EXHIBIT 1
MONSANTO COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
__________, 19___
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Monsanto Company, a Delaware corporation (the "Company"),
proposes to enter into one or more Pricing Agreements (each, a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I
to the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain of its debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated
Securities to be purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Securities and payment therefor.
The Pricing Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus contained therein, to
the Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) of the Securities
Act of 1933, as amended (the "Act"), which became effective upon filing, no
other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the Commission; and no stop order suspending the
effectiveness of such registration statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, being hereinafter called a
"Preliminary Prospectus"; the various parts of such registration statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
effective, but excluding Forms T-1, each as amended at the time such part
of the registration statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, being hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in which
it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may
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be; any reference to an amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or the Prospectus, as the case may be; any reference
to any amendment to the Registration Statement shall be deemed to include
any annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof, including any documents incorporated by reference therein as
of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and will not
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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1933, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of
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Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
change in the capital stock (other than changes in treasury stock within
limits, or pursuant to employee plans, disclosed or incorporated by
reference in the Prospectus) or long-term debt of the Company and its
subsidiaries considered as a whole or any material adverse change, or any
development known to the Company involving a prospective material adverse
change, in or affecting the financial position, shareowners' equity or
results of operations of the Company and its subsidiaries considered as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing, under the laws of the State of Delaware,
with power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other state of the United States except Rhode Island; and
▇. ▇. ▇▇▇▇▇▇ & Co. (Delaware) ("▇▇▇▇▇▇"), Monsanto International Sales
Company, p.l.c. (Virgin Islands), Monsanto p.l.c. (England) and Monsanto
Europe S.A.N.V. (Belgium) (such corporations being referred to herein as
"Principal Subsidiaries") are each a corporation duly incorporated and
validly existing in good standing under the laws of its jurisdiction of
incorporation as set forth above;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued equity securities of each Principal
Subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for shares necessary to
qualify directors or to maintain any minimum number of shareholders
required by law are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized by the Company and duly
qualified under the Trust Indenture Act and at each Time of Delivery for
such Designated Securities (as defined in Section 4 hereof), the Indenture
will constitute a valid and legally binding instrument of the Company,
enforceable in accordance with its terms except as the same may be limited
by bankruptcy, insolvency,
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reorganization or other laws relating to or affecting the enforcement of
creditors' rights; and the Indenture conforms, and the Designated
Securities will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the
Company or any of its Principal Subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Principal Subsidiaries is a
party or by which the Company or any of its Principal Subsidiaries is bound
or to which any of the property or assets of the Company or any of its
Principal Subsidiaries is subject, which would cause a current or
prospective material adverse change in or affecting the financial position,
shareowners' equity or results of operations of the Company and its
subsidiaries considered as a whole or affect the validity of the Securities
or the legal authority of the Company to comply with the Securities, the
Indenture, the Agreement or any Pricing Agreement; nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, as amended, or the By-Laws of the Company, or in a violation
of any statute or any order, rule or regulation of any court or
governmental agency or body in the United States having jurisdiction over
the Company or any of its Principal Subsidiaries or any of their properties
which would cause current or prospective material adverse change in or
affecting the financial position, shareowners' equity or results of
operations of the Company and its subsidiaries considered as a whole or
affect the validity of the Securities or the legal authority of the Company
to comply with the Securities, the Indenture, this Agreement or any Pricing
Agreement (except to the extent that the issue and sale of the Securities
as contemplated by this Agreement and the distribution of the Securities by
the Underwriters may result in violations of state securities or Blue Sky
laws); and no consent, approval, authorization, order, registration or
qualification of or with any court or any such regulatory authority or
other governmental body in the United States having jurisdiction over the
Company is required for the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture, except such as have
been, or will have been prior to the Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities as contemplated by this Agreement and any
Pricing Agreement and the distribution of the Securities by the
Underwriters;
(i) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or
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any of its subsidiaries is the subject, other than as set forth in the
Prospectus and other than those which in the aggregate will not have a
material adverse effect on the Company and its subsidiaries considered as a
whole; and, to the best of the Company's knowledge, no such proceedings are
contemplated by governmental authorities; and
(j) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are, to the best of the
Company's knowledge, independent public accountants as to the Company as
required by the Act and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in the Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer or
certified or official bank check to the account specified by the Company by
written notice to the Representatives delivered at least forty-eight hours in
advance, all at the place and time and date specified in such Pricing Agreement
or at such other place and time and date as the Representatives and the Company
may agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be reasonably disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery
and furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for
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so long as the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to advise
the Representatives, promptly after it receives notice hereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed, or mailed for filing, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such United States
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Securities, provided, that, in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction or to subject
itself to taxation for doing business in any jurisdiction, and provided
further that the expense of maintaining any such qualification more than
one year from the date of the Pricing Agreement relating to such Securities
shall be at the expense of the Representatives for such Securities;
(c) No later than the time agreed to by the Representatives, on the
New York business day next succeeding the date of the applicable Pricing
Agreement and from time to time, to furnish the Underwriters with copies of
the Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the date of the Pricing Agreement relating to the
Securities in connection with the offering or sale of such Securities and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the
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Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to each other broker-
dealer participating with them in the distribution of such Securities as
many copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and if the
Representatives or any such other broker-dealer is required to deliver a
prospectus in connection with sales of any of such Securities at any time
nine months or more after the date of the Pricing Agreement relating to
such Securities, upon the request of the Representatives but at the expense
of the Underwriters or such other brokers, as the case may be, to prepare
and deliver to the Representatives or such other broker-dealer as many
copies as the Representatives may request of an amended Prospectus or
supplement to the Prospectus complying with Section 10 (a) (3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsidiaries (which need not be
audited complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives or (ii) the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the
Pricing Agreement relating to the Designated Securities, and the Company
shall at the time of filing either pay to the Commission the filing fee for
the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act, and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
(except as otherwise expressly provided in
8
Section 5(c) hereof) amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and any other broker-dealers
participating in the distribution of the Securities; (ii) the cost of printing
or producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees (not to exceed $18,000 per fiscal year
of the Company) and disbursements of counsel for the Underwriters in connection
with such qualifications and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of the Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct in all material respects, the condition that the
Company shall have performed in all material respects all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b) under the Act, the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of the
applicable Pricing Agreement; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such
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Designated Securities, with respect to the incorporation of the Company,
the validity of the Indenture, the Designated Securities, the Registration
Statement, the Prospectus as amended or supplemented and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) General Counsel, or other counsel for the Company satisfactory to
the Representatives, shall have furnished to the Representatives such
counsel's written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other state of the United States except Rhode Island;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) Each of the Principal Subsidiaries is a corporation duly
incorporated and validly existing in good standing under the laws of
the jurisdiction of its incorporation;
(iv) The Company owns directly or indirectly through one or more
wholly-owned subsidiaries all of the issued and outstanding equity
securities of the Principal Subsidiaries (except as specified in
Section 2(f) of this Agreement), free and clear of liens,
encumbrances, equities and claims, and all such securities are validly
authorized, issued, fully paid and non-assessable, and neither the
Company nor any such subsidiary is subject to personal liability by
reason of being an owner thereof;
(v) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
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(vi) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject, other than as set forth in the
Prospectus and other than those which in the aggregate will not have a
material adverse effect on the Company and its subsidiaries considered
as a whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities;
(vii) The Designated Securities have been duly authorized by the
Company; assuming that the facsimile signatures of officers (specified
in such opinion) of the Company and the facsimile seal of the Company
have been imprinted on the Designated Securities and that the
Designated Securities have been duly authenticated by the Trustee
under the Indenture (which assumptions such counsel need not verify by
an inspection of the Designated Securities), the Designated Securities
have been duly executed, issued and delivered by the Company and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the Designated
Securities and the Indenture conform to the descriptions thereof in
the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company enforceable in accordance with its terms
except as the same may be limited by bankruptcy, insolvency,
reorganization or other relating to or affecting the enforcement of
creditors' rights; the Indenture has been duly qualified under the
Trust Indenture Act; and no taxes or recording fees under Delaware,
Missouri or Federal law are required to be paid with respect to the
execution of the Indenture and the issuance of the Designated
Securities;
(ix) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
or result in a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets
of the Company or any of its Principal
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Subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other similar agreement or instrument
known to such counsel, after such reasonable investigation as such
counsel deems necessary, to which the Company or any of its Principal
Subsidiaries is a party or by which the Company or any of its
Principal Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Principal Subsidiaries is subject
which would cause a current or prospective material adverse change in
or affecting the financial position, shareowners' equity or results of
operations of the Company and its subsidiaries considered as a whole
or affect the validity of the Designated Securities or the legal
authority of the Company to comply with the Designated Securities, the
Indenture, this Agreement or the Pricing Agreement; nor will such
actions result in a violation of the provisions of the Certificate of
Incorporation, as amended, or the By-laws of the Company, or in a
violation of any statute or any order, rule or regulation of any court
or governmental agency or body in the United States having
jurisdiction over the Company or any of its subsidiaries or any of
their properties which would cause a current or prospective material
adverse change in or affecting the financial position, shareowners'
equity or results of operations of the Company and its subsidiaries
considered as a whole or affect the validity of the Designated
Securities or the legal authority of the Company to comply with the
Designated Securities, the Indenture, this Agreement or the Pricing
Agreement (except to the extent that the issue and sale of the
Designated Securities as contemplated by this Agreement and the
Pricing Agreement and the distribution of the Designated Securities by
the Underwriters may result in violations of state securities or Blue
Sky laws); and no consent, approval, authorization, order,
registration or qualification of or with any court or any such
regulatory authority or other governmental body in the United States
having jurisdiction over the Company is required for the issue and
sale of the Designated Securities or the consummation of the Company
of the other transactions contemplated by this Agreement or the
Pricing Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Securities by the
Underwriters;
(x) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial
12
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(xi) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and other financial
data contained or incorporated by reference therein or omitted therein
as to which such counsel need express no opinion) appear on their face
to be appropriately responsive in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; and the information included in the
Registration Statement in response to Item 10 (insofar as it relates
to such counsel) of Form S-3 is to the best of such counsel's
knowledge an accurate statement of the matter therein set forth and
fairly presents the information called for with respect to that matter
by the Act and the rules and regulations thereunder.
Such counsel may also state that he has not verified, and is not
passing upon and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus as amended or
supplemented, other than those mentioned in the last clause of
subparagraph (vii) above, but such counsel shall confirm that he or
she has, however, participated in reviews and discussions in
connection with the preparation of the Registration Statements, the
Prospectus and the Prospectus as amended or supplemented and any
further amendments and supplements thereto made by the Company
13
prior to the Time of Delivery, and that in the course of such reviews
and discussions no facts came to his or her attention which led him or
her to believe that the Registration Statement or the Prospectus on
the effective date of the Registration Statement, or the Prospectus as
amended or supplemented on the date of such amendment or supplement or
at and as of the Time of Delivery for the Designated Securities (in
each case, apart from the financial statements and other financial
data contained or incorporated by reference therein or omitted
therefrom and from any written information furnished to the Company by
any Underwriter of Designated Securities through the Representatives
expressly for use in the prospectus as amended or supplemented or any
omission therefrom) contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated as reference to the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
In rendering the foregoing opinion, such counsel may rely upon
opinions of local counsel (which may include counsel for the
Representatives) satisfactory in form and scope to counsel for the
Representatives.
(d) At the Time of Delivery for such Designated Securities, Deloitte &
Touche LLP shall have furnished to the Representatives a letter dated such
Time of Delivery, to the effect set forth in Annex 11 hereto, and as to
such other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(e) Since the respective dates as of which information is given in the
Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Securities, there shall not have been
any material change in the capital stock (other than changes in treasury
stock within limits, or pursuant to employee plans, disclosed or
incorporated by reference in the Prospectus prior to the date of the
Pricing Agreement relating to the Designated Securities) or long-term debt
of the Company or any of its subsidiaries or any material change, or any
development involving a prospective material change, in or affecting the
financial position, shareowners' equity or results of operations of the
Company and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the
14
Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Securities, the effect of which is in
the reasonable judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented in
connection with the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities no downgrading shall have occurred in the rating
accorded the Company's debt securities by any one of the following
statistical rating organizations: Standard & Poor's Corporation, ▇▇▇▇▇'▇
Investors Service, Inc. and Duff & ▇▇▇▇▇▇;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following
events, the effect of which in each case, in the reasonable judgment of the
Representatives, is such as to make it impracticable for the Underwriters
to market the Designated Securities or enforce contracts for the sale of
the Designated Securities: (i) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, (ii) a declaration of a banking moratorium by
either Federal or New York State authorities, (iii) a suspension or halt in
trading on the New York Stock Exchange in any securities of the Company
which adversely affects the marketing of the Designated Securities or (iv)
a suspension or limitation in trading in securities generally on the New
York Stock Exchange or the establishment of minimum prices on such
Exchange;
(h) If the Designated Securities are denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency, or if
the principal or interest of the Designated Securities is indexed to such
currency, currencies or composite currency, on or after the date of the
Pricing Agreement relating to such Designated Securities there shall not
have occurred any of the following events, the effect of which in each
case, in the reasonable judgment of the Representatives, is such as to make
it impracticable for the Underwriters to market the Designated Securities
or to enforce contracts for the sale of the Designated Securities; a
suspension or material limitation in foreign exchange trading in such
currency, currencies or composite currency by a major international bank; a
general moratorium on commercial banking activities in the country or
countries issuing such currency, currencies or composite currency; the
outbreak or escalation of hostilities involving the occurrence of any
material adverse change in the existing financial, political or economic
conditions of, or the declaration of war or a national emergency by, the
country or countries issuing such currency, currencies or composite
currency; or the imposition or proposal of exchange controls by any
governmental authority in the country or countries issuing such currency,
currencies or composite currency;
15
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy in all material respects of the
representations and warranties of the Company herein at and as of such Time
of Delivery and as to the performance by the Company in all material
respects of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, and the Company also shall have furnished to the
Representatives a certificate of officers of the Company satisfactory to
the Representatives as to the matters set forth in subsection (a) of this
Section; and
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
business day next succeeding the date of this Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arising out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any such
action or claim; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement,
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities; provided, further, that if any
Preliminary Prospectus, any preliminary prospectus supplement relating to
the Designated Securities, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Designated Securities
contained any alleged untrue statement or allegedly omitted to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading and such statement or omission shall
have been corrected in a revised Preliminary Prospectus, preliminary
prospectus supplement relating to the Designated Securities, the
16
Prospectus, the Prospectus as amended or supplemented, any other prospectus
relating to the Designated Securities or any amendment or supplement
thereto relating to the Designated Securities, the Company shall not be
liable to any Underwriter under this subsection (a) with respect to such
alleged untrue statement or alleged omission to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact
that such Underwriter sold Designated Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of such
sale, a copy of a revised Preliminary Prospectus (excluding documents
incorporated by reference), preliminary prospectus supplement relating to
the Designated Securities (excluding documents incorporated by reference),
the Prospectus (excluding documents incorporated by reference), the
Prospectus as amended or supplemented (excluding documents incorporated by
reference), any other amended prospectus relating to the Designated
Securities (excluding documents incorporated by reference) or any amendment
or supplement thereto relating to the Designated Securities (excluding
documents incorporated by reference), as the case may be, containing a
correction of such alleged misstatement or omission, if the Company has
made available copies thereof to such Underwriter prior to the confirmation
of such sale; and provided, further, that the Company shall not be liable
to any Underwriter under this subsection (a) to the extent that any such
loss, claim, damage or liability of such Underwriter results from the use
by such Underwriter of the Prospectus as amended or supplemented (excluding
documents incorporated by reference) or the Prospectus as amended or
supplemented as it may be further amended or supplemented (excluding
documents incorporated by reference), as the case may be (i) otherwise than
in connection with an offer or sale of the Designated Securities or (ii) at
any time nine months or more after the time of issue of the Prospectus as
amended or supplemented unless the Company has prior to such use amended or
supplemented the Prospectus as amended or supplemented to comply with
Section 10(a)(3) of the Act if required pursuant to Section 5(c) hereof and
such Underwriter uses the Prospectus as amended or supplemented as so
further amended or supplemented.
Each Underwriter acknowledges that the indemnity agreement in this
subsection (a) does not extend to any liability which such Underwriter
might have under Section 5(b) of the Act by reason of the fact that such
Underwriter sold Designated Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus (excluding documents incorporated by reference), the
Prospectus as amended or supplemented (excluding documents incorporated by
reference), any other prospectus relating to the Designated Securities
(excluding documents incorporated by reference) or any amendment or
supplement relating thereto (excluding documents incorporated by
reference), as the case may be, if the Company has made available copies
thereof to such Underwriter.
17
For purposes of this subsection (a) the Prospectus (excluding
documents incorporated by reference), the Prospectus as amended or
supplemented (excluding documents incorporated by reference), any other
prospectus relating to the Designated Securities (excluding documents
incorporated by reference) or any amendment or supplement relating thereto
(excluding documents incorporated by reference), shall not be deemed to
have been made available to an Underwriter until (x) such Underwriter has
received the same or (y) such time after the receipt thereof by the
Representatives as would permit the Representatives with reasonable
diligence to deliver the same to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof, and in the event
that such indemnified party shall not so notify the indemnifying party
within 30 days following receipt of any such notice by such indemnified
party, the indemnifying party shall have no further liability under such
subsection to such indemnified party unless such indemnifying party shall
have received other notice addressed and delivered in the manner provided
in the second paragraph of Section 12 hereof of the commencement of such
action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall
18
notify the indemnifying party of the commencement thereof as provided
above, the indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities to
which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omission which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account
19
of the equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of 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 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriters the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have
the right to postpone the Time of Delivery for such Designated Securities
for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees
20
to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters made
by the Representatives or the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (d) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
21
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
22
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
MONSANTO COMPANY
By: __________________________
Name: ____________________
Title: ___________________
23
ANNEX I
PRICING AGREEMENT
-----------------
Name(s) of Representative(s)
As Representatives of the several
Underwriters named in Schedule I hereto,
[Address]
, 199
Ladies and Gentlemen:
MONSANTO COMPANY, a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated __________________, 199__ (the "Underwriting Agreement"), to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
MONSANTO COMPANY
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
--------------------------------------
([Name of Representative Partnership])
[Name of Representative
Corporation]
By:
-----------------------------------
Name:
Title:
On behalf of each of the Underwriters
-2-
SCHEDULE I
Principal Amount of
Designated Securities
to be
Underwriter Purchased
----------- ---------------------
[Name(s) of Representative(s)]........................... $
[Names of other Underwriters]............................
--------
Total..................................... $
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SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate Principal Amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to
[and accrued amortization[, if any,] from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization[, if any,]
from to ]
Specified Funds for Payment of Purchase Price:
[wire transfer] [certified or official bank check]
Form of Designated Securities:
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company or its designated custodian, to
be made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery.]
Indenture:
Indenture, dated , 19 , between the Company and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions], accruing from_______.
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Interest Payment Dates:
[months and dates], commencing___________________________________.
Record Dates:
Denominations:
[Amount Payable Upon Acceleration (if other than principal amount)]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %, and
if] redeemed during the 12-month period beginning ,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling in or after , , at the election
of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
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Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$ ] principal amount of Designated Securities on in
each of the years through at 100% of their principal amount plus
accrued interest] [, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional [$ ]
principal amount of Designated Securities in the years through at 100% of
their principal amount plus accrued interest].
[If the Designated Securities are extendable debt Securities, insert--
Extendible Provisions:
The Designated Securities are repayable on , [insert date and years),
at the option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be %, and thereafter annual interest rate
will be adjusted on , and to a rate not less than % of the effective
annual interest rate on U.S. Treasury obligations with - year maturities
as of the [insert date 15 days prior to maturity date] prior to such [insert
maturity date].]
[If the Designated Securities are Floating Rate debt Securities,
insert--
Floating Rate Provisions
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each , , and
] [to an annual rate of % above the average rate for -year
[month] [securities] [certificates of deposit] issued by and [insert
names of banks].][and the annual interest rate [thereafter] [from through
] will be the interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus % of Interest Differential
(the excess, if any, of (i) then current weekly average per annum secondary
market yield for -month certificates of deposit over (ii) then current
interest yield equivalent of the weekly average per annum market discount rate
for -month Treasury bills); [from and thereafter the rate will be the
then current interest yield equivalent plus % of Interest Differential].]
Defeasance Provisions:
Time of Delivery:
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Closing Location:
Names and Addresses of Representatives
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
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ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, Deloitte & Touche
LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder and, if applicable,
they have made a review and issued a report in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data, pro
forma financial information and/or condensed financial statements derived
from audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, if any, and copies
of any such report have been furnished to the Representatives;
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim consolidated
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Board of Directors and the Executive and Finance
Committees of the Board of Directors of the Company since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
financial position and cash flow included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with the basis for the audited consolidated
statements of income, financial position and cash flow included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
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(B) any other unaudited income statement data and statement of
financial position items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and statement of financial position items
included in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma condensed consolidated financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five calendar days
prior to the date of such letter, there have been any changes in the
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest statement of
financial position included or incorporated by reference in the
Prospectus) or any increase, excluding those changes due solely to
fluctuations in foreign currency exchange rates, in the consolidated
long-term debt or guaranteed obligations of the Company and its
subsidiaries or any decreases in consolidated net current assets or
net assets, in each case as compared with amounts shown in the latest
statement of consolidated financial position included or incorporated
by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or as a result of any dispositions of assets which the
Prospectus specifically discloses have occurred or may occur, or, in
the case of consolidated long-term debt or guaranteed obligations,
consolidated net current assets or net assets, for changes decreases
or increases, as the case may be, which are less than $30,000,000, or
which are described in such letter; and
(iv) In addition to the audits referred to in their opinions included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraph (iii) above, they have carried out certain
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specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain references
to the Company's historical annual ratios of earnings to fixed charges
specified by the Representatives which references are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of the amounts, percentages and financial information
contained in such references with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
deemed in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
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