EXHIBIT 10(1)
EXECUTION COPY
AMENDMENT
TO
DISTRIBUTION AGREEMENT
THIS AMENDMENT TO DISTRIBUTION AGREEMENT, dated as of July 1, 2002
(this "Amendment"), is made and entered into by and among Pharmacia Corporation,
a Delaware corporation, Solutia Inc., a Delaware corporation ("Solutia"), and
Monsanto 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 with the
distribution of the common stock of Solutia to the stockholders of Former
Monsanto (the "Solutia Distribution");
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 the former
Monsanto Company (which is the Delaware corporation identified in the
introductory paragraph of this Amendment as "Pharmacia Corporation" and which is
referred to herein as either "Former Monsanto" or "Pharmacia," as the context
requires), MP Sub, Incorporated ("Merger Sub") and Pharmacia & Upjohn, Inc.
("PNU"), the parties agreed that Merger Sub would be merged with and into PNU
with PNU surviving as a wholly owned subsidiary of Former Monsanto in the merger
(the "Merger");
WHEREAS, on February 9, 2000, the new Monsanto Company (which is the
Delaware corporation identified in the introductory paragraph of this Amendment
as "Monsanto Company" and which is referred to herein as "New Monsanto") was
incorporated as a wholly owned subsidiary of Former Monsanto under the name
"Monsanto Ag Company;"
WHEREAS, on March 31, 2000, (i) the Merger was effective, (ii) Former
Monsanto changed its name from "Monsanto Company" to "Pharmacia Corporation,"
and (iii) New Monsanto changed its name from "Monsanto Ag Company" to "Monsanto
Company;"
WHEREAS, on September 1, 2000, New Monsanto and Pharmacia entered into
certain agreements, including that certain Separation Agreement, dated as of
September 1, 2000 (the "Separation Agreement"), pursuant to which, among other
things, 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
WHEREAS, in light of the Possible Disposition, the parties hereto
desire to enter into this Amendment in order to effectuate the assignment to New
Monsanto of certain assets and liabilities contemplated pursuant to the
Separation Agreement (including the Distribution Agreement) and preserve the
relationship among the parties as nearly as possible with the original intent
and purpose of the Distribution Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. Each capitalized term used in this Amendment and not
otherwise defined herein shall have the meaning ascribed thereto in the
Distribution Agreement.
Section 2. The parties hereto hereby agree that effective as of the
date of this Amendment the Distribution Agreement is hereby amended in
accordance with the requirements of Section 10.06 thereof as follows:
(a) New Monsanto shall be deemed to be and shall be for all purposes a
party to the Distribution Agreement as amended hereby.
(b) All references to "party" or "parties" in the Distribution
Agreement shall include New Monsanto and all such references to "party" or
"parties" in the Distribution Agreement shall be read and construed in the
context that New Monsanto is a party to the Distribution Agreement (e.g. "both
parties" shall be deemed to mean and shall be read as "all parties").
(c) Subsection 63 of Section 1.01 of the Distribution Agreement is
hereby amended to read in its entirety as follows:
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"63. MONSANTO GROUP: Collectively, (i) Pharmacia Corporation,
a Delaware corporation ("Pharmacia"), and its Subsidiaries of
which Pharmacia directly owns 100% of the stock or other
equity interests entitled to vote on the election of members
to the board of directors or similar governing body, other
than members of the Chemical Group, and (ii) Monsanto
Company, a Delaware corporation incorporated February 9, 2000
("New Monsanto"), and its Subsidiaries of which New Monsanto
directly owns 100% of the stock or other equity interest
entitled to vote on the election of members to the board of
directors or similar governing body."
(d) (i) The term "Monsanto" solely as used in Sections 4.03(a)(i),
4.03(b), 4.03(e), 5.01(c), 5.09, 6.01, 6.06, 6.07 and 7.02(a) shall mean:
"Pharmacia and New Monsanto" or "Pharmacia or New Monsanto," as the context
shall require. Without limiting the generality of the foregoing, but for
purposes of example, with respect to those Sections specified in the preceding
sentence "Monsanto" shall mean "Pharmacia and New Monsanto" in those contexts
where "Monsanto" has a commitment, duty, liability or obligation and shall mean
"Pharmacia or New Monsanto" in those contexts where "Monsanto" has a right or
interest or where Chemicals, Chemicals Group or any of their respective
Affiliates, Representatives or agents has a commitment, duty, liability or
obligation.
(ii) For purposes of clarity, the term "Monsanto" solely as used in
Articles I, II, III, VIII and IX and Sections 4.03(a)(ii), 4.03(a)(iii),
5.01(b), 5.01(d), 5.01(e), 5.03, 5.04, 5.05, 5.10, 10.01, 10.03 and 10.12 shall
not be affected by this Section 2(d) (i.e. shall continue to refer exclusively
to Former Monsanto (now Pharmacia)).
(iii) Nothing in this Section 2(d) is intended to limit or otherwise
affect the provisions of Sections 2(a) or (b) of this Amendment.
(e) Section 10.05 of the Distribution Agreement is hereby amended to
read in its entirety as follows:
"10.05 Notices. All notices, requests, claims, demands and
other communications hereunder (collectively, "Notices")
shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by delivery in person,
by cable, telegram, facsimile, electronic mail or other
standard form of telecommunications (provided confirmation is
delivered to the recipient the next Business day in the case
of facsimile, electronic mail or other standard form of
telecommunications) or by registered or certified mail,
postage prepaid, return receipt requested, addressed as
follows:
If to Pharmacia: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Executive Vice President and CFO
Pharmacia Corporation
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▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to: General Counsel
Pharmacia Corporation
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to Chemicals: President
Solutia Inc.
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: General Counsel
Solutia Inc.
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to New Monsanto: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and CFO
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President, Secretary and General
Counsel
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▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as any party hereto may have
furnished to the other parties by a notice in writing in
accordance with this Section 10.05."
(f) Section 10.07 of the Distribution Agreement is hereby
amended by inserting the following sentence immediately after the first sentence
of Section 10.07:
"Notwithstanding the immediately preceding sentence,
(i) Pharmacia may assign this Agreement and any of
its rights, interests and obligations hereunder
without the consent of any other party hereto,
provided that Pharmacia shall continue to be
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and remain primarily liable for all of its obligations under
this Agreement, and (ii) New Monsanto may assign this
Agreement and any of its rights, interests and obligations
hereunder without the consent of any other party hereto to
any Person who is a successor to New Monsanto (by way of
merger, consolidation or otherwise) or who assumes all of New
Monsanto's obligations under that certain Separation
Agreement, dated September 1, 2000, by and between Pharmacia
and New Monsanto in accordance with the terms thereof,
provided that New Monsanto shall continue to be and remain
primarily liable for all of its obligations under this
Agreement."
Section 3. Pharmacia agrees to execute and deliver to New Monsanto
contemporaneously herewith, the Power of Attorney attached hereto as Exhibit A
(the "Monsanto Power of Attorney").
Section 4. New Monsanto hereby acknowledges and accepts the appointment
as Pharmacia's agent and attorney as provided in the Monsanto Power of Attorney
and agrees to undertake and perform in a commercially reasonable manner on
behalf of Pharmacia and in Pharmacia's name, place and stead, all of Pharmacia's
commitments, duties, liabilities and obligations under the Distribution
Agreement and to use its commercially reasonable efforts to fully enforce all of
Pharmacia's rights, interests and remedies under the Distribution Agreement, in
each case with the same duty of care and prudence that its applies to the
management of New Monsanto's own affairs, in accordance with the terms of this
Amendment and the Monsanto Power of Attorney.
Section 5. Solutia hereby acknowledges and consents to Pharmacia's
appointment of New Monsanto as Pharmacia's agent and attorney as provided in the
Monsanto Power of Attorney for all purposes under the Distribution Agreement.
Notwithstanding the foregoing, Pharmacia shall continue to be and remain
primarily liable for all of its commitments, duties, liabilities and obligations
under the Distribution Agreement.
Section 6. New Monsanto agrees to execute and deliver to Solutia
contemporaneously herewith, the Power of Attorney attached hereto as Exhibit B
(the "Solutia Power of Attorney").
Section 7. Solutia hereby acknowledges and accepts the appointment as
New Monsanto's agent and attorney as provided in the Solutia Power of Attorney.
Section 8. Provided that Pharmacia shall continue to be and remain
primarily liable for all of its obligations under the Assigned Agreements,
Solutia hereby consents and agrees to the assignment by any Person in the
Monsanto Group or any of their respective Subsidiaries (each, an "Assignor") to
New Monsanto of any and all contracts, leases, licenses, agreements or other
instruments by, between or among any Assignor and any Person in the Chemicals
Groups or any of their respective Subsidiaries (the "Assigned Agreements"),
excluding only those contracts, leases, licenses, agreements and other
instruments set forth in Exhibit C attached hereto. In addition, Solutia hereby
consents and agrees to the further
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assignment (and any subsequent assignment) of any Assigned Agreement to each and
every subsequent New Monsanto Successor (as defined below), provided that New
Monsanto and Pharmacia shall continue to be and remain primarily liable for all
of its obligations under the Assigned Agreements. Furthermore, to the extent
that any Assigned Agreement contains any provision requiring the consent or
approval of Solutia to any change of control or ownership of the other party to
the Assigned Agreement (or such party's successor or assign), Solutia hereby
irrevocably grants such consent or approval for any such change of control or
ownership, including in connection with the Possible Disposition or otherwise.
For purposes of this Amendment, "New Monsanto Successor" means any Person who is
a successor to New Monsanto (by way of merger, consolidation or otherwise) or
who assumes all of New Monsanto's obligations under the Separation Agreement.
Pharmacia and New Monsanto each hereby consents and agrees to the assignment
(and any subsequent assignment) of any Assigned Agreement by Solutia to any
Person who is a successor to Solutia (by way of merger, consolidation or
otherwise) or who assumes all of Solutia's obligations under the Distribution
Agreement, as amended by this Amendment to Distribution Agreement, provided that
Solutia shall continue to be and remain primarily liable for all of its
obligations under the Assigned Agreements.
Section 9. Nothing in the Distribution Agreement, as amended by this
Amendment, and no action taken by the parties pursuant to the Distribution
Agreement, as amended by this Amendment, shall constitute, or be deemed to
constitute, any of the parties to be a partnership, association, joint venture
or other co-operative entity.
Section 10. Except as expressly modified and amended hereby, the
Distribution Agreement shall continue to be and shall remain in full force and
effect in accordance with its terms.
Section 11. Except as otherwise agreed to by any parties hereto, each
party hereto will pay all costs and expenses incident to its negotiation and
preparation of this Amendment, including the fees, expenses and disbursement of
its counsel.
Section 12. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware (other than the laws regarding
choice of laws and conflicts of laws) as to all matters, including matters of
validity, construction, effect, performance and remedies.
Section 13. This Amendment may be amended, modified or supplemented
only by a written agreement signed by all of the parties hereto.
Section 14. This Amendment and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their successors
and permitted assigns. Pharmacia may assign this Amendment and any of its
rights, interests and obligations hereunder without the consent of any other
party hereto, provided that Pharmacia shall continue to be and remain primarily
liable for all of its obligations under this Amendment. New Monsanto may assign
this Amendment and any of its rights, interests and obligations hereunder
without the consent of any other party hereto to any New Monsanto Successor;
provided, however, that any such successor or assignee shall be required to
execute and deliver a power of attorney
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substantially identical to the Monsanto Power of Attorney or Solutia Power of
Attorney, as the case may be, and; provided further, that New Monsanto and
Pharmacia shall continue to be and remain primarily liable for all of its
obligations under this Amendment. Solutia may assign this Amendment and any of
its rights, interests and obligations hereunder without the consent of any other
party hereto, provided that Solutia shall continue to be and remain primarily
liable for all of its obligations under this Amendment.
Section 15. Each of the parties hereto agrees to use its reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things reasonably necessary, proper or advisable to consummate and
make effective the transactions contemplated by and the intent and purposes of
this Amendment, including, without limitation, the provisions of Section 7 and
Section 13.
Section 16. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 17. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Each party acknowledges that money damages would be an
inadequate remedy for any breach of the provisions of this Amendment and agrees
that the obligations of the parties hereunder shall be specifically enforceable.
[SIGNATURE PAGE IS NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
PHARMACIA CORPORATION,
a Delaware corporation
By: // ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and General counsel
SOLUTIA INC.,
a Delaware corporation
By: // ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CFO, SVP & Advisory Director
MONSANTO COMPANY,
a Delaware corporation
By: // ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and CEO
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EXHIBIT A
PHARMACIA CORPORATION
POWER OF ATTORNEY: DISTRIBUTION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
1. Subject to paragraph 7 below:
a. That Pharmacia Corporation, a corporation organized and existing
under the laws of the State of Delaware ("Pharmacia"), has made, constituted and
appointed and by these presents does make, constitute and appoint, Monsanto
Company, a corporation organized and existing under the laws of the State of
Delaware ("New Monsanto"), its true and lawful agent and attorney, for Pharmacia
and in Pharmacia's name, place and stead, for all purposes with respect to
Pharmacia's rights, duties and obligations under the Distribution Agreement,
dated as of September 1, 1997, between Pharmacia and Solutia Inc., as amended by
that Amendment to Distribution Agreement of even date herewith among Pharmacia,
Solutia and New Monsanto (collectively, the "Distribution Agreement"); and its
attorney shall have full power and authorization to take all action with respect
to the Distribution Agreement as Pharmacia can take and which said attorney,
acting through its officers or their delegates, who in each case, acting alone,
in his or her sole discretion, think best; hereby giving and granting to
Pharmacia's said attorney full power and authority to do and perform all and
every act and thing whatsoever necessary to be done in the premises as fully to
all intents and purposes as Pharmacia might or could do, hereby ratifying and
confirming all that its said attorney may do pursuant to this power.
b. Pharmacia hereby gives and grants to its said attorney from and
after the date hereof, full power and authority to do and perform all and every
act and thing whatsoever necessary to be done in the premises, in order fully to
carry out and effectuate the authority herein granted, as fully to all intents
and purposes as Pharmacia might or could do if acting through its own officers
or delegates, and Pharmacia hereby ratifies and confirms all that its said
attorney may do pursuant to this power.
c. Pharmacia hereby acknowledges that this power is coupled with an
interest and hereby directs that, to the extent authorized or permitted by
applicable law, this power of attorney shall not be affected by any merger,
reverse merger, consolidation or Possible Disposition or other change in
ownership of Pharmacia or New Monsanto. It is Pharmacia's intent that the
authority conferred hereby shall be exercisable notwithstanding such corporate
changes and that this power of attorney shall, if permitted by applicable law or
applicable contract, be irrevocable. In the event applicable law in effect at or
any time after the execution of this instrument does not authorize or permit the
foregoing direction to be effective, and if at
any later date, applicable law changes (whether by amendment, court decision, or
otherwise), then Pharmacia directs that the foregoing provisions shall
thereafter become applicable.
2. Notwithstanding paragraph 6 below, all persons dealing with
Pharmacia's said attorney shall be protected in relying upon a copy of this
instrument and shall be protected in relying upon the written certificate of New
Monsanto as to the identity and authority of its officers and their delegates,
and/or as to whether any of the persons authorized to act hereunder is
unavailable so to act, so as to authorize some other person to act hereunder,
and Pharmacia hereby declares that as against it and all persons claiming under
it everything which its attorney shall do or cause to be done pursuant hereto
shall be valid and effectual in favor of any person claiming the benefit hereof
who at the time of the doing thereof shall have relied upon any such
certification made by New Monsanto. If required by applicable law or if New
Monsanto desires for any reason to do so, an executed copy of this Power of
Attorney shall be filed for record with any Governmental Authority or such other
place as required by law or where New Monsanto thinks best. Pharmacia authorizes
New Monsanto to make all such filings.
3. Pharmacia hereby further authorizes and empowers its said attorney
to substitute and appoint in the place and stead of its said attorney, or to
employ agents or sub-agents as New Monsanto thinks best, one or more attorney or
attorneys to exercise for Pharmacia as its attorney or attorneys any and all of
the powers and authorities hereby conferred; and to revoke such appointment or
appointments from time to time, and to substitute or appoint any other or others
in the place of such attorney or attorneys as New Monsanto shall from time to
time think fit.
4. All references in this document to "its attorney" or "its said
attorney" or "its true and lawful attorney," or similar designations shall refer
to New Monsanto and each and every person to whom New Monsanto delegates such
power and also to each and every substitute or successor attorney-in-fact
appointed under the terms of this instrument as herein provided.
5. All references in this document to "its attorney" or "its said
attorney" or "its true and lawful attorney," or similar designations shall refer
not only to New Monsanto or its delegates but also to each and every substitute
or successor attorney-in-fact appointed under the terms of this instrument as
herein provided.
6. All references in this document to "Governmental Authority" shall
mean any federal, state, local, foreign or international court, government
department, commission, board, bureau, agency, the New York Stock Exchange, or
other regulatory, administrative or governmental authority.
7. Notwithstanding the appointment by Pharmacia of New Monsanto as
Pharmacia's agent and attorney as provided in paragraph 1 above, Pharmacia and
its said attorney agree as follows:
a. Said attorney shall not take any action, or omit to take any action,
pursuant to this instrument with respect to Pharmacia's rights, duties or
obligations under Sections
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4.03(a), 5.01(d), 5.01(e), 5.04, 5.05 or 5.10 or Article IX of the Distribution
Agreement (the "Reserved Provisions"), except pursuant to the prior written
instructions of Pharmacia.
b. In the event that said attorney believes that it is necessary,
desirable or advisable that Pharmacia take any action under any of the Reserved
Provisions, said attorney will notify Pharmacia thereof; provided, however, that
said attorney shall have no responsibility or liability for any failure to give
any such notice to Pharmacia.
c. Pharmacia shall provide said attorney with such written instructions
as soon as reasonably practicable and said attorney shall have no responsibility
or liability (i) for not acting on behalf of Pharmacia unless and until so
instructed by Pharmacia and (ii) for acting on behalf of Pharmacia in accordance
with such written instructions.
d. Pharmacia shall have the right, in its sole discretion, to revoke
this Power of Attorney, by delivering written notice to New Monsanto upon any
breach by New Monsanto of its commitments, duties or obligations under any of
(i) this Power of Attorney, (ii) the Distribution Agreement, as amended by the
Amendment to the Distribution Agreement, or (iii) the Separation Agreement, as
amended from time to time.
8. This instrument may be executed in any number of counterparts, and
all of said counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 11th day
of July, 2002.
PHARMACIA CORPORATION
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--------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
General Counsel
ATTEST:
// ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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STATE OF NEW JERSEY )
)
COUNTY OF SOMERSET )
On this 1st day of July, 2002, before me the undersigned, a Notary
Public, in and for the County and State aforesaid, personally appeared ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he/she executed the same as his/her
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in Peapack, NJ, the day and year last above written.
// ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Notary Public in and for said County and State
My Commission expires:
March 4, 2003
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EXHIBIT B
MONSANTO COMPANY
POWER OF ATTORNEY: LITIGATION/CLAIMS
KNOW ALL MEN BY THESE PRESENTS:
That from and after the date hereof ("Effective Date"), Monsanto
Company, a corporation organized and existing under the laws of the State of
Delaware ("New Monsanto") 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 ("Solutia"), its
true and lawful agent and attorney, for New Monsanto and in New Monsanto's name,
place and stead, for all purposes with respect to Third Party Claims as to which
Solutia has agreed to indemnify New Monsanto, and such claims against Third
Parties which continue to be held by New Monsanto in trust for Solutia, such
Third Party Claims and claims against Third Parties being collectively referred
to herein as "Claims"; and its attorney shall have full power and authorization
to take all action with respect to such Claims as New Monsanto can take and
which said attorney, acting through its officers or their delegates, who in each
case, acting alone, in his or her sole discretion, think best, including without
limitation, (i) to represent New Monsanto with respect to such Claims for so
long as such Claims are unresolved; (ii) to appear in New Monsanto's name and to
execute, deliver and file all pleadings, motions and other filings, at trial, on
appeal, or in a proceeding, through counsel retained by Solutia or by officers
of Solutia or their delegates, acting alone, or otherwise; (iii) to assert or
waive any or all rights with respect to such Claims; (iv) to engage in all
phases of discovery with respect to such Claims, including without limitation,
to take depositions, defend depositions and propound or respond to other
discover requests, such as interrogatories or requests for production of
documents; (v) to direct and accept service of process with respect to such
claims; (vi) to execute and deliver affidavits as may be necessary or desirable
with respect to such Claims; (vii) to agree to and to represent New Monsanto in
alternative resolution proceedings, including arbitration or mediation of
Claims; (viii) to discuss or negotiate settlement agreements and releases with
Third Parties with respect to such Claims on such terms and conditions as
Solutia thinks best; (ix) to execute, deliver and if needed, file any and all
settlement agreements, releases and other agreements, documents and instruments
as may be required and any and all modifications thereto; and (x) to obtain and
post bonds pending appeal; hereby giving and granting to New Monsanto's said
attorney full power and authority to do and perform all and every act and thing
whatsoever necessary to be done in the premises as fully to all intents and
purposes as New Monsanto might or could do, hereby ratifying and confirming all
that its said attorney may do pursuant to this power.
New Monsanto hereby gives and grants to its said attorney from and
after the Effective Date, full power and authority to do and perform all and
every act and thing whatsoever necessary to be done in the premises, in order
fully to carry out and effectuate the authority herein granted, as fully to all
intents and purposes as New Monsanto might or could do if acting through its own
officers or delegates, and New Monsanto hereby ratifies and confirms all that
its said attorney may be pursuant to this power.
New Monsanto hereby further authorizes and empowers its said attorney
from and after Effective Date to substitute and appoint in the place and stead
of its said attorney, or to employ agents or sub-agents as Solutia thinks best,
one or more attorney or attorneys to exercise for New Monsanto as its attorney
or attorneys any or all of the powers and authorities hereby conferred; and to
revoke such appointment or appointments from time to time, and to substitute or
appoint any other or others in the place of such attorney or attorneys as
Solutia shall from time to time think fit.
The term "Governmental Authority" when used herein means any federal,
state, local, foreign or international court, government department, commission,
board, bureau, agency, the New York Stock Exchange, or other regulatory,
administrative or governmental authority.
The term "Third Party" when used hereby means any individual,
partnership, joint venture, corporation, trust, limited liability company,
unincorporated organization or a Governmental Authority or any department or
agency thereof other than New Monsanto or Solutia and their respective
wholly-owned direct or indirect subsidiaries.
The term "Third Party Claims" when used herein means any 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 "its said
attorney" or "its true and lawful attorney," or similar designations shall refer
to Solutia Inc. and each and every person to whom Solutia delegates such power
and also to each and every substitute or successor attorney-in-fact appointed
under the terms of this instrument as herein provided.
All references in this documents to "its attorney" or "its said
attorney" or "its true and lawful attorney," or similar designations shall refer
not only to Solutia or its delegates but also to each and every substitute or
successor attorney-in-fact appointed under the terms of this instrument as
herein provided.
New Monsanto hereby acknowledges that this power is coupled with an
interest and hereby directs that, to the extent authorized or permitted by
applicable law, this power or attorney shall not be affected by any merger,
reverse merger, split off, spin or consolidation of New Monsanto or Solutia. It
is New Monsanto's intent that the authority conferred hereby shall be
exercisable notwithstanding such corporate changes and that this power of
attorney shall, if permitted by applicable law or applicable contract, be
irrevocable. New Monsanto shall have the right, in its sole discretion, to
revoke this Power of Attorney, by delivering written notice to Solutia upon any
breach by Solutia of its commitments, duties or obligations under either (i)
this Power of Attorney or (ii) the Distribution Agreement, as amended by the
Amendment to the Distribution Agreement. In the event applicable law in effect
at or any time after the execution of this instrument does not authorize or
permit the foregoing direction to be effective, and if at any later date,
applicable law changes (whether by amendment, court decision, or otherwise),
then New Monsanto directs that the foregoing provisions shall thereafter become
applicable.
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All persons dealing with New Monsanto's said attorney shall be
protected in relying upon a copy of this instrument and shall be protected in
relying upon the written certificate of Solutia as to the Claims which are the
subject of this power of attorney, the identity and authority of its officers,
their delegates and any substitute or successor appointed pursuant to the terms
hereof, and/or as to whether any of the persons authorized to act hereunder is
unavailable so to act, so as to authorize some other person to act hereunder,
and New Monsanto hereby declares that as against it and all persons claiming
under it everything which its attorney shall do or cause to be done pursuant
hereto shall be valid and effectual in favor of any person claiming the benefit
hereof who at the time of the doing thereof shall have relied upon any such
certification made by Solutia. If required by applicable law or if Solutia
desires for any reason to do so, an executed copy of this Power of Attorney
shall be filed for record with the Governmental Authority wherein the Claim is
pending or such other place as required by law or whether Solutia thinks best.
New Monsanto authorizes Solutia to make all such filings.
This instrument may be executed in any number of counterparts, and all
of said counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal as of this
11th day of July, 2002.
MONSANTO COMPANY
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and CEO
ATTEST:
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3
STATE OF MISSOURI )
)
COUNTY OF ST. LOUIS )
On this 11th day of July, 2002, before me the undersigned, a Notary
Public, in and for the County and State aforesaid, personally appeared ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he/she executed the same as his/her
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in St. Louis, the day and year last above written.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
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Notary Public in and for said County and State
My Commission Expires:
September 15, 2005
4
EXHIBIT C
EXCLUDED AGREEMENTS
1. Tax Sharing and Indemnification Agreement by and between Monsanto Company
and Solutia dated as of September 1, 1997.