Exhibit 10(b)
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EXECUTION COPY
PROTOCOL AGREEMENT
THIS PROTOCOL AGREEMENT, dated as of July 1, 2002 (this
"Protocol Agreement"), by and among Pharmacia Corporation, a Delaware
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corporation, Solutia Inc., a Delaware corporation ("Solutia"), and Monsanto
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Company, a Delaware corporation.
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 Protocol Agreement as "Pharmacia
Corporation" and which is referred to herein as either "Former Monsanto" or
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"Pharmacia," as the context requires), MP Sub, Incorporated ("Merger Sub")
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and Pharmacia & Upjohn, Inc. ("PNU"), the parties agreed that Merger Sub
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would be merged 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 Protocol Agreement as "Monsanto Company" and which is referred to
herein as either "New Monsanto" or "Monsanto") was incorporated as a wholly
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owned subsidiary of Former 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"),
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pursuant to which, among other things, 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, simultaneously with the execution of this
Protocol Agreement, (i) the parties hereto entered into a certain Amendment
to the Distribution Agreement (the "Distribution Agreement Amendment")
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pursuant to which the assignment from Pharmacia to New Monsanto of certain
assets and liabilities contemplated pursuant to the Separation Agreement
(including the Distribution Agreement) was effectuated and the relationship
among the parties was preserved as nearly as possible with the original
intent and terms of the Distribution Agreement and (ii) Pharmacia and New
Monsanto entered into that certain First Amendment to the Separation
Agreement (the "Separation Agreement Amendment") subject to New Monsanto
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obtaining approval thereof from the Special Committee of its Board of
Directors ("New Monsanto Special Committee");
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WHEREAS, pursuant to the Distribution Agreement, as
amended by the Distribution Agreement Amendment (the "Amended Distribution
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Agreement"), Solutia agreed, among other things, to indemnify, defend and
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hold harmless the Monsanto Group (as defined in the Amended Distribution
Agreement) from and against all Chemical Liabilities;
WHEREAS, pursuant to its obligations under the Amended
Distribution Agreement, Solutia has agreed to and has been defending
Pharmacia in connection with Sabrina Abernathy, et al. v. Monsanto Company,
et al., Case No. CV01832 (the "Litigation");
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WHEREAS, a jury verdict has been returned in the
Litigation with respect to the liability of Solutia and Pharmacia with
respect to certain claims at issue in the Litigation and proceedings have
commenced to determine the jury's verdict of damages on account of such
liability;
WHEREAS, pursuant to the Amended Distribution Agreement,
Solutia is obligated, among other things, to post a bond in the Litigation
in order to stay execution of any judgment against Solutia and/or Pharmacia
pending appeal of any judgment (each, an "Appeal");
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WHEREAS, Solutia has requested that Pharmacia commit to
posting a bond required to stay execution of any judgment in the Litigation
pending an Appeal;
WHEREAS, Pharmacia is willing to use commercially
reasonable efforts to post a bond sufficient to stay the execution of any
judgment against Pharmacia and/or Solutia in the Litigation pending any
Appeal, upon the terms and conditions set forth herein.
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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 Protocol
Agreement and not otherwise defined herein shall have the meaning ascribed
thereto in the Amended Distribution Agreement.
Section 2. This Protocol Agreement is a written, signed
amendment and modification of (i) the Amended Distribution Agreement, in
satisfaction of the requirements of Section 10.06 of the Amended
Distribution Agreement and (ii) only in the event that it is approved by the
Monsanto Special Committee as contemplated in Section 7 below, the Amended
Separation Agreement (as defined below), in satisfaction of the requirements
of Section 11.07 of the Amended Separation Agreement.
Section 3. In the event that Solutia does not, within
5 days of any judgment, post a bond sufficient to stay the execution of any
judgment rendered in the Litigation pending any Appeal, Pharmacia shall post
such bond, provided that Pharmacia is able to obtain a bond upon
commercially reasonable terms for a company of Pharmacia's financial
conditions and resources and provided further that, as conditions precedent:
(i) Solutia and New Monsanto each promptly and fully perform all duties,
fulfill all obligations and meet all requirements set forth herein; and
(ii) Solutia successfully completes the issuance and sale of Senior Secured
Notes (the "Senior Notes") contemplated in Solutia's Preliminary Offering
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Memorandum dated June 18, 2002 ("POM"); and (iii) Solutia completes its
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refinancing plan and the proceeds from the sale of the Senior Notes that
will be held in escrow by SOI Funding Corp. shall have been released to
Solutia (other than in connection with any redemption of the Senior Notes)
as part of Solutia's refinancing plan all upon such terms and conditions
substantially as described in the POM and in all material respects as
described in the Final Offering Memorandum relating to the Senior Notes.
Section 4. Solutia shall provide immediate notice of (and
in no event more than three business days after) any judgment in the
Litigation that may be appealed or that may give rise to a right by a party
to the Litigation to enforce such judgment against Solutia, Pharmacia or any
other person or to execute such judgment against any asset of Solutia,
Pharmacia or any other person.
Section 5. In the event Pharmacia posts a bond pursuant to
Section 3 above, and subject to Section 7 below, the following shall apply:
(a) Solutia shall reimburse or pay directly, and
in no event later than thirty (30) days after receipt of an invoice or bill,
Pharmacia's and/or New Monsanto's Expenses (as defined hereinafter).
"Expenses" means all of Pharmacia's and/or new Monsanto's out-of-pocket
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expenses in connection with obtaining any bond that are incurred no earlier
than forty-five (45) days before the bond is posted, including, without
limitation: (i) the premium due on the bond and/or the fees charged by the
provider of any bond; (ii) the fees and expenses relating to any third-party
credit enhancement related to the bond; (iii) all costs and expenses of
securing Pharmacia's and/or New Monsanto's obligations with respect to the
bond; and (iv) fees and expenses of financial advisors and attorneys
retained by Pharmacia or New Monsanto in
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connection with the foregoing. To the extent Solutia does not reimburse or
pay directly Pharmacia's Expenses in accordance with this Section 5(a), New
Monsanto shall reimburse or pay directly Pharmacia's Expenses within thirty
(30) days after the written notice of Solutia's failure to reimburse or pay
such expenses.
(b) (i) If, pursuant to Section 3 above,
Pharmacia is able to obtain a bond sufficient to stay the execution of any
judgment rendered in the Litigation pending an Appeal without providing or
posting any collateral or third-party credit enhancement ("Collateral"),
then Solutia, New Monsanto and Pharmacia shall have shared control over
decisions to compromise or settle any and all claims at issue, or arguably
at issue, in any Appeal and/or the Litigation. If under this provision
Solutia, New Monsanto and Pharmacia are unable to unanimously agree with
respect to any decision concerning the compromise or settlement of any claim
at issue, or arguably at issue, in any Appeal and/or the Litigation, then
the agreement of any two of the three parties hereto shall be binding upon
all parties hereto. If, pursuant to Section 3 above, Pharmacia is unable to
obtain a bond sufficient to stay the execution of any judgment rendered in
the Litigation pending an Appeal without providing Collateral, then control
over decisions to compromise or settle any and all claims at issue, or
arguably at issue, in any Appeal and/or the Litigation shall be determined
pursuant to Sections 5(b)(ii)-(iv) below.
(ii) If, pursuant to Section 3 above,
Pharmacia is unable to obtain a bond sufficient to stay the execution of any
judgment rendered in the Litigation pending an Appeal without providing
Collateral, then Solutia shall have the first option to provide all
Collateral necessary to obtain the bond as contemplated by Section 3 above.
If Solutia exercises this option and provides all Collateral necessary for
Pharmacia to post the bond, then Solutia shall have sole and exclusive right
to compromise or settle on a commercially reasonable basis all claims at
issue, or arguably at issue, in any Appeal and/or the Litigation and Solutia
need not receive the consent or approval of Pharmacia or New Monsanto to
settle all of the claims at issue, or arguably at issue, in any Appeal
and/or the Litigation, provided that the settlement includes as a term
thereof the delivery by the claimant(s) or plaintiff(s) to Pharmacia of a
written release of Pharmacia, New Monsanto and Solutia from all liability in
respect to the Litigation once payment of the settlement and fulfillment of
any other obligations of the settlement have been effectuated. Solutia shall
nevertheless have a duty of prior consultation with New Monsanto and
Pharmacia concerning any settlement decision as set forth in Section 6
below.
(iii) If, pursuant to Section 3 above,
Pharmacia is unable to obtain a bond sufficient to stay the execution of any
judgment rendered in the Litigation pending an Appeal without providing
Collateral and Solutia does not exercise (or fails to exercise within five
(5) business days after receiving a written request from Pharmacia) its
first option as set forth in Section 5(b)(ii) above, then New Monsanto shall
have the second option to provide all Collateral necessary to obtain the
bond as contemplated by Section 3 above. If New Monsanto exercises this
option and provides all Collateral necessary for Pharmacia to post the bond,
then New Monsanto shall have sole and exclusive right to compromise or
settle on a commercially reasonable basis all claims at issue, or arguably
at issue, in any Appeal and/or the Litigation and New Monsanto need not
receive the consent or approval of Pharmacia or Solutia to settle all of the
claims at issue, or arguably at issue, in any Appeal and/or the Litigation,
provided that the settlement includes as a term thereof the delivery by the
claimant(s) or plaintiff(s) to Pharmacia and Solutia of a written release of
Pharmacia, New Monsanto and Solutia from all liability in
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respect to the Litigation once payment of the settlement and fulfillment of
any other obligations of the settlement have been effectuated. New Monsanto
shall nevertheless have a duty of prior consultation with Solutia and
Pharmacia concerning any settlement strategies or decision as set forth in
Section 6 below.
(iv) If, pursuant to Section 3 above,
Pharmacia is unable to obtain a bond sufficient to stay the execution of any
judgment rendered in the Litigation pending an Appeal without providing
Collateral and neither Solutia nor Monsanto exercises (or if both fail to
exercise their respective options within five (5) business days after
receiving a written request from Pharmacia) its option as set forth in
Section 5(b)(ii) and (iii) above, then Pharmacia shall provide the
Collateral necessary to obtain the bond as contemplated by Section 3 above.
In such case, Pharmacia shall have sole and exclusive right to compromise or
settle on a commercially reasonable basis any and all claims at issue, or
arguably at issue, in any Appeal and/or the Litigation and need not receive
the consent or approval of Solutia or New Monsanto to settle all or some of
the claims at issue, or arguably at issue, in any Appeal and/or the
Litigation, provided that the settlement includes as a term thereof delivery
by the claimant(s) or plaintiff(s) to Solutia and New Monsanto of a written
release of Pharmacia, New Monsanto and Solutia from all liability in respect
to the Litigation once payment of the settlement and fulfillment of any
other obligations of the settlement have been effectuated. Pharmacia shall
nevertheless have a duty or prior consultation with New Monsanto and Solutia
concerning any settlement strategies or decision.
(c) In the event that any claims at issue, or
arguably at issue, in any Appeal and/or the Litigation are settled, Solutia
shall pay the full settlement amount and perform any obligations of Solutia
and/or Pharmacia set forth in the settlement agreement. In the event that
any claims at issue are not settled and a final, non-appealable judgment is
entered against Solutia and/or Pharmacia, Solutia shall pay directly and
otherwise fulfill all of Solutia's and Pharmacia's obligations pursuant to
such judgment. To the extent that Solutia fails to promptly and fully meet
its obligations with respect to the payment of any judgment or settlement or
with respect to other obligations arising out of any settlement or judgment
in any Appeal and/or the Litigation, Solutia shall enter into a consent
judgment in favor of Pharmacia and New Monsanto against Solutia in the
amount equal to the amount specified in the judgment or settlement minus any
amount paid by Solutia in satisfaction of the judgment or settlement. To the
extent that Solutia fails to promptly and fully meet its obligations with
respect to the payment of any judgment or settlement or with respect to
other obligations arising out of any settlement or judgment in any Appeal
and/or the Litigation, New Monsanto agrees to pay, perform or discharge such
liabilities and obligations when due and owing pursuant to the terms of the
Separation Agreement, as amended by the Separation Agreement Amendment (the
"Amended Separation Agreement"). To the extent that New Monsanto fails to
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promptly and fully meet its obligations with respect to the payment of any
judgment or settlement when due and owing or with respect to other
obligations arising out of any settlement or judgment in any Appeal and/or
the Litigation, New Monsanto shall enter into a consent judgment in favor of
Pharmacia and against New Monsanto in the amount equal to the amount
specified in the judgment or settlement minus any aggregate amount paid by
Solutia and new Monsanto in satisfaction of the judgment or settlement.
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(d) For purposes of any Appeal and settlement of
any Appeal only, to the extent the rights, duties, commitments and
obligations set forth in this Section 5 of the Protocol Agreement and the
Power of Attorney attached hereto as Exhibit A differ from or conflict with
the rights, duties, commitments and obligations of the parties as set forth
in the Amended Distribution Agreement or in the Amended Separation
Agreement, or any power of attorney granted in connection therewith, the
rights, duties, commitments and obligations in this Section 5 shall
supercede and take precedent over the rights, duties, commitments and
obligations set forth in the Amended Distribution Agreement or the Amended
Separation Agreement, or any power of attorney granted in connection
therewith, as the case may be.
(e) In the event that Solutia files or is subject
to any voluntary or involuntary bankruptcy proceeding, Solutia's rights
hereunder and Solutia's right to defend Pharmacia with respect to any Appeal
and/or the Litigation and the power of attorney with respect thereto
attached hereto as Exhibit A are automatically and immediately revoked. The
parties further agree that consent from relief from any automatic stay under
section 362 of the Untied States Bankruptcy Code is not necessary, but that
should a court rule otherwise, Solutia hereby consents to the entry of an
order granting relief from the stay in order to effectuate this paragraph
and agrees to provide all necessary cooperation. The parties further agree
that the Power of Attorney with respect to any Appeal and/or the Litigation
shall be immediately revoked.
Section 6. The power of attorney attached as
Exhibit 4.03(e) to the Amended Distribution Agreement is hereby revoked and is
of no further force or effect and is replaced by the power of attorney attached
hereto as Exhibit A, which shall be executed by Pharmacia. Pursuant to the
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power of attorney attached hereto as Exhibit A, the prosecution of any
Appeal and continued defense of the Litigation shall be managed by Solutia
at Solutia's expense. Solutia shall report to New Monsanto and Pharmacia all
material developments concerning the Litigation and any Appeal and shall
provide all information and documents reasonably requested by either New
Monsanto or Pharmacia. At their expense, New Monsanto and Pharmacia may
associate with and advise Solutia in the prosecution of any Appeal and
continued defense of the Litigation and Solutia shall allow Pharmacia and
New Monsanto to consult with and advise Solutia in connection with any
decision or strategy in any Appeal and the Litigation. Solutia shall also
fully inform Pharmacia and New Monsanto on an immediate basis and in writing
of any settlement discussions regarding the Litigation and/or any Appeal and
shall, subject to Section 5(b) above, consult fully with Pharmacia and New
Monsanto concerning any settlement strategies or decision.
Section 7. Solutia, Pharmacia and New Monsanto acknowledge
and agree that this Protocol Agreement shall not be enforceable as to New
Monsanto until the earlier of July 11, 2002 or the date upon which the New
Monsanto Special Committee approves of the provisions of this Protocol
Agreement and authorizes New Monsanto's execution of this Protocol
Agreement. In the event that the New Monsanto Special Committee does not
approve the provisions of, and does not authorize New Monsanto's execution
of, this Protocol Agreement on or before July 11, 2002, then Solutia,
Pharmacia and New Monsanto agree that New Monsanto will no longer be deemed
to be a party under this Protocol Agreement and will have no rights or
obligations hereunder, except that New Monsanto shall nevertheless retain
the rights and obligations set forth in Section 5(b)(i) above. Furthermore,
in said event, Solutia and Pharmacia
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agree that, except with respect to Section 5(b)(i) above: (i) all references
to New Monsanto in this Protocol Agreement (as well as any related text)
shall be deemed deleted; (ii) Sections 5(b)(iii), 9 and 12 of this Protocol
Agreement shall be deemed to be deleted in its entirety; (iv) Section 10 of
this Protocol Agreement shall be deemed amended by deleting everything after
the text that reads "including, without limitation, Article IV thereof".
Section 8. Other than as provided herein, neither
Pharmacia, New Monsanto nor Solutia has waived or compromised any of their
respective rights under the Amended Distribution Agreement. In addition, the
running of any limitations on the time for either Pharmacia, New Monsanto or
Solutia to assert any claims related to the Litigation under the Amended
Distribution Agreement is tolled until 120 days after final resolution of
any Appeal.
Section 9. Other than as provided herein, neither
Pharmacia nor New Monsanto has waived or compromised any of their respective
rights under the Amended Separation Agreement. In addition, the running of
any limitations on the time for either Pharmacia or New Monsanto to assert
any claims related to the Litigation under the Amended Separation Agreement
is tolled until 120 days after final resolution of any Appeal.
Section 10. Nothing herein is intended to nor shall be
construed to waive or limit any of the commitments and obligations of
Solutia to Pharmacia, New Monsanto or the Monsanto Group (and each of their
Representatives and Affiliates) set forth in the Amended Distribution
Agreement including, without limitation, Article IV thereof, or to waive or
limit any commitments and obligations of New Monsanto to Pharmacia or the
Pharmacia Group (and each of their Representatives and Affiliates) set forth
in the Amended Separation Agreement including, without limitation, Article
III thereof.
Section 11. Provided that Solutia promptly and fully
complies with, as conditions precedent, the commitments, obligations and
duties set forth above, Pharmacia and New Monsanto each agree that Solutia's
failure to post a bond pending an Appeal does not constitute a breach of
Solutia's commitments and obligations to Pharmacia or New Monsanto under the
Amended Distribution Agreement.
Section 12. Provided that New Monsanto promptly and fully
complies with, as conditions precedent, the commitments, obligations and
duties set forth above, Pharmacia agrees that New Monsanto's failure to post
a bond pending an Appeal does not constitute a breach of New Monsanto's
commitments and obligations to Pharmacia under the Amended Separation
Agreement.
Section 13. Except as otherwise agreed between New
Monsanto and Pharmacia, each party hereto will pay its own costs and
expenses incident to its negotiation and preparation of this Protocol
Agreement, including the fees, expenses and disbursement of its counsel.
Section 14. This Protocol Agreement 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.
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Section 15. This Protocol Agreement may be amended,
modified or supplemented only by a written agreement signed by all of the
parties hereto.
Section 16. This Protocol Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their successors, but neither this Protocol Agreement nor
any of the rights, interests and obligations hereunder shall be assigned by
any party hereto.
Section 17. This Protocol Agreement 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 18. Any provision of this Protocol Agreement 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 Protocol Agreement 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
Protocol Agreement 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
MONSANTO COMPANY,
a Delaware corporation
By: /s/ Hendrick A. Verfaillie
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Name: Hendrick A. Verfaillie
Title: Chairman and Chief Executive
Officer
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
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EXECUTION COPY
EXHIBIT A
FORM OF
POWER OF ATTORNEY: LITIGATION
KNOW ALL MEN BY THESE PRESENTS:
That Pharmacia Corporation, a corporation organized and
existing under the laws of the State of Delaware or the applicable member of
the Monsanto Group ("Pharmacia") has made, constituted and appointed and by
these presents does make, constitute and appoint, Solutia Inc., a
corporation organized and existing under the laws of the State of Delaware
or the applicable member of the Chemicals Group ("Solutia") its true and
lawful agent and attorney, for Pharmacia and in Pharmacia's name, place and
stead, for all purposed with respect to Third Party Claims as to which
Solutia has agreed to indemnify Pharmacia, and such claims against Third
parties which continue to be held by Pharmacia in trust for Solutia, such
Third Party Claims and claims against Third Parties being collectively
referred to herein as "Claims"; and its attorney shall have, subject to the
provisions of the Protocol Agreement, dated July 1, 2002 (the "Protocol
Agreement"), to which this power of attorney is entered, full power and
authorization to take all action with respect to such Claims 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, including without limitation, (i) to represent Pharmacia with
respect to such Claims for so long as such Claims are unresolved; (ii) to
appear in Pharmacia'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 discovery requests, such
as interrogatories or requests for production of documents; (iv) to direct
and accept service of process with respect to such Claims; (v) to execute
and deliver affidavits as may be necessary or desirable with respect to such
Claims; (vi) to agree to and to represent Pharmacia 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 thereof; and
(x) to obtain and post bonds pending appeal; 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.
Pharmacia hereby gives and grants to its said attorney
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.
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 Solutia 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
Solutia shall from time to time think fit.
Unless specifically defined herein, capitalized terms
shall have the meaning defined in the Distribution Agreement, as amended.
The term "Distribution Date" when used herein means
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September 1, 1997.
The term "Governmental Authority" when used herein means
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any federal, state, local, foreign or international court, government,
department, commission, board, bureau, agency, the NYSE, or other
regulatory, administrative or governmental authority.
The term "Third Party" when used herein means any
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individual, partnership, joint venture, corporation, trust, limited
liability company, unincorporated organization or a government or any
department or agency thereof other than Pharmacia or Solutia or their wholly
owned direct or indirect subsidiaries or affiliates.
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. [or the appropriate member of the Chemicals
Group] 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 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 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.
In the event that Pharmacia posts a bond as contemplated
in the Protocol Agreement, this power of attorney shall automatically
terminate without notice, provided, however, this power of attorney may be
renewed for additional thirty (30) day periods at the written request of
Pharmacia.
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
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Solutia as to the Claims which are the subject of this power of attorney,
the identity and authority or 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 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 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. Pharmacia 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
this day of , 2002.
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PHARMACIA CORPORATION
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By:
Title:
ATTEST:
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12
STATE OF NEW JERSEY )
)
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
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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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