EXHIBIT 4.3
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Registration Rights Agreement
Dated As of August 25, 2005
among
Monsanto Company
and
Banc of America Securities LLC
ABN AMRO Incorporated
Barclays Capital Inc.
Calyon Securities (USA) Inc.
KBC Financial Products USA Inc.
J.P. Morgan Securities Inc.
Citigroup Global Markets Inc.
Rabo Securities USA, Inc.
The Williams Capital Group, L.P.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into this 25th day of August, 2005, among MONSANTO COMPANY, a Delaware
corporation (the "Company"), and BANC OF AMERICA SECURITIES LLC; ABN AMRO
INCORPORATED; BARCLAYS CAPITAL INC.; CALYON SECURITIES (USA) INC.; KBC FINANCIAL
PRODUCTS USA INC.; J.P. MORGAN SECURITIES INC.; CITIGROUP GLOBAL MARKETS INC.;
RABO SECURITIES USA, INC.; SPP CAPITAL PARTNERS, LLC; and THE WILLIAMS CAPITAL
GROUP, L.P. (collectively, the "Dealer Managers"), on behalf of themselves and
on behalf of the Holders of 144A Notes (as those terms are defined herein).
This Agreement is made in connection with the Dealer Manager Agreement,
dated July 25, 2005, as amended by the First Amendment to the Dealer Manager
Agreement, dated August 3, 2005, among the Company and the Dealer Managers (the
"Dealer Manager Agreement"), which provides for the offer by the Company to
exchange its Senior Notes due 2025 (the "144A Notes") for up to $400,000,000
aggregate principal amount of its 7-3/8% Senior Notes due 2012 (the "Old Notes")
validly tendered in the exchange offer and not properly withdrawn, on the terms
and subject to the conditions set forth in the Offering Memorandum, dated July
25, 2005 (the "Offering Memorandum").
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"144A Notes" shall have the meaning set forth in the preamble.
"1933 Act" shall mean the Securities Act of 1933, as amended from time to
time.
"1934 Act" shall mean the Securities Exchange Act of l934, as amended from
time to time.
"Additional Interest" shall have the meaning set forth in Section 2.5.
"Business Day" shall mean any day other than a Saturday, Sunday or a legal
holiday or a day on which banking institutions or trust companies are authorized
or obligated by law to close in New York City, New York.
"Closing Date" shall mean the Acceptance Date as defined in the Dealer
Manager Agreement.
"Company" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"Dealer Manager" or "Dealer Managers" shall have the meaning set forth in
the preamble.
"Dealer Manager Agreement" shall have the meaning set forth in the
preamble.
"Depositary" shall mean The Depository Trust Company.
"Effectiveness Period" shall have the meaning set forth in Section 2.2(b).
"Exchange Offer" shall mean the exchange offer by the Company of Registered
Notes for 144A Notes pursuant to Section 2.1 hereof.
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"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form or on any successor form used for substantially the same transactions), and
all amendments and supplements to such registration statement, including the
Prospectus (as such term is defined herein) contained therein, all exhibits
thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1(b)
hereof.
"Holder" shall mean each Person who becomes the registered owner of 144A
Notes or Registered Notes, as the case may be.
"Indenture" shall mean the indenture, dated as of August 1, 2002, between
the Company and The Bank of New York Trust Company, N.A., as successor trustee,
relating to the issuance of debt securities by the Company from time to time, as
the same may be amended, supplemented, waived or otherwise modified from time to
time in accordance with the terms thereof, and including any Board Resolution
delivered to the Trustee under Section 301 of the Indenture relating to the 144A
Notes or Registered Notes.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of 144A Notes participating in a Shelf Registration.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Old Notes" shall have the meaning set forth in the preamble.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the 144A Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"Registered Notes" shall mean the 5 1/2% Senior Notes due 2025, issued by
the Company under the Indenture and containing terms identical to the 144A Notes
in all material respects (except for registration rights, transfer restrictions
and liquidated damages provisions), to be offered to Holders of 144A Notes in
exchange therefor pursuant to the Exchange Offer.
"Registration Default" shall have the meaning set forth in Section 2.5.
"Registration Expenses" shall mean any and all reasonable expenses incident
to performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws and compliance with the rules of the NASD, (iii) all expenses of any
Persons in preparing or assisting in preparing, printing and distributing any
Registration Statement, any Prospectus, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) the fees and disbursements of counsel for
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the Company and of the independent public accountants of the Company, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, (v) the fees and expenses of the
Trustee, and any escrow agent or custodian, and (vi) the reasonable fees and
disbursements of one counsel designated by the Majority Holders for purposes
described in Section 3.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Registered Notes or 144A Notes, as the case may
be pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to Section
2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2.2 of this Agreement which
covers all of the 144A Notes on an appropriate form under Rule 415 under the
1933 Act, or any successor or similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee with respect to the 144A Notes and the
Registered Notes under the Indenture.
"Underwriter" shall have the meaning set forth in Section 4(a) hereof.
2. Registration Under the 1933 Act.
2.1. Exchange Offer. The Company shall, for the benefit of the Holders, at
the Company's cost, (A) prepare and, as soon as practicable but not later than
90 days following the Closing Date, file with the SEC an Exchange Offer
Registration Statement with respect to a proposed Exchange Offer and the
issuance and delivery to the Holders, in exchange for the 144A Notes, of a like
principal amount of Registered Notes, (B) use its reasonable best efforts to
cause the Exchange Offer Registration Statement to be declared effective under
the 1933 Act within 180 days of the Closing Date, (C) use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective until the
closing of the Exchange Offer and (D) use its reasonable best efforts to cause
the Exchange Offer to be consummated not later than 225 days following the
Closing Date. Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder eligible and electing to
exchange 144A Notes for Registered Notes (assuming that such Holder (a) is not
an affiliate of the Company within the meaning of Rule 405 under the 1933 Act,
(b) is not a broker-dealer tendering 144A Notes acquired directly from the
Company for its own account, (c) acquired or will acquire the 144A Notes and
Registered Notes in the ordinary course of such Holder's business and (d) has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Registered Notes) to transfer such
Registered Notes from and after their receipt without any limitations or
restrictions under the 1933 Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
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(a) mail as promptly as practicable to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period of not less
than 20 Business Days, and not more than 40 Business Days, after the date notice
thereof is mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered 144A Notes at any time prior to
5:00 p.m. (Eastern Time), on the last business day of the Exchange Period, by
sending to the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of 144A Notes delivered for exchange, and a statement that such Holder is
withdrawing such Holder's election to have such 144A Notes exchanged; and
(e) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
As soon as practicable after the expiration date of the Exchange Offer, the
Company shall:
(i) accept for exchange all 144A Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer in accordance with the terms
of the Exchange Offer Registration Statement and the letter of
transmittal which shall be an exhibit thereto;
deliver to the Trustee for cancellation all 144A Notes so accepted for
exchange; and
(ii) cause the Trustee promptly to authenticate and deliver Registered
Notes to each Holder of 144A Notes so accepted for exchange in a
principal amount equal to the principal amount of the 144A Notes of
such Holder so accepted for exchange.
Interest on each Registered Note will accrue from the last date on which
interest was paid on the 144A Notes surrendered in exchange therefor or, if no
interest has been paid on the 144A Notes, from the date of original issuance of
the 144A Notes. The Exchange Offer shall not be subject to any conditions, other
than: (i) that the Exchange Offer, or the making of any exchange by a Holder,
does not violate applicable law or any applicable interpretation of the staff of
the SEC; (ii) the due tendering of 144A Notes in accordance with the Exchange
Offer; (iii) that each Holder of 144A Notes exchanged in the Exchange Offer
shall have represented that (a) it is not an "affiliate" of the Company (as
defined in Rule 405 under the 1933 Act), (b) it is not a broker-dealer tendering
144A Notes acquired directly from the Company for its own account, (c) all
Registered Notes to be received by it shall be acquired in the ordinary course
of its business, and (d) at the time of the consummation of the Exchange Offer
it shall have no arrangement or understanding with any person to participate in
the distribution (within the meaning of the 1933 Act) of the Registered Notes
and shall have made such other representations as may be reasonably necessary
under applicable SEC rules, regulations or interpretations to render the use of
Form S-4 or other appropriate form under the 1933 Act available; and (iv) that
no action or proceeding shall have been instituted or threatened in any court or
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by or before any governmental agency with respect to the Exchange Offer which,
in the Company's judgment, would reasonably be expected to impair the ability of
the Company to proceed with the Exchange Offer.
The Registered Notes will have the right to vote and consent as a single
class with the 144A Notes on all matters on which Holders of the Registered
Notes or 144A Notes are entitled to vote and consent.
2.2. Shelf Registration. (i) If, because of any changes in law, SEC rules
or regulations or applicable interpretations thereof by the staff of the SEC,
the Company determines, upon the advice of its outside legal counsel, that it is
not permitted to effect the Exchange Offer as contemplated by Section 2.1
hereof, (ii) if for any other reason the Exchange Offer is not consummated
within 225 days after the original issue of the 144A Notes, or (iii) if a Holder
notifies the Company in writing prior to the 20th day following the consummation
of the Exchange Offer that it is not permitted to participate in the Exchange
Offer or does not receive fully tradable Registered Notes pursuant to the
Exchange Offer, then in case of each of clauses (i) through (iii) the Company
shall, at its cost:
(a) As promptly as practicable, but no later than 45 days after being
required to do so under Section 2.2(i) hereof, file with the SEC, and thereafter
shall use its reasonable best efforts to cause to be declared effective as
promptly as practicable but no later than 180 days after being required to do so
under Section 2.2(i) hereof, a Shelf Registration Statement relating to the
offer and sale of the 144A Notes by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders and set forth
in such Shelf Registration Statement;
(b) Use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the Closing Date,
or for such shorter period that will terminate when all 144A Notes covered by
the Shelf Registration Statement (i) have been sold pursuant to the Shelf
Registration Statement, (ii) are eligible for resale to the public pursuant to
Rule 144(k) under the 1933 Act, (iii) such shall have ceased to be outstanding
or (iv) the Exchange Offer is consummated (the "Effectiveness Period").
(c) Notwithstanding any other provisions hereof, use its reasonable best
efforts to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time), does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements, in light of the circumstances under which they
were made, not misleading.
The Company shall not permit any securities other than 144A Notes to be
included in the Shelf Registration Statement. The Company further agrees, if
necessary, to supplement or amend the Shelf Registration Statement, as required
5
by Section 3(b) below, and to furnish to the Holders of 144A Notes copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
2.3. Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's 144A Notes pursuant to the
Shelf Registration Statement.
2.4. Effectiveness. An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registered Notes pursuant to an Exchange Offer
Registration Statement or 144A Notes pursuant to a Shelf Registration Statement
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period of such
interference, until the offering of Registered Notes or 144A Notes, as the case
may be, pursuant to such Registration Statement may legally resume.
2.5. Interest. (i) In the event that any of (a) the Exchange Offer
Registration Statement is not filed with the SEC on or prior to the 90th
calendar day following the date of original issue of the 144A Notes (or if such
90th day is not a Business Day, the next succeeding Business Day), (b) the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 180th calendar day following the date of original issue of the 144A
Notes (or if such 180th day is not a Business Day, the next succeeding Business
Day), (c) the Shelf Registration Statement has not been declared effective on or
prior to the 180th calendar day after being required to do so under Section
2.2(i) hereof, (d) neither the Exchange Offer is consummated nor a Shelf
Registration Statement is declared effective on or prior to the 225th calendar
day following the date of original issue of the 144A Notes, (e) any Registration
Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective (other than after such time as all 144A Notes
or Registered Notes, as the case may be, have been disposed of hereunder) or is
not usable for its intended purpose, except if it is succeeded promptly (within
10 Business Days of the Registration Statement ceasing to be effective or
usable) by a post-effective amendment to such Registration Statement that cures
such failure and that is itself promptly declared effective (within 15 Business
Days of filing), or (f) any Shelf Registration Statement is filed and declared
effective but shall thereafter cease to be effective or is not usable for its
intended purposes for a period of time that exceeds 60 days in the aggregate in
any 12-month period in which it is required to be effective under this Agreement
(each such event referred to in clauses (a) through (f) above, a "Registration
Default"), the interest rate borne by the 144A Notes held by a Holder shall be
increased ("Additional Interest") by 0.25 percent per annum during the 90 day
period immediately following the occurrence of any such Registration Default,
which rate will increase by 0.25 percent at the end of each subsequent 90-day
period that such Additional Interest continues to accrue under any such
circumstance, provided that the maximum aggregate increase in the interest rate
will in no event exceed 0.50 percent per annum. Following the cure of all
Registration Defaults the accrual of Additional Interest will cease and the
interest rate will revert to the original rate. Any additional interest will
constitute liquidated damages and will be the exclusive remedy, monetary or
otherwise, available to any Holder with respect to any Registration Defaults.
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The Company shall notify the Trustee within three Business Days after each
and every date on which an event occurs in respect of which Additional Interest
is required to be paid (an "Event Date"). Additional Interest shall be paid by
depositing with the Trustee, in trust, for the benefit of the Holders of 144A
Notes entitled thereto, on or before the applicable semiannual interest payment
date, immediately available funds in sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each interest
payment date to the record Holder of 144A Notes entitled to receive the interest
payment to be paid on such date as set forth in the Indenture. Each obligation
to pay Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date.
(ii) The Company may delay the filing of any registration statement
contemplated by paragraph (i) above, or terminate or suspend the effectiveness
thereof, if the Company determines, in its good faith judgment, that certain
disclosure which would otherwise be required at the time is not in the best
interests of the Company (an "Allowed Delay"); provided, in the case of a
termination or suspension of effectiveness, that the Company shall promptly
advise the Holders in writing to cease all sales under the Shelf Registration
Statement until the end of the Allowed Delay.
3. Registration Procedures.
In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC a Registration Statement, within the
relevant time period specified in Section 2, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the 144A Notes by the selling Holders
thereof, (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference all
financial statements required by the SEC to be filed therewith or incorporated
by reference therein, and (iv) shall comply in all respects with the
requirements of Regulation S-T under the 1933 Act, and use its reasonable best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under applicable
law to keep such Registration Statement effective for the applicable period; and
cause each Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the provisions of
the 1933 Act, the 1934 Act and the rules and regulations thereunder applicable
to them with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of 144A
Notes to be included in a Shelf Registration Statement, at least five Business
Days prior to filing, that a Shelf Registration Statement with respect to such
144A Notes is being filed and advising such Holders that the distribution of
such 144A Notes will be made in accordance with the method selected by the
Majority Holders; (ii) furnish to each Holder of 144A Notes to be included in a
Shelf Registration Statement, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement thereto
as such Holder or underwriter may reasonably request; and (iii) be deemed to
have consented to the use of the Prospectus or any amendment or supplement
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thereto by each of the selling Holders of 144A Notes in connection with the
offering and sale of the 144A Notes covered by the Prospectus or any amendment
or supplement thereto included in the Shelf Registration Statement;
(d) use its commercially reasonable efforts to register or qualify the
Registered Notes under all applicable state securities or blue sky laws of such
jurisdictions as any Holder of Registered Notes covered by a Registration
Statement shall reasonably request by the time the applicable Registration
Statement is declared effective by the SEC, and do any and all other acts and
things which may be reasonably necessary or advisable to enable each such Holder
to consummate the disposition in each such jurisdiction of such Registered Notes
owned by such Holder; provided, however, that the Company shall not be required
to (i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), or (ii) take any action which would subject it to general service
of process or taxation in any such jurisdiction where it is not then so subject;
(e) notify promptly each Holder of 144A Notes under a Shelf Registration
and, if requested by such Holder, confirm such advice in writing promptly (i)
when a Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement is
effective which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registered Notes or the 144A Notes, as the case may be, for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
and (vi) of any determination by the Company that a post-effective amendment to
such Registration Statement would be appropriate;
(f) in the case of the Exchange Offer Registration Statement (i) include in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution" which shall contain a statement that any such broker-dealer who
receives Registered Notes for 144A Notes pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Registered
Notes, (ii) be deemed to have consented to the use of the Prospectus forming
part of the Exchange Offer Registration Statement or any amendment or supplement
thereto, by any Person subject to the prospectus delivery requirements of the
SEC in connection with the sale or transfer of the Registered Notes covered by
the Prospectus or any amendment or supplement thereto, and (iii) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision (or any substantially similar provision):
"If you are a broker-dealer holding Registered Notes acquired for your
own account as a result of market-making activities or other trading
activities, you are required to deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of Registered
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Notes received in respect of such Registered Notes pursuant to the Exchange
Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registered Notes, the broker-dealer will not be deemed to admit that
it is an underwriter within the meaning of the 1933 Act;
(g) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(h) in the case of a Shelf Registration, furnish to each Holder of 144A
Notes without charge one conformed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference or any exhibits thereto);
(i) in the case of a Shelf Registration, cooperate with the selling Holders
of 144A Notes to facilitate the timely preparation and delivery of certificates
representing 144A Notes to be sold and not bearing any restrictive legends; and
enable such 144A Notes to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling Holders
or the underwriters, if any, may reasonably request at least three Business Days
prior to the closing of any sale of 144A Notes;
(j) in the case of a Shelf Registration, upon the occurrence of any event
or the discovery of any facts, each as contemplated by Sections 3(e)(iv) and
3(e)(v) hereof, as promptly as practicable after the occurrence of such an
event, use its reasonable best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the 144A Notes, such
Prospectus will not contain at the time of such delivery any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or will remain so qualified, and at such time as such public
disclosure is otherwise made or the Company determines that such disclosure is
not necessary, in each case to correct any misstatement of a material fact or to
include any omitted material fact, promptly notify each Holder of such
determination and furnish each Holder such number of copies of the Prospectus as
amended or supplemented, as such Holder may reasonably request;
(k) obtain a CUSIP number for all 144A Notes or Registered Notes, as the
case may be, not later than the effective date of a Registration Statement, and
provide the Trustee with certificates for the 144A Notes or the Registered
Notes, as the case may be, in a form eligible for deposit with the Depositary;
(l) in the case of a Shelf Registration, enter into agreements (which may
include underwriting agreements) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such 144A Notes
and in such connection:
(i) make such representations and warranties to the Holders of such 144A
Notes and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them;
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(ii) obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the
Majority Holders) addressed to each selling Holder and the
underwriters, if any, covering the matters customarily covered in
opinions requested in sales of securities or underwritten offerings
and such other matters as may be reasonably requested by such Holders
and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements are, or are required to be, included in the Registration
Statement) addressed to the underwriters, if any, and use reasonable
efforts to have such letter addressed to the selling Holders of 144A
Notes (to the extent consistent with Statement on Auditing Standards
No. 72 of the American Institute of Certified Public Accounts), such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters in
connection with similar underwritten offerings;
(iv) if an underwriting agreement is entered into, cause the same to set
forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth
in Section 4 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to said Section or, at the request
of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(v) deliver such documents and certificates as may be reasonably requested
and as are customarily delivered in similar offerings to the Majority
Holders and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder;
(m) in the case of a Shelf Registration, within two Business Days prior to
filing any Shelf Registration Statement or any Prospectus forming a part
thereof, or any amendment or supplement thereto, provide copies of such document
to the Holders of 144A Notes participating in the Shelf Registration, to one
counsel designated by the Majority Holders, if any, and to the underwriter or
underwriters of an underwritten offering of 144A Notes, if any, make such
changes in any such document prior to the filing thereof as the Holders, counsel
to the Majority Holders or the underwriter or underwriters reasonably request
and not file any such document in a form to which the Majority Holders, counsel
to the Majority Holders or any underwriter shall reasonably object within two
Business Days;
(n) otherwise comply with all applicable rules and regulations of the SEC;
(o) cooperate and assist in any filings required to be made with the NASD
and, in the case of a Shelf Registration, in the performance of any due
diligence investigation by any underwriter and its counsel (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
10
(p) upon consummation of an Exchange Offer, obtain a customary opinion of
counsel to the Company addressed to the Trustee for the benefit of all Holders
of 144A Notes participating in the Exchange Offer, and which includes an opinion
that (i) the Company has duly authorized, executed and delivered the Registered
Notes and the related Indenture, and (ii) each of the Registered Notes and
related Indenture constitute a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its respective terms
(with customary exceptions).
If following the date hereof there has been a change in SEC policy with
respect to exchange offers such as the Exchange Offer, such that in the opinion
of counsel to the Company there is a substantial question as to whether the
Exchange Offer is permitted by applicable federal law, the Company hereby agrees
to seek a no-action letter or other favorable decision from the SEC allowing the
Company to consummate an Exchange Offer for the 144A Notes. The Company shall
pursue the issuance of such a decision to the SEC staff level. In connection
with the foregoing, the Company shall take all such other actions as are
reasonably requested by the SEC or otherwise required in connection with the
issuance of such decision, including without limitation (A) participating in
telephonic conferences with the SEC, (B) delivering to the SEC staff an analysis
prepared by counsel to the Company, setting forth the legal basis, if any, upon
which such counsel has concluded that such an Exchange Offer shall be permitted
and (C) diligently pursuing a resolution (which need not be favorable) by the
SEC staff of such submission.
In the case of a Shelf Registration Statement, as a condition to a Holder's
participation in the Shelf Registration and/or receipt of Additional Interest in
accordance with Section 2.5, each Holder of 144A Notes shall furnish to the
Company such information regarding the Holder and the proposed distribution by
such Holder of such 144A Notes as the Company may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(v) hereof,
such Holder will forthwith discontinue disposition of 144A Notes pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(j) hereof, and, if
so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such 144A
Notes current at the time of receipt of such notice.
If any of the 144A Notes covered by any Shelf Registration Statement are to
be sold in an underwritten offering, the underwriter or underwriters and manager
or managers that will manage such offering will be selected by the Majority
Holders of such 144A Notes included in such offering and shall be acceptable to
the Company. No Holder of 144A Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's 144A
Notes on the basis provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
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4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless the Dealer Managers,
each Holder, each Person who participates as an underwriter (any such Person
being an "Underwriter"), and the directors, officers, employees and agents of
each such Dealer Manager, Holder, and Person and each Person, if any, who
controls any Holder or Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense, as
incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement
(or any amendment or supplement thereto) pursuant to which 144A Notes
or Registered Notes were registered under the 1933 Act, including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense, as
incurred, to the extent of the aggregate amount paid in settlement of
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 4(d) below)
any such settlement is effected with the written consent of the
Company, which consent shall not be unreasonably withheld; and
(iii) against any and all expense, as incurred (including the reasonable
fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Dealer Managers, Holder or Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(b) Each Dealer Manager severally, but not jointly, agrees to indemnify and
hold harmless the Company and each Underwriter and each of their respective
directors and officers, and each Person, if any, who controls the Company or the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
12
described in the indemnity contained in Section 4(a) hereof, as incurred, with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Shelf Registration Statement (or any amendment thereto)
or any Prospectus included therein (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Dealer Manager expressly for use in the Shelf Registration
Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto).
(c) Each Holder severally, but not jointly, agrees to indemnify and hold
harmless the Company, the Dealer Managers, each Underwriter and the other
selling Holders, and each of their respective directors and officers, and each
Person, if any, who controls the Company, the Dealer Managers, any Underwriter
or any other selling Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 4(a) hereof, as
incurred, with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto).
(d) Each indemnified party shall give written notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying party or parties be liable for the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 4 is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Holders and the Dealer Managers on
13
the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative fault of the Company on the one hand and the Holders and the
Dealer Managers on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holders or the
Dealer Managers, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Holders and the Dealer Managers agree that it would not be
just and equitable if contribution pursuant to this Section 4 were determined by
pro rata allocation (even if the Dealer Managers were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 4. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 4 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim based upon any such untrue or alleged untrue statement
or omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each director, officer, employee and agent
of a Dealer Manager or Holder and each Person, if any, who controls a Dealer
Manager or Holder within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Dealer
Manager or Holder, and each director, officer, employee and agent of the
Company, and each Person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company.
5. Miscellaneous.
5.1. Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the
request of any Holder of 144A Notes (a) make publicly available such information
as is necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b)
deliver such information to a prospective purchaser as is necessary to permit
sales pursuant to Rule 144A under the 1933 Act, and (c) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its 144A Notes without
registration under the 1933 Act within the limitation of the exemptions provided
by (i) Rule 144 under the 1933 Act, as such Rule may be amended from time to
time, (ii) Rule 144A under the 1933 Act, as such Rule may be amended from time
to time, or (iii) any similar rules or regulations hereafter adopted by the SEC.
14
5.2. No Inconsistent Agreements. The Company has not entered into and the
Company will not after the date of this Agreement enter into any agreement which
is inconsistent with the rights granted to the Holders of 144A Notes in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not and will not for the term of this Agreement in
any way conflict with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
5.3. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding 144A Notes affected
by such amendment, modification, supplement, waiver or departure.
5.4. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, facsimile, or any courier guaranteeing overnight delivery (a)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
5.4, which address initially is the address set forth in the Dealer Manager
Agreement with respect to the Dealer Managers; and (b) if to the Company,
initially at the Company's address set forth in the Dealer Manager Agreement,
and thereafter at such other address of which notice is given in accordance with
the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if faxed; and on the next business day if timely delivered to an
air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5. Successor and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of 144A Notes in violation
of the terms of the Dealer Manager Agreement or the Indenture. If any transferee
of any Holder shall acquire 144A Notes, in any manner, whether by operation of
law or otherwise, such 144A Notes shall be held subject to all of the terms of
this Agreement, and by taking and holding such 144A Notes such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Dealer Manager Agreement, and
such person shall be entitled to receive the benefits hereof.
5.6. Holders Bound. Each Holder of 144A Notes will be deemed to have agreed
to be bound by the provisions of this Agreement whether or not such Holder has
signed this Agreement.
5.7. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
15
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.8. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.10. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
MONSANTO COMPANY
By:
----------------------------------------
Name: Robert A. Paley
Title: Vice President and Treasurer
Confirmed and accepted as of the date first above written:
BY: BANC OF AMERICA SECURITIES LLC
By:
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Name:
Title:
BY: ABN AMRO INCORPORATED
By:
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Name:
Title:
BY: BARCLAYS CAPITAL INC.
By:
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Name:
Title:
BY: CALYON SECURITIES (USA) INC.
By:
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Name:
Title:
BY: KBC FINANCIAL PRODUCTS USA INC.
By:
---------------------------------------------
Name:
Title:
BY: J.P. MORGAN SECURITIES INC.
By:
---------------------------------------------
Name:
Title:
BY: CITIGROUP GLOBAL MARKETS INC.
By:
---------------------------------------------
Name:
Title:
BY: RABO SECURITIES USA, INC.
By:
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Name:
Title:
BY: SPP CAPITAL PARTNERS, LLC
By:
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Name:
Title:
BY: THE WILLIAMS CAPITAL GROUP, L.P.
By:
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Name:
Title: