company
800 North Lindbergh Boulevard
St. Louis, Missouri 63167
Telecopy: (314) 694-1667
Attention: Hugh Grant
with a copy to:
Monsanto Company
800 North Lindbergh Boulevard
St. Louis, Missouri 63167
Telecopy: (314) 694-2816
Attention: Commercial Law Department Head
All such notices, requests, consents and other communications
shall be deemed to have been given or made if and when delivered personally or
by overnight courier to the Parties at the above addresses or sent by electronic
transmission, with confirmation received, to the telecopy numbers specified
above (or at such other address or telecopy number for a Party as shall be
specified by like notice). Any notice delivered by any Party hereto to any other
Party hereto shall also be delivered to each other Party hereto simultaneously
with delivery to the first Party receiving such notice.
4.6. Counterparts. This Agreement may be executed in
any number of counterparts, and each such counterpart hereof shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one agreement.
4.7. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed to be a part of this Agreement.
4.8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MISSOURI WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW, OTHER THAN THE CHOICE OF LAW
PRINCIPLES OF SUCH STATE.
4.9. Exclusive Jurisdiction and Consent to Service of Process.
The Parties agree that any legal action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby (except for
the Escrow Agreement and the transactions contemplated thereby) shall be
instituted in a federal court located in the Eastern District of Missouri, which
shall be the exclusive jurisdiction and venue of said legal proceedings, and
each Party hereby waives any objection which such Party may now or hereafter
have to the laying of venue of any such action, suit or proceeding, and
irrevocably submits to the jurisdiction of such court in any such action, suit
or proceeding. Any and all service of process and any other notice in any such
action, suit or proceeding shall be effective against such Party upon notice to
such party thereof in accordance with the provisions of Section 4.5 hereof.
Nothing contained herein shall be deemed to affect the right of any Party to
serve process in any matter permitted by law. Notwithstanding the foregoing, if
a dispute, controversy or claim arises out of or in connection with this
Agreement, prior to bringing any legal action, suit or proceeding against a
Party, a Party shall attempt in the first instance to resolve such dispute
through consultations; provided, however, that no Party shall be obligated to
engage in consultations pursuant to this sentence for a period in excess of
thirty (30) calendar days.
4.10. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any Party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the Parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
D&M INTERNATIONAL, L.L.C.
By: D&PL International Technology Corp.
Managing Member
By: /s/ Murray Robinson
----------------------------------------------
Name: F. Murray Robinson
Title: Chairman
D&PL INTERNATIONAL TECHNOLOGY CORP.
By: /s/ Murray Robinson
----------------------------------------------
Name: F. Murray Robinson
Title: Chairman
PHARMACIA CORPORATION
By: /s/ Don W. Schmitz
----------------------------------------------
Name: Don W. Schmitz
Title: Vice President, Associate
General Counsel and Secretary
For purposes of Section 1.2(c) and Articles II and III hereof
MONSANTO COMPANY
By: /s/ Hugh Grant
----------------------------------------------
Name: Hugh Grant
Title: Executive Vice President and
Chief Operating Officer
For purposes of Section 3.2 hereof
DELTA AND PINE LAND COMPANY
By: /s/ Murray Robinson
----------------------------------------------
Name: F. Murray Robinson
Title: President and Chief Executive Officer