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[MONSANTO LETTERHEAD]
May 16, 1995
Mr. Bruce P. Bickner
Chairman of the Board and Chief
Executive Officer
DEKALB Genetics Corporation
3100 Sycamore Road
DeKalb, Illinois 60115
Dear Mr. Bickner:
DEKALB Genetics Corporation ("DEKALB") and MONSANTO Company ("MONSANTO") are
interested in considering a potential business transaction with one another.
Accordingly, representatives of DEKALB and MONSANTO have had some preliminary
discussions and plan to have further discussions to explore the possibility of
such a transaction. In connection with such discussions, each party has
disclosed and may from time to time disclose to the other, either orally or in
writing or by inspection or by sample, certain information as to their
respective businesses which would be helpful in evaluating such a possible
transaction. Such information (collectively, "Information") includes or may
include, without limitation, information relating to financial statements,
evaluations, forecasts, plans, programs, customers, plants, equipment and other
assets, products, processes, manufacturing, environmental analyses, sales,
marketing, research and development, intellectual property, patents, technology
and know-how of each party.
We believe that DEKALB and MONSANTO should have an understanding of the terms
and conditions under which any such discussions have been or will be held and
any Information has been or will be disclosed. The purpose of this letter is
to set forth this understanding, as follows:
1. Each party shall disclose to the other only such Information as such
party is legally free to disclose. The disclosure of any Information
has been and shall be solely for the purpose of enabling the parties to
evaluate their respective interest in the possible transaction.
2. Any Information disclosed by a party to the other party shall be
treated and maintained by the receiving party as
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Mr. Bruce P. Bickner
May 16, 1995
Page 2
confidential for a period of ten (10) years from the date of
disclosure. During such period, the receiving party shall not use any
Information disclosed by the other pursuant to this letter for any
purpose other than that stated in paragraph 1 above; and such
Information shall not be directly or indirectly transmitted to or
discussed with any third person or third party (except as provided
herein) without the prior written consent of the disclosing party.
The two preceding sentences shall not apply to any Information which a
receiving party can prove (a) has become part of the public domain
other than by acts or omissions of such receiving party, its employees,
representatives, attorneys, consultants or advisers, (b) has been
furnished or made known to such receiving party by third parties
without restriction on disclosure or use, (c) was in such receiving
party's possession prior to disclosure by the disclosing party and was
not acquired by such receiving party, its employees, representatives,
attorneys, consultants or advisers directly or indirectly from the
disclosing party, or (d) was independently developed by such receiving
party without utilizing Information received from the disclosing party.
No Information obtained by either party or its respective employees,
representatives, attorneys, consultants or advisers shall be deemed to
be in the public domain or in the prior possession of any of the
foregoing merely because it is embraced by more general information in
the public domain or in the prior possession of any of the foregoing.
All Information in whatever form, including, without limitation,
documents, computer programs or tapes, and all drafts, copies or
excerpts, shall at all times be the property of the disclosing party
and shall be returned to the disclosing party promptly upon its
request. Nothing in this letter shall be construed to grant to
either party a license under any patent, trade secret or other
property rights of the other party.
3. Neither party shall have any obligation to commence or continue
discussions or negotiations, to exchange any Information, to reach or
execute any agreement with the other party, to refrain from engaging
at any time in any business whatsoever, or to refrain from entering
into or continuing any discussions, negotiations and/or agreements at
any time with any third party, until a formal written contract is
executed as provided in the first sentence of paragraph 4. Each party
represents and warrants that its entering into or continuing any
discussions or negotiations with the other party, in connection with
the subject matter of this letter, does not and shall not violate any
agreement (whether express, implied or by operation of law) with any
third person or third party.
4. Except for the matters set forth in this letter, neither party shall be
committed or liable in any way with respect to the possible transaction
or the matters discussed unless and until
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Mr. Bruce P. Bickner
May 16, 1995
Page 3
a formal written contract with respect thereto is executed by
appropriate officers of each party pursuant to due authorization,
or subject to due ratification, by their respective Boards of
Directors. Neither party shall have any liability to the other party
in the event that, for any reason whatsoever, no such formal written
contract is executed and if no such formal written contract is
executed, each party warrants and hereby covenants not to bring any
action, suit or proceeding of any nature in any jurisdiction against
the other with regard to the possible transaction or the matters
discussed, except as may be necessary and solely to enforce the
provisions of this letter. Nothing contained in any discussions
between the parties or in any Information disclosed by either party as
contemplated by this letter shall be deemed to constitute a
representation or warranty. Except for the matters expressly specified
in this letter or in any such formal written contract, neither party
shall be entitled to rely on any statement, promise, agreement or
understanding, whether oral or written, or any custom, usage of trade,
course of dealing or conduct.
5. Neither party shall, at any time, without the prior written
consent of the other party, make any announcement, issue any press
release or make any statement to any third person or third party (except
as provided herein) with respect to any of the matters discussed or to
be discussed or otherwise referred to in this letter except as may be
necessary, in the opinion of counsel, to comply with the requirements
of any stock exchange on which the shares of such party may be listed
or of any law, governmental regulation or order.
6. If any claim is made by any broker, finder, investment banker,
investment counselor, consultant, agent or other representative for
fees, commissions or expenses in connection with the possible
transaction referred to in this letter or any of the matters under
discussion by reason of services allegedly rendered to, for or on
behalf of a party, such party shall indemnify and hold harmless the
other party against such claim and any damages and expenses (including,
without limitation, amounts paid in settlement and reasonable
attorneys' fees and expenses) in connection therewith.
7. Information received from a party as contemplated by
this letter may be disclosed by the receiving party to its employees,
representatives, attorneys, consultants, advisers and subsidiaries on a
need to know basis only. Before any such disclosure, the receiving
party shall inform those individuals of the confidential nature of the
Information and the obligations set forth in this letter and take all
steps necessary to insure that they will hold such Information
confidential, use it only as provided hereunder and comply
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Mr. Bruce P. Bickner
May 16, 1995
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individually with all obligations of a party to this letter in
a manner consistent with this letter.
8. Each party confirms that any Information disclosed by the other
party or any discussions held between them relating to the subject
matter of this letter prior to the date of this letter, shall be
subject to and governed by the terms of this letter.
9. This letter is the complete and exclusive statement by DEKALB
and MONSANTO of their understanding in connection with the
discussions and disclosures of Information referred to above and
supersedes all previous or contemporaneous dealings, agreements and
understandings with respect thereto. As used in this letter, employees
of a party hereto shall be deemed to include such party's officers and
directors. To be effective, an amendment, waiver or termination of
this letter or any of its provisions shall be in a document signed by an
authorized representative of each party which specifically states that
it amends, waives or terminates, as the case may be, this letter or
such provision. The obligations set forth in paragraphs 2, 5, 6 and 7
of this letter shall be continuing and shall survive the termination of
any discussions or negotiations between DEKALB and MONSANTO.
Please indicate the agreement of DEKALB to this letter by executing the
enclosed counterpart at the place indicated below and return such counterpart
to me.
Very truly yours,
MONSANTO COMPANY
By R.B. Shapiro
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R.B. Shapiro
Chairman of the Board
and Chief Executive Officer
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN:
DEKALB GENETICS CORPORATION
By Bruce P. Bickner
--------------------------
Bruce P. Bickner
Chairman of the Board and
Chief Executive Officer