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EXHIBIT 1.1
MONSANTO COMPANY
COMMON STOCK, $0.01 PAR VALUE
______________
UNDERWRITING AGREEMENT
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________, 2000
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
Monsanto Company, a Delaware corporation formerly known as Monsanto Ag
Company (the "Company"), proposes, subject to the terms and conditions stated
herein, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 35,000,000 shares (the "Firm Shares") and, at
the election of the Underwriters, up to 5,250,000 additional shares (the
"Optional Shares") of common stock, $0.01 par value ("Stock"), of the Company
(the Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof being collectively called the "Shares").
In connection with the offering of Shares contemplated hereby, the
Company, Pharmacia Corporation ("Parent"), the sole shareholder of the Company,
and certain subsidiaries of the Company and Parent have entered into a series of
transactions described in the Prospectus (as defined below) under the captions
"Merger and Reorganization Transactions Occurring Prior to this Offering" and
"Arrangements between Monsanto and Pharmacia". Such transactions are herein
collectively referred to as the "Separation".
1. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
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(a) A registration statement on Form S-1 (File No. 333-36956) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you 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) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial 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 the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act is hereinafter called
a "Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the
Act to be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; such final prospectus, in the
form first filed pursuant to Rule 424(b) under the Act, is hereinafter called
the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did 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, in the light of the circumstances under which they were
made, 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 through Goldman, Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus 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 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
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statements therein, in the light of the circumstances under which they were
made, not misleading, in the case of the Prospectus or any amendment or
supplement thereto; 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 through Goldman, Sachs & Co. expressly for use therein;
(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 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, stockholders' 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
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification except where the failure to be so qualified
would not have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries considered as a whole, and each subsidiary of the Company set forth
on Schedule II (each a "Significant Subsidiary") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation;
(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, are fully paid and non-assessable
and, except for the Shares, are owned by Parent; and all of the issued shares of
capital stock of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and (except for
directors' qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(g) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and non-
assessable and will conform in all material respects to the description of the
Stock contained in the Prospectus;
(h) The issue and sale of the Shares by the Company, the consummation
of the Separation, the entering into and performance of the Separation
Agreement, Corporate Agreement, Tax Sharing Agreement, Intellectual Property
Transfer Agreement, Employee Benefits and Compensation Allocation Agreement and
Services Agreement, each dated as of September 1, 2000 and between the Company
and Parent (together, the "Reorganization Agreements") and the compliance by the
Company with all of the
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provisions of this Agreement and the consummation of the transactions
contemplated by this Agreement or the Reorganization Agreements have in each
case been duly authorized by all necessary corporate and stockholder action on
the part of the Company and its subsidiaries and in each case does not or will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor does or will such action result in
any violation of the provisions of the Certificate of Incorporation or By-laws
of the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties which would prevent the Company from
performing its obligations under this Agreement or cause a material adverse
change in or affecting the financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, considered as a whole (except
to the extent that the issue and sale of the Shares as contemplated by this
Agreement and the distribution of the Shares 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 such court or
governmental agency or body having jurisdiction over the Company is required for
(i) the issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except such as have been obtained
and except the registration under the Act of the Shares 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 Shares by the Underwriters; or (ii) the consummation of the
Separation and the transactions contemplated in the Reorganization Agreements;
except in the case of either clause (i) or clause (ii) for such consents,
approvals, authorizations, registrations or qualifications the failure to obtain
would not, singly or in the aggregate, have a material adverse effect on the
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries considered as a whole;
(i) Neither the Company nor any of its Significant Subsidiaries is in
violation in any material respect of its Certificate of Incorporation or By-
laws;
(j) The statements set forth in the Prospectus under the caption
"Description of Capital Stock" are an accurate summary of the terms of the Stock
in all material respects;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending, and, to the best of the Company's knowledge no
such proceedings are threatened or contemplated by governmental authorities, 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 those which
individually or in the aggregate would not reasonably be expected to have a
material adverse effect on the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a whole;
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(l) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(m) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(n) The Company and its subsidiaries own, or possess adequate rights
to use, all material patents, trademarks, service marks, trade mark
registrations, service mark registrations, domain names and copyrights,
necessary for the conduct of their business as described in the Prospectus, and,
except as set forth in the Prospectus, the Company has not received any notice
of any claim of conflict with any such rights of others except as would not have
a material adverse effect on the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a whole;
and, to the Company's knowledge, except as set forth in the Prospectus, neither
the Company nor any of its subsidiaries has infringed or are infringing any
patents, trademarks, service marks, trade mark registrations, service mark
registrations, domain names or copyrights, which infringement could reasonably
be expected to result in a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries considered as a whole;
(o) The Company has duly authorized, executed and delivered this
Agreement;
(p) Each of the Reorganization Agreements has been duly authorized,
executed and delivered by the Company and conforms in all material respects to
the description thereof in the Prospectus and constitutes a valid and binding
agreement of the Company.
2. Subject to the terms and conditions herein set forth, 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
a purchase price per share of $[ ], the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, 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 purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 5,250,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the
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number of Firm Shares. Any such election to purchase Optional Shares may be
exercised only by written notice from you to the Company, given within a period
of 30 calendar days after the date of this Agreement, setting forth the
aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless you and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Goldman, Sachs & Co., for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to Goldman,
Sachs & Co. at least forty-eight hours in advance. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004 (the "Designated Office"). The time and date
of such delivery and payment shall be, with respect to the Firm Shares, 9:30
a.m., New York City time, on [ ], 2000, or such other time and date as
Goldman, Sachs & Co. and the Company may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of
the Underwriters' election to purchase such Optional Shares, or such other time
and date as Goldman, Sachs & Co. and the Company may agree upon in writing.
Such time and date for delivery of the Firm Shares is herein called the "First
Time of Delivery", such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called the "Second Time of Delivery",
and each such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(l) hereof, will be delivered at the offices
of Cravath, Swaine & Moore, 825 Eighth Avenue, New York, New York 10019, or
such other location as may be mutually agreed (the "Closing Location"), and the
Shares will be delivered at the Designated Office, all at such Time of Delivery.
A meeting will be held at the Closing Location at [ ] a.m., New York City
time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
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5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you 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 this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus prior to
the last Time of Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after the Company receives
notice thereof, 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 and to furnish you with copies thereof; to
advise you, promptly after the Company receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares 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 stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or prospectus or suspending any such qualification,
promptly to use the Company's best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such U.S. jurisdictions as you 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
the Shares, 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 this
Agreement shall be at your expense;
(c) Prior to 12:00 p.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement or as soon as practicable
thereafter, and from time to time, to furnish the Underwriters with copies of
the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time prior to
the expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares 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 period to amend or supplement the Prospectus in order to comply with
the Act, to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to each
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other broker-dealer participating with the Underwriters in the distribution of
the Shares as many copies as you 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 in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to the Company's security holders 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) under
the Act), an earnings 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 thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 180 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder any securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock option
or purchase plans or director incentive plans existing on the date of this
Agreement), without the prior written consent of Goldman, Sachs & Co. on behalf
of the Underwriters;
(f) To furnish to the Company's stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants);
(g) To use the net proceeds received by the Company from the sale of
the Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(h) To use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange (the "Exchange");
(i) To file with the Commission such information on Form 10-Q or Form
10-K as may be required by Rule 463 under the Act; and
(j) 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 this Agreement,
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.
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6. The Company covenants and agrees with the several Underwriters
that it 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 Shares 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 amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of producing and copying any Agreement among
Underwriters, this Agreement, any Blue Sky Memorandum, and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees (not to exceed $5,000) and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with any Blue Sky survey; (iv) all fees and expenses in connection with listing
the Shares on the Exchange; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar; 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, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of
the Shares by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
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 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), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., Washington,
D.C. time, on the date of this 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 your reasonable
satisfaction;
(b) Cravath, Swaine & Moore, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time of Delivery,
with respect to the matters covered in paragraphs (i), (ii), (iii), (vi) and
(viii) of subsection (c) below as well as such other related matters as you may
reasonably request, and such counsel shall
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have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Wachtell, Lipton, Rosen & Katz shall have furnished to you their
written opinion, dated such Time of Delivery, in form and substance reasonably
satisfactory to you, 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 Delaware, with
corporate power and authority necessary in all material respects to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has the authorized capital stock as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of Delivery when
issued and delivered against payment therefor) have been duly and validly
authorized and issued and are fully paid and non-assessable; and the Shares
conform, as to legal matters, in all material respects to the description
of the Stock contained in the Prospectus;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) The issue and sale of the Shares being delivered at such
Time of Delivery by the Company and the compliance by the Company with all
of the provisions of this Agreement and the consummation of the
transactions herein 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, any agreement or instrument filed as an exhibit to the
Registration Statement, which would cause a material adverse change in or
affecting the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole or
affect the validity of the Shares or the legal authority of the Company to
comply with this Agreement, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Company or any statute under the laws of the State of New York, the General
Corporation Law of the State of Delaware or the federal securities laws of
the United States of America or any order, rule or regulation known to such
counsel of any court or governmental agency or body in the State of New
York having jurisdiction over the Company or any of its subsidiaries or any
of their properties which would cause a material adverse change in or
affecting the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole
(except to the extent that the issue and sale of the Shares as contemplated
by this Agreement and the distribution of the Shares by the Underwriters
may result in violations of state securities or Blue Sky laws);
(v) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in the
State of New York or Delaware or of the United States having jurisdiction
over the
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Company is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares, 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 Shares by the Underwriters;
(vi) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, are accurate in all
material respects;
(vii) The Company is not an "investment company", as such term
is defined in the Investment Company Act; and
(viii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules and notes or other financial data included therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act.
In rendering their opinion, such counsel may rely (A) upon the opinion
furnished to you pursuant to Section 7(d); (B) upon oral advice of the staff of
the Commission; and (C) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company.
With respect to the matters to be covered in paragraph (viii) above,
such counsel may state that their opinion is based upon their participation in
the preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto and discussions with representatives of the
Company and its auditors (including discussions in which the Underwriters and
their counsel participated) in connection with such preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
but is without independent check or verification, except as specified. Such
counsel shall state that in the course of such participation and discussions, no
facts have come to such counsel's attention which lead such counsel to believe
that (other than the financial statements and related schedules and notes or
other financial data included therein, as to which such counsel need express no
belief) the Registration Statement at the time it became effective or any
further amendment thereto made by the Company prior to the Time of Delivery
contained any 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, or that the Prospectus as of its date (as amended or
supplemented prior to the Time of Delivery, if applicable) and as of such Time
of Delivery, contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; and they do not
know of any amendment to the Registration Statement required to be filed or of
any
11
<PAGE>
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement which are not so filed. Such counsel may
further state that such counsel have not verified, and are not passing upon and
do not assume any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus or any
amendments or supplements thereto (other than those statements referred to in
paragraph (vi) above and such statements insofar as they relate to us).
In rendering their opinion, such counsel may state that they express
no opinion other than as to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the United
States.
(d) The General Counsel of the Company shall have furnished to you
its written opinion, dated such Time of Delivery, in form and substance
reasonably satisfactory to you, to the effect that:
(i) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the issued
shares of capital stock of each such subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and (except for
directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect to matters of fact
upon certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that it believes that both you and it are
justified in relying upon such opinions and certificates and shall deliver
to you with copies of such opinions and certificates);
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification or, except
where the failure to be so qualified would not have a material adverse
effect on the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole (such
counsel being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such counsel shall
state that they believe that both you and they are justified in relying
upon such opinions and certificates and shall deliver to you with copies of
such opinions and certificates);
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental proceedings
pending, and, to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities, 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 those
which individually or in the aggregate would not have a material adverse
effect on the financial position, stockholders'
12
<PAGE>
equity or results of operations of the Company and its subsidiaries,
considered as a whole;
(iv) Neither the Company nor any of its Significant Subsidiaries
is in violation of its Certificate of Incorporation or By-laws in any
material respect;
(v) The issue and sale of the Shares being delivered at such
Time of Delivery by the Company and the compliance by the Company with all
of the provisions of this Agreement and each of the Reorganization
Agreements 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, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, which would cause a material adverse change in
or affecting the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole or
affect the validity of the Shares or the legal authority of the Company to
perform its obligations under this Agreement, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation
known to such counsel 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 material
adverse change in or affecting the financial position, stockholders' equity
or results of operations of the Company and its subsidiaries considered as
a whole (except to the extent that the issue and sale of the Shares as
contemplated by this Agreement and the distribution of the Shares by the
Underwriters may result in violations of state securities or Blue Sky
laws);
(vi) The statements set forth in the Prospectus under the
caption "Business--Legal Proceedings," insofar as they purport to
constitute a summary of the proceedings referred to therein, are accurate
in all material respects; and
(vii) Each of the Reorganization Agreements has been duly
authorized, executed and delivered by the Company and each of the
Reorganization Agreements constitutes a valid and binding agreement of the
Company.
Such counsel shall also state that in the course of its participation
in the preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto and discussions with representatives of the
Company and its auditors (including discussions in which the Underwriters and
their counsel participated), no facts have come to such counsel's attention
which lead such counsel to believe that (other than the financial statements and
related schedules and notes or other financial data included therein, as to
which such counsel need express no belief) the Registration Statement at the
time it became effective or any further amendment thereto made by the Company
prior to the Time of Delivery contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the
13
<PAGE>
statements therein not misleading, or that the Prospectus as of its date (as
amended or supplemented prior to the Time of Delivery, if applicable) and as of
such Time of Delivery, contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement required to
be filed or of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not so filed or
described. Such counsel may further state that such counsel 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 or the Prospectus or any amendments or supplements
thereto (other than those statements referred to in paragraph (vi) above).
In rendering their opinion, such counsel may state that they express
no opinion other than as to the laws of the State of Missouri, the General
Corporation Law of the State of Delaware and the federal laws of the United
States.
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Deloitte & Touche LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance reasonably satisfactory to you;
(f) Since the respective dates as of which information is given in
the Prospectus there shall not have been any change in the capital stock or the
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the financial
position, stockholders' 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, the effect of which in any such case in the reasonable
judgment of the Representatives is so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by Duff & Phelps
Inc., Moody's Investor Service, Inc., or Standard & Poor's, a division of The
McGraw Hill Companies, and (ii) no such organization shall have publicly
announced that it has under surveillance or review for potential downgrading or
other similar negative review, its rating of any of the Company's debt
securities;
(h) On or after the date hereof there shall not have occurred any of
the following if the effect of any such event specified in this Section 7(h) in
the reasonable judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus: (i) a suspension or material
14
<PAGE>
limitation in trading in securities generally on the Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the Exchange;
(iii) a general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war;
(i) The Shares to be sold at such Time of Delivery shall have been
duly listed, subject to notice of issuance, on the Exchange;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from directors and executive officers receiving
option grants, substantially to the effect set forth in Subsection 5(e) hereof
in form and substance satisfactory to you;
(k) 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; and
(l) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of the Company (signed by an executive
officer) reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of
Delivery, 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 as to the matters set forth in subsections (a) and (f) of this
Section and as to such other customary or appropriate matters as you may
reasonably request.
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, the Registration
Statement or the Prospectus, 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, 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 as such expenses are
incurred; 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, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use therein; provided, further, that
if any Preliminary Prospectus 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 the Prospectus, the Company shall
15
<PAGE>
not be liable to any Underwriter under this subsection (a) with respect to such
alleged untrue statement or alleged omission to the extent that it shall be
established that any such loss, claim, damage or liability of such Underwriter
results solely from the fact that such Underwriter sold Shares to a person to
whom such Underwriter failed to send or give, at or prior to the written
confirmation of such sale, a copy of the final Prospectus as then amended or
supplemented containing a correction of such alleged misstatement or omission,
in any case where such delivery is required by the Act, if the Company has
previously furnished copies thereof (sufficiently in advance of the Time of
Delivery to allow for distribution prior to the confirmation of such sale) to
such Underwriter, advising the Underwriters at such time that the final
Prospectus as then amended or supplemented contained such corrections.
(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, the Registration Statement or the
Prospectus, 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, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Goldman, Sachs
& Co. 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 as such expenses are
incurred.
(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 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
16
<PAGE>
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. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(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 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 on the other from the offering of the Shares. 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 on the
other in connection with the statements or omissions 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 the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. 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 the 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 contributions 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 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 Shares 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
17
<PAGE>
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 Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations 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 (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a 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 Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, 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 you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company that you
have so arranged for the purchase of such Shares, or the Company notifies you
that it has so arranged for the purchase of such Shares, you or the Company
shall have the right to postpone such Time of Delivery 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, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
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 this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares 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.
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<PAGE>
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) 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 Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 6 and 8 hereof; but, if for any other reason, any
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company
shall then be under no further liability to any Underwriter except as provided
in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
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 you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives.
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 you as the representatives in case of Goldman, Sachs &
Co., 32 Old Slip, 21st Floor, New York, New York 10005, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail 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
19
<PAGE>
be supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 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. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the Company.
Very truly yours,
Monsanto Company
By:_________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:______________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
20
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------
Total Number of Shares to be Purchased
Firm Shares to if Maximum Option
Underwriter be Purchased Exercised
----------- ------------ --------------------
-------------------------------------------------------------------------------------------------
<S> <C> <C>
Goldman, Sachs & Co.
-------------------------------------------------------------------------------------------------
Salomon Smith Barney Inc.
-------------------------------------------------------------------------------------------------
J.P. Morgan Securities Inc.
-------------------------------------------------------------------------------------------------
Morgan Stanley & Co. Incorporated
-------------------------------------------------------------------------------------------------
Bear, Stearns & Co. Inc.
-------------------------------------------------------------------------------------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Total..................................... __________ __________
-------------------------------------------------------------------------------------------------
</TABLE>
21
<PAGE>
SCHEDULE II
Significant Subsidiaries
------------------------
Asgrow Seed Company LLC
Dekalb Genetics Corp.
Monsanto Europe S.A.
22
