Exhibit 2
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EXECUTION COPY
AMENDMENT
TO
DISTRIBUTION AGREEMENT
THIS AMENDMENT TO DISTRIBUTION AGREEMENT, dated as of
July 1, 2002 (this "Amendment"), is made and entered into by and among
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Pharmacia Corporation, a Delaware corporation, Solutia Inc., a Delaware
corporation ("Solutia"), and Monsanto Company, a Delaware corporation.
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W I T N E S S E T H:
WHEREAS, Former Monsanto (as defined below) and Solutia
are parties to that certain Distribution Agreement, dated as of September 1,
1997 (the "Distribution Agreement"), which was entered into in connection
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with the distribution of the common stock of Solutia to the stockholders of
Former Monsanto (the "Solutia Distribution");
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WHEREAS, pursuant to the Distribution Agreement, among
other things, Former Monsanto assigned and transferred the Chemical Assets
(as defined in the Distribution Agreement) to Solutia and Solutia assumed
all of the Chemical Liabilities (as defined in the Distribution Agreement)
of Former Monsanto;
WHEREAS, pursuant to that certain Agreement and Plan of
Merger, dated as of December 19, 1999 (the "Merger Agreement"), by and among
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the former Monsanto Company (which is the Delaware corporation identified in
the introductory paragraph of this Amendment as "Pharmacia Corporation" and
which is referred to herein as either "Former Monsanto" or "Pharmacia," as
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the context requires), MP Sub, Incorporated ("Merger Sub") and Pharmacia &
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Upjohn, Inc. ("PNU"), the parties agreed that Merger Sub would be merged
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with and into PNU with PNU surviving as a wholly owned subsidiary of Former
Monsanto in the merger (the "Merger");
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WHEREAS, on February 9, 2000, the new Monsanto Company
(which is the Delaware corporation identified in the introductory paragraph
of this Amendment as "Monsanto Company" and which is referred to herein as
"New Monsanto") was incorporated as a wholly owned subsidiary of Former
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Monsanto under the name "Monsanto Ag Company;"
WHEREAS, on March 31, 2000, (i) the Merger was effective,
(ii) Former Monsanto changed its name from "Monsanto Company" to "Pharmacia
Corporation," and (iii) New Monsanto changed its name from "Monsanto Ag
Company" to "Monsanto Company;"
WHEREAS, on September 1, 2000, New Monsanto and Pharmacia
entered into certain agreements, including that certain Separation
Agreement, dated as of September 1, 2000
(the "Separation Agreement"), pursuant to which, among other things,
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Pharmacia assigned and transferred certain assets related to its chemicals
and agricultural businesses and certain other assets to New Monsanto and New
Monsanto assumed certain liabilities relating thereto and all liabilities
that were assumed by Solutia or any of its subsidiaries in connection with
the Solutia Distribution to the extent that Solutia fails to pay, perform or
discharge such liabilities;
WHEREAS, on or about October 23, 2000, New Monsanto
completed an initial public offering of its common stock in which New
Monsanto sold approximately 15% of its issued and outstanding shares of
common stock to the public;
WHEREAS, Pharmacia currently owns approximately 84% of the
issued and outstanding shares of common stock of New Monsanto;
WHEREAS, Pharmacia has announced its intention to
distribute its entire ownership interest in New Monsanto to the stockholders
of Pharmacia or could take some other action that will result in Pharmacia
no longer controlling New Monsanto (a "Possible Disposition"); and
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WHEREAS, in light of the Possible Disposition, the parties
hereto desire to enter into this Amendment in order to effectuate the
assignment to New Monsanto of certain assets and liabilities contemplated
pursuant to the Separation Agreement (including the Distribution Agreement)
and preserve the relationship among the parties as nearly as possible with
the original intent and purpose of the Distribution Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained and intending to be legally bound hereby,
the parties hereto agree as follows:
Section 1. Each capitalized term used in this Amendment
and not otherwise defined herein shall have the meaning ascribed thereto in
the Distribution Agreement.
Section 2. The parties hereto hereby agree that
effective as of the date of this Amendment the Distribution Agreement is
hereby amended in accordance with the requirements of Section 10.06 thereof
as follows:
(a) New Monsanto shall be deemed to be and shall be
for all purposes a party to the Distribution Agreement as amended hereby.
(b) All references to "party" or "parties" in the
Distribution Agreement shall include New Monsanto and all such references to
"party" or "parties" in the Distribution Agreement shall be read and
construed in the context that New Monsanto is a party to the Distribution
Agreement (e.g. "both parties" shall be deemed to mean and shall be read as
"all parties").
(c) Subsection 63 of Section 1.01 of the Distribution
Agreement is hereby amended to read in its entirety as follows:
"63. MONSANTO GROUP: Collectively, (i) Pharmacia
Corporation, a Delaware corporation ("Pharmacia"), and its
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Subsidiaries of which Pharmacia directly owns 100% of the
stock or other equity interests entitled to vote on the
election of members to the board of directors or similar
governing body, other than members of the Chemical Group,
and (ii) Monsanto Company, a Delaware corporation
incorporated February 9, 2000 ("New Monsanto"), and its
Subsidiaries of which New Monsanto directly owns 100% of
the stock or other equity interest entitled to vote on the
election of members to the board of directors or similar
governing body."
(d) (i) The term "Monsanto" solely as used in Sections
4.03(a)(i), 4.03(b), 4.03(e), 5.01(c), 5.09, 6.01, 6.06, 6.07 and 7.02(a)
shall mean: "Pharmacia and New Monsanto" or "Pharmacia or New Monsanto," as
the context shall require. Without limiting the generality of the foregoing,
but for purposes of example, with respect to those Sections specified in the
preceding sentence "Monsanto" shall mean "Pharmacia and New Monsanto" in
those contexts where "Monsanto" has a commitment, duty, liability or
obligation and shall mean "Pharmacia or New Monsanto" in those contexts
where "Monsanto" has a right or interest or where Chemicals, Chemicals Group
or any of their respective Affiliates, Representatives or agents has a
commitment, duty, liability or obligation.
(ii) For purposes of clarity, the term "Monsanto"
solely as used in Articles I, II, III, VIII and IX and Sections 4.03(a)(ii),
4.03(a)(iii), 5.01(b), 5.01(d), 5.01(e), 5.03, 5.04, 5.05, 5.10, 10.01,
10.03 and 10.12 shall not be affected by this Section 2(d) (i.e. shall
continue to refer exclusively to Former Monsanto (now Pharmacia)).
(iii) Nothing in this Section 2(d) is intended to
limit or otherwise affect the provisions of Sections 2(a) or (b) of this
Amendment.
(e) Section 10.05 of the Distribution Agreement is
hereby amended to read in its entirety as follows:
"10.05 Notices. All notices, requests, claims, demands and
other communications hereunder (collectively, "Notices")
shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery
in person, by cable, telegram, facsimile, electronic mail
or other standard form of telecommunications (provided
confirmation is delivered to the recipient the next
Business day in the case of facsimile, electronic mail or
other standard form of telecommunications) or by
registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to Pharmacia: Christopher Coughlin
Executive Vice President and CFO
Pharmacia Corporation
100 Route 206 North
Peapack, New Jersey 07977
Telephone: 908-901-8826
Facsimile: 908-901-0000
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with a copy to: General Counsel
Pharmacia Corporation
100 Route 206 North
Peapack, New Jersey 07977
Telephone: 908-901-8810
Facsimile: 908-901-1810
If to Chemicals: President
Solutia Inc.
P.O. Box 66760
St. Louis, MO 63166-6760
Telephone: 314-674-2210
Facsimile: 314-674-8425
with a copy to: General Counsel
Solutia Inc.
P.O. Box 66760
St. Louis, MO 63166-6760
Telephone: 314-674-3586
Facsimile: 314-674-2721
If to New Monsanto: Terrell K. Crews
Executive Vice President and CFO
800 North Lindbergh Blvd.
St. Louis, Missouri 63167
Telephone: 314-694-3770
Facsimile: 314-694-4772
with a copy to: Charles W. Burson
Executive Vice President,
Secretary and General Counsel
800 North Lindbergh Blvd.
St. Louis, Missouri 63167
Telephone: 314-694-8418
Facsimile: 314-694-6399
or to such other address as any party hereto may have
furnished to the other parties by a notice in writing in
accordance with this Section 10.05."
(f) Section 10.07 of the Distribution Agreement is
hereby amended by inserting the following sentence immediately after the
first sentence of Section 10.07:
"Notwithstanding the immediately preceding sentence,
(i) Pharmacia may assign this Agreement and any of its
rights, interests and obligations hereunder without the
consent of any other party hereto, provided that
Pharmacia shall continue to be
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and remain primarily liable for all of its obligations
under this Agreement, and (ii) New Monsanto may assign
this Agreement and any of its rights, interests and
obligations hereunder without the consent of any other
party hereto to any Person who is a successor to New
Monsanto (by way of merger, consolidation or otherwise) or
who assumes all of New Monsanto's obligations under that
certain Separation Agreement, dated September 1, 2000, by
and between Pharmacia and New Monsanto in accordance with
the terms thereof, provided that New Monsanto shall
continue to be and remain primarily liable for all of its
obligations under this Agreement."
Section 3. Pharmacia agrees to execute and deliver to
New Monsanto contemporaneously herewith, the Power of Attorney attached
hereto as Exhibit A (the "Monsanto Power of Attorney").
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Section 4. New Monsanto hereby acknowledges and accepts
the appointment as Pharmacia's agent and attorney as provided in the
Monsanto Power of Attorney and agrees to undertake and perform in a
commercially reasonable manner on behalf of Pharmacia and in Pharmacia's
name, place and stead, all of Pharmacia's commitments, duties, liabilities
and obligations under the Distribution Agreement and to use its commercially
reasonable efforts to fully enforce all of Pharmacia's rights, interests and
remedies under the Distribution Agreement, in each case with the same duty
of care and prudence that its applies to the management of New Monsanto's
own affairs, in accordance with the terms of this Amendment and the Monsanto
Power of Attorney.
Section 5. Solutia hereby acknowledges and consents to
Pharmacia's appointment of New Monsanto as Pharmacia's agent and attorney as
provided in the Monsanto Power of Attorney for all purposes under the
Distribution Agreement. Notwithstanding the foregoing, Pharmacia shall
continue to be and remain primarily liable for all of its commitments,
duties, liabilities and obligations under the Distribution Agreement.
Section 6. New Monsanto agrees to execute and deliver to
Solutia contemporaneously herewith, the Power of Attorney attached hereto as
Exhibit B (the "Solutia Power of Attorney").
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Section 7. Solutia hereby acknowledges and accepts the
appointment as New Monsanto's agent and attorney as provided in the Solutia
Power of Attorney.
Section 8. Provided that Pharmacia shall continue to be
and remain primarily liable for all of its obligations under the Assigned
Agreements, Solutia hereby consents and agrees to the assignment by any
Person in the Monsanto Group or any of their respective Subsidiaries (each,
an "Assignor") to New Monsanto of any and all contracts, leases, licenses,
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agreements or other instruments by, between or among any Assignor and any
Person in the Chemicals Groups or any of their respective Subsidiaries (the
"Assigned Agreements"), excluding only those contracts, leases, licenses,
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agreements and other instruments set forth in Exhibit C attached hereto. In
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addition, Solutia hereby consents and agrees to the further
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assignment (and any subsequent assignment) of any Assigned Agreement to each
and every subsequent New Monsanto Successor (as defined below), provided
that New Monsanto and Pharmacia shall continue to be and remain primarily
liable for all of its obligations under the Assigned Agreements.
Furthermore, to the extent that any Assigned Agreement contains any
provision requiring the consent or approval of Solutia to any change of
control or ownership of the other party to the Assigned Agreement (or such
party's successor or assign), Solutia hereby irrevocably grants such consent
or approval for any such change of control or ownership, including in
connection with the Possible Disposition or otherwise. For purposes of this
Amendment, "New Monsanto Successor" means any Person who is a successor to
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New Monsanto (by way of merger, consolidation or otherwise) or who assumes
all of New Monsanto's obligations under the Separation Agreement. Pharmacia
and New Monsanto each hereby consents and agrees to the assignment (and any
subsequent assignment) of any Assigned Agreement by Solutia to any Person
who is a successor to Solutia (by way of merger, consolidation or otherwise)
or who assumes all of Solutia's obligations under the Distribution
Agreement, as amended by this Amendment to Distribution Agreement, provided
that Solutia shall continue to be and remain primarily liable for all of its
obligations under the Assigned Agreements.
Section 9. Nothing in the Distribution Agreement, as
amended by this Amendment, and no action taken by the parties pursuant to
the Distribution Agreement, as amended by this Amendment, shall constitute,
or be deemed to constitute, any of the parties to be a partnership,
association, joint venture or other co-operative entity.
Section 10. Except as expressly modified and amended
hereby, the Distribution Agreement shall continue to be and shall remain in
full force and effect in accordance with its terms.
Section 11. Except as otherwise agreed to by any parties
hereto, each party hereto will pay all costs and expenses incident to its
negotiation and preparation of this Amendment, including the fees, expenses
and disbursement of its counsel.
Section 12. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware (other than
the laws regarding choice of laws and conflicts of laws) as to all matters,
including matters of validity, construction, effect, performance and
remedies.
Section 13. This Amendment may be amended, modified or
supplemented only by a written agreement signed by all of the parties
hereto.
Section 14. This Amendment and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto
and their successors and permitted assigns. Pharmacia may assign this
Amendment and any of its rights, interests and obligations hereunder without
the consent of any other party hereto, provided that Pharmacia shall
continue to be and remain primarily liable for all of its obligations under
this Amendment. New Monsanto may assign this Amendment and any of its
rights, interests and obligations hereunder without the consent of any other
party hereto to any New Monsanto Successor; provided, however, that any such
successor or assignee shall be required to execute and deliver a power of
attorney
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substantially identical to the Monsanto Power of Attorney or Solutia Power
of Attorney, as the case may be, and; provided further, that New Monsanto
and Pharmacia shall continue to be and remain primarily liable for all of
its obligations under this Amendment. Solutia may assign this Amendment and
any of its rights, interests and obligations hereunder without the consent
of any other party hereto, provided that Solutia shall continue to be and
remain primarily liable for all of its obligations under this Amendment.
Section 15. Each of the parties hereto agrees to use its
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by and the
intent and purposes of this Amendment, including, without limitation, the
provisions of Section 7 and Section 13.
Section 16. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 17. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any
such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Each party acknowledges that money damages would be an inadequate remedy for
any breach of the provisions of this Amendment and agrees that the
obligations of the parties hereunder shall be specifically enforceable.
[SIGNATURE PAGE IS NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
PHARMACIA CORPORATION,
a Delaware corporation
By: /s/ Richard T. Collier
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Name: Richard T. Collier
Title: SVP & General Counsel
SOLUTIA INC.,
a Delaware corporation
By: /s/ Robert A. Clausen
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Name: Robert A. Clausen
Title: Sr VP and Chief Financial
Officer
MONSANTO COMPANY,
a Delaware corporation
By: /s/ Hendrick A. Verfaillie
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Name: Hendrick A. Verfaillie
Title: Chairman and Chief
Executive Officer
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EXHIBIT A
PHARMACIA CORPORATION
POWER OF ATTORNEY: DISTRIBUTION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
1. Subject to paragraph 7 below:
a. That Pharmacia Corporation, a corporation
organized and existing under the laws of the State of Delaware
("Pharmacia"), has made, constituted and appointed and by these presents
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does make, constitute and appoint, Monsanto Company, a corporation organized
and existing under the laws of the State of Delaware ("New Monsanto"), its
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true and lawful agent and attorney, for Pharmacia and in Pharmacia's name,
place and stead, for all purposes with respect to Pharmacia's rights, duties
and obligations under the Distribution Agreement, dated as of September 1,
1997, between Pharmacia and Solutia Inc., as amended by that Amendment to
Distribution Agreement of even date herewith among Pharmacia, Solutia and
New Monsanto (collectively, the "Distribution Agreement"); and its attorney
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shall have full power and authorization to take all action with respect to
the Distribution Agreement as Pharmacia can take and which said attorney,
acting through its officers or their delegates, who in each case, acting
alone, in his or her sole discretion, think best; hereby giving and granting
to Pharmacia's said attorney full power and authority to do and perform all
and every act and thing whatsoever necessary to be done in the premises as
fully to all intents and purposes as Pharmacia might or could do, hereby
ratifying and confirming all that its said attorney may do pursuant to this
power.
b. Pharmacia hereby gives and grants to its said
attorney from and after the date hereof, full power and authority to do and
perform all and every act and thing whatsoever necessary to be done in the
premises, in order fully to carry out and effectuate the authority herein
granted, as fully to all intents and purposes as Pharmacia might or could do
if acting through its own officers or delegates, and Pharmacia hereby
ratifies and confirms all that its said attorney may do pursuant to this
power.
c. Pharmacia hereby acknowledges that this power is
coupled with an interest and hereby directs that, to the extent authorized
or permitted by applicable law, this power of attorney shall not be affected
by any merger, reverse merger, consolidation or Possible Disposition or
other change in ownership of Pharmacia or New Monsanto. It is Pharmacia's
intent that the authority conferred hereby shall be exercisable
notwithstanding such corporate changes and that this power of attorney
shall, if permitted by applicable law or applicable contract, be
irrevocable. In the event applicable law in effect at or any time after the
execution of this instrument does not authorize or permit the foregoing
direction to be effective, and if at
any later date, applicable law changes (whether by amendment, court
decision, or otherwise), then Pharmacia directs that the foregoing
provisions shall thereafter become applicable.
2. Notwithstanding paragraph 6 below, all persons
dealing with Pharmacia's said attorney shall be protected in relying upon a
copy of this instrument and shall be protected in relying upon the written
certificate of New Monsanto as to the identity and authority of its officers
and their delegates, and/or as to whether any of the persons authorized to
act hereunder is unavailable so to act, so as to authorize some other person
to act hereunder, and Pharmacia hereby declares that as against it and all
persons claiming under it everything which its attorney shall do or cause to
be done pursuant hereto shall be valid and effectual in favor of any person
claiming the benefit hereof who at the time of the doing thereof shall have
relied upon any such certification made by New Monsanto. If required by
applicable law or if New Monsanto desires for any reason to do so, an
executed copy of this Power of Attorney shall be filed for record with any
Governmental Authority or such other place as required by law or where New
Monsanto thinks best. Pharmacia authorizes New Monsanto to make all such
filings.
3. Pharmacia hereby further authorizes and empowers
its said attorney to substitute and appoint in the place and stead of its
said attorney, or to employ agents or sub-agents as New Monsanto thinks
best, one or more attorney or attorneys to exercise for Pharmacia as its
attorney or attorneys any and all of the powers and authorities hereby
conferred; and to revoke such appointment or appointments from time to time,
and to substitute or appoint any other or others in the place of such
attorney or attorneys as New Monsanto shall from time to time think fit.
4. All references in this document to "its attorney"
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or "its said attorney" or "its true and lawful attorney," or similar
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designations shall refer to New Monsanto and each and every person to whom
New Monsanto delegates such power and also to each and every substitute or
successor attorney-in-fact appointed under the terms of this instrument as
herein provided.
5. All references in this document to "its attorney"
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or "its said attorney" or "its true and lawful attorney," or similar
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designations shall refer not only to New Monsanto or its delegates but also
to each and every substitute or successor attorney-in-fact appointed under
the terms of this instrument as herein provided.
6. All references in this document to "Governmental
Authority" shall mean any federal, state, local, foreign or international
court, government department, commission, board, bureau, agency, the New
York Stock Exchange, or other regulatory, administrative or governmental
authority.
7. Notwithstanding the appointment by Pharmacia of
New Monsanto as Pharmacia's agent and attorney as provided in paragraph 1
above, Pharmacia and its said attorney agree as follows:
a. Said attorney shall not take any action, or omit
to take any action, pursuant to this instrument with respect to Pharmacia's
rights, duties or obligations under Sections
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4.03(a), 5.01(d), 5.01(e), 5.04, 5.05 or 5.10 or Article IX of the
Distribution Agreement (the "Reserved Provisions"), except pursuant to the
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prior written instructions of Pharmacia.
b. In the event that said attorney believes that it
is necessary, desirable or advisable that Pharmacia take any action under
any of the Reserved Provisions, said attorney will notify Pharmacia thereof;
provided, however, that said attorney shall have no responsibility or
liability for any failure to give any such notice to Pharmacia.
c. Pharmacia shall provide said attorney with such
written instructions as soon as reasonably practicable and said attorney
shall have no responsibility or liability (i) for not acting on behalf of
Pharmacia unless and until so instructed by Pharmacia and (ii) for acting on
behalf of Pharmacia in accordance with such written instructions.
d. Pharmacia shall have the right, in its sole
discretion, to revoke this Power of Attorney, by delivering written notice
to New Monsanto upon any breach by New Monsanto of its commitments, duties
or obligations under any of (i) this Power of Attorney, (ii) the Distribution
Agreement, as amended by the Amendment to the Distribution Agreement, or
(iii) the Separation Agreement, as amended from time to time.
8. This instrument may be executed in any number of
counterparts, and all of said counterparts shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this day of , 2002.
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PHARMACIA CORPORATION
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By:
Title:
ATTEST:
- ------------------------------------
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STATE OF )
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)
COUNTY OF )
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On this day of , 2002, before me
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the undersigned, a Notary Public, in and for the County and State aforesaid,
personally appeared , to me known to be the
-------------------------------
person described in and who executed the foregoing instrument, and
acknowledged that he/she executed the same as his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in , the day and year last above
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written.
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Notary Public in and for said County and State
My Commission expires:
- -----------------------------
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EXHIBIT B
MONSANTO COMPANY
POWER OF ATTORNEY: LITIGATION/CLAIMS
KNOW ALL MEN BY THESE PRESENTS:
That from and after the date hereof ("Effective Date"),
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Monsanto Company, a corporation organized and existing under the laws of the
State of Delaware ("New Monsanto") has made, constituted and appointed, and
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by these presents does make, constitute and appoint, Solutia Inc., a
corporation organized and existing under the laws of the State of Delaware
("Solutia"), its true and lawful agent and attorney, for New Monsanto and in
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New Monsanto's name, place and stead, for all purposes with respect to Third
Party Claims as to which Solutia has agreed to indemnify New Monsanto, and
such claims against Third Parties which continue to be held by New Monsanto
in trust for Solutia, such Third Party Claims and claims against Third
Parties being collectively referred to herein as "Claims"; and its attorney
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shall have full power and authorization to take all action with respect to
such Claims as New Monsanto can take and which said attorney, acting through
its officers or their delegates, who in each case, acting alone, in his or
her sole discretion, think best, including without limitation, (i) to
represent New Monsanto with respect to such Claims for so long as such
Claims are unresolved; (ii) to appear in New Monsanto's name and to execute,
deliver and file all pleadings, motions and other filings, at trial, on
appeal, or in a proceeding, through counsel retained by Solutia or by
officers of Solutia or their delegates, acting alone, or otherwise; (iii) to
assert or waive any or all rights with respect to such Claims; (iv) to
engage in all phases of discovery with respect to such Claims, including
without limitation, to take depositions, defend depositions and propound or
respond to other discover requests, such as interrogatories or requests for
production of documents; (v) to direct and accept service of process with
respect to such claims; (vi) to execute and deliver affidavits as may be
necessary or desirable with respect to such Claims; (vii) to agree to and to
represent New Monsanto in alternative resolution proceedings, including
arbitration or mediation of Claims; (viii) to discuss or negotiate
settlement agreements and releases with Third Parties with respect to such
Claims on such terms and conditions as Solutia thinks best; (ix) to execute,
deliver and if needed, file any and all settlement agreements, releases and
other agreements, documents and instruments as may be required and any and
all modifications thereto; and (x) to obtain and post bonds pending appeal;
hereby giving and granting to New Monsanto's said attorney full power and
authority to do and perform all and every act and thing whatsoever necessary
to be done in the premises as fully to all intents and purposes as New
Monsanto might or could do, hereby ratifying and confirming all that its
said attorney may do pursuant to this power.
New Monsanto hereby gives and grants to its said attorney
from and after the Effective Date, full power and authority to do and
perform all and every act and thing whatsoever necessary to be done in the
premises, in order fully to carry out and effectuate the authority herein
granted, as fully to all intents and purposes as New Monsanto might or could
do if acting through its own officers or delegates, and New Monsanto hereby
ratifies and confirms all that its said attorney may be pursuant to this
power.
New Monsanto hereby further authorizes and empowers its
said attorney from and after Effective Date to substitute and appoint in the
place and stead of its said attorney, or to employ agents or sub-agents as
Solutia thinks best, one or more attorney or attorneys to exercise for New
Monsanto as its attorney or attorneys any or all of the powers and
authorities hereby conferred; and to revoke such appointment or appointments
from time to time, and to substitute or appoint any other or others in the
place of such attorney or attorneys as Solutia shall from time to time think
fit.
The term "Governmental Authority" when used herein means
----------------------
any federal, state, local, foreign or international court, government
department, commission, board, bureau, agency, the New York Stock Exchange,
or other regulatory, administrative or governmental authority.
The term "Third Party" when used hereby means any
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individual, partnership, joint venture, corporation, trust, limited
liability company, unincorporated organization or a Governmental Authority
or any department or agency thereof other than New Monsanto or Solutia and
their respective wholly-owned direct or indirect subsidiaries.
The term "Third Party Claims" when used herein means any
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claim, suit, arbitration, inquiry, proceeding or investigation by or before
any court, any governmental or other regulatory or administrative agency or
commission or any arbitration tribunal asserted by a Third Party.
All references in this document to "its attorney" or
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"its said attorney" or "its true and lawful attorney," or similar designations
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shall refer to Solutia Inc. and each and every person to whom Solutia
delegates such power and also to each and every substitute or successor
attorney-in-fact appointed under the terms of this instrument as herein
provided.
All references in this documents to "its attorney" or
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"its said attorney" or "its true and lawful attorney," or similar designations
----------------- ----------------------------
shall refer not only to Solutia or its delegates but also to each and every
substitute or successor attorney-in-fact appointed under the terms of this
instrument as herein provided.
New Monsanto hereby acknowledges that this power is
coupled with an interest and hereby directs that, to the extent authorized
or permitted by applicable law, this power of attorney shall not be affected
by any merger, reverse merger, split off, spin or consolidation of New
Monsanto or Solutia. It is New Monsanto's intent that the authority
conferred hereby shall be exercisable notwithstanding such corporate changes
and that this power of attorney shall, if permitted by applicable law or
applicable contract, be irrevocable. New Monsanto shall have the right, in
its sole discretion, to revoke this Power of Attorney, by delivering written
notice to Solutia upon any breach by Solutia of its commitments, duties or
obligations under either (i) this Power of Attorney or (ii) the Distribution
Agreement, as amended by the Amendment to the Distribution Agreement. In the
event applicable law in effect at or any time after the execution of this
instrument does not authorize or permit the foregoing direction to be
effective, and if at any later date, applicable law changes (whether by
amendment, court decision, or otherwise), then New Monsanto directs that the
foregoing provisions shall thereafter become applicable.
2
All persons dealing with New Monsanto's said attorney
shall be protected in relying upon a copy of this instrument and shall be
protected in relying upon the written certificate of Solutia as to the
Claims which are the subject of this power of attorney, the identity and
authority of its officers, their delegates and any substitute or successor
appointed pursuant to the terms hereof, and/or as to whether any of the
persons authorized to act hereunder is unavailable so to act, so as to
authorize some other person to act hereunder, and New Monsanto hereby
declares that as against it and all persons claiming under it everything
which its attorney shall do or cause to be done pursuant hereto shall be
valid and effectual in favor of any person claiming the benefit hereof who
at the time of the doing thereof shall have relied upon any such
certification made by Solutia. If required by applicable law or if Solutia
desires for any reason to do so, an executed copy of this Power of Attorney
shall be filed for record with the Governmental Authority wherein the Claim
is pending or such other place as required by law or whether Solutia thinks
best. New Monsanto authorizes Solutia to make all such filings.
This instrument may be executed in any number of
counterparts, and all of said counterparts shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
as of this day of July 11, 2002.
MONSANTO COMPANY
/s/ Hendrick A. Verfaillie
-------------------------------------
By: Hendrick A. Verfaillie
Title: Chairman and Chief Executive
Officer
ATTEST:
/s/ Michael D. Bryan
- ------------------------------------
3
STATE OF MISSOURI )
)
COUNTY OF ST. LOUIS )
On this 11th day of July, 2002, before me the
undersigned, a Notary Public, in and for the County and State aforesaid,
personally appeared Hendrick A. Verfaillie, to me known to be the person
described in and who executed the foregoing instrument, and acknowledged
that he/she executed the same as his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in St. Louis, the day and year last above written.
/s/ Mary Clare Bick
----------------------------------------------
Notary Public in and for said County and State
My Commission Expires:
September 15, 2005
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4
EXHIBIT C
EXCLUDED AGREEMENTS
1. Tax Sharing and Indemnification Agreement by and between Monsanto
Company and Solutia dated as of September 1, 1997.