<PAGE>
As Filed with the Securities and Exchange Commission on March 2, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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MONSANTO COMPANY
(Exact name of Registrant as specified in its charter)
Delaware 43-0420020
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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800 North Lindbergh Boulevard
St. Louis, Missouri 63167
(314) 694-1000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive office)
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R. William Ide III, Esq.
Monsanto Company
800 North Lindbergh Boulevard
St. Louis, Missouri 63167
(314) 694-1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Barbara L. Blackford Robert F. Wall
Sonya Meyers Davis Terrence R. Brady
Monsanto Company Winston & Strawn
800 North Lindbergh Boulevard 35 West Wacker Drive
St. Louis, Missouri 63167 Chicago, Illinois 60601
(314) 694-1000 (312) 558-5600
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Approximate Date of Commencement of Proposed Sale to Public: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box: [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Amount Proposed Maximum Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Security (1) Offering Price Fee
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<S> <C> <C> <C> <C>
5.375% Notes due 2001...... $500,000,000 100% $500,000,000 $139,000
5.750% Notes due 2005...... $600,000,000 100% $600,000,000 $166,800
5.875% Notes due 2008...... $200,000,000 100% $200,000,000 $ 55,600
6.500% Debentures due 2018. $500,000,000 100% $500,000,000 $139,000
6.600% Debentures due 2028. $700,000,000 100% $700,000,000 $194,600
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</TABLE>
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(1) Estimated in accordance with Rule 457 under the Securities Act of 1993, as
amended, solely for purpose of computing the registration fee.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 2, 1999
PROSPECTUS
[Monsanto logo]
Monsanto Company
Exchange Offer for
$500,000,000 5.375% Notes due 2001
$600,000,000 5.750% Notes due 2005
$200,000,000 5.875% Notes due 2008
$500,000,000 6.500% Debentures due 2018
$700,000,000 6.600% Debentures due 2028
Terms of the Exchange Offer
. The Exchange Offer expires at 5:00 p.m., New York City time, on ,
1999, unless extended.
. All outstanding notes and debentures that are validly tendered and not
validly withdrawn will be exchanged.
. Tenders of outstanding notes and debentures may be withdrawn at any time
prior to the expiration of the Exchange Offer.
. The Exchange Offer is not subject to any condition, other than that the
Exchange Offer not violate applicable law or any applicable
interpretation of the Staff of the Securities and Exchange Commission.
. Monsanto will not receive any proceeds from the Exchange Offer.
. The exchange of notes and debentures will not be a taxable exchange for
U.S. federal income tax purposes.
. The terms of the exchange notes and debentures and the outstanding notes
and debentures are substantially identical, except for certain transfer
restrictions and registration rights relating to the outstanding notes
and debentures.
. There is no existing market for the exchange notes and debentures, and
Monsanto does not intend to apply for their listing on any securities
exchange.
For a discussion of certain factors that should be considered by holders
prior to tendering their outstanding notes and debentures in the Exchange
Offer, see "Risk Factors" beginning on page 11.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The information in this prospectus is not complete and may be changed.
Monsanto may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
The date of this Prospectus is , 1999.
<PAGE>
Each broker-dealer that receives Exchange Debt for its own account pursuant
to the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Debt. Each Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Debt received in exchange for Outstanding Debt acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, ending on the close of business on the
180th day following the Expiration Date (as defined herein), it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution."
You should rely on the information contained, or incorporated by reference,
in this Prospectus. Monsanto has not authorized anyone to provide you with
different information. Monsanto is not making an offer of these securities in
any state where the offer is not permitted. You should not assume that the
information contained in this Prospectus is accurate as of any date other than
the date on the front cover of this Prospectus.
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TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C>
Prospectus Summary......................................................... 1
Risk Factors............................................................... 11
Use of Proceeds............................................................ 12
The Exchange Offer......................................................... 13
Disclosure Regarding Forward-Looking Information........................... 21
Description of the Exchange Debt........................................... 25
Certain United States Federal Tax Consequences............................. 35
Plan of Distribution....................................................... 37
Where You Can Find More Information........................................ 38
Incorporation of Certain Documents by Reference............................ 38
Validity of the Exchange Debt.............................................. 39
Experts.................................................................... 39
</TABLE>
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Trademarks and service marks owned or licensed by Monsanto and its
subsidiaries are indicated by special type throughout this Prospectus.
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the more
detailed information and consolidated financial information appearing elsewhere
in or incorporated by reference into this Prospectus.
The Company
Monsanto is a life sciences company, committed to finding solutions to the
growing global needs for food and health by applying common forms of science
and technology among agriculture, nutrition and health. Monsanto makes and
markets high-value agricultural products, pharmaceuticals and food ingredients.
Monsanto was an early innovator in agricultural biotechnology, and its
Agricultural Products segment is a leading developer, producer and marketer of
crop protection products and seeds. This group also develops and markets
products enhanced by biotechnology. Monsanto markets its technology through its
seed companies and through licensing its technology to third-party seed
companies.
The Nutrition and Consumer Products segment of the Company manufactures and
markets sweeteners (including NutraSweet brand sweetener and Equal and Canderel
tabletop sweeteners), algins, biogums and other food ingredients. This segment
also is investing in a science-based nutrition research program for future life
sciences products.
The Pharmaceuticals segment reflects the operations of the Company's wholly-
owned subsidiary, G.D. Searle & Co. ("Searle"), which develops, produces and
markets prescription pharmaceuticals. Searle focuses its pharmaceutical product
portfolio and research efforts to solve unmet medical needs in four major
therapeutic areas: arthritis/pain and inflamation; cardiovascular disease;
women's health care; and oncology.
The Company was incorporated in 1933 under Delaware law and is the successor
to a Missouri corporation, Monsanto Chemical Works, organized in 1901. The
Company's principal executive offices are located at 800 North Lindbergh
Boulevard, St. Louis, Missouri 63167 (telephone number (314) 694-1000) and its
internet address is http://www.monsanto.com.
Strategy
Monsanto is a life sciences company that creates value by advancing and
applying the rapid innovations in biosciences and genomics to agriculture,
nutrition and health. By considering agriculture, nutrition and health as a
system rather than as isolated businesses, the Company expects to develop more
powerful approaches to medical and agricultural needs. The sharing of these
technologies across businesses can result in reduced time and cost of research
and development (known as "R&D") and also allows the Company to focus on the
most promising candidates in its product pipeline.
While the life sciences industry is relatively young, Monsanto expects the
recent trends of consolidation and alliances in the industry to continue. The
Company has assembled a unique network of relationships among technology
companies and traditional providers of agriculture, food, and human and animal
health during the past several years in order to compete effectively in this
emerging industry. Specifically, Monsanto:
. Has acquired, or agreed to merge with, several seed companies. These
investments are the foundation for Monsanto's continued success in
quickly bringing new traits to market worldwide. The integration of
seeds, biotechnology and crop protection products allows Monsanto to
offer better solutions to customers. Further, Monsanto expects this
integration to transform its seed companies from commodity-based
operations to value-added businesses. In the near term, the Company is
focusing on the successful integration of its seed businesses.
. Is collaborating with several genomics companies and has created a
wholly-owned subsidiary devoted to applying genomics technologies to the
discovery and development of plant and agricultural products. These
collaborations are expected to increase the speed and precision with
which Monsanto can discover and bring to market new life sciences
products.
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. Has forged partnerships and alliances with pharmaceutical companies to
speed the worldwide development and marketing of several promising
products in the Monsanto pipeline. The Company expects to continue this
kind of partnering for certain of its pharmaceutical pipeline products.
In addition, Searle has recently broadened its geographic presence with
strategic acquisitions in key countries, including Brazil, Argentina,
Italy and Switzerland.
. Has formed a joint venture with Cargill Incorporated ("Cargill") to
create new and better products for animal feed and crop processing that
are expected to give growers more options and choices in raising crops
geared for those markets.
Company Strengths
The Company believes its competitive strengths include the following:
. Broad life sciences platform--Monsanto's portfolio includes products in
each of its key business sectors that provide a solid platform for its
efforts in furthering the enterprise as a life sciences company. The
Company has been recognized for its strong product stewardship--
developing and commercializing key products such as Roundup herbicide
and NutraSweet brand sweetener, and then maximizing their potential. The
Company's product management capabilities have created the foundation
for its life sciences strategy and generated the cash flow that has
allowed Monsanto to fund its growth programs to date. Searle is
currently a leading prescription arthritis treatment provider in the
United States and worldwide, driven by the success of the Daypro and
Arthrotec arthritis treatments. In early 1999, Monsanto introduced
Celebrex, a new arthritis agent for acute or chronic use in the
treatment of the signs and symptoms of osteoarthritis and adult
rheumatoid arthritis. In Phase III clinical tests, Celebrex was shown to
be as effective as the prescription-strength non-steroidal anti-
inflammatory drug (NSAID) naproxen in treating arthritis pain and
inflammation, yet was associated with significantly fewer upper
gastrointestinal ulcers than both naproxen and another widely used
arthritis medication, ibuprofen. Celebrex has been approved for sale in
the United States, Brazil and Mexico. Approvals in other countries are
pending.
. Leadership position among agricultural biotechnology firms--Monsanto
began commercializing crops that are herbicide- or insect-resistant in
1995. In 1998, there were more than 50 million acres of crops planted
with seeds containing Monsanto biotechnology traits. This represents a
clear leadership position in this market. Such acreage is expected to
grow substantially as the Company continues to commercialize these
products around the world and as Monsanto traits are bred into more
varieties. In many growing regions, the demand for these products has
exceeded supply, and the satisfaction among growers planting these
products indicates continued growth potential.
. Strong near-term product pipeline--Monsanto has more than two dozen
products in its near-term product pipeline with expected
commercialization dates ranging from 1999 through 2002. The Company
believes that the overall expected value of this near-term portfolio
exceeds $10 billion and that the product candidates support each of the
Company's major business segments (Agricultural Products, Nutrition and
Consumer Products and Pharmaceuticals). See the product pipeline section
below for additional information.
. Leading-edge technology--The Company invested early on in agricultural
biotechnology, which has led to its strong position in agricultural
biotechnology products. Within the past two years, Monsanto has
collaborated with several genomics companies, and has created a wholly-
owned subsidiary to apply genomics technologies to the discovery and
development of plant and agricultural products. Genomics is expected to
contribute to an exponential increase in the number of new life sciences
products which can be created and brought to market. The Company
believes its biotechnology and genomics capabilities are unparalleled in
the life sciences industry.
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. Marketplace presence, sales and distribution strength--Monsanto has
well-established relationships with a significant number of industry
leaders in its target markets, and is adding new relationships through
its partnering arrangements and alliances. This additional presence will
position the Company well as it continues to grow its life sciences
franchise.
Recent Transactions
Agricultural Products Segment
The addition of seed companies to Monsanto's life sciences portfolio is
expected to speed the development and commercialization of seeds that: (1)
allow growers to use fewer insecticides or other inputs and allow for growing
crops in a more environmentally friendly manner; (2) have greater yields; or
(3) contain an improved quality (for example, a healthier oil) for human or
animal consumption.
Monsanto is focusing its agricultural biotechnology efforts and related seed
products on the major row crops (wheat, corn, soybeans, cotton, canola and
rice). As the Company has aggressively pursued its life sciences strategy in
1998, it entered into the following transactions:
DEKALB Genetics Corporation. On December 4, 1998, Monsanto completed its
acquisition of the remaining shares of DEKALB Genetics Corporation ("DEKALB")
that Monsanto did not already own for a purchase price of approximately $2.3
billion. DEKALB is a worldwide leader in agricultural genetics and a top hybrid
seed corn company in the United States. DEKALB also has a strong presence in
Latin America, plus seed interests in Europe and Southeast Asia. DEKALB
currently offers its customers Monsanto traits for YieldGard insect-protected
corn and Roundup Ready herbicide-tolerant corn.
Delta and Pine Land Company. On May 11, 1998, Monsanto announced a
definitive agreement with Delta and Pine Land Company ("Delta Pine") to merge
Delta Pine with Monsanto, which was approved by Delta Pine's shareowners on
November 30, 1998. Under the terms of the agreement, Monsanto will issue
approximately 33 million shares of its Common Stock to Delta Pine shareowners.
The merger is subject to regulatory approvals and other customary conditions.
Delta Pine is a leading breeder, producer and marketer of cotton seed. It
currently sells Monsanto's Bollgard and Ingard insect-protected cotton in the
United States, Mexico, Australia and China, and Roundup Ready cotton in the
United States. Delta Pine's international experience in commercializing crops
developed through biotechnology has allowed it to quickly bring these new seeds
to global markets.
Cargill International Seed Operations. In October 1998, Monsanto announced
the acquisition of the international seed operations of Cargill in Central and
Latin America, Europe (excluding certain operations in the United Kingdom),
Asia and Africa for a purchase price of approximately $1.4 billion. Cargill's
international seed businesses specialize in the development and marketing of
corn, rapeseed and sunflower seeds.
Plant Breeding International Cambridge Limited. On July 16, 1998, Monsanto
acquired Plant Breeding International Cambridge Limited ("PBIC") for a purchase
price of approximately $525 million. PBIC breeds and produces new and improved
varieties of winter wheat and other crops. PBIC's principal operations are in
the United Kingdom, France and Germany.
Cargill Joint Venture. On January 7, 1999, Monsanto and Cargill formed
Renessen LLC, a worldwide joint venture to create and market new products
enhanced through biotechnology for the crop processing and animal feed markets.
The 50-50 joint venture is expected to draw from Monsanto's capabilities in
genomics, biotechnology and seeds and Cargill's global agricultural input,
processing and marketing infrastructure to develop new products with traits
aimed at improving the processing efficiencies and animal nutrition qualities
of major crops.
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<PAGE>
Pharmaceuticals Segment
The Pharmaceuticals segment has entered into agreements designed to enhance
its ability to develop and commercialize its products and broaden its
geographical presence, including the following transactions:
. An alliance between Searle and Yamanouchi Pharmaceutical Co., Ltd. to
develop and commercialize key compounds from the Searle product pipeline
for the Japanese market.
. Agreements between Searle and Pfizer Inc. ("Pfizer") covering the
promotion of Searle's novel COX-2 inhibitors in the United States and
all other world areas except Japan.
Other Segments
The Company has focused on divesting certain non-core businesses, including
the following transactions:
. In January 1999, Monsanto completed the sale of its lawn-and-garden
business exclusive of its Roundup herbicide products for residential use
to The Scotts Company for approximately $300 million. Under a separate,
long-term, exclusive agreement, Monsanto will continue to make Roundup
for residential use, and The Scotts Company will market the product.
. During the course of 1998, the Company completed the sale or
restructuring of several small, non-core businesses. This effort is
expanding to include a number of other non-core initiatives with
potential gross proceeds of up to $700 million.
Product Pipeline
The Company's near-term product pipeline, defined as products that are
expected to be commercialized during the 1999-2002 period, includes
significant products in major markets. Highlights of Monsanto's near-term
pipeline include:
. COX-2 candidates under development include: a once-a-day dosing product
for arthritis sufferers; an injectable COX-2 compound formulated for the
management of acute pain in a hospital setting; a treatment of certain
cancers; and, in the medium-term pipeline, a COX-2 compound that may
lessen the severity of Alzheimer's disease.
. Other near-term pharmaceutical pipeline products include leridistim, a
blood cell growth factor expected to help prevent infections in cancer
patients after chemotherapy.
. Neotame is an important product in the Nutrition and Consumer Products
segment's pipeline that can build on the market leadership created by
NutraSweet brand sweetener. In December 1997, Monsanto filed a limited-
use food additive petition with the FDA for this unique, no-calorie,
high-intensity sweetener. In December 1998, the Company filed for
general use of neotame in any food and beverage product sold in the
United States.
. The near-term agricultural pipeline includes products that will
strengthen Monsanto's already strong portfolio. The near-term pipeline
currently includes products to address specific weed and disease
problems in wheat, which is planted on more acres worldwide than any
other crop. In addition, the pipeline includes: a biotechnology-based
product that will give corn growers protection against the corn
rootworm, a pest that costs U.S. growers $1 billion annually in lost
yields; and next-generation agricultural biotechnology products that
will incorporate insect and herbicide resistance traits in corn and
cotton seeds.
Monsanto announced in January 1999 that it was no longer pursuing the
development of two cardiovascular candidates--the anti-platelet aggregation
compounds orbofiban and xemilofiban--because they were not as efficacious in
long-term therapy as expected.
4
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Private Placement of Outstanding Debt
On December 9, 1998, the Company sold, through a private placement exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act"), $500 million of its 5.375% Notes due 2001, $600 million
of its 5.750% Notes due 2005, $200 million of its 5.875% Notes due 2008, $500
million of its 6.500% Debentures due 2018 and $700 million of its 6.600%
Debentures due 2028 (collectively, the "Outstanding Debt"). The Company used
the net proceeds from the sale of the Outstanding Debt to finance or refinance
seed company acquisitions, including to refinance its outstanding commercial
paper as it became due, and for working capital purposes. Pending use for the
foregoing purposes, the Company invested the proceeds in short-term investment
grade marketable securities or money market obligations.
Simultaneously with the private placement, the Company entered into a
Registration Rights Agreement with the initial purchasers of the Outstanding
Debt. Under the Registration Rights Agreement, the Company must use its
reasonable efforts to cause a registration statement for the Exchange Debt (the
"Exchange Offer Registration Statement") to become effective on or before June
7, 1999. If, among other events, the Exchange Offer is not consummated by July
22, 1999, the Company must pay liquidated damages to the holders of Outstanding
Debt until the earlier of (1) the consummation of the Exchange Offer or (2) the
Company causes a shelf registration statement (the "Shelf Registration
Statement") to become effective. The Company must use its reasonable efforts to
cause the Shelf Registration Statement to become effective and to keep it
effective until the earlier of (a) December 9, 2000 (or, if Rule 144(k) is
amended to provide a shorter restrictive period, such shorter period) or (b)
such time as all of the securities registered thereunder have been sold. You
may exchange your Outstanding Debt for Exchange Debt with substantially the
same terms in this Exchange Offer. You should read the discussion under the
heading "Summary of Terms of the Exchange Debt" and "Description of the
Exchange Debt" for further information regarding the Exchange Debt.
The Company believes that holders of the Outstanding Debt may resell the
Exchange Debt without complying with the registration and prospectus delivery
provisions of the Securities Act, if certain conditions are met. You should
read the discussion under the headings "Summary of the Exchange Offer" and "The
Exchange Offer" for further information regarding the Exchange Offer and
resales of the Exchange Debt.
Risk Factors
See the section entitled "Risk Factors," beginning on page 11, for a
discussion of certain factors that you should consider in connection with your
investment in the Exchange Debt.
Summary of the Exchange Offer
Registration Rights....... The Company sold the Outstanding Debt on December
9, 1998 to Salomon Smith Barney Inc. and Goldman,
Sachs & Co., the initial purchasers. The initial
purchasers then sold the Outstanding Debt to
institutional investors. Simultaneously with the
initial sale of the Outstanding Debt, the Company
entered into a Registration Rights Agreement with
the initial purchasers, which provides for the
Exchange Offer.
You may exchange your Outstanding Debt for Exchange
Debt, which has substantially identical terms. The
Exchange Offer satisfies your rights under the
Registration Rights Agreement. After the Exchange
Offer is over, you will not be entitled to any
exchange or registration
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<PAGE>
rights with respect to your Outstanding Debt.
Therefore, if you do not exchange your Outstanding
Debt, you will not be able to reoffer, resell or
otherwise dispose of your Outstanding Debt unless
(1) you comply with the registration and prospectus
delivery requirements of the Securities Act of
1933, as amended (the "Securities Act"), or (2) you
qualify for an exemption from such Securities Act
requirements.
The Exchange Offer........ Monsanto is offering to exchange $500 million total
principal amount of its 5.375% Notes due 2001, $600
million total principal amount of its 5.750% Notes
due 2005, $200 million total principal amount of
its 5.875% Notes due 2008, $500 million total
principal amount of its 6.500% Debentures due 2018
and $700 million total principal amount of its
6.600% Debentures due 2028, respectively, which
have been registered under the Securities Act
(collectively, the "Exchange Debt"), for your
outstanding 5.375% Notes due 2001, 5.750% Notes due
2005, 5.875% Notes due 2008, 6.500% Debentures due
2018 or 6.600% Debentures due 2028, respectively,
sold in the December 1998 private offering. To
exchange your Outstanding Debt, you must properly
tender it, and the Company must accept it. The
Company will exchange all Outstanding Debt that you
validly tender and do not validly withdraw. The
Company will issue registered Exchange Debt at or
promptly after the end of the Exchange Offer.
Resales................... The Company believes that you can offer for resale,
resell or otherwise transfer the Exchange Debt
without complying with the registration and
prospectus delivery requirements of the Securities
Act if:
. you acquire the Exchange Debt in the
ordinary course of your business;
. you are not participating, do not intend to
participate, and have no arrangement or
understanding with any person to
participate, in the distribution of the
Exchange Debt; and
. you are not an "affiliate" of Monsanto, as
defined in Rule 405 of the Securities Act.
If any of these conditions is not satisfied and you
transfer any Exchange Debt without delivering a
proper prospectus or without qualifying for a
registration exemption, you may incur liability
under the Securities Act. The Company will not
assume or indemnify you against such liability.
Each broker-dealer that receives Exchange Debt for
its own account in exchange for Outstanding Debt,
where such Outstanding Debt was acquired by such
broker-dealer as a result of market-making
activities or other trading activities, must
acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Debt.
See "Plan of Distribution." A broker-dealer may use
this Prospectus for an offer to resell, a resale or
other retransfer of the Exchange Debt.
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<PAGE>
Expiration Date........... The Exchange Offer expires at 5:00 p.m., New York
City time, on , 1999, unless the Company
extends the expiration date.
Conditions to the The Exchange Offer is subject to customary
Exchange Offer........... conditions, some of which the Company may waive.
Procedures for Tendering
Outstanding Debt.........
Monsanto issued the Outstanding Debt as global
securities. When the Outstanding Debt was issued,
the Company deposited it with The Bank of New York,
as depositary. The Bank of New York established a
certificateless depositary interest in each note
and debenture, which represents a 100% interest in
the notes and debentures, in the name of Cede &
Co., the nominee of The Depository Trust Company
("DTC"). Beneficial interests in the Outstanding
Debt, which are held by direct or indirect
participants in DTC through the certificateless
depositary interest, are shown on records
maintained in book-entry form by DTC.
You may tender your Outstanding Debt through book-
entry transfer in accordance with DTC's Automated
Tender Offer Program ("ATOP"). To tender your
Outstanding Debt by a means other than ATOP, a
Letter of Transmittal must be completed and signed
according to the instructions contained in the
letter. The Letter of Transmittal and any other
documents required by the Letter of Transmittal
must be delivered to the Exchange Agent by mail,
facsimile, hand delivery or overnight carrier. In
addition, you must deliver your Outstanding Debt to
the Exchange Agent or comply with the procedures
for guaranteed delivery. See "The Exchange Offer--
Procedures for Tendering Outstanding Debt" for more
information.
Do not send Letters of Transmittal and certificates
representing Outstanding Debt to the Company. Send
these documents only to the Exchange Agent. See
"The Exchange Offer--Exchange Agent" for more
information.
Special Procedures for
Beneficial Owners........
If you are a beneficial owner whose Outstanding
Debt is registered in the name of a broker, dealer,
commercial bank, trust company or other nominee,
and you wish to tender your Outstanding Debt in the
Exchange Offer, please contact the registered
holder as soon as possible and instruct them to
tender on your behalf and comply with the
instructions set forth elsewhere in this
Prospectus.
Withdrawal Rights......... You may withdraw the tender of your Outstanding
Debt at any time before 5:00 p.m., New York City
time, on , 1999, unless the Company
extends the date.
Appraisal or Dissenters' Holders of Outstanding Debt do not have any
Rights................... appraisal or dissenters' rights in the Exchange
Offer. If you do not tender your Outstanding Debt
or the Company does not accept your tender because,
among
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<PAGE>
other things, you invalidly tendered it, you will
not be entitled to any further registration rights
under the Registration Rights Agreement, except
under limited circumstances. However, your notes
and debentures will remain outstanding and entitled
to the benefits of the Indenture. You should read
the discussion under the heading "Risk Factors--
Consequences of a Failure to Exchange Outstanding
Debt" for further information.
Federal Income Tax The exchange of outstanding notes and debentures
Considerations........... generally is not a taxable exchange for United
States federal income tax purposes. You generally
will not recognize any taxable gain or loss or any
interest income as a result of the exchange. For
additional information regarding federal income tax
considerations, you should read the discussion
under the heading "Certain United States Federal
Tax Consequences."
Use of Proceeds........... The Company will not receive any proceeds from the
issuance of the Exchange Debt, and the Company will
pay the expenses of the Exchange Offer.
Exchange Agent............ The Bank of New York is serving as Exchange Agent
in the Exchange Offer. The mailing address of the
Exchange Agent is The Bank of New York, 101 Barclay
Street, 7E, New York, New York 10286, Attention:
Reorganization Department. Deliveries by hand or
overnight courier should be addressed to The Bank
of New York, 101 Barclay Street, 7E, Corporate
Trust Services Window, Ground Level, New York, New
York 10286, Attention: Reorganization Department.
For information about the Exchange Offer, call the
exchange agent at telephone number: (212) 815-6333
or facsimile number: (212) 815-4699.
You should consider carefully the information set forth under the caption
"Risk Factors" beginning on page 11 and all other information set forth in this
Prospectus before deciding whether to participate in the Exchange Offer.
Summary of Terms of the Exchange Debt
The form and terms of the Exchange Debt are the same as the form and terms
of the Outstanding Debt, except that the Exchange Debt will be registered under
the Securities Act. As a result, the Exchange Debt will not bear legends
restricting its transfer and will not contain the registration rights and
liquidated damages provisions contained in the Outstanding Debt. The Exchange
Debt represents the same debt as the Outstanding Debt. Both the Outstanding
Debt and the Exchange Debt are governed by the same Indenture.
Aggregate Amount.......... $500,000,000 principal amount of 5.375% Notes due
2001, $600,000,000 principal amount of 5.750% Notes
due 2005, $200,000,000 principal amount of 5.875%
Notes due 2008, $500,000,000 principal amount of
6.500% Debentures due 2018, and $700,000,000
principal amount of 6.600% Debentures due 2028.
Interest.................. Interest will accrue on the Exchange Debt from the
date of initial issuance and will be payable on
June 1 and December 1 of each year, beginning June
1, 1999. Holders of Exchange Debt will receive
interest on June 1, 1999 from the date of initial
issuance of the Exchange Debt, plus an amount equal
to the accrued, but unpaid, interest on the
Outstanding Debt.
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Ranking................... The Exchange Debt will be senior unsecured
obligations of Monsanto and will rank equally with
all other senior unsecured and unsubordinated
indebtedness of Monsanto.
Optional Redemption....... The Notes due 2001 are not redeemable prior to
maturity. The other series of Exchange Debt will be
redeemable as a whole or in part, at the option of
Monsanto, at any time at a redemption price equal
to the greater of (1) 100% of the principal amount
of the Exchange Debt to be redeemed or (2) the sum
of the present values of the remaining scheduled
principal and interest payments discounted, on a
semiannual basis, at a rate equal to the sum of the
applicable Treasury Rate (as defined herein) and 15
basis points for the Notes due 2005, 20 basis
points for the Notes due 2008 and the Debentures
due 2018, and 25 basis points for the Debentures
due 2028, plus, in each case, accrued interest to
the date of redemption.
Sinking Fund.............. None.
Use of Proceeds........... The Company will not receive any cash proceeds in
the Exchange Offer.
Form of the Exchange The Exchange Debt will be represented by one or
Debt..................... more permanent global securities in bearer form
deposited with The Bank of New York, as book-entry
depositary, for the benefit of DTC. You will not
receive notes or debentures in registered form
unless one of the events set forth under the
heading "Description of the Exchange Debt--Global
Securities" and "--Certificated Securities" occurs.
Instead, beneficial interests in the Exchange Debt
will be shown on, and transfers of these interests
will be effected only through, records maintained
in book-entry form by DTC with respect to its
participants.
Absence of a Public
Market for the Exchange
Debt.....................
The Company does not intend to apply for a listing
of the Exchange Debt on any securities exchange.
The initial purchasers of the Outstanding Debt have
advised the Company that they currently intend to
make a market in the Exchange Debt following the
Exchange Offer, but they are not obligated to do
so, and any market-making may be stopped at any
time without notice. The Company does not know if
an active public market for the notes and
debentures will develop or, if developed, will
continue. If an active public market does not
develop or is not maintained, the market price and
liquidity of the notes and debentures may be
adversely affected. The Company cannot make any
assurances regarding the liquidity of the market
for the Exchange Debt, the ability of holders to
sell their Exchange Debt or the price at which
holders may sell their Exchange Debt.
For additional information regarding the Exchange Debt, see "Description of
the Exchange Debt."
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Other Offerings
In addition to the Company's private placement of the Outstanding Debt, in
November 1998 the Company completed offerings of Common Stock and Adjustable
Conversion-rate Equity Security Units ("ACES") that resulted in aggregate net
proceeds (after deducting estimated expenses) of approximately $1.64 billion.
The offerings of Outstanding Debt, Common Stock and ACES together are referred
to as the "Financings." This Prospectus relates only to the offering of
Exchange Debt and no other securities.
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RISK FACTORS
Before making a decision to exchange your notes and debentures in the
Exchange Offer, you should consider, in addition to the information presented
in "Disclosure Regarding Forward-Looking Information" and the other information
with respect to the Company and its business contained in this Prospectus or
incorporated in this Prospectus by reference, the following risk factors
relating to the Exchange Offer.
Consequences of a Failure to Exchange Outstanding Debt
The Company did not register the Outstanding Debt under the Securities Act
or any state securities laws, nor does it intend to after the Exchange Offer.
As a result, the Outstanding Debt may only be transferred in limited
circumstances under the securities laws. If the holders of the Outstanding Debt
do not exchange their notes and debentures in the Exchange Offer, they lose
their right to have the Outstanding Debt registered under the Securities Act,
subject to certain limitations. A holder of Outstanding Debt after the Exchange
Offer may be unable to sell the notes and debentures.
To exchange the Outstanding Debt for the Exchange Debt, the Exchange Agent
must receive (1) certificates for the Outstanding Debt or a book-entry
confirmation of the transfer of the Outstanding Debt into the Exchange Agent's
account at DTC, (2) a completed and signed Letter of Transmittal with any
required signature guarantees, or an Exchange Agent's message in the case of a
book-entry transfer, and (3) any other documents required by the Letter of
Transmittal. Holders of Outstanding Debt who want to exchange their notes and
debentures should allow enough time to guarantee timely delivery. The Company
is under no duty to give notice of defective exchanges.
Lack of Public Market for Exchange Debt
The Company does not intend to apply for a listing of the Exchange Debt on
any securities exchange. The initial purchasers of the Outstanding Debt have
advised the Company that they currently intend to make a market in the Exchange
Debt following the Exchange Offer, but they are not obligated to do so, and any
market-making may be stopped at any time without notice. The Company does not
know if an active public market for the Exchange Debt will develop or, if
developed, will continue. If an active public market does not develop or is not
maintained, the market price and liquidity of the Exchange Debt may be
adversely affected. The Company cannot make any assurances regarding the
liquidity of the market for the Exchange Debt, the ability of holders to sell
their Exchange Debt or the price at which holders may sell their Exchange Debt.
Procedures for Tender of Outstanding Debt
The Exchange Debt will be issued in exchange for the Outstanding Debt only
after timely receipt by the Exchange Agent of the Outstanding Debt, a properly
completed and executed Letter of Transmittal and all other required
documentation. If you want to tender your Outstanding Debt in exchange for
Exchange Debt, you should allow sufficient time to ensure timely delivery.
Neither the Exchange Agent nor the Company is under any duty to give you
notification of defects or irregularities with respect to tenders of
Outstanding Debt for exchange. Outstanding Debt that is not tendered or is
tendered but not accepted due to, among other things, an invalid tender will,
following the Exchange Offer, continue to be subject to the existing transfer
restrictions. In addition, if you are an affiliate of the Company or you tender
the Outstanding Debt in the Exchange Offer in order to participate in a
distribution of the Exchange Debt, you will be required to comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. For additional information, please
refer to the sections entitled "The Exchange Offer" and "Plan of Distribution"
later in this Prospectus.
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USE OF PROCEEDS
The Company will not receive any proceeds from the Exchange Offer. In
consideration for issuing the Exchange Debt, the Company will receive in
exchange Outstanding Debt of like principal amount, the terms of which are
identical in all material respects to the Exchange Debt. The Outstanding Debt
surrendered in exchange for Exchange Debt will be retired and canceled and
cannot be reissued. Accordingly, issuance of the Exchange Debt will not result
in any increase in the Company's indebtedness. The Company has agreed to bear
the expenses of the Exchange Offer. No underwriter is being used in connection
with the Exchange Offer.
The net proceeds to the Company from the sale of the Outstanding Debt (after
deducting expenses) was approximately $2.475 billion. The Company used such net
proceeds to finance or refinance seed company acquisitions, including to
refinance its outstanding commercial paper as it became due, and for working
capital purposes.
In November 1998, the Company completed an offering of Common Stock and
ACES. The Company used the net proceeds of approximately $1.64 billion from the
sale of Common Stock and ACES in connection with the acquisition of the
remaining shares of DEKALB.
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THE EXCHANGE OFFER
Purpose of the Exchange Offer
Simultaneously with the sale of the Outstanding Debt, the Company entered
into a Registration Rights Agreement with Salomon Smith Barney Inc. and
Goldman, Sachs & Co., the initial purchasers of the Outstanding Debt. Under
this Registration Rights Agreement, the Company agreed to file a registration
statement regarding the exchange of the Outstanding Debt for notes and
debentures with terms identical in all material respects. The Company also
agreed to use its reasonable best efforts to cause that registration statement
to become effective with the Securities and Exchange Commission (the
"Commission"). A copy of the Registration Rights Agreement has been filed as an
exhibit to the registration statement of which this Prospectus is a part.
The Company is conducting the Exchange Offer to satisfy its contractual
obligations under the Registration Rights Agreement. The form and terms of the
Exchange Debt are the same as the form and terms of the Outstanding Debt,
except that the Exchange Debt will be registered under the Securities Act, and
holders of the Exchange Debt will not be entitled to liquidated damages. The
Registration Rights Agreement provides that, if the Exchange Offer is not
consummated by July 22, 1999, the Company will pay liquidated damages on the
Outstanding Debt. See "Description of the Exchange Debt--Registration Rights;
Liquidated Damages" for more information on liquidated damages. Upon the
completion of the Exchange Offer, holders of Outstanding Debt will not be
entitled to any liquidated damages on the Outstanding Debt or any further
registration rights under the Registration Rights Agreement, except under
limited circumstances. See "Risk Factors--Consequences of a Failure to Exchange
Outstanding Debt" and "Description of the Exchange Debt" for further
information regarding the rights of Outstanding Debt holders after the Exchange
Offer. The Exchange Offer is not extended to Outstanding Debt holders in any
jurisdiction where the Exchange Offer does not comply with the securities or
blue sky laws of that jurisdiction.
In the event that applicable interpretations of the staff of the Commission
do not permit the Company to conduct the Exchange Offer, or if certain holders
of the Outstanding Debt notify the Company that they are not eligible to
participate in, or would not receive freely tradeable Exchange Debt in exchange
for tendered Outstanding Debt in, the Exchange Offer, or the Exchange Offer is
not consummated by July 22, 1999, the Company will use its reasonable efforts
to cause to become effective a shelf registration statement with respect to the
resale of the Outstanding Debt (the "Shelf Registration Statement"). The
Company also agreed to use its reasonable efforts to keep the Shelf
Registration Statement effective until the earlier of (1) two years after the
date of the issuance of the Outstanding Debt (or, if Rule 144(k) is amended to
provide a shorter restrictive period, such shorter period) or (2) such time as
when all the securities covered by the Shelf Registration Statement have been
sold pursuant to it.
The term "holder" as used in this section of the Prospectus entitled "The
Exchange Offer" means (1) any person in whose name the Outstanding Debt is
registered on the books of the Company, or (2) any other person who has
obtained a properly completed bond power from the registered holder, or (3) any
person whose Outstanding Debt is held of record by DTC and who wants to deliver
such Outstanding Debt by book-entry transfer at DTC.
Terms of the Exchange Offer
The Company is offering to exchange up to $2,500,000,000 total principal
amount of Exchange Debt for a like total principal amount of Outstanding Debt.
The Outstanding Debt must be tendered properly on or before the Expiration Date
and not withdrawn. In exchange for Outstanding Debt properly tendered and
accepted, the Company will issue a like total principal amount of up to
$2,500,000,000 in Exchange Debt.
The Exchange Offer is not conditioned upon holders tendering a minimum
principal amount of Outstanding Debt. As of the date of this Prospectus,
$2,500,000,000 aggregate principal amount of Outstanding Debt is outstanding.
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<PAGE>
Holders of the Outstanding Debt do not have any appraisal or dissenters'
rights in the Exchange Offer. If holders do not tender Outstanding Debt or
tender Outstanding Debt that the Company does not accept, their Outstanding
Debt will remain outstanding. Any Outstanding Debt will be entitled to the
benefits of the Indenture, but will not be entitled to any further registration
rights under the Registration Rights Agreement, except under limited
circumstances. See "Risk Factors--Consequences of a Failure to Exchange
Outstanding Debt" for more information regarding notes and debentures
outstanding after the Exchange Offer.
After the Expiration Date, the Company will return to the holder any
tendered Outstanding Debt that the Company did not accept for exchange due to,
among other things, an invalid tender.
Holders exchanging Outstanding Debt will not have to pay brokerage
commissions or fees or transfer taxes if they follow the instructions in the
Letter of Transmittal. The Company will pay the charges and expenses, other
than certain taxes described below, in the Exchange Offer. See "--Fees and
Expenses" for further information regarding fees and expenses.
NEITHER THE COMPANY NOR THE COMPANY'S BOARD OF DIRECTORS RECOMMENDS THAT YOU
TENDER OR NOT TENDER OUTSTANDING DEBT IN THE EXCHANGE OFFER. IN ADDITION, THE
COMPANY HAS NOT AUTHORIZED ANYONE TO MAKE ANY RECOMMENDATION. YOU MUST DECIDE
WHETHER TO TENDER IN THE EXCHANGE OFFER AND, IF SO, THE AGGREGATE AMOUNT OF
OUTSTANDING DEBT TO TENDER.
As used in this Prospectus, the "Expiration Date" is 5:00 p.m., New York
City time, on , 1999, unless the Company extends the Exchange Offer.
The Company has the right, in accordance with applicable law, at any time:
. to delay the acceptance of the Outstanding Debt;
. to terminate the Exchange Offer if the Company determines that any of
the conditions to the Exchange Offer have not occurred or have not been
satisfied;
. to extend the Expiration Date of the Exchange Offer and keep all
Outstanding Debt tendered other than those notes and debentures properly
withdrawn; and
. to waive any condition or amend the terms of the Exchange Offer.
If the Company materially changes the Exchange Offer, or if the Company
waives a material condition of the Exchange Offer, the Company will promptly
distribute a prospectus supplement to the holders of the Outstanding Debt
disclosing the change or waiver. The Company also will extend the Exchange
Offer as required by Rule 14e-1 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
If the Company exercises any of the rights listed above, it will promptly
give oral or written notice of the action to the Exchange Agent and will issue
a release to an appropriate news agency. In the case of an extension, an
announcement will be made no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date.
Acceptance for Exchange and Issuance of Exchange Debt
The Company will issue Exchange Debt to the Exchange Agent for Outstanding
Debt tendered and accepted and not withdrawn promptly after the Expiration
Date. The Exchange Agent might not deliver the Exchange Debt to all tendering
holders at the same time. The timing of delivery depends upon when the Exchange
Agent receives and processes the required documents.
The Company will be deemed to have exchanged Outstanding Debt validly
tendered and not withdrawn when the Company gives oral or written notice to the
Exchange Agent of their acceptance. The Exchange
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<PAGE>
Agent is an agent for the Company for receiving tenders of Outstanding Debt,
Letters of Transmittal and related documents. The Exchange Agent is also an
agent for tendering holders for receiving Outstanding Debt, Letters of
Transmittal and related documents and transmitting Exchange Debt to validly
tendering holders. If for any reason, the Company (1) delays the acceptance or
exchange of any Outstanding Debt (2) extends the Exchange Offer; or (3) is
unable to accept or exchange Outstanding Debt, then the Exchange Agent may, on
behalf of the Company and subject to Rule 14e-1(c) under the Exchange Act,
retain tendered notes and debentures. Notes and debentures retained by the
Exchange Agent may not be withdrawn, except according to the withdrawal
procedures outlined in the section entitled "--Withdrawal Rights" below.
In tendering Outstanding Debt, you must warrant in the Letter of Transmittal
or in an Agent's Message (described below) that (1) you have full power and
authority to tender, exchange, sell, assign and transfer Outstanding Debt, (2)
the Company will acquire good, marketable and unencumbered title to the
tendered Outstanding Debt, free and clear of all liens, restrictions, charges
and other encumbrances, and (3) the Outstanding Debt tendered for exchange is
not subject to any adverse claims or proxies. You also must warrant and agree
that you will, upon request, execute and deliver any additional documents
requested by the Company or the Exchange Agent to complete the exchange, sale,
assignment, and transfer of the Outstanding Debt and that you will comply with
your obligations under the Registration Rights Agreement.
Procedures for Tendering Outstanding Debt
Valid Tender
You may tender your Outstanding Debt by book-entry transfer or, if you hold
certificated securities, by other means, as described below. For book-entry
transfer, you must deliver to the Exchange Agent either (1) a completed and
signed Letter of Transmittal or (2) an Agent's Message. An "Agent's Message"
means a message, transmitted by DTC to and received by the Exchange Agent and
forming a part of a book-entry confirmation (a confirmation of a book-entry
transfer of Outstanding Debt into the Exchange Agent's account at DTC), which
states that DTC has received an express acknowledgment from the tendering
participant, which acknowledgment states that it has received and agrees to be
bound by the Letter of Transmittal and that the Company may enforce the Letter
of Transmittal against such participant. You must deliver your Letter of
Transmittal or the Agent's Message by mail, facsimile, hand delivery or
overnight carrier to the Exchange Agent on or before the Expiration Date. In
addition, to complete a book-entry transfer, you must also either (1) have DTC
transfer the Outstanding Debt into the Exchange Agent's account at DTC using
the ATOP procedures for transfer, and obtain a confirmation of such a transfer,
or (2) follow the guaranteed delivery procedures described below under "--
Guaranteed Delivery Procedures."
If you tender less than all of your Outstanding Debt, you should fill in the
principal amount of notes and debentures tendered in the appropriate box on the
Letter of Transmittal. If you do not indicate the amount tendered in the
appropriate box, the Company will assume you are tendering all Outstanding Debt
that you hold.
For tendering your Outstanding Debt other than by book-entry transfer, you
must deliver a completed and signed Letter of Transmittal to the Exchange
Agent. Again, you must deliver the Letter of Transmittal by mail, facsimile,
hand delivery or overnight carrier to the Exchange Agent on or before the
Expiration Date. In addition, to complete a valid tender you must either (1)
deliver your Outstanding Debt to the Exchange Agent on or before the Expiration
Date, or (2) follow the guaranteed delivery procedures set forth below under
"--Guaranteed Delivery Procedures."
DELIVERY OF REQUIRED DOCUMENTS BY WHATEVER METHOD YOU CHOOSE IS AT YOUR SOLE
RISK. DELIVERY IS COMPLETE WHEN THE EXCHANGE AGENT ACTUALLY RECEIVES THE ITEMS
TO BE DELIVERED. DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S
PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT. IF DELIVERY IS
BY MAIL, THEN REGISTERED MAIL, RETURN RECEIPT
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REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED.
IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO ENSURE TIMELY DELIVERY.
Signature Guarantees
You do not need to endorse certificates for the Outstanding Debt or provide
signature guarantees on the Letter of Transmittal, unless (a) someone other
than the registered holder tenders the certificate or (b) you complete the box
entitled "Special Issuance Instructions" or "Special Delivery Instructions" in
the Letter of Transmittal. In the case of (a) or (b) above, you must sign your
Outstanding Debt or provide a properly executed bond power, with the signature
on the bond power and on the Letter of Transmittal guaranteed by a firm or
other entity identified in Rule 17Ad-15 under the Exchange Act as an "eligible
guarantor institution." Eligible Institutions include: (1) a bank; (2) a
broker, dealer, municipal securities broker or dealer or government securities
broker or dealer; (3) a credit union; (4) a national securities exchange,
registered securities association or clearing agency; or (5) a savings
association that is a participant in a securities transfer association.
Guaranteed Delivery
If you want to tender your Outstanding Debt in the Exchange Offer and (1)
the certificates for the Outstanding Debt are not immediately available or all
required documents are unlikely to reach the Exchange Agent on or before the
Expiration Date, or (2) a book-entry transfer cannot be completed in time, you
may tender your Outstanding Debt if you comply with the following guaranteed
delivery procedures:
(a) the tender is made by or through an Eligible Institution;
(b) you deliver a properly completed and signed Notice of Guaranteed
Delivery, like the form provided with the Letter of Transmittal, to the
Exchange Agent on or before the Expiration Date; and
(c) you deliver the certificates or a confirmation of book-entry
transfer and a properly completed and signed Letter of Transmittal to the
Exchange Agent within three New York Stock Exchange trading days after the
Notice of Guaranteed Delivery is executed.
You may deliver the Notice of Guaranteed Delivery by hand, facsimile or mail
to the Exchange Agent and must include a guarantee by an Eligible Institution
in the form described in the notice.
The Company's acceptance of properly tendered Outstanding Debt is a binding
agreement between the tendering holder and the Company upon the terms and
subject to the conditions of the Exchange Offer.
Determination of Validity
The Company will resolve all questions regarding the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange
of any tendered Outstanding Debt. The Company's resolution of these questions
as well as the Company's interpretation of the terms and conditions of the
Exchange Offer (including the Letter of Transmittal) is final and binding on
all parties. A tender of Outstanding Debt is invalid until all irregularities
have been cured or waived. Neither the Company, any affiliates or assigns of
the Company, the Exchange Agent nor any other person is under any obligation to
give notice of any irregularities in tenders nor will they be liable for
failing to give any such notice. The Company reserves the absolute right, in
its sole and absolute discretion, to reject any tenders determined to be in
improper form or unlawful. The Company also reserves the absolute right to
waive any of the conditions of the Exchange Offer or any condition or
irregularity in the tender of Outstanding Debt by any holder. The Company need
not waive similar conditions or irregularities in the case of other holders.
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If any Letter of Transmittal, endorsement, bond power, power of attorney,
or any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
that person must indicate that capacity when signing. In addition, unless
waived by the Company, the person must submit proper evidence satisfactory to
the Company, in its sole discretion, of his or her authority to so act.
A beneficial owner of Outstanding Debt that is held by or registered in the
name of a broker, dealer, commercial bank, trust company or other nominee or
custodian should contact that entity promptly if the holder wants to
participate in the Exchange Offer.
Resales of Exchange Debt
The Company is exchanging the Outstanding Debt for Exchange Debt based upon
the position of the staff of the Commission (the "Staff"), set forth in
interpretive letters to third parties in other similar transactions. The
Company will not seek its own interpretive letter. As a result, the Company
cannot assure you that the Staff will take the same position on this Exchange
Offer as it did in interpretive letters to other parties. Based on the Staff's
letters to other parties, the Company believes that holders of Exchange Debt,
other than broker-dealers, can offer the notes and debentures for resale,
resell and otherwise transfer the Exchange Debt without delivering a
prospectus to prospective purchasers, other than as described below.
Any holder of Outstanding Debt who is an "affiliate" of the Company or who
intends to distribute Exchange Debt, or any broker-dealer who purchased
Outstanding Debt from the Company to resell pursuant to Rule 144A or any other
available exemption under the Securities Act:
. cannot rely on the Staff's interpretations in the above-mentioned
interpretive letters;
. cannot tender Outstanding Debt in the Exchange Offer; and
. must comply with the registration and prospectus delivery requirements
of the Securities Act to transfer the Outstanding Debt, unless the sale
is exempt.
In addition, if any broker-dealer acquired Outstanding Debt for its own
account as a result of market-making or other trading activities and exchanges
the Outstanding Debt for Exchange Debt, the broker-dealer must deliver a
prospectus with any resales of the Exchange Debt.
If you want to exchange your Outstanding Debt for Exchange Debt, you will
be required to affirm that
. you are not an "affiliate" of the Company;
. you are acquiring the Exchange Debt in the ordinary course of your
business;
. you have no arrangement or understanding with any person to participate
in a distribution of the Exchange Debt (within the meaning of the
Securities Act); and
. if you are not a broker-dealer, you are not engaged in, and do not
intend to engage in, a distribution of the Exchange Debt (within the
meaning of the Securities Act).
In addition, the Company may require you to provide information regarding
the number of "beneficial owners" (within the meaning of Rule 13d-3 under the
Exchange Act) of the Outstanding Debt. Each broker-dealer that receives
Exchange Debt for its own account must acknowledge that it acquired the
Outstanding Debt for its own account as the result of market-making activities
or other trading activities and must agree that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale
of Exchange Debt. By making this acknowledgment and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" under the Securities Act. Based on the Staff's position in
certain interpretive letters, the Company believes that broker-dealers who
acquired Outstanding Debt for their own accounts as a result of market-making
activities or other trading activities may fulfill their prospectus delivery
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requirements with respect to the Exchange Debt with a prospectus meeting the
requirements of the Securities Act. Accordingly, a broker-dealer may use this
Prospectus to satisfy such requirements. The Company has agreed that, starting
on the Expiration Date and ending on the close of business on the 180th day
following such Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution" for further information. A broker-
dealer intending to use this Prospectus in the resale of Exchange Debt must
notify the Company, on or prior to the Expiration Date, that it is a
Participating Broker-Dealer (as defined in "Plan of Distribution"). This notice
may be given in the Letter of Transmittal or may be delivered to the Exchange
Agent. Any Participating Broker-Dealer who is an "affiliate" of the Company may
not rely on the Staff's interpretive letters and must comply with the
registration and prospectus delivery requirements of the Securities Act when
reselling Exchange Debt.
The Company agrees to advise holders of, among other things, (1) any
Commission request for amendments or supplements to the registration statement
or this Prospectus or for additional information; (2) the Commission's issuance
of any stop order suspending the effectiveness of the registration statement or
the initiation of any proceedings for that purpose; and (3) the Company's
receipt of any notification with respect to the suspension of the qualification
of the Exchange Debt in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. Upon the occurrence of any of these events,
the Company agrees to notify the holders, if applicable, to suspend use of this
Prospectus and the Company shall prepare, using its reasonable efforts to do so
as soon as possible, a post-effective amendment to the registration statement
or an amendment or supplement to this Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Exchange Debt,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements herein, in the
light of the circumstances under which they were made, not misleading. The
holders, if applicable, agree that they shall suspend use of this Prospectus
until the Company has amended or supplemented the Prospectus so that it does
not contain any such untrue statement or omission.
Withdrawal Rights
You can withdraw tenders of Outstanding Debt at any time on or before the
Expiration Date.
For a withdrawal to be effective, you must deliver a written or facsimile
transmission of a Notice of Withdrawal to the Exchange Agent on or before the
Expiration Date. The Notice of Withdrawal must specify the name of the person
tendering the Outstanding Debt to be withdrawn, the total principal amount of
Outstanding Debt withdrawn, and the name of the registered holder of the
Outstanding Debt if different from the person tendering the Outstanding Debt.
If you delivered Outstanding Debt to the Exchange Agent, you must submit the
serial numbers of the Outstanding Debt to be withdrawn and the signature on the
Notice of Withdrawal must be guaranteed by an Eligible Institution, except in
the case of Outstanding Debt tendered for the account of an Eligible
Institution. If you tendered Outstanding Debt as a book-entry transfer, the
Notice of Withdrawal must specify the name and number of the account at DTC to
be credited with the withdrawal of Outstanding Debt and you must deliver the
Notice of Withdrawal to the Exchange Agent by written, telegraphic, telex or
facsimile transmission. You may not rescind withdrawals of tender. Outstanding
Debt properly withdrawn may again be tendered at any time on or before the
Expiration Date.
The Company will determine all questions regarding the validity, form and
eligibility of withdrawal notices. The Company's determination will be final
and binding on all parties. Neither the Company, any affiliate or assign of the
Company, the Exchange Agent nor any other person is under any obligation to
give notice of any irregularities in any Notice of Withdrawal, nor will they be
liable for failing to give any such notice. Withdrawn Outstanding Debt will be
returned to the holder after withdrawal.
Interest on Exchange Debt
The Exchange Debt will bear interest at the respective rates per annum set
forth on the cover page of this Prospectus, payable semi-annually, on June 1
and December 1 of each year, commencing June 1, 1999. Holders
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of Exchange Debt will receive interest on June 1, 1999 from the date of initial
issuance of the Exchange Debt, plus an amount equal to the accrued, but unpaid,
interest on the Outstanding Debt. Interest on the Outstanding Debt accepted for
exchange will cease to accrue upon issuance of the Exchange Debt.
Conditions to the Exchange Offer
The Company need not exchange any Outstanding Debt, may terminate the
Exchange Offer or may waive any conditions to the Exchange Offer or amend the
Exchange Offer, if any of the following conditions have occurred:
(a) the Staff no longer allows the Exchange Debt to be offered for
resale, resold and otherwise transferred by certain holders without
compliance with the registration and prospectus delivery provisions of the
Securities Act; or
(b) a governmental body passes any law, statute, rule or regulation
which, in the Company's opinion, prohibits or prevents the Exchange Offer;
or
(c) the Commission or any state securities authority issues a stop order
suspending the effectiveness of the registration statement or initiates or
threatens to initiate a proceeding to suspend the effectiveness of the
registration statement; or
(d) the Company is unable to obtain any governmental approval that the
Company believes is necessary to complete the Exchange Offer.
If the Company reasonably believes that any of the above conditions has
occurred, it may (1) terminate the Exchange Offer, whether or not any
Outstanding Debt has been accepted for exchange, (2) waive any condition to the
Exchange Offer or (3) amend the terms of the Exchange Offer in any respect. The
Company's failure at any time to exercise any of the foregoing rights will not
waive such rights, and each right will be deemed an ongoing right which may be
asserted at any time or from time to time. Notwithstanding the foregoing, the
Company does not intend to terminate the Exchange Offer if none of the
foregoing conditions has occurred.
Exchange Agent
The Company appointed The Bank of New York as Exchange Agent for the
Exchange Offer. Holders should direct questions and requests for assistance,
requests for additional copies of this Prospectus or of the Letter of
Transmittal and requests for Notice of Guaranteed Delivery to the Exchange
Agent addressed as follows:
By Registered or Certified Mail: By Hand Or Overnight Delivery:
The Bank of New York The Bank of New York
101 Barclay Street, 7E 101 Barclay Street
New York, New York 10286 Corporate Trust Services Window
Attention: Noriko Miyazaki Ground Level
New York, New York 10286
Attention: Noriko Miyazaki
Confirm by Telephone:
Noriko Miyazaki
(212) 815-6333
Facsimile Transmissions:
(Eligible Institutions Only)
(212) 815-4699
If you deliver Letters of Transmittal and any other required documents to an
address or facsimile number other than those listed above, your tender is
invalid.
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Fees and Expenses
The Company will pay the Exchange Agent reasonable and customary fees for
its services and reasonable out-of-pocket expenses. The Company will also pay
brokerage houses and other custodians, nominees and fiduciaries their
reasonable out-of-pocket expenses for sending copies of this Prospectus and
related documents to holders of Outstanding Debt, and in handling or tendering
for their customers.
The Company will pay the transfer taxes for the exchange of the Outstanding
Debt in the Exchange Offer. If, however, Exchange Debt is delivered to or
issued in the name of a person other than the registered holder, or if a
transfer tax is imposed for any reason other than for the exchange of
Outstanding Debt in the Exchange Offer, then the tendering holder will pay the
transfer taxes. If a tendering holder does not submit satisfactory evidence of
payment of taxes or exemption from taxes with the Letter of Transmittal, the
taxes will be billed directly to the tendering holder.
The Company will not make any payment to brokers, dealers or other nominees
soliciting acceptances in the Exchange Offer.
Accounting Treatment
The Exchange Debt will be recorded at the same carrying value as the
Outstanding Debt. Accordingly, the Company will not recognize any gain or loss
for accounting purposes. The Company intends to amortize the expenses of the
Exchange Offer and issuance of the Outstanding Debt over the respective terms
of each series of the Exchange Debt.
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DISCLOSURE REGARDING FORWARD-LOOKING INFORMATION
Under the Private Securities Litigation Reform Act of 1995, companies are
provided with a "safe harbor" for making forward-looking statements about the
potential risks and rewards of their strategies. Monsanto believes it's in the
best interest of its shareowners to use these provisions in discussing future
events. Forward-looking statements include Monsanto's plans for growth; the
potential for the development, regulatory approval, and public acceptance of
new products; and other factors that could affect Monsanto's future operations
or financial position. Such statements often include the words "believes,"
"expects," "anticipates," "intends," "plans," "estimates," or similar
expressions.
Monsanto's ability to achieve its goals depends on many known and unknown
risks and uncertainties, including changes in general economic and business
conditions. These factors could cause the anticipated performance and results
of the Company to differ materially from those described or implied in forward-
looking statements. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed below.
Factors Affecting the Agricultural Products Segment
Generic Competition
The family of Roundup herbicides is a major product line for Monsanto's
Agricultural Products segment. These herbicides are likely to face increasing
competition from generic products. Patents protecting Roundup in several
countries expired in 1991. Compound per se patent protection for the active
ingredient in Roundup herbicide expires in the United States in September 2000.
Monsanto believes its pricing strategy will help it compensate for increased
generic competition in the United States. Monsanto recently significantly
reduced the price of Roundup in the United States. This price elasticity
strategy is expected to result in increased demand for Roundup in the United
States because the lower prices will make Roundup more economical, encouraging
both new uses of the product and expansion of the number of acres treated.
Monsanto's experience in numerous markets worldwide has been that price
reductions have stimulated volume growth. However, the volume increases in the
other countries also may have been influenced by a variety of other factors,
such as weather; the increased use of conservation tillage practices;
development of other new markets or applications for Roundup; launch of new
products including Roundup Ready crops; competitive products and practices; and
an increase in agricultural acres planted. Conditions, and therefore volume
trends, in one country may or may not be duplicated in other world areas. As a
result, Monsanto's experience with price elasticity in markets outside the
United States may or may not be replicated in the United States.
Monsanto also believes that increased volumes and technological innovations
will lead to efficiencies that will reduce the production cost of glyphosate.
Such cost reductions will depend on realizing such increased volumes and
innovations, and securing the resources required to expand production of
Roundup.
Governmental and Consumer Acceptance
The commercial success of agricultural and food products developed through
biotechnology will depend in part on government and public acceptance of their
cultivation, distribution and consumption. Monsanto continues to work with
consumers, customers and regulatory bodies to encourage understanding of
nutritional and agricultural biotechnology products. However, public attitudes
may be influenced by claims that genetically modified plant products are unsafe
for consumption or pose unknown risks to the environment or to traditional
social or economic practices. Securing governmental approvals for, and consumer
confidence in, such products
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poses numerous challenges, particularly in Europe. For instance, France has
instituted a moratorium on the planting of certain genetically modified seeds;
similar moratoriums exist in some other countries. Some countries also have
labeling requirements. In some markets, because these crops are not yet
approved for import, growers in other countries may be restricted from
introducing or selling their grain. In these cases, the grower may have to
arrange to sell the grain only in the domestic market or to use the grain for
feed on his or her farm. The market success of Monsanto's products developed
through biotechnology could be delayed or impaired in certain geographical
areas because of such factors.
Technological Change and Competition
A number of companies are engaged in plant biotechnology research.
Technological advances by others could render Monsanto's products less
competitive. Monsanto believes that competition will intensify, not only from
agricultural biotechnology firms but from major agrichemical, seed and food
companies with biotechnology laboratories. Some of Monsanto's agricultural
competitors have substantially greater financial, technical and marketing
resources than Monsanto does.
Successful Integration of Recent Transactions
Monsanto has made significant acquisitions, mergers and joint ventures
involving seed, agricultural biotechnology and grain processing companies.
These transactions are designed to strengthen Monsanto's capability to bring
important new life sciences products to customers worldwide, and to contribute
to the Company's long-term growth. The Delta Pine transaction is subject to
regulatory approval and other customary conditions. It is anticipated that the
pending Delta Pine transaction, when final, and the recently completed
acquisitions of DEKALB, PBIC, and certain international seed operations of
Cargill, will significantly dilute Monsanto's financial results for the next
several years. Long term, Monsanto must integrate these companies into its
business to realize projected synergies. It also must fit such acquisitions,
mergers and joint ventures into its growth strategy to generate sufficient
value to justify their cost. Mergers, acquisitions, and joint ventures also
present other challenges, including geographical coordination, personnel
integration, and the reconciliation of corporate cultures. This integration
could cause a temporary interruption of or loss of momentum in Monsanto's
business and the loss of key personnel from the acquired company. There can be
no assurance that the diversion of management's attention to such matters or
the delays or difficulties encountered in connection with integrating these
operations will not have an adverse effect on Monsanto's business, results of
operations, or financial condition.
Planting Decisions and Weather
The Company's agricultural products business is highly seasonal. It is
subject to weather conditions and natural disasters that affect commodity
prices, seed yields, and decisions by growers regarding purchases of seed and
herbicides. Commodity prices also affect growers' decisions about the types and
amounts of crops to plant. All of these factors influence sales of Monsanto's
herbicide and seed products.
Factors Affecting the Pharmaceuticals Segment
Ability to Realize Potential of Existing Pipeline Products
Pharmaceutical research and development ("R&D") is subject to inherent
uncertainty, difficulties and delays. These include, but are not limited to,
successful completion of clinical trials and the ability to obtain regulatory
approval for the compounds worldwide. Failure to receive government approvals
as anticipated could preclude or substantially delay commercialization of
products in the Company's R&D programs.
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Development and Commercialization of New Products
The Pharmaceuticals segment's long-term success will depend in great part on
its ability to commercialize new products. Such efforts require substantial
funding of R&D and launch expenses. If Monsanto is unable to earn or borrow
sufficient resources to fund such expenses, its ability to develop new products
will suffer. Further, the outcome of R&D is inherently difficult to predict.
Anticipated results may never materialize, or they may not be promising enough.
Even when new pharmaceutical products are marketed, there can be no guarantees
of their commercial success. Consumer demand and competitive factors, including
the availability and price of treatment alternatives, influence sales. In
addition, timing is crucial. The results of R&D for new pharmaceutical products
are difficult to forecast, and new products must be carefully deployed, with
resources sufficient to realize the full value of the products.
Product Liability and Consumer Acceptance
The sale of pharmaceutical products always involves a risk of product
liability claims and associated adverse publicity. Substantial damage awards
for injuries allegedly caused by the use of pharmaceuticals have been made
against certain companies in past years. In addition, unexpected safety or
efficacy concerns can arise with respect to marketed products. Whether or not
they are scientifically justified, such concerns could lead to product recalls,
withdrawals, or declining sales.
Competition
Pharmaceutical research is intense and highly competitive. It is
characterized by rapid technological change. Depending on the product involved,
competition may be encountered in price, delivery, service, performance,
innovation, brand recognition and quality. Many of Monsanto's pharmaceutical
competitors have greater research, financial, marketing and other resources
than Monsanto does. Some of Monsanto's trademarked pharmaceutical products also
face increasing pressures from producers of lower-priced generic products and
from new products entering the marketplace.
Pricing
Managed care groups, health care organizations and government agencies
worldwide actively seek discounts and lower prices on pharmaceutical products.
Monsanto's challenge is to provide overall economic benefits to health care
providers and negotiate prices for specific products that will allow it to
profit at acceptable levels.
Factors Affecting the Nutrition and Consumer Products Segment
Monsanto's Nutrition and Consumer Products segment faces many challenges
similar to those faced by the Agricultural Products and Pharmaceuticals
segments. These challenges include increased competition from generic
substitutes for its aspartame-based tabletop and ingredient sweeteners, rapid
technological changes, the ability to realize the potential of its pipeline
products, the development of new products, and the ability to negotiate
favorable pricing terms with its major customers. Each of these challenges is
subject to risks and uncertainties comparable to those described above.
Factors Affecting All Segments
Financial Requirements
Monsanto's recent and planned acquisitions will require a significant
commitment of the Company's financial resources. In addition, new technological
innovations generally require a significant investment for R&D and product
launch. Lack of funds for investment in these areas could hinder the Company's
ability to make technological innovations and to introduce and distribute new
products. Monsanto expects to generate the required capital by maintaining the
revenues of its core businesses, by seeking sufficient outside financing, and
by containing costs. The Company's ability to do so will depend upon a variety
of specific factors listed elsewhere in this Prospectus and upon general
capital market conditions.
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Intellectual Property
Monsanto has devoted significant resources to obtaining and maintaining
patent protection worldwide for its products. It seeks to preserve its trade
secrets and to operate without infringing the proprietary rights of third
parties. Monsanto's patents and trademarks are of material importance in the
operation of its business, particularly in the Agricultural Products and
Pharmaceuticals segments. Intellectual property positions are becoming
increasingly important within the agricultural biotechnology and pharmaceutical
industries, as products developed through biotechnology become a larger part of
the product landscape.
Monsanto generally relies upon patent and trademark laws worldwide to
establish and maintain its proprietary rights in its technology and products.
There is some uncertainty about the value of available patent protection in
certain countries outside the United States. Moreover, the patent positions of
biotechnology and pharmaceutical companies involve complex legal and factual
questions. Rapid technological advances and the number of companies performing
such research can create an uncertain environment. Patent applications in the
United States are kept secret: outside the United States, patent applications
are published 18 months after filing. Accordingly, competitors may be issued
patents from time to time without any prior warning to Monsanto. That could
decrease the value of similar technologies under development at Monsanto.
Because of this rapid pace of change, some of the Company's products may
unknowingly rely on key technologies developed by others. If that occurs, the
Company must obtain licenses to such technologies in order to continue to use
them.
Certain of Monsanto's germplasm and other genetic material, patents, and
licenses are currently the subject of litigation and additional future
litigation is anticipated. Although the outcome of such litigation cannot be
predicted with certainty, Monsanto will continue to defend and litigate its
positions vigorously. The Company believes it has meritorious defenses and
claims in the pending suits.
Foreign Markets
Foreign sales made up approximately 45 percent of the Company's 1998
revenues and Monsanto intends to continue to actively explore international
sales opportunities. Challenges the Company may face in international markets
include changes in foreign currency exchange rates, changes in a specific
country's or region's political or economic conditions, trade protection
measures, import or export licensing requirements, and unexpected changes in
regulatory requirements. In particular, the decline in the value of Southeast
Asia and Brazilian currencies may, if not reversed, adversely affect future
income. Also, future sales may decrease because the decline in such economies
could cause customers to purchase fewer goods in general, and also because
imported Monsanto products could become more expensive for customers to
purchase in their local currency.
Joint Ventures and Divestitures
The Company plans to continue to frequently explore the potential benefits
of possible strategic alliances, joint ventures, and divestitures. However,
despite its efforts, the Company may be unable to divest assets at an
acceptable price or to reach agreement with third parties with whom it desires
to enter into a joint venture or other alliance.
Year 2000 Readiness
The dates on which Monsanto believes its Global Year 2000 Program (the "Y2K
Program") will be completed are based on management's best estimates, which
include numerous assumptions about future events. There can be no guarantee
that these estimates will be achieved, or that there will not be a delay in, or
increased costs associated with, the implementation of the Y2K Program. Factors
that may cause delays in the Y2K Program or increased costs in connection with
it include, but are not limited to, the continued availability and cost of
experts trained in these areas, the ability to locate and correct all relevant
computer code and embedded systems, and the success of similar programs
conducted by suppliers and other third parties.
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DESCRIPTION OF THE EXCHANGE DEBT
The Outstanding Debt was, and the Exchange Debt will be, issued pursuant to
an Indenture, dated as of December 1, 1998 (the "Indenture"), between the
Company and The Bank of New York, as trustee (the "Trustee"). A copy of the
Indenture has been filed as an exhibit to the Company's Current Report on Form
8-K filed with the Commission on December 14, 1998 and is incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part. The terms of the Exchange Debt are the same as the terms of the
Outstanding Debt, except that (1) the Company registered the Exchange Debt
under the Securities Act of 1933, as amended, and, unlike the Outstanding Debt,
its transfer is not restricted and (2) holders of the Exchange Debt are not
entitled to certain rights under the Registration Rights Agreement.
BECAUSE THIS SECTION OF THE PROSPECTUS MERELY SUMMARIZES THE TERMS OF THE
EXCHANGE DEBT, YOU SHOULD READ THE INDENTURE AND THE RELEVANT PORTIONS OF THE
TRUST INDENTURE ACT OF 1939 FOR MORE COMPLETE INFORMATION REGARDING THE TERMS
OF THE EXCHANGE DEBT, INCLUDING THE DEFINITION OF CERTAIN TERMS USED IN THIS
SECTION. COPIES OF THE INDENTURE AND REGISTRATION RIGHTS AGREEMENT CAN BE
OBTAINED BY FOLLOWING THE INSTRUCTIONS CONTAINED IN THIS PROSPECTUS UNDER THE
HEADINGS "WHERE YOU CAN FIND MORE INFORMATION" AND "INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE." FOR PURPOSES OF THIS SUMMARY, THE TERM "COMPANY"
REFERS ONLY TO MONSANTO COMPANY AND NOT TO ANY OF ITS SUBSIDIARIES UNLESS
OTHERWISE EXPRESSLY STATED OR THE CONTEXT OTHERWISE REQUIRES. FOR THE PURPOSES
OF THE REMAINDER OF THIS SECTION ENTITLED "DESCRIPTION OF THE EXCHANGE DEBT,"
THE TERM "OFFERED DEBT" REFERS TO THE EXCHANGE DEBT.
General
The Offered Debt will have the following terms:
<TABLE>
<CAPTION>
Principal Interest
Amount Rate Maturity Date
------------ -------- ----------------
<S> <C> <C> <C>
Notes due 2001..................... $500,000,000 5.375% December 1, 2001
Notes due 2005..................... $600,000,000 5.750% December 1, 2005
Notes due 2008..................... $200,000,000 5.875% December 1, 2008
Debentures due 2018................ $500,000,000 6.500% December 1, 2018
Debentures due 2028................ $700,000,000 6.600% December 1, 2028
</TABLE>
The Offered Debt consists of five separate series for purposes of the
Indenture. The Offered Debt will be senior unsecured obligations of the
Company. Payment of the principal of and interest on the Offered Debt will rank
pari passu with all other senior unsecured debt of the Company. Certain series
of the Offered Debt may be redeemable in whole or in part at any time at the
option of the Company. See "--Optional Redemption." The Offered Debt will not
be entitled to the benefit of any mandatory redemption or sinking fund. The
Indenture does not limit the amount of additional indebtedness the Company or
any of its subsidiaries may incur. The Indenture does not limit the amount of
notes, debentures or other evidences of indebtedness ("Debt Securities") that
the Company may issue thereunder and provides that Debt Securities may be
issued from time to time in one or more series. As of the date of this
Prospectus, no Debt Securities were outstanding under the Indenture.
The Offered Debt will bear interest at the respective rates per annum set
forth on the cover page of this Prospectus and such interest will be payable
semiannually in arrears on June 1 and December 1 of each year, commencing on
June 1, 1999, to the persons in whose names the Offered Debt is registered at
the close of business on the immediately preceding May 15 and November 15,
respectively. Holders of Offered Debt will receive interest on June 1, 1999
from the date of initial issuance of the Offered Debt, plus an amount equal to
the accrued, but unpaid, interest on the Outstanding Debt. Interest on the
Offered Debt will accrue from the
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most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance. Principal of, premium, if any, and
interest on the Offered Debt will be payable, and the transfer of Offered Debt
will be registrable, at the office or agency of the Company to be maintained
for such purpose in the Borough of Manhattan, The City of New York, except
that, at the option of the Company, interest may be paid by mailing a check to
the address of the person entitled thereto as it appears on the Offered Debt
register.
Interest on the Offered Debt will be computed on the basis of a 360-day year
comprised of twelve 30-day months. The amount of interest payable for any
period shorter than a full semiannual period for which interest is computed
will be computed on the basis of the actual number of days elapsed per 30-day
month. In the event that any date on which principal, premium, if any, or
interest is payable on the Offered Debt is not a Business Day (as defined in
the Indenture), then payment of the principal, premium, if any, or interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay).
The Offered Debt will be issued initially in minimum denominations of $100,000
and will be available for purchase in integral multiples of $1,000 in excess
thereof.
Optional Redemption
The Notes due 2001 are not redeemable prior to maturity. The other series of
Offered Debt will be redeemable, as a whole or in part, at the option of
Monsanto, at any time or from time to time, on at least 30 days, but not more
than 60 days, prior notice mailed to the registered address of each holder of
Offered Debt. The redemption prices will be equal to the greater of (1) 100% of
the principal amount of the Offered Debt to be redeemed and (2) the sum of the
present values of the Remaining Scheduled Payments (as defined below)
discounted, on a semiannual basis (assuming a 360-day year consisting of twelve
30-day months), at a rate equal to the sum of the applicable Treasury Rate (as
defined below) plus 15 basis points for the Notes due 2005, 20 basis points for
the Notes due 2008 and the Debentures due 2018 and 25 basis points for the
Debentures due 2028, plus, in each case, accrued interest to the date of
redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as of the
second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes due 2005, the Notes due 2008, the Debentures
due 2018 or the Debentures due 2028, as the case may be, to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such series of Offered Debt.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by Monsanto.
"Comparable Treasury Price" means, with respect to any redemption date, the
average of the Reference Treasury Dealer Quotations for such redemption date.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Salomon Smith Barney Inc. and
Goldman, Sachs & Co. and their respective successors. If any of the foregoing
shall cease to be a primary U.S. Government securities dealer (a "Primary
Treasury Dealer"), Monsanto shall substitute another nationally recognized
investment banking firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to Offered Debt to be
redeemed, the remaining scheduled payments of principal of and interest on such
Offered Debt that would be due after the related
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redemption date but for such redemption. If such redemption date is not an
interest payment date with respect to such Offered Debt, the amount of the next
succeeding scheduled interest payment on such Offered Debt will be reduced by
the amount of interest accrued on such Offered Debt to such redemption date.
On and after the redemption date, interest will cease to accrue on the
Offered Debt or any portion of the Offered Debt called for redemption (unless
Monsanto defaults in the payment of the redemption price and accrued interest).
On or before the redemption date, Monsanto will deposit with a paying agent (or
the Trustee) money sufficient to pay the redemption price of and accrued
interest on the Offered Debt to be redeemed on such date. If less than all of
the Offered Debt of any series are to be redeemed, the Offered Debt to be
redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate.
Certain Covenants
Restriction on Liens. The Indenture provides that the Company will not, nor
will it permit a Restricted Subsidiary to, secure indebtedness for money
borrowed by placing a Lien on any Operating Property owned or leased by the
Company or any Restricted Subsidiary or on any shares of stock or Debt of any
Restricted Subsidiary without equally and ratably securing the Offered Debt,
unless (i) the principal amount of such indebtedness plus (ii) the Attributable
Debt in respect of Sale and Leaseback Transactions (other than Sale and
Leaseback Transactions the proceeds of which are applied as provided under (b)
of the following paragraph) does not exceed 10% of the Consolidated Net Assets
of the Company and its consolidated subsidiaries. This restriction will not
apply to, and there shall be excluded in computing secured indebtedness for
purposes of this restriction, certain permitted liens, including (a) liens
existing as of the date of the Indenture, (b) liens existing at the time any
corporation becomes a Restricted Subsidiary, (c) liens on property existing at
the time of acquisition and certain purchase money or similar liens, (d) liens
to secure certain development, operation, construction, alteration, repair or
improvement costs, (e) liens securing indebtedness owing to the Company or
another Restricted Subsidiary by a Restricted Subsidiary, (f) liens in
connection with either government contracts, including the assignment of moneys
due or to become due thereon or obligations issued by a state or a commonwealth
or certain other governmental entities, (g) certain liens in connection with
legal proceedings or arising in the ordinary course of business and not in
connection with the borrowing of money and (h) extensions, substitutions,
replacements or renewals of the foregoing. (Section 1007)
Restriction on Sale and Leaseback Transactions. The Indenture further
provides that the Company will not, nor will it permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless either (a)
the Attributable Debt in respect thereto and all other sale and leaseback
transactions entered into after the date of the Indenture (other than those the
proceeds of which are applied to reduce indebtedness under (b) following), plus
the aggregate amount of then outstanding secured indebtedness not otherwise
permitted or excepted without equally and ratably securing the Offered Debt,
does not exceed 10% of the Consolidated Net Assets of the Company and its
consolidated subsidiaries, or (b) an amount equal to the fair value of the
Operating Property leased is applied within 120 days to (i) the purchase of any
asset or any interest in an asset which would qualify after purchase, as an
Operating Property or (ii) the retirement of the Offered Debt or other
indebtedness maturing more than one year thereafter. (Section 1008)
Certain Definitions. "Attributable Debt", in respect of the sale and
leaseback transactions described above, means, as of the time of determination,
the total obligation (discounted to present value at the rate per annum equal
to the discount rate which would be applicable to a capital lease obligation
with like term in accordance with generally accepted accounting principles) of
the lessee for rental payments (other than amounts required to be paid on
account of property taxes, maintenance, repairs, insurance, water rates and
other items which do not constitute payments for property rights) during the
remaining portion of the initial term of the lease included in such sale and
leaseback transaction. (Section 101)
"Consolidated Net Assets" is the aggregate amount of assets (less applicable
reserves and other properly deductible items) after deducting therefrom all
current liabilities (excluding certain renewable or extendible indebtedness) as
shown on the latest balance sheet of the Company and its consolidated
subsidiaries and computed in accordance with generally accepted accounting
principles. (Section 101)
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An "Operating Property" is any real property or equipment located within the
United States and used primarily for manufacturing by the Company or any of its
Subsidiaries that has a net book value (after deduction of accumulated
depreciation) in excess of 2.0% of Consolidated Net Assets, other than any such
property or equipment (i) which is financed by obligations issued by a state,
commonwealth, territory or possession of the United States of America, or any
political subdivision or governmental authority of any of the foregoing, or
(ii) which, in the opinion of the Company's Board of Directors, is not of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries taken as a whole. (Section 101)
A "Restricted Subsidiary" is any Subsidiary of the Company that owns any
Operating Property.
A "Sale and Leaseback Transaction" is any arrangement with any bank,
insurance company or other lender or investor (other than the Company or
another Restricted Subsidiary) providing for the leasing by the Company or any
Restricted Subsidiary of any Operating Property (except a lease for a temporary
period not to exceed three years by the end of which it is intended that the
use of such Operating Property by the lessee will be discontinued), which was
or is owned or leased by the Company or a Restricted Subsidiary and which has
been or is to be sold or transferred, more than 120 days after the acquisition
or the completion of construction and commencement of full operation thereof,
by the Company or such Restricted Subsidiary to such lender or investor or to
any Person to whom funds have been or are to be advanced by such lender or
investor on the security of such Operating Property.
Events of Default
An Event of Default with respect to the Debt Securities of any series is
defined in the Indenture as: (i) default in payment of principal of or premium,
if any, on any Debt Security of that series at Maturity; (ii) default for 30
days in payment of interest on any Debt Security of that series; (iii) default
for 30 days in the deposit of any sinking fund payment when due in respect of
that series; (iv) failure by the Company in the performance of any other of the
covenants or warranties in the Indenture continued for 90 days after due notice
by the Trustee or by Holders of at least 25% in principal amount of the
Outstanding Debt Securities of that series; (v) certain events of bankruptcy,
insolvency or reorganization of the Company; and (vi) any other Event of
Default provided with respect to Debt Securities of that series. (Section 501)
The Indenture provides that, if any Event of Default with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing,
either the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series may declare the principal amount
(or, if the Debt Securities of that series are Original Issue Discount
Securities or Indexed Securities (as defined in the Indentures), such portion
of the principal amount of such Debt Securities as may be specified in the
terms thereof) of all Debt Securities of that series to be due and payable
immediately, but upon certain conditions such declaration may be annulled and
past defaults (except, unless theretofore cured, a default in payment of
principal of or premium, if any, or interest, if any, on the Debt Securities of
that series and certain other specified defaults) may be waived by the Holders
of a majority in principal amount of the Outstanding Debt Securities of that
series on behalf of the Holders of all Debt Securities of that series.
(Sections 502 and 513)
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to Debt Securities of any series at the
time Outstanding, give to the Holders of the Outstanding Debt Securities of
that series notice of such default known to it if uncured or not waived,
provided that, except in the case of default in the payment of principal of or
premium, if any, or interest on any Debt Security of that series, or in the
deposit of any sinking fund payment which is provided for, such notice shall
not be given until 30 days after the occurrence of a default with respect to
Outstanding Debt Securities of such series. The term default with respect to
any series of Outstanding Debt Securities for the purpose only of this
provision means the happening of any of the Events of Default specified in the
Indenture and relating to such series of Outstanding Debt Securities, excluding
any grace periods and irrespective of any notice requirements. (Section 602)
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The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care,
to be indemnified by the Holders of any series of Outstanding Debt Securities
before proceeding to exercise any right or power under the Indenture at the
request of the Holders of such series of Debt Securities. (Section 603) The
Indenture provides that the Holders of a majority in principal amount of
Outstanding Debt Securities of any series may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or other power conferred on the Trustee, with respect to
the Debt Securities of such series provided that the Trustee may decline to act
if such direction is contrary to law or the Indenture or would expose it to
personal liability. (Section 512)
Defeasance of Debt Securities or Certain Covenants in Certain Circumstances
Defeasance and Discharge. The terms of any series of Debt Securities will
provide that the Company will be discharged from any and all obligations in
respect of the Debt Securities of such series (except for certain obligations
to register the transfer or exchange of Debt Securities of such series, to
replace stolen, lost or mutilated Debt Securities of such series, to maintain
paying agencies and hold moneys for payment in trust) upon the deposit with the
Trustee, in trust, of money and/or U.S. Government Obligations which, through
the payment of interest and principal thereof in accordance with their terms,
will provide money in an amount sufficient to pay and discharge the principal
of (and premium, if any) and interest on, and any mandatory sinking fund
payments applicable to, the Debt Securities of such series on the stated
maturity of such payments in accordance with the terms of the Indenture and
such Debt Securities. Such discharge may only occur if, among other things, the
Company has delivered to the Trustee an opinion of counsel to the effect that
the Company has received from, or there has been published by, the United
States Internal Revenue Service a ruling, or there has been a change in tax
law, in either case to the effect that such a discharge will not be deemed, or
result in, a taxable event with respect to Holders of the Debt Securities of
such series. (Article Thirteen of the Indenture)
Defeasance of Certain Covenants. The terms of any series of Debt Securities
will provide the Company with the option to omit to comply with certain
restrictive covenants, including those described in Sections 801, 1007 and 1008
of the Indenture. The Company, in order to exercise such option, will be
required to deposit with the Trustee money and/or U.S. Government Obligations,
which, through the payment of interest and principal thereof in accordance with
their terms, will provide money in an amount sufficient to pay the principal of
(and premium, if any) and interest on, and mandatory sinking fund payments
applicable to the Debt Securities of such series on the stated maturity of such
payments in accordance with the terms of the Indenture and such Debt
Securities. The Company will also be required to deliver to the Trustee an
opinion of counsel to the effect that the deposit and related covenant
defeasance will not cause the Holders of the Debt Securities of such series to
recognize income, gain or loss for federal income tax purposes. In the event
the Company exercises this option and the Debt Securities of such series are
declared due and payable because of the occurrence of any Event of Default, the
amount of money and U.S. Government Obligations, as the case may be, on deposit
with the Trustee will be sufficient to pay amounts due on the Debt Securities
of such series at the time of their Stated Maturity but may not be sufficient
to pay amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. However, the Company shall
remain liable for such payments.
Modification of the Indenture and Waiver of Covenants
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in principal amount
of Outstanding Debt Securities of each series affected thereby, to execute
supplemental indentures adding any provisions to or changing or eliminating any
of the provisions of the Indenture or modifying the rights of the Holders of
Outstanding Debt Securities of such series, except that no such supplemental
indenture may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (a) change the Stated Maturity, or reduce the
principal amount, the premium, if any, thereon or the rate of payment of
interest thereon, of any Debt Security of any series, (b) reduce the
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aforesaid percentage of Outstanding Debt Securities of any series, the consent
of the Holders of which is required for any supplemental indenture or for
waiver of compliance with certain provisions of the Indenture or certain
defaults thereunder or (c) effect certain other changes. (Section 902) The
Indenture also permits the Company to omit compliance with certain covenants in
the Indenture with respect to Debt Securities of any series upon waiver by the
Holders of a majority in principal amount of Outstanding Debt Securities of
such series.
Consolidation, Merger and Sale of Assets
The Indenture contains a provision permitting the Company, without the
consent of the Holders of any of the Outstanding Debt Securities under the
Indenture, to consolidate with or merge into any other corporation or transfer
or lease its assets substantially as an entirety to any person provided that:
(i) the successor is a corporation organized under the laws of any domestic
jurisdiction; (ii) the successor corporation assumes the Company's obligations
on the Debt Securities and under the Indenture; (iii) after giving effect to
the transaction no Event of Default, and no event which, after notice or lapse
of time, would become an Event of Default, shall have happened and be
continuing; and (iv) certain other conditions are met. (Sections 801 and 802)
Concerning the Trustee
The Bank of New York is the Trustee under the Indenture. The Trustee is one
of a number of banks with which the Company and its subsidiaries maintain
ordinary banking and trust relationships. The Trustee also serves as trustee or
paying agent under certain indentures pursuant to which the Company or its
subsidiaries have issued industrial revenue bonds, in an aggregate original
principal amount of approximately $137 million.
Governing Law
The Indenture for the Debt Securities and the Debt Securities will be
governed by New York law.
Global Securities
The Outstanding Debt is, and the Exchange Debt will be, issued in the form
of one or more global certificates (the "Global Securities"). The Global
Securities will be deposited on the date of the acceptance for exchange of the
Outstanding Debt and the issuance of the Exchange Debt (the "Closing Date")
with, or on behalf of, The Depository Trust Company ("DTC") and registered in
the name of Cede & Co. ("Cede"), as DTC's nominee.
Offered Debt that is issued as described below under "Certificated
Securities" will be issued in the form of registered definitive certificates
(the "Certificated Securities"). Upon the transfer of Certificated Securities,
such Certificated Securities may, unless the Global Securities have previously
been exchanged for Certificated Securities, be exchanged for an interest in the
Global Securities representing the principal amount of Offered Debt being
transferred.
Persons holding interests in the Global Securities may hold their interests
directly through DTC, or indirectly through organizations which are
participants in DTC ("Participants"). Transfers between Participants will be
effected in the ordinary way in accordance with DTC rules and will be settled
in immediately available funds.
Persons who are not Participants may beneficially own interests in a Global
Security held by DTC only through Participants or certain banks, brokers,
dealers, trust companies and other parties that clear through or maintain a
custodial relationship with a Participant, either directly or indirectly, and
have indirect access to the DTC system ("Indirect Participants"). So long as
Cede, as the nominee of DTC, is the registered owner of any Global Security,
Cede for all purposes will be considered the sole holder of such Global
Security. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have certificates registered in their names,
will not receive or be entitled to receive physical delivery of certificates in
definitive form, and will not be considered the holder thereof.
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Neither the Company nor the Trustee (nor any registrar or paying agent) will
have any responsibility for the performance by DTC or its Participants or
Indirect Participants of their respective obligations under the rules and
procedures governing their operations. DTC has advised the Company that it will
take any action permitted to be taken by a holder of Offered Debt only at the
direction of one or more Participants whose accounts are credited with DTC
interests in a Global Security.
DTC has advised the Company as follows: DTC is a limited purpose trust
company organized under the laws of the State of New York, a "banking
organization" within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its Participants and to facilitate the clearance and settlement
of securities transactions, such as transfers and pledges, among Participants
in deposited securities through electronic book-entry changes to accounts of
its Participants, thereby eliminating the need for physical movement of
securities certificates. Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
Certain of such Participants (or their representatives), together with other
entities, own DTC. The rules applicable to DTC and its Participants are on file
with the Commission.
Purchases of Offered Debt under the DTC system must be made by or through
Participants, which will receive a credit for the Offered Debt on DTC's
records. The ownership interest of each actual purchaser of Offered Debt (a
"Beneficial Owner") is in turn to be recorded on the Participants' and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Participant or Indirect Participant
through which the Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Offered Debt are to be accomplished by entries made
on the books of Participants acting on behalf of Beneficial Owners. Beneficial
Owners will not receive certificates representing their ownership interests in
Offered Debt, except in the event that use of the book-entry system for the
Offered Debt is discontinued.
The deposit of Offered Debt with DTC and their registration in the name of
Cede effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Offered Debt; DTC's records reflect only the
identity of the Participants to whose accounts such Offered Debt is credited,
which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in the Global Security.
Conveyance of notices and other communications by DTC to Participants, by
Participants to Indirect Participants and by Participants and Indirect
Participants to Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements that may be in effect from
time to time. Redemption notices shall be sent to Cede. If less than all of the
Offered Debt is being redeemed, DTC's practice is to determine by lot the
interest of each Participant in such Offered Debt to be redeemed.
Principal and interest payments on the Offered Debt will be made to DTC by
wire transfer of immediately available funds. DTC's practice is to credit
Participants' accounts on the payable date in accordance with their respective
holdings shown on DTC's records unless DTC has reason to believe that it will
not receive payment on the payable date. Payments by Participants to Beneficial
Owners will be governed by standing instructions and customary practices, as is
the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such Participant
and not of DTC, or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal and
interest to DTC is the responsibility of the Company, disbursement of such
payments to
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Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Participants
and Indirect Participants. Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Global
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
DTC may discontinue providing its services as securities depositary with
respect to the Offered Debt at any time by giving reasonable notice to the
Company. In the event that DTC notifies the Company that it is unwilling or
unable to continue as depositary for any Global Security or if at any time DTC
ceases to be a clearing agency registered as such under the Exchange Act when
DTC is required to be so registered to act as such depositary and no successor
depositary shall have been appointed within 90 days of such notification or of
the Company becoming aware of DTC's ceasing to be so registered, as the case
may be, certificates for the Offered Debt will be printed and delivered in
exchange for interests in such Global Security. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Offered Debt registered in such names as DTC shall direct. It is expected that
such instructions will be based upon directions received by DTC from its
Participants with respect to ownership of beneficial interests in such Global
Security.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary). In that event,
certificates representing the Offered Debt will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be reliable, but
the Company does not take responsibility for the accuracy thereof.
Certificated Securities
Subject to certain conditions, any person having a beneficial interest in
the Global Securities may, upon request to the Trustee, exchange such
beneficial interest for Offered Debt in the form of Certificated Securities.
Upon any such issuance, the Trustee is required to register such Certificated
Securities in the name of, and cause the same to be delivered to, such person
or persons (or the nominee of any thereof). In addition, if (1) the Company
notifies the Trustee in writing that the Depositary is no longer willing or
able to act as a depositary and the Company is unable to locate a qualified
successor within 90 days or (2) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of Offered Debt in the
form of Certificated Securities under the Indenture, then, upon surrender by
Cede, or its nominee, of Global Securities, Offered Debt in such form will be
issued to each person that Cede, or its nominee, and the Depositary identify as
being the beneficial owner of the related Offered Debt.
Neither the Company nor the Trustee will be liable for any delay by Cede,
its nominee, or the Depositary in identifying the beneficial owners of Offered
Debt and the Company and the Trustee may conclusively rely on, and will be
protected in relying on, instructions from Cede, its nominee, or the Depositary
for all purposes.
Year 2000
The following information has been provided by DTC:
DTC management is aware that some computer applications, systems, and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on, and after January 1, 2000, may encounter "Year 2000
problems." DTC has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries, and settlement of trades within DTC ("DTC Services"), continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is
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complete. Additionally, DTC's plan includes a testing phase, which is expected
to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the Industry that it is contacting (and will
continue to contact) third party vendors from whom DTC acquires services to:
(i) impress upon them the importance of such services being Year 2000
compliant; and (ii) determine the extent of their efforts for Year 2000
remediation (and, as appropriate, testing) of their services. In addition, DTC
is in the process of developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
Registration Rights; Liquidated Damages
The Company entered into a registration rights agreement with the Initial
Purchasers (the "Registration Rights Agreement"), dated December 9, 1998, for
the benefit of the holders of the Outstanding Debt wherein the Company agreed,
for the benefit of the holders of the Outstanding Debt, (i) to file with the
Commission a registration statement, of which this Prospectus forms a part (the
"Exchange Offer Registration Statement"), with respect to the Exchange Debt and
(ii) to use its reasonable efforts to cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act within 180 calendar
days after December 9, 1998, the date on which the Company delivered the
Outstanding Debt to the Initial Purchasers (the "Closing Date").
If, (i) because of any change in law or in currently prevailing
interpretations of the Staff, the Company is not permitted to effect the
Exchange Offers, (ii) the Exchange Offers are not consummated within 225 days
of the Closing Date, or (iii) in the case of any holder that participates in
the Exchange Offers, such holder does not receive applicable Exchange Debt on
the date of the exchange that may be sold without restriction under state and
Federal securities laws (other than due solely to the status of such holder as
an affiliate of the Company within the meaning of the Securities Act or as a
broker-dealer), then in each case, the Company will (x) promptly deliver to the
holders written notice thereof and (y) at the Company's sole expense (a) as
promptly as practicable, file a shelf registration statement covering resales
of the applicable Outstanding Debt (the "Shelf Registration Statement"), (b)
use its reasonable efforts to cause the Shelf Registration Statement to be
declared effective under the Securities Act and (c) use its reasonable efforts
to keep effective the Shelf Registration Statement until the earlier of two
years (or, if Rule 144(k) is amended to provide a shorter restrictive period,
such shorter period) after the Closing Date or such time as all of the
Outstanding Debt or Exchange Debt, as applicable, has been sold thereunder. The
Company will, in the event that a Shelf Registration Statement is filed,
provide to each applicable holder copies of the prospectus that is a part of
the Shelf Registration Statement, notify each such holder when the Shelf
Registration Statement for the Outstanding Debt or Exchange Debt, as
applicable, has become effective and take certain other actions as are required
to permit unrestricted resales of the Outstanding Debt. A holder that sells
Outstanding Debt or Exchange Debt, as applicable, pursuant to the Shelf
Registration Statement will be required to be named as a selling security
holder in the related prospectus and to deliver a prospectus to purchasers,
will be subject to certain of the civil liability provisions under the
Securities Act in connection with such sales and will be bound by the
provisions of the Registration Rights Agreement that are applicable to such a
holder (including certain indemnification rights and obligations).
If the Company fails to comply with certain provisions of the Registration
Rights Agreement, in each case as described below, then liquidated damages
("Liquidated Damages") shall become payable in respect of the Outstanding Debt
as follows:
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In the event that the Exchange Offer is not consummated or the applicable
Shelf Registration Statement is not declared effective on or prior to the 225th
day following the Closing Date, Liquidated Damages shall accrue on the
applicable Outstanding Debt from and including the next day following such 225-
day period at a rate equal to 0.25% per annum. The aggregate amount of
Liquidated Damages payable pursuant to the above provision will in no event
exceed 0.25% per annum. Upon the consummation of the applicable Exchange Offer
or the effectiveness of the applicable Shelf Registration Statement, as the
case may be, after the 225-day period described above, the Liquidated Damages
will cease to accrue.
In the event that a Shelf Registration Statement is declared effective
pursuant to the foregoing paragraphs, if the Company fails to keep such Shelf
Registration Statement continuously (x) effective or (y) useable for resales
for the period required by the Registration Rights Agreement due to certain
circumstances relating to pending corporate developments, public filings with
the Commission and similar events, or because the prospectus contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and such failure continues for more than 60 days (whether or not
consecutive) in any 12-month period (the 61st day being referred to as the
"Default Day"), then from the Default Day until the earlier of (i) the date
that the Shelf Registration Statement is again deemed effective or is useable,
(ii) the date that is the second anniversary of the Closing Date (or, if Rule
144(k) is amended to provide a shorter restrictive period, such shorter period)
or (iii) the date as of which all of the applicable Outstanding Debt is sold
pursuant to the Shelf Registration Statement, Liquidated Damages shall accrue
at a rate equal to 0.25% per annum.
Any amounts of Liquidated Damages due pursuant to the foregoing paragraphs
will be payable in cash on June 1 and December 1 of each year to the holders of
record on the preceding May 15 and November 15, respectively.
The Registration Rights Agreement is governed by, and construed in
accordance with, the laws of the State of New York. The summary herein of
certain provisions of the Registration Rights Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the Registration Rights Agreement. In addition, the
information set forth above concerning certain interpretations of and positions
taken by the Staff is not intended to constitute legal advice, and holders of
Outstanding Debt should consult their own legal advisors with respect to such
matters.
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CERTAIN UNITED STATES FEDERAL TAX CONSEQUENCES
The following is a general discussion of certain United States federal tax
consequences associated with the exchange of the Outstanding Debt for the
Exchange Debt pursuant to the Exchange Offer and disposition of the Exchange
Debt. This summary applies only to a beneficial owner of Exchange Debt who
acquired Outstanding Debt at the initial offering from Salomon Smith Barney
Inc. and Goldman, Sachs & Co. for the original offering price thereof and who
acquires the Exchange Debt pursuant to the Exchange Offer. This discussion is
based upon the United States federal tax law now in effect, which is subject to
change, possibly retroactively. This discussion does not consider any specific
facts or circumstances that may apply to a particular holder. Prospective
investors are urged to consult their tax advisors regarding the United States
federal tax consequences of acquiring, holding, and disposing of the Exchange
Debt, as well as any tax consequences that may arise under the laws of any
foreign, state, local, or other taxing jurisdiction.
For purposes of this discussion, a "U.S. Holder" means a holder of Exchange
Debt that is either a citizen or resident of the United States, a corporation,
partnership, or other entity created or organized in the United States or under
the laws of the United States or of any political subdivision thereof, an
estate whose income is includible in gross income for United States federal
income tax purposes regardless of its source, or a trust whose administration
is subject to the primary supervision of a United States court and for which
one or more United States persons have the authority to control all substantial
decisions of the trust. A Non-U.S. Holder is a holder of Exchange Debt other
than a U.S. Holder.
Exchange Offer
The exchange of Outstanding Debt for Exchange Debt pursuant to the Exchange
Offer will not constitute a "significant modification" of the Outstanding Debt
for United States federal income tax purposes and, accordingly, the Exchange
Debt received will be treated as a continuation of the Outstanding Debt in the
hand of such holder. As a result, there will be no United States federal income
tax consequences to a United States Holder who exchanges Outstanding for
Exchange Debt pursuant to the Exchange Offer, and any such holder will have the
same adjusted tax basis and holding period in the Exchange Debt for United
States federal income tax purposes as it had in the Outstanding Debt
immediately before the exchange.
Stated Interest
The holders of Exchange Debt will include stated interest in gross income in
accordance with their methods of accounting for tax purposes (including
accrued, unpaid interest on the Outstanding Debt to the date of the issuance of
the Exchange Debt).
Disposition
In general, a holder of Exchange Debt will recognize gain or loss upon the
sale, exchange, redemption or other taxable disposition of the Exchange Debt
measured by the difference between (i) the amount of cash and fair market value
of property received (that is not attributable to accrued interest which has
not yet been recognized as gross income) and (ii) the holder's adjusted tax
basis in the Exchange Debt. Any such gain or loss will generally be long-term
capital gain or loss, provided the Exchange Debt was a capital asset in the
hands of the holder and had been held for more than one year.
Non-U.S. Holders
Under present United States federal income and estate tax law, assuming
certain certification requirements are satisfied (which include identification
of the beneficial owner of the instrument), and subject to the discussion of
backup withholding below:
(a) payments of interest on the Exchange Debt to any Non-U.S. Holder
will not be subject to United States federal income or withholding tax,
provided that (1) the holder does not actually or constructively own 10% or
more of the total combined voting power of all classes of stock of Monsanto
entitled to vote,
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(2) the holder is not (i) a bank receiving interest pursuant to a loan
agreement entered into in the ordinary course of its trade or business or
(ii) a controlled foreign corporation that is related to Monsanto through
stock ownership, and (3) such interest payments are not effectively
connected with the conduct of a United States trade or business of the
holder;
(b) a holder of Exchange Debt who is a Non-U.S. Holder will not be
subject to the United States federal income tax on gain realized on the
sale, exchange, or other disposition of Exchange Debt, unless (1) such
holder is an individual who is present in the United States for 183 days or
more during the taxable year and certain other requirements are met, or (2)
the gain is effectively connected with the conduct of a United States trade
or business of the holder; and
(c) if interest on the Exchange Debt is exempt from withholding of
United States federal income tax under the rules described above (without
regard to the certification requirement), the Exchange Debt will not be
included in the estate of a deceased Non-U.S. Holder for United States
Federal estate tax purposes.
The certification referred to above may be made on an Internal Revenue
Service Form W-8 or a substantially similar substitute form.
Information Reporting and Backup Withholding
Monsanto will, where required, report to the holders of Exchange Debt and
the Internal Revenue Service the amount of any interest paid on the Exchange
Debt in each calendar year and the amounts of federal tax withheld, if any,
with respect to such payments. A noncorporate U.S. holder may be subject to
information reporting and to backup withholding at a rate of 31% with respect
to payments of principal and interest made on Exchange Debt, or on proceeds of
the disposition of Exchange Debt before maturity, unless such U.S. holder
provides a correct taxpayer identification number or proof of an applicable
exemption, and otherwise complies with applicable requirements of the
information reporting and backup withholding rules.
Under temporary United States Treasury regulations, United States
information reporting requirements and backup withholding tax will generally
not apply to interest paid on the Exchange Debt to a Non-U.S. Holder at an
address outside the United States. Payments by a United States office of a
broker of the proceeds of a sale of the Exchange Debt are subject to both
backup withholding at a rate of 31% and information reporting unless the holder
certifies its Non-U.S. Holder status under penalties of perjury and provides
its name and address or otherwise establishes an exemption. Information
reporting requirements (but not backup withholding) will also apply to payments
of the proceeds of sales of the Exchange Debt by foreign offices of United
States brokers, or foreign brokers with certain types of relationships to the
United States, unless the broker has documentary evidence in its records that
the holder is a Non-U.S. Holder and certain other conditions are met, or the
holder otherwise establishes an exemption.
Backup withholding is not an additional tax. Any amount withheld under the
backup withholding rules will be refunded or credited against the Non-U.S.
Holder's United States Federal income tax liability, provided that the required
information is furnished to the Internal Revenue Service.
New Treasury Regulations Applicable to Non-U.S. Holders
On October 6, 1997, the United States Treasury Department issued final
Treasury regulations governing information reporting and the certification
procedures regarding withholding and backup withholding on certain amounts paid
to Non-U.S. Holders after December 31, 1999. The new Treasury regulations
modify and, in general, unify the way in which Non-U.S. Holders may establish
eligibility for United States federal withholding tax exemptions, including
that under a tax treaty, and an exemption from backup withholding.
For example, the new Treasury regulations will require new forms, which Non-
U.S. Holders will generally have to provide earlier than you would have had to
provide replacements for expiring existing forms. The new Treasury regulations
also clarify the standards upon which withholding agents of Non-U.S. Holders
may rely, add requirements in order for Non-U.S. Holders to claim reduced
federal tax withholding under a tax treaty, and provide different procedures in
order for foreign intermediaries and flow-through entities (such as foreign
partnerships) to claim the benefit of applicable exemptions if they receive
payments on behalf of Non-U.S. Holders.
The new Treasury regulations are particularly complex. Non-U.S. Holders
should consult their tax advisors concerning the effect, if any, of such new
Treasury regulations on their investment in the Exchange Debt.
36
<PAGE>
PLAN OF DISTRIBUTION
Based on existing interpretations of the Securities Act by the staff of the
Commission (the "Staff") set forth in several no-action letters to third
parties, and subject to the immediately following sentence, the Company
believes that the Exchange Debt issued in the Exchange Offer may be offered for
resale, resold and otherwise transferred by the holders thereof (other than
holders who are broker-dealers) without further compliance with the
registration and prospectus delivery provisions of the Securities Act. However,
any purchaser of Outstanding Debt who is an affiliate of the Company or who
intends to participate in the Exchange Offer for the purpose of distributing
the Exchange Debt, or any broker-dealer who purchased the Outstanding Debt from
the Company to resell pursuant to Rule 144A or any other available exemption
under the Securities Act, (i) will not be able to rely on the interpretations
of the Staff set forth in the above-mentioned no-action letters, (ii) will not
be entitled to tender its Outstanding Debt in the Exchange Offer and (iii) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any sale or transfer of the Outstanding Debt
unless such sale or transfer is made pursuant to an exemption from such
requirements. The Company does not intend to seek its own no-action letter, and
there can be no assurance that the Staff would make a similar determination
with respect to the Exchange Debt as it has in such no-action letters to third
parties.
Each holder of the Outstanding Debt (other than certain specified holders)
who wishes to exchange the Outstanding Debt for Exchange Debt in the Exchange
Offer is required to represent that (i) it is not an affiliate of the Company,
(ii) the Exchange Debt to be received by it was acquired in the ordinary course
of its business, (iii) at the time of the Exchange Offer, it has no arrangement
with any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Debt, and (iv) if such holder is not a broker-
dealer, it is not engaged in, and does not intend to engage in, a distribution
of the Exchange Debt (within the meaning of the Securities Act). In addition,
in connection with any resales of Exchange Debt, any broker-dealer (a
"Participating Broker-Dealer") who acquired the Outstanding Debt for its own
account as a result of market-making or other trading activities must deliver a
prospectus meeting the requirements of the Securities Act. Based on the
position the Commission has taken to date, the Company believes that
Participating Broker-Dealers may fulfill their prospectus delivery requirements
with respect to the Exchange Debt (other than a resale of an unsold allotment
from the original sale of the Outstanding Debt) with this Prospectus. Under the
Registration Rights Agreement, the Company is required to allow Participating
Broker-Dealers and other persons, if any, subject to similar prospectus
delivery requirements to use the Prospectus in connection with the resale of
such Exchange Debt for a period of 180 days from the Expiration Date.
Each broker-dealer that receives Exchange Debt for its own account pursuant
to the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Debt. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Debt received in exchange for Outstanding
Debt where such Outstanding Debt was acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business on
the 180th day following such Expiration Date, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. Each broker-dealer agrees that it shall suspend use of
this Prospectus upon notice from the Company of the occurrence of certain
events until the Company has amended or supplemented the Prospectus so that it
does not contain any untrue statements or omissions of material facts.
The Company will not receive any proceeds from any sale of Exchange Debt by
broker-dealers. Exchange Debt received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Debt or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive
37
<PAGE>
compensation in the form of commissions or concessions from any such broker-
dealer and/or the purchasers of any such Exchange Debt. Any broker-dealer that
resells Exchange Debt that was received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a distribution
of such Exchange Debt may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit of any such resale of Exchange Debt and
any commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. Each Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the applicable Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer other than commissions or concessions
of any brokers or dealers and will indemnify the holders of the Outstanding
Debt (including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
WHERE YOU CAN FIND MORE INFORMATION
Monsanto files annual, quarterly and special reports, proxy statements and
other information with the Commission. Monsanto's filings with the Commission
are available to the public over the Internet at the Commission's web site at
http://www.sec.gov. You may also read and copy any document Monsanto files with
the Commission at the Commission's public reference rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. You may call the Commission at 1-800-
SEC-0330 for further information on the public reference rooms.
Monsanto's reports, proxy statements and other information may also be
inspected at the offices of the New York Stock Exchange, the exchange on which
certain of Monsanto's securities are listed.
No person is authorized to give any information or to make any
representations with respect to the matters described in this Prospectus other
than those contained herein or in the documents incorporated by reference
herein. Any information or representation with respect to such matters not
contained herein or therein must not be relied upon as having been authorized
by Monsanto. The delivery of this Prospectus shall not, under any
circumstances, create any implication that there has been no change in the
affairs of Monsanto since the date hereof or that the information in this
Prospectus or in the documents incorporated by reference herein is correct as
of any time subsequent to the date hereof or thereof.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows Monsanto to "incorporate by reference" certain
information that Monsanto files with the Commission, which means that Monsanto
can disclose important information to you by referring you to information in
those documents. The information incorporated by reference is an important part
of this Prospectus. The following documents and other materials, which Monsanto
has filed with the Commission, are incorporated herein and specifically made a
part hereof by this reference:
(1) Monsanto's Annual Report on Form 10-K filed with the Commission on
March 17, 1998;
(2) Monsanto's Quarterly Reports on Form 10-Q filed with the Commission
on May 15, August 14 and November 12, 1998; and
(3) Monsanto's Current Reports on Form 8-K filed with the Commission on
January 23, June 1, October 13, October 19, October 30, November 13,
November 16, November 27, December 8 and December 14, 1998 and February 8
and March 1, 1999.
38
<PAGE>
In addition, (1) all documents filed with the Commission pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), by Monsanto subsequent to the date of this Prospectus and
(2) all documents filed with the Commission pursuant to the Exchange Act after
the date of the initial registration statement of which this Prospectus is a
part and prior to the effectiveness of such registration statement shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents with the Commission. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Statements contained in this Prospectus or in any document incorporated by
reference in this Prospectus as to the contents of any contract or other
document referred to herein or therein are not necessarily complete, and in
each instance reference is made to the copy of such contract or other document
filed as an exhibit to the documents incorporated by reference, each such
statement being qualified in all respects by such reference.
This Prospectus incorporates documents by reference that are not presented
herein or delivered herewith. Copies of such documents, other than exhibits to
such documents that are not specifically incorporated by reference herein, are
available without charge to any person to whom this Prospectus is delivered,
upon written or oral request to: Monsanto Company, 800 North Lindbergh
Boulevard, St. Louis, Missouri 63167, Attention: Corporate Secretary,
telephone: (314) 694-1000.
VALIDITY OF THE EXCHANGE DEBT
The validity of the Exchange Debt offered hereby will be passed upon for the
Company by Winston & Strawn, Chicago, Illinois.
EXPERTS
The consolidated financial statements incorporated by reference in the
Company's Annual Report on Form 10-K for the year ended December 31, 1997 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so
incorporated herein in reliance upon such report of such firm given upon their
authority as experts in accounting and auditing.
The consolidated financial statements of DEKALB Genetics Corporation and
subsidiaries incorporated by reference in this Prospectus and elsewhere in the
Registration Statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
giving said report.
39
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Monsanto Company
Exchange Offer for
$500,000,000 5.375% Notes due 2001
$600,000,000 5.750% Notes due 2005
$200,000,000 5.875% Notes due 2008
$500,000,000 6.500% Debentures due 2018
$700,000,000 6.600% Debentures due 2028
[Monsanto logo]
----------------
PROSPECTUS
----------------
, 1999
Until , all dealers that effect transactions in these
securities, whether or not participating in this offering, may be required to
deliver a prospectus. This is in addition to the dealers' obligation to deliver
a prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware permits
indemnification of directors, officers, employees and agents of corporations
under certain conditions and subject to certain limitations. Section 59 of the
Company's By-Laws provides for indemnification of any director, officer,
employee or agent of the Company, or any person serving in the same capacity in
any other enterprise at the request of the Company, under certain
circumstances. Article IX of the Company's Restated Certificate of
Incorporation eliminates the liability of directors of the Company under
certain circumstances for breaches of fiduciary duty to the Company and its
shareholders.
The Company maintains directors' and officers' liability insurance coverage.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following documents are filed herewith or incorporated herein by
reference.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------- -----------------------
<C> <S>
3.1 Restated Certificate of Incorporation of the Company as of October 28,
1997 (incorporated herein by reference to Exhibit 3(i) of the
Company's Form 10-Q for the quarter ended September 30, 1997)
3.2 By-Laws of the Company, as amended effective February 26, 1999
4.1 Indenture dated as of December 1, 1998 between the Company and The
Bank of New York as Trustee, providing for Issuance of Debt Securities
in Series (incorporated herein by reference to Exhibit 4.7 of the
Company's Current Report on Form 8-K as filed with the Commission on
December 14, 1998)
4.2 Form of Officer's Certificate, establishing the terms of the Company's
5.375% Notes due 2001, 5.750% Notes due 2005, 5.875% Notes due 2008,
6.500% Debentures due 2018 and 6.600% Debentures due 2028
4.3 Registration Rights Agreement, dated as of December 9, 1998, by and
among the Company, Salomon Smith Barney Inc. and Goldman, Sachs & Co.
5.1 Opinion of Winston & Strawn
12.1 Computation of Ratios of Earnings to Fixed Charges (for last five
fiscal years) (incorporated herein by reference to Exhibit 99 of the
Company's 10-Q for the quarter ended September 30, 1998)
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Winston & Strawn (included in Exhibit 5.1)
23.3 Consent of Arthur Andersen LLP
24 Powers of Attorney
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 5.375% Notes due 2001
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 5.750% Notes due 2005
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 5.875% Notes due 2008
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------- -----------------------
<C> <S>
25.4 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 6.500% Debentures due 2018
25.5 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 6.600% Debentures due 2028
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Tender Instructions
</TABLE>
ITEM 22. UNDERTAKINGS
(1) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933 (the "Securities Act"), each filing
of the Company's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act")(and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(2) The Company hereby undertakes to respond to requests for information
that is incorporated by reference into the Prospectus pursuant to Items 4,
10(b), 11, or 13 of Form S-4, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement through the date
of responding to the request.
(3) The Company hereby undertakes to supply by means of a post-effective
amendment all information concerning a transaction, and the company being
acquired involved therein, that was not the subject of and included in the
Registration Statement when it became effective.
(4) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Monsanto Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing this Registration Statement on Form S-4 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Louis, State of
Missouri, on March 2, 1999.
Monsanto Company
/s/ Gary L. Crittenden
By: _________________________________
Name: Gary L. Crittenden
Title:Senior Vice President and
Chief Financial Officer (Principal
Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman and Director March 2, 1999
____________________________________ (Principal Executive
Robert B. Shapiro Officer)
/s/ Gary L. Crittenden Senior Vice President and March 2, 1999
____________________________________ Chief Financial Officer
Gary L. Crittenden (Principal Financial
Officer)
* Vice President and March 2, 1999
____________________________________ Controller (Principal
Richard B. Clark Accounting Officer)
* Director March 2, 1999
____________________________________
Robert M. Heyssel
* Director March 2, 1999
____________________________________
Michael Kantor
* Director March 2, 1999
____________________________________
Gwendolyn S. King
* Director March 2, 1999
____________________________________
Philip Leder
* Director March 2, 1999
____________________________________
Jacobus F. M. Peters
* Director March 2, 1999
____________________________________
John S. Reed
* Director March 2, 1999
____________________________________
John E. Robson
* Director March 2, 1999
____________________________________
William D. Ruckelshaus
</TABLE>
* Barbara L. Blackford, by signing her name hereto, does sign this document on
behalf of the above noted individuals, pursuant to powers of attorney duly
executed by such individuals which have been filed as an Exhibit to this
Registration Statement.
/s/ Barbara L. Blackford
-------------------------------------
Barbara L. Blackford
Attorney-in-Fact
II-3
<PAGE>
EXHIBIT INDEX
The following documents are filed herewith or incorporated herein by
reference.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------- -----------------------
<C> <S>
3.1 Restated Certificate of Incorporation of the Company as of October 28,
1997 (incorporated herein by reference to Exhibit 3(i) of the
Company's Form 10-Q for the quarter ended September 30, 1997)
3.2 By-Laws of the Company, as amended effective February 26, 1999
4.1 Indenture dated as of December 1, 1998 between the Company and The
Bank of New York as Trustee, providing for Issuance of Debt Securities
in Series (incorporated herein by reference to Exhibit 4.7 of the
Company's Current Report on Form 8-K as filed with the Commission on
December 14, 1998)
4.2 Form of Officer's Certificate, establishing the terms of the Company's
5.375% Notes due 2001, 5.750% Notes due 2005, 5.875% Notes due 2008,
6.500% Debentures due 2018 and 6.600% Debentures due 2028
4.3 Registration Rights Agreement, dated as of December 9, 1998, by and
among the Company, Salomon Smith Barney Inc. and Goldman, Sachs & Co.
5.1 Opinion of Winston & Strawn
12.1 Computation of Ratios of Earnings to Fixed Charges (for last five
fiscal years) (incorporated herein by reference to Exhibit 99 of the
Company's 10-Q for the quarter ended September 30, 1998)
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Winston & Strawn (included in Exhibit 5.1)
23.3 Consent of Arthur Andersen LLP
24 Powers of Attorney
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 5.375% Notes due 2001
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 5.750% Notes due 2005
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 5.875% Notes due 2008
25.4 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 6.500% Debentures due 2018
25.5 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York relating to the Indenture and the
issuance of the Company's 6.600% Debentures due 2028
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Tender Instructions
</TABLE>
II-4
<PAGE>
Exhibit 3.2
MONSANTO COMPANY
BY-LAWS
As adopted February 26, 1999
OFFICES
-------
1. Registered
The name of the registered agent of the Company is The Corporation Trust
Company and the registered office of the Company shall be located in the City of
Wilmington, County of New Castle, State of Delaware.
2. Other
The Company shall have its General Offices in the County of St. Louis, State
of Missouri, and may also have offices at such other places both within or
without the State of Delaware as the Board of Directors may from time to time
designate or the business of the Company may require.
STOCKHOLDERS' MEETINGS
----------------------
3. Annual Meeting
An annual meeting of stockholders shall be held on such day and at such time
as may be designated by the Board of Directors for the purpose of electing
Directors and for the transaction of such other business as properly may come
before such meeting. Any previously scheduled annual meeting of the stockholders
may be postponed by resolution of the Board of Directors upon public notice
given on or prior to the date previously scheduled for such annual meeting of
stockholders.
4. Business to be Conducted at Annual Meeting
(a) At an annual meeting of stockholders, only such business shall be conducted
as shall have been brought before the meeting (i) pursuant to the Company's
notice of the meeting, (ii) by or at the direction of the Board of Directors or
(iii) by any stockholder of the Company who is a stockholder of record at the
time of giving of the notice provided for in this By-Law, who shall be entitled
to vote at such meeting and who shall have complied with the notice procedures
set forth in this By-Law.
(b) For business to be properly brought before an annual meeting by a
stockholder pursuant to Section (a)(iii) of this By-Law, notice in writing must
be delivered or mailed to the Secretary and received at the General Offices of
the Company, not less than 90 days nor more than
<PAGE>
120 days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the meeting is advanced by
more than 30 days or delayed by more than 60 days from such anniversary date,
notice by the stockholder must be received not earlier than the 120th day prior
to such annual meeting and not later than the close of business on the later of
the 90th day prior to such annual meeting or the tenth day following the day on
which public announcement of the date of the annual meeting is first made. Such
stockholder's notice shall set forth as to each matter the stockholder proposes
to bring before the annual meeting (i) a brief description of the business to be
brought before the annual meeting and the reasons for conducting such business
at such meeting; (ii) the name and address, as they appear on the Company's
books, of the stockholder proposing such business, and the name and address of
the beneficial owner, if any, on whose behalf the proposal is made; (iii) the
class and number of shares of the Company's stock which are beneficially owned
by the stockholder, and by the beneficial owner, if any, on whose behalf the
proposal is made; and (iv) any material interest of the stockholder, and of the
beneficial owner, if any, on whose behalf the proposal is made, in such
business. For purposes of these By-Laws, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable news service or in a document publicly filed by the Company
with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(b)
of the Securities Exchange Act of 1934, as amended.
(c) Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this By-Law. The chairman of the meeting may, if the facts warrant,
determine that the business was not properly brought before the meeting in
accordance with the provisions of this By-Law; and if the chairman should so
determine, the chairman shall so declare to the meeting, and any such business
not properly brought before the meeting shall not be transacted. Notwithstanding
the foregoing provisions of this By-Law, a stockholder shall also comply with
all applicable requirements of the Securities Exchange Act of 1934, as amended,
(the "Exchange Act") and the rules and regulations thereunder with respect to
the matters set forth in this By-Law. Nothing in this By-Law shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act. The
provision of this Section 4 shall also govern what constitutes timely notice for
purposes of Rule 14a-4(c) of the Exchange Act.
2
<PAGE>
5. Special Meetings
Special meetings of stockholders, unless otherwise provided by the law of
Delaware, may be called by the Chairman of the Board or the President, or
pursuant to resolution of the Board of Directors, and such person calling the
meeting shall have the sole right to determine the proper purpose or purposes of
such meeting. Business transacted at a special meeting of stockholders shall be
confined to the purpose or purposes of the meeting as stated in the notice of
such meeting. Any previously scheduled special meeting of the stockholders may
be postponed by resolution of the Board of Directors upon notice by public
announcement given on or prior to the date previously scheduled for such special
meeting of stockholders.
6. Place of Meetings
All meetings of stockholders shall be held at the General Offices of the
Company in the County of St. Louis, State of Missouri, unless otherwise
determined by resolution of the Board of Directors.
7. Notice of Meetings
Except as otherwise required by the law of Delaware, notice of each meeting of
the stockholders, whether annual or special, shall, at least ten days but not
more than sixty days before the date of the meeting, be given to each
stockholder of record entitled to vote at the meeting by mailing such notice in
the United States mail, postage prepaid, addressed to such stockholder at such
stockholder's address as the same appears on the records of the Company. Such
notice shall state the place, date and hour of the meeting, and in the case of a
special meeting, shall also state the purpose or purposes thereof.
8. Nominations of Directors
(a) Only persons who are nominated in accordance with the procedures set forth
in these By-Laws shall be eligible for election as Directors. Nominations of
persons for election to the Board of Directors may be made at a meeting of
stockholders (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Company who is a stockholder of record at the time of giving
of the notice provided for in this By-Law, who shall be entitled to vote for the
election of Directors at the meeting and who complies with the notice procedures
set forth in this By-Law.
(b) Nominations by stockholders shall be made pursuant to notice in writing,
delivered or mailed to the Secretary and received at the General Offices of the
Company (i) in the case of an annual meeting, not less than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting, provided, however, that in the event that the date of the meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the stockholder must be received not earlier than
the 90th day prior to such annual meeting and not later than the close of
business on the later of the 60th day prior to such annual meeting or the tenth
day following the day on which public announcement of the date of the meeting is
first made;
3
<PAGE>
or (ii) in the case of a special meeting at which directors are to be elected,
not earlier than the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to such special meeting
or the tenth day following the day on which public announcement of the date of
the meeting and of the nominees proposed by the Board of Directors to be elected
at such meeting is first made. In the case of a special meeting of stockholders
at which Directors are to be elected, stockholders may nominate a person or
persons (as the case may be) for election only to such position(s) as are
specified in the Company's notice of meeting as being up for election at such
meeting. Such stockholder's notice shall set forth (i) as to each person whom
the stockholder proposes to nominate for election or reelection as a Director,
all information relating to such person that would be required to be disclosed
in solicitations of proxies for election of Directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Exchange Act (including such
person's written consent to being named as a nominee and to serving as a
Director if elected); (ii) as to the stockholder giving the notice, the name and
address, as they appear on the Company's books, of such stockholder and the
class and number of shares of the Company's stock which are beneficially owned
by such stockholder; and (iii) as to any beneficial owner on whose behalf the
nomination is made, the name and address of such person and the class and number
of shares of the Company's stock which are beneficially owned by such person. At
the request of the Board of Directors, any person nominated by the Board of
Directors for election as a Director shall furnish to the Secretary that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. Notwithstanding anything in this By-Law to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the Company is increased and there is no public statement naming
all the nominees for Director or specifying the size of the increased Board of
Directors made by the Company at least 70 days prior to the first anniversary of
the preceding year's annual meeting, a stockholder's notice required by this By-
Law shall also be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the
Secretary at the General Offices of the Company not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Company.
(c) No person shall be eligible for election as a Director of the Company
unless nominated in accordance with the procedures set forth in these By-Laws.
The chairman of the meeting may, if the facts warrant, determine that a
nomination was not made in accordance with the procedures prescribed in this By-
Law; and if the chairman should so determine, the chairman shall so declare to
the meeting, and the defective nomination shall be disregarded. Notwithstanding
the foregoing provisions of this By-Law, a stockholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this By-Law.
9. List of Stockholders
(a) The Secretary of the Company shall prepare, at least ten days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for
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any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
(b) The stock ledger of the Company shall be the only evidence as to the
identity of the stockholders entitled (i) to vote in person or by proxy at any
meeting of stockholders, or (ii) to exercise the rights in accordance with
Delaware law to examine the stock ledger, the list required by this By-Law or
the books and records of the Company.
10. Quorum
The holders of a majority of the stock issued and outstanding and entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum for the transaction of any business at all meetings of the stockholders,
except as otherwise provided by the law of Delaware, by the Certificate of
Incorporation or by these By-Laws. The stockholders present at any duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of sufficient stockholders to render the
remaining stockholders less than a quorum. Whether or not a quorum is present,
either the Chairman of the meeting or a majority of the stockholders entitled to
vote thereat, present in person or by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At such adjourned meeting at which the requisite amount of
voting stock shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed.
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11. Voting and Required Vote
Subject to the provisions of the Certificate of Incorporation, each
stockholder shall, at every meeting of stockholders, be entitled to one vote for
each share of capital stock held by such stockholder. Subject to the provisions
of the Certificate of Incorporation and Delaware law, Directors shall be chosen
by the vote of a plurality of the shares present in person or represented by
proxy at the meeting; and all other questions shall be determined by the
affirmative vote of the majority of shares present in person or represented by
proxy at the meeting. Elections of Directors shall be by written ballot.
12. Proxies
Each stockholder entitled to vote at a meeting of stockholders may authorize
another person or persons to act for such stockholder by proxy, provided the
instrument authorizing such proxy to act shall have been executed in writing in
the manner prescribed by law. No proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period.
13. Inspectors of Election; Polls
Before each meeting of stockholders, the Chairman of the Board or another
officer of the Company designated by resolution of the Board of Directors shall
appoint one or more inspectors of election for the meeting and may appoint one
or more inspectors to replace any inspector unable to act. If any of the
inspectors appointed shall fail to attend, or refuse or be unable to serve,
substitutes shall be appointed by the Chairman of the meeting. Each inspector
shall have such duties as are provided by law, and shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of such person's ability. The Chairman of the meeting
shall fix and announce at the meeting the date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting.
14. Organization
The Chairman of the Board of Directors, or in the Chairman's absence, (i) the
President, if a member of the Board of Directors, (ii) one of the Vice Chairmen
of the Board who is a member of the Board of Directors, if any, in such order as
may be designated by the Chairman of the Board, in that order, or (iii) in the
absence of each of them, a chairman chosen by a majority of the Directors
present, shall act as chairman of the meetings of the stockholders. The order
of business and the procedure at any meeting of stockholders shall be determined
by the chairman of the meeting.
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15. No Stockholder Action by Written Consent
Any action required or permitted to be taken by the stockholders of the
Company must be effected at a duly called annual or special meeting of
stockholders of the Company and may not be effected by any consent in writing in
lieu of a meeting of such stockholders.
BOARD OF DIRECTORS
------------------
16. General Powers, Number, Term of Office
The business of the Company shall be managed under the direction of its Board
of Directors. Subject to the rights of the holders of any series of preferred
stock, without par value, of the Company ("Preferred Stock") to elect additional
directors under specified circumstances, the number of directors of the Company
which shall constitute the whole Board shall be not less than five nor more than
20. The exact number of directors within the minimum and maximum limitation
specified in the preceding sentence shall be fixed from time to time exclusively
by resolution of a majority of the whole Board. The Directors, other than those
who may be elected by the holders of any series of Preferred Stock, shall be
divided into three classes, as nearly equal in number as possible. One class of
directors shall have a term expiring at the annual meeting of stockholders to be
held in 1998, another class shall have a term expiring at the annual meeting of
stockholders to be held in 1999, and another class shall have a term expiring at
the annual meeting of stockholders to be held in 2000. Members of each class
shall hold office until their successors are elected and qualified. At each
annual meeting of the stockholders of the Company commencing with the 1998
annual meeting, (1) directors elected to succeed those directors whose terms
then expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting of stockholders after their election, with each
director to hold office until his or her successor shall have been duly elected
and qualified, and (2) only if authorized by a resolution of the Board of
Directors, directors may be elected to fill any vacancy on the Board of
Directors, regardless of how such vacancy shall have been created. Directors
need not be stockholders of the Company or residents of the State of Delaware.
17. Vacancies
Subject to the rights of the holders of any series of Preferred Stock to elect
additional directors under specified circumstances, and unless the Board of
Directors otherwise determines, vacancies resulting from death, resignation,
retirement, disqualification, removal from office or other cause, and newly
created directorships resulting from any increase in the authorized number of
directors, may be filled only by the affirmative vote of a majority of the
remaining directors, though less than a quorum of the Board of Directors, or by
a sole remaining director, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires and until such director's
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the Board of Directors shall shorten the
term of any incumbent director.
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18. Regular Meetings
Following the annual meeting of stockholders, the first meeting of each newly
elected Board of Directors may be held, without notice, on the same day and at
the same place as such stockholders' meeting. The Board of Directors by
resolution may provide for the holding of regular meetings and may fix the times
and places at which such meetings shall be held. Notice of regular meetings
shall not be required provided that whenever the time or place of regular
meetings shall be fixed or changed, notice of such action shall be given
promptly to each director, as provided in Section 19 below, who was not present
at the meeting at which such action was taken.
19. Special Meetings
Special meetings of the Board of Directors shall be held whenever called by
the Chairman of the Board of Directors or the President, or in the absence of
each of them, by any Vice Chairman of the Board, in such order as may be
designated by the Chairman of the Board, or by the Secretary at the written
request of a majority of the Directors.
20. Notices
Notice of any special meeting of the Board of Directors shall be addressed to
each Director at such Director's residence or business address and shall be sent
to such Director by mail, electronic mail, telecopier, telegram or telex or
telephoned or delivered to such Director personally. If such notice is sent by
mail, it shall be sent not later than three days before the day on which the
meeting is to be held. If such notice is sent by electronic mail, telecopier,
telegram or telex, it shall be sent not later than 12 hours before the time at
which the meeting is to be held. If such notice is telephoned or delivered
personally, it shall be received not later than 12 hours before the time at
which the meeting is to be held. Such notice shall state the time, place and
purpose or purposes of the meeting.
21. Quorum
One-third of the total number of Directors constituting the whole Board, but
not less than two, shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, but if less than such required number of
Directors for a quorum is present at a meeting, a majority of the Directors
present may adjourn the meeting from time to time without further notice.
Except as otherwise specifically provided by the law of Delaware, the
Certificate of Incorporation or these By-Laws, the act of a majority of the
Directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
22. Organization
At each meeting of the Board of Directors, the Chairman of the Board or, in
the Chairman's absence, (i) the President, if a member of the Board of
Directors, (ii) one of the Vice Chairmen of the Board who is a member of the
Board of Directors, if any, in such order as may be designated by the Chairman
of the Board, in that order, or (iii) in the absence of each of them, a chairman
chosen by a majority of the Directors present, shall act as chairman of the
meeting,
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and the Secretary or, in the Secretary's absence, an Assistant
Secretary or any employee of the Company appointed by the chairman of the
meeting, shall act as secretary of the meeting.
23. Resignations
Any Director may resign at any time by giving written notice to the Chairman
of the Board, the President or the Secretary of the Company. Such resignation
shall take effect upon receipt thereof or at any later time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
24. Removal
Subject to the rights of the holders of any series of Preferred Stock to elect
additional directors under specified circumstances, any director may be removed
from office at any time, but only for cause and only by the affirmative vote of
the holders of at least 80 percent of the voting power of the then outstanding
Voting Stock, voting together as a single class. For purposes of these By-Laws,
"Voting Stock" shall mean the outstanding shares of capital stock of the Company
entitled to vote generally in the election of directors.
25. Action Without a Meeting
Unless otherwise restricted by the Certificate of Incorporation or these By-
Laws, any action required or permitted to be taken at any meeting of the Board
of Directors or of any committee thereof may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
26. Location of Books
Except as otherwise provided by resolution of the Board of Directors and
subject to the law of Delaware, the books of the Company may be kept at the
General Offices of the Company and at such other places as may be necessary or
convenient for the business of the Company.
27. Dividends
Subject to the provisions of the Certificate of Incorporation and the law of
Delaware, dividends upon the capital stock of the Company may be declared by the
Board of Directors at any regular or special meeting. Dividends may be paid in
cash, in property, or in shares of the Company's capital stock.
28. Compensation of Directors
Directors shall receive such compensation and benefits as may be determined by
resolution of the Board for their services as members of the Board and
committees. Directors shall also be reimbursed for their expenses of attending
Board and committee meetings. Nothing contained
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herein shall preclude any Director from serving the Company in any other
capacity and receiving compensation therefor.
29. Additional Powers
In addition to the powers and authorities by these By-Laws expressly conferred
upon it, the Board of Directors may exercise all such powers of the Company and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-Laws directed or required to be exercised or
done by the stockholders.
COMMITTEES OF DIRECTORS
-----------------------
30. Designation, Power, Alternate Members
The Board of Directors may, by resolution or resolutions passed by a majority
of the whole Board, designate an Executive Committee and one or more additional
committees, each committee to consist of two or more of the Directors of the
Company. Any such committee, to the extent provided in said resolution or
resolutions and subject to any limitations provided by law, shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the Company. The Board of Directors may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. If at a meeting of any
committee one or more of the members thereof is absent or disqualified, and if
either the Board of Directors has not so designated any alternate member or
members, or the number of absent or disqualified members exceeds the number of
alternate members who are present at such meeting, then the member or members of
such committee (including alternates) present at any meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another Director to act at the meeting in the place of such
absent or disqualified member. The term of office of the members of each
committee shall be as fixed from time to time by the Board; provided, however,
that any committee member who ceases to be a member of the Board shall
automatically cease to be a committee member.
31. Quorum, Manner of Acting
At any meeting of a committee, the presence of one-third, but not less than
two, of its members then in office shall constitute a quorum for the transaction
of business; and the act of a majority of the members present at a meeting at
which a quorum is present shall be the act of the committee; provided that in
the event that any member or members of the committee is or are in any way
interested in or connected with any other party to a contract or transaction
being approved at such meeting, or are themselves parties to such contract or
transaction, the act of a majority of the members present who are not so
interested or connected, or are not such parties, shall be the act of the
committee. Each committee may provide for the holding of regular meetings, make
provision for the calling of special meetings and, except as otherwise provided
in these By-Laws or by resolution of the Board of Directors, make rules for the
conduct of its business.
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32. Minutes
The committees shall keep minutes of their proceedings and report the same to
the Board of Directors when required; but failure to keep such minutes shall not
affect the validity of any acts of the committee or committees.
ADVISORY DIRECTORS
------------------
33. Advisory Directors
The Board of Directors may, by resolution adopted by a majority of the whole
Board, appoint such number of senior executives of the Company as Advisory
Directors as the Board may from time to time determine. The Advisory Directors
shall have such advisory responsibilities as the Chairman of the Board may
designate and the term of office of such Advisory Directors shall be as fixed by
the Board.
OFFICERS
--------
34. Designation
The officers of the Company shall be a Chairman of the Board, and a
President, one of whom shall be designated by the Board of Directors as the
Chief Executive Officer, one or more Vice Presidents, a Secretary, a Treasurer
and a Controller. The Board of Directors may also elect one or more Vice
Chairmen of the Board, one or more Vice Chairmen of the Company, one or more
Executive Vice Presidents, Senior Vice Presidents, Group Vice Presidents, a
Chief Financial Officer, Deputy and Assistant Secretaries, Deputy and Assistant
Treasurers, Deputy and Assistant Controllers and such other officers as it shall
deem necessary. Any number of offices may be held by the same person. The
Chairman of the Board of Directors shall be chosen from among the Directors.
35. Election and Term
At least annually, the Board of Directors of the Company shall elect the
officers of the Company and at any time thereafter the Board may elect
additional officers of the Company and each such officer shall hold office until
the officer's successor is elected and qualified or until the officer's earlier
death, resignation, termination of employment or removal.
36. Removal
Any officer shall be subject to removal or suspension at any time, for or
without cause, by the affirmative vote of a majority of the whole Board of
Directors.
37. Resignations
Any officer may resign at any time by giving written notice to the Chairman of
the Board, the President or to the Secretary. Such resignation shall take
effect upon receipt thereof or at any
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later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
38. Vacancies
A vacancy in any office because of death, resignation, removal or any other
cause may be filled for the unexpired portion of the term by the Board of
Directors.
39. Compensation
The People Committee of the Board of Directors shall fix the salaries of
all employees of the Company who are subject to the reporting requirements of
Section 16(a) of the Securities Exchange Act of 1934 or any successor statute,
rule or provision, and other members of executive management designated by such
committee.
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40. Chairman of the Board
The Chairman of the Board shall preside at all meetings of the stockholders
and of the Board of Directors, except as may be otherwise required under the law
of Delaware. The Chairman shall act in an advisory capacity with respect to
matters of policy and other matters of importance pertaining to the affairs of
the Company. The Chairman, alone or with the President, one or more of the Vice
Chairmen of the Board, and/or the Secretary shall sign and send out reports and
other messages which are to be sent to stockholders from time to time. The
Chairman shall also perform such other duties as may be assigned to the Chairman
by these By-Laws, the Board of Directors or, if applicable, the Chief Executive
Officer.
41. President
The President, if a member of the Board of Directors, shall, in the absence
of the Chairman of the Board, preside at all meetings of the stockholders and of
the Board of Directors. The President shall perform such other duties as may be
assigned to the President by these By-Laws, the Board of Directors or, if
applicable, the Chief Executive Officer.
42. Chief Executive Officer
The Chief Executive Officer shall have the general and active management and
supervision of the business of the Company. The Chief Executive Officer shall
see that all orders and resolutions of the Board of Directors are carried into
effect. The Chief Executive Officer shall also perform such other duties as may
be assigned to the Chief Executive Officer by these By-Laws or the Board of
Directors. The Chief Executive Officer shall designate who shall perform the
duties of the Chief Executive Officer in the Chief Executive Officer's absence.
43. Vice Chairmen of the Board; Vice Chairmen
The Vice Chairmen of the Board, if a member of the Board of Directors, shall,
in the absence of the Chairman of the Board and the President, and in such order
as may be designated by the Chairman of the Board, preside at all meetings of
the stockholders and of the Board of Directors. The Vice Chairmen of the Board
and the Vice Chairmen shall perform such other duties as may be assigned to them
by these By-Laws, the Board of Directors or the Chief Executive Officer.
44. Executive, Senior, Group and other Vice Presidents
Each Executive Vice President, Senior Vice President, Group Vice President and
each other Vice President shall perform the duties and functions and exercise
the powers assigned to such officer by the Board of Directors or the Chief
Executive Officer.
45. Chief Financial Officer
The Chief Financial Officer (if any) shall act in an executive financial
capacity. The Chief
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Financial Officer shall assist the Chairman of the Board and the President in
the general supervision of the Company's financial policies and affairs.
46. Secretary
The Secretary shall attend all meetings of the Board of Directors and of the
stockholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors and, when appropriate, shall cause the corporate seal to be affixed to
any instruments executed on behalf of the Company. The Secretary shall also
perform all duties incident to the office of Secretary and such other duties as
may be assigned to the Secretary by these By-Laws, the Board of Directors, the
Chairman of the Board or the Chief Executive Officer.
47. Assistant Secretaries
The Assistant Secretaries shall, during the absence of the Secretary, perform
the duties and functions and exercise the powers of the Secretary. Each
Assistant Secretary shall perform such other duties as may be assigned to such
Assistant Secretary by the Board of Directors, the Chairman of the Board, the
Chief Executive Officer or the Secretary.
48. Treasurer
The Treasurer shall have the custody of the funds and securities of the
Company and shall deposit them in the name and to the credit of the Company in
such depositories as may be designated by the Board of Directors or by any
officer or officers authorized by the Board of Directors to designate such
depositories; disburse funds of the Company when properly authorized by vouchers
prepared and approved by the Controller; and invest funds of the Company when
authorized by the Board of Directors or a committee thereof. The Treasurer
shall render to the Board of Directors, the Chief Executive Officer, the Senior
Vice President-Finance or the Vice President-Finance, whenever requested, an
account of all transactions as Treasurer and shall also perform all duties
incident to the office of Treasurer and such other duties as may be assigned to
the Treasurer by these By-Laws, the Board of Directors, the Chief Executive
Officer, the Senior Vice President-Finance or the Vice President-Finance.
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49. Assistant Treasurers
The Assistant Treasurers shall, during the absence of the Treasurer, perform
the duties and functions and exercise the powers of the Treasurer. Each
Assistant Treasurer shall perform such other duties as may be assigned to the
Assistant Treasurer by the Board of Directors, the Chief Executive Officer, the
Senior Vice President-Finance, the Vice President-Finance or the Treasurer.
50. Controller
The Controller shall serve as the principal accounting officer of the Company
and shall keep full and accurate account of receipts and disbursements in books
of the Company and render to the Board of Directors, the Chief Executive
Officer, the Senior Vice President-Finance or the Vice President-Finance,
whenever requested, an account of all transactions as Controller and of the
financial condition of the Company. The Controller shall also perform all
duties incident to the office of Controller and such other duties as may be
assigned to the Controller by these By-Laws, the Board of Directors, the Chief
Executive Officer, the Senior Vice President-Finance or the Vice President-
Finance.
51. Assistant Controllers
The Assistant Controllers shall, during the absence of the Controller, perform
the duties and functions and exercise the powers of the Controller. Each
Assistant Controller shall perform such other duties as may be assigned to such
officer by the Board of Directors, the Chief Executive Officer, the Senior Vice
President-Finance, the Vice President-Finance or the Controller.
COMPANY CHECKS, DRAFTS AND PROXIES
----------------------------------
52. Checks, Drafts
All checks, drafts or other orders for the payment of money by the Company
shall be signed by such person or persons as from time to time may be designated
by the Board of Directors or by any officer or officers authorized by the Board
of Directors to designate such signers; and the Board of Directors or such
officer or officers may determine that the signature of any such authorized
signer may be facsimile.
53. Proxies
Except as otherwise provided by resolution of the Board of Directors, the
Chairman of the Board, the President, any Vice Chairman of the Board, any Vice
President, the Treasurer and any Assistant Treasurer, the Controller and any
Assistant Controller, the Secretary and any Assistant Secretary of the Company,
shall each have full power and authority, in behalf of the Company, to exercise
any and all rights of the Company with respect to any meeting of stockholders of
any corporation in which the Company holds stock, including the execution and
delivery of proxies therefor, and to consent in writing to action by such
corporation without a meeting.
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CAPITAL STOCK
-------------
54. Stock Certificates
Each holder of stock in the Company shall be entitled to have a certificate
signed by, or in the name of the Company by, the Chairman of the Board, the
President, any Vice Chairman of the Board, any Executive Vice President, any
Senior Vice President, any Group Vice President or any other Vice President, and
by the Secretary or any Assistant Secretary of the Company, certifying the
number of shares owned by such holder in the Company. Any of or all the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Company
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
55. Record Ownership
The Company shall be entitled to treat the person in whose name any share,
right or option is registered as the owner thereof, for all purposes, and shall
not be bound to recognize any equitable or other claim to or interest in such
share, right or option on the part of any other person, whether or not the
Company shall have notice thereof, except as otherwise provided by the law of
Delaware.
56. Record Dates
In order that the Company may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
57. Transfer of Stock
Transfers of shares of stock of the Company shall be made only on the books of
the Company by the registered holder thereof, or by the registered holder's
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary or a transfer agent of the Company, and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon.
58. Lost, Stolen or Destroyed Certificates
The Board of Directors may authorize a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
Company alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of the fact by the person claiming the certificate of
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stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or the owner's legal
representative, to give the Company a bond sufficient to indemnify it against
any claim that may be made against the Company on account of the alleged loss,
theft or destruction of such certificate or the issuance of such new
certificate.
59. Terms of Preferred Stock
The provisions of these By-Laws, including those pertaining to voting rights,
election of Directors and calling of special meetings of stockholders, are
subject to the terms, preferences, rights and privileges of any then outstanding
class or series of Preferred Stock as set forth in the Certificate of
Incorporation and in any resolutions of the Board of Directors providing for the
issuance of such class or series of Preferred Stock; provided, however, that the
provisions of any such Preferred Stock shall not affect or limit the authority
of the Board of Directors to fix, from time to time, the number of Directors
which shall constitute the whole Board as provided in Section 16 above, subject
to the right of the holders of any class or series of Preferred Stock to elect
additional Directors as and to the extent specifically provided by the
provisions of such Preferred Stock.
INDEMNIFICATION
---------------
60. Indemnification
(a) The Company shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any claim, action, suit, or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding") by reason of the fact
that the person, or a person for whom he or she is the legal representative, is
or was a Director, officer, employee or agent of the Company or is or was
serving at the request of the Company as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, non-profit entity, or other enterprise, including service with respect to
employee benefit plans, against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
person. The right to indemnification conferred in this By-Law shall be a
contract right. Except as provided in paragraph (c) of this By-Law with respect
to proceedings seeking to enforce rights to indemnification, the Company shall
indemnify a person in connection with a proceeding initiated by such person or a
claim made by such person against the Company only if such proceeding or claim
was authorized by the Board of Directors of the Company.
(b) The Company shall pay the expenses incurred in defending any proceeding in
advance of its final disposition, provided, however, that if and to the extent
required by law the payment of expenses incurred by any person covered hereunder
in advance of the final disposition of the proceeding shall be made only upon
receipt of an undertaking by or on behalf of the affected person to repay all
amounts advanced if it should ultimately be determined that such person is not
17
<PAGE>
entitled to be indemnified under this By-Law or otherwise.
(c) If a claim for indemnification or payment of expenses under this By-Law is
not paid in full within thirty days, or such other period as might be provided
pursuant to contract, after a written claim therefor has been received by the
Company, the claimant may file suit to recover the unpaid amount of such claim
or may seek whatever other remedy might be provided pursuant to contract. In any
such action the Company shall have the burden of proving that the claimant was
not entitled to the requested indemnification or payment of expenses under
applicable law. If successful in whole or in part, claimant shall be entitled to
be paid the expense of prosecuting such claim. Neither the failure of the
Company (including its Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because the
claimant has met the applicable standard of conduct set forth in the General
Corporation Law of the State of Delaware, nor an actual determination by the
Company (including its Directors, independent legal counsel or stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
(d) Any determination regarding whether indemnification of any person is proper
in the circumstances because such person has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware shall
be made by independent legal counsel selected by such person with the consent of
the Company (which consent shall not unreasonably be withheld).
(e) The rights conferred on any person by this By-Law shall not be exclusive of
any other rights which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, these By-Laws,
agreement, vote of stockholders or disinterested Directors or otherwise.
(f) Any repeal or modification of the foregoing provisions of this By-Law 59
shall not adversely affect any right or protection hereunder of any person with
respect to any act or omission occurring prior to or at the time of such repeal
or modification.
MISCELLANEOUS
-------------
61. Corporate Seal
The seal of the Company shall be circular in form, containing the words
"Monsanto Company" and the word "Delaware" on the circumference surrounding the
word "Seal". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
62. Fiscal Year
The fiscal year of the Company shall begin on the first day of January in each
year.
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<PAGE>
63. Auditors
The Board of Directors shall select certified public accountants to audit the
books of account and other appropriate corporate records of the Company annually
and at such other times as the Board shall determine by resolution.
64. Waiver of Notice
Whenever notice is required to be given pursuant to the law of Delaware, the
Certificate of Incorporation or these By-Laws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting of stockholders or the Board of Directors or a committee thereof shall
constitute a waiver of notice of such meeting, except when the stockholder or
Director attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders or the
Board of Directors or committee thereof need be specified in any written waiver
of notice unless so required by the Certificate of Incorporation or by these By-
Laws.
19
<PAGE>
AMENDMENT TO BY-LAWS
--------------------
65. Amendments
Notwithstanding any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of any
series of Preferred Stock of the Corporation required by law, the Certificate of
Incorporation or any Preferred Stock designation, the affirmative vote of the
holders of at least 80 percent of the voting power of all of the then-
outstanding Voting Stock (as defined in the Certificate of Incorporation),
voting together as a single class, shall be required for the stockholders to
amend or repeal the By-Laws or to adopt new By-Laws. The By-Laws may also be
amended or repealed and new By-Laws may be adopted by the affirmative vote of a
majority of the whole Board of Directors at any regular or special meeting of
the Board of Directors.
____________________________
EMERGENCY BY-LAWS
-----------------
These Emergency By-Laws, notwithstanding any different provision in the
Certificate of Incorporation or By-Laws, shall be operative during any emergency
resulting from an attack on the United States or on a locality in which the
Company conducts its business or customarily holds meetings of the Board of
Directors or its stockholders, or during any nuclear or atomic disaster, or
during the existence of any catastrophe, or other similar emergency condition,
as a result of which a quorum of the Board of Directors or a committee thereof
cannot be readily convened for action. These Emergency By-Laws shall cease to be
operative upon termination of such emergency.
During any such emergency:
(a) A meeting of the Board of Directors or a committee thereof may be called by
any officer or Director. Notice of the time and place of the meeting shall be
given by the person calling the meeting to only such of the Directors as it may
be feasible to reach at the time and by such means as may be feasible at the
time. Such notice shall be given at such time in advance of the meeting as
circumstances permit in the judgment of the person calling the meeting.
(b) The officers or other persons designated on a list approved by the Board of
Directors before the emergency, all in such order or priority and subject to
such conditions and for such period of time (not longer than reasonably
necessary after the termination of the emergency) as may be provided in the
resolution approving the list, shall, to the extent required to constitute a
quorum at any meeting of the Board of Directors during the emergency, be deemed
Directors for such meeting. If at the time of the emergency the Board of
Directors has not approved such a list of persons, then to the extent required
to constitute a quorum at any meeting of the Board of Directors during the
emergency, the officers of the Company who are present shall be deemed, in order
of rank and within the same rank in order of seniority, Directors for such
meeting. Two Directors
20
<PAGE>
(including persons deemed to be Directors) in attendance at the meeting shall
constitute a quorum.
(c) The Board of Directors, either before or during any such emergency, may
provide, and from time to time modify, lines of succession in the event that
during such an emergency any or all officers or agents of the Company shall for
any reason be rendered incapable of discharging their duties.
(d) The Board of Directors, either before or during any such emergency, may,
effective in the emergency, change the General Offices or designate several
alternative General Offices or regional offices, or authorize an officer, or
officers, so to do.
No officer, Director or employee acting in accordance with these Emergency By-
Laws shall be liable except for willful misconduct.
These Emergency By-Laws shall be subject to repeal or change by further action
of the Board of Directors or by action of the stockholders, but no such repeal
or change shall modify the provisions of the next preceding paragraph with
regard to action taken prior to the time of such repeal or change. Any amendment
of these Emergency By-Laws may make any further or different provision that may
be practical and necessary for the circumstances of the emergency.
21
<PAGE>
Exhibit 4.2
MONSANTO COMPANY
Officers' Certificate Pursuant to
Sections 102 and 301 of the Indenture
Each of the undersigned officers of Monsanto Company, a
Delaware corporation (the "Company"), does hereby certify as follows:
1. Each of the undersigned has read the Indenture, dated as
of December 1, 1998 (the "Indenture"), between the Company and The Bank
of New York, as Trustee (the "Trustee"), including Section 301 thereof,
and the definitions in the Indenture relating thereto, and has reviewed
such other corporate documents and records relating to the matters
referred to herein, and, in the opinion of the undersigned, has made
such examination or investigation, as is necessary to enable him or her
to express an informed opinion on the matters set forth below.
2. The terms of the senior unsecured indebtedness of the
Company (the "Securities") to be issued under the Indenture, have been
established pursuant to a Board Resolution (as defined in the
Indenture) and are set forth in Schedules I-1 through I-5 hereto.
3. All conditions precedent provided for in the Indenture
relating to the establishment and original issuance, authentication and
delivery of the Securities have been complied with.
4. In the opinion of the undersigned, Section 301 of the
Indenture has been complied with in the establishment of the terms of
the Securities.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, we have hereto signed our names.
Dated: _____________, 1999
___________________________________ ____________________________________
Name: Name:
Title: Title:
<PAGE>
SCHEDULE I-1
------------
Title of Designated Securities:
5.375% Notes due 2001
Aggregate Principal Amount:
$500,000,000
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The
Bank of New York, as Trustee
Maturity:
December 1, 2001
Interest Rate:
5.375%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Not redeemable prior to maturity
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Sch. I-1-1
<PAGE>
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
___________________, 1999
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-1-2
<PAGE>
SCHEDULE I-2
------------
Title of Designated Securities:
5.750% Notes due 2005
Aggregate Principal Amount:
$600,000,000
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The
Bank of New York, as Trustee
Maturity:
December 1, 2005
Interest Rate:
5.750%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Redeemable as a whole or in part, at the option of the Company, at any
time at a redemption price equal to the greater of (1) 100% of the
principal amount of the Designated Securities to be redeemed or (2) the
sum of the present values of the remaining scheduled principal and
interest payments discounted, on a semiannual basis, at a rate equal to
the sum of the applicable Treasury Rate (as defined in the Indenture)
and 15 basis points.
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
Sch. I-2-1
<PAGE>
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
_________________, 1999
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-2-2
<PAGE>
SCHEDULE I-3
------------
Title of Designated Securities:
5.875% Notes due 2008
Aggregate Principal Amount:
$200,000,000
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The
Bank of New York, as Trustee
Maturity:
December 1, 2008
Interest Rate:
5.875%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Redeemable as a whole or in part, at the option of the Company, at any
time at a redemption price equal to the greater of (1) 100% of the
principal amount of the Designated Securities to be redeemed or (2) the
sum of the present values of the remaining scheduled principal and
interest payments discounted, on a semiannual basis, at a rate equal to
the sum of the applicable Treasury Rate (as defined in the Indenture)
and 20 basis points.
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
Sch. I-3-1
<PAGE>
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
_________________, 1999
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-3-2
<PAGE>
SCHEDULE I-4
------------
Title of Designated Securities:
6.500% Debentures due 2018
Aggregate Principal Amount:
$500,000,000
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The
Bank of New York, as Trustee
Maturity:
December 1, 2018
Interest Rate:
6.500%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Redeemable as a whole or in part, at the option of the Company, at any
time at a redemption price equal to the greater of (1) 100% of the
principal amount of the Designated Securities to be redeemed or (2) the
sum of the present values of the remaining scheduled principal and
interest payments discounted, on a semiannual basis, at a rate equal to
the sum of the applicable Treasury Rate (as defined in the Indenture)
and 20 basis points.
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
Sch. I-4-1
<PAGE>
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
__________________, 1999
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-4-2
<PAGE>
SCHEDULE I-5
------------
Title of Designated Securities:
6.600% Debentures due 2028
Aggregate Principal Amount:
$700,000,000
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The
Bank of New York, as Trustee
Maturity:
December 1, 2028
Interest Rate:
6.600%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Redeemable as a whole or in part, at the option of the Company, at any
time at a redemption price equal to the greater of (1) 100% of the
principal amount of the Designated Securities to be redeemed or (2) the
sum of the present values of the remaining scheduled principal and
interest payments discounted, on a semiannual basis, at a rate equal to
the sum of the applicable Treasury Rate (as defined in the Indenture)
and 25 basis points.
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
Sch. I-5-1
<PAGE>
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
________________, 1999
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-5-2
<PAGE>
Exhibit 4.3
MONSANTO COMPANY
$500,000,000 Notes due 2001
$600,000,000 Notes due 2005
$200,000,000 Notes due 2008
$500,000,000 Debentures due 2018
$700,000,000 Debentures due 2028
REGISTRATION RIGHTS AGREEMENT
New York, New York
December 9, 1998
Salomon Smith Barney Inc.
Goldman, Sachs & Co.
c/o Salomon Smith Barney Inc.
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Monsanto Company, a Delaware corporation (the "Company"), proposes to
issue and sell (the "Initial Placement") to Salomon Smith Barney Inc., Goldman,
Sachs & Co. and the other purchasers listed in Schedule I to the Purchase
Agreement (the "Purchase Agreement") dated December 4, 1998 (collectively, the
"Initial Purchasers"), upon the terms set forth in the Purchase Agreement,
$500,000,000 principal amount of its 5.375% Notes due 2001, $600,000,000
principal amount of its 5.750% Notes due 2005, $200,000,000 principal amount of
its 5.875% Notes due 2008, $500,000,000 principal amount of its 6.500%
Debentures due 2018 and $700,000,000 principal amount of its 6.600% Debentures
due 2028 (each, a "Series of Offered Debt Securities" and, collectively, the
"Offered Debt Securities"). The Offered Debt Securities will be issued under a
Indenture dated as of December 1, 1998 (the "Indenture") between the Company and
The Bank of New York, as trustee (the "Trustee"). As an inducement to the
Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to your obligations thereunder, the Company agrees with you, (i) for
your benefit and (ii) for the benefit of the holders from time to time (each of
the foregoing a "Holder" and together the "Holders") of the Offered Debt
Securities or the Exchange Debt Securities (as defined herein), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
1
<PAGE>
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" shall have the same meaning given to that term in Rule 405
of the Act of any successor rule thereunder.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Debt Securities" means the five Series of Exchange Debt
Securities, collectively.
"Exchange Debt Securities Indenture" means an indenture between the
Company and the Exchange Debt Securities Trustee, identical in all material
respects to the Indenture.
"Exchange Debt Securities Trustee" means The Bank of New York, as
Trustee, or another bank or trust company reasonably satisfactory to the Initial
Purchasers, as trustee with respect to the Exchange Debt Securities under the
Exchange Debt Securities Indenture.
"Exchange Offer Registration Period" means the 180-day period following
the issuance of the Exchange Debt Securities, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement
of the Company on an appropriate form under the Act with respect to the
Registered Exchange Offer, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include any Initial
Purchaser) which is a broker-dealer electing to exchange Offered Debt Securities
acquired for its own account as a result of market-making activities or other
trading activities for Exchange Debt Securities.
"Final Offering Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" has the meaning set forth in the preamble hereto.
2
<PAGE>
"Indenture" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Letter of Transmittal" has the meaning set forth in Section 2(c)
hereof.
"Liquidated Damages" has the meaning set forth in Section 7(a) hereof.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Offered Debt Securities" has the meaning set forth in the preamble
hereto.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Offered Debt Securities or the Exchange Debt Securities, covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders, with respect to each Series of Offered Debt
Securities, a like principal amount of the corresponding Series of Exchange Debt
Securities, in exchange for the Offered Debt Securities.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Offered Debt
Securities or the Exchange Debt Securities pursuant to the provisions of this
Agreement, and amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Series of Offered Debt Securities" has the meaning set forth in the
preamble hereto.
"Series of Exchange Debt Securities" means, in respect of each Series
of Offered Debt Securities, a like principal amount of debt securities of the
Company identical in all
3
<PAGE>
respects to, and entitled to substantially the same benefits of, such Series of
Offered Debt Securities.
"Shelf Registration" means a registration effected pursuant to Section
3 hereof.
"Shelf Registration Event" has the meaning set forth in Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Offered Debt Securities or the Exchange Debt Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Special Counsel" means Mayer, Brown & Platt or such other single
counsel as shall be specified by the Majority Holders of securities included in
the relevant Registration Statement, the fees and expenses of which will be paid
by the Company pursuant to Section 5 hereof.
"Time of Delivery" has the meaning set forth in the Purchase Agreement.
"Trustee" has the meaning set forth in the preamble hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Underwriter" means any underwriter of Offered Debt Securities or
Exchange Debt Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offers; Resales of Exchange Debt Securities
by Exchanging Dealers. (a) The Company shall prepare and file with the
Commission the Exchange Offer Registration Statement. The Company shall use its
reasonable efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 180 days of the Time of Delivery.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offers,
it being the objective of such Registered Exchange Offers to enable each Holder
electing to exchange Offered Debt Securities for Exchange Debt Securities
(assuming that such Holder is not an Affiliate of the Company, acquires the
Exchange Debt Securities in the ordinary course of such Holder's
4
<PAGE>
business and has no arrangements with any person to participate in the
distribution (within the meaning of the Act) of the Exchange Debt Securities) to
transfer such Exchange Debt Securities from and after their receipt without any
limitations or restrictions under the Act and without material restrictions
under the securities laws of a substantial portion of the several states of the
United States.
(c) In connection with the Registered Exchange Offers, the Company
shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents ("Letter of
Transmittal");
(ii) keep the Registered Exchange Offers open for not less
than 30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offers with an address in the Borough of Manhattan, The City
of New York; and
(iv) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of each of the Registered
Exchange Offers, the Company shall:
(i) accept for exchange all Offered Debt Securities validly
tendered and not withdrawn pursuant to the applicable Registered
Exchange Offer;
(ii) deliver to the Trustee for cancellation all Offered Debt
Securities so accepted for exchange; and
(iii) cause the Exchange Debt Securities Trustee promptly to
authenticate and deliver to each Holder of tendered Offered Debt
Securities, Exchange Debt Securities of the appropriate series equal in
principal amount to the Offered Debt Securities of such Holder so
accepted for exchange therefor.
(e) The Initial Purchasers and the Company acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each Exchanging Dealer
is required to deliver a Prospectus in connection with a sale of any Exchange
Debt Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offers in exchange for Offered Debt Securities acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Company shall:
5
<PAGE>
(i) include the information set forth in Annex A hereto on
the cover of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in
a section setting forth details of the Registered Exchange Offers, and
in Annex C hereto in the underwriting or plan of distribution section
of the Prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in
each Letter of Transmittal delivered pursuant to each Registered
Exchange Offer; and
(ii) use its reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the Prospectus
forming a part thereof by Exchanging Dealers in connection with sales
of Exchange Securities received pursuant to the Registered Exchange
Offers, as contemplated by Section 4(h) below.
(f) In the event that the Initial Purchasers determine that they are
not eligible to participate in the Registered Exchange Offers with respect to
the exchange of Offered Debt Securities constituting any portion of their
initial unsold allotment, at the request of the Initial Purchasers, the Company
shall issue and deliver to the Initial Purchasers, in exchange for such Offered
Debt Securities, a like principal amount of Exchange Debt Securities (provided
that such Exchange Debt Securities shall include legends with respect to
restrictions on transfer), and the Company shall, starting on the date of
effectiveness of the Exchange Offer Registration Statement and ending on the
close of business on the 180th day following such date, make available as many
copies of the Exchange Offer Registration Statement prospectus, as amended or
supplemented, as reasonably requested by the Initial Purchasers. The Company
shall seek to cause the CUSIP Service Bureau to issue the same CUSIP number(s)
for such securities as for the corresponding Series of Exchange Debt Securities
issued pursuant to the Registered Exchange Offers. The Initial Purchasers agree
to promptly notify the Company in writing following the resale of their initial
allotment of Offered Debt Securities.
3. Shelf Registration. If, (i) because of any change in law or in
currently prevailing interpretations thereof by the Commission's staff, the
Company determines upon advice of its outside counsel that it is not permitted
to effect the Registered Exchange Offers as contemplated by Section 2 hereof, or
(ii) for any other reason the Registered Exchange Offers are not consummated
within 225 days of the Time of Delivery, or (iii) in the case of any Holder that
participates in any of the Registered Exchange Offers, such Holder does not
receive applicable freely tradeable Exchange Debt Securities on the date of the
exchange (other than due solely to the status of such Holder as an Affiliate of
the Company or as a broker-dealer) (it being understood that, for purposes of
this Section 3, (x) the requirement that the Initial Purchasers deliver a
Prospectus containing the information required by Items 507 and/or 508 of
Regulation S-K under the Act in connection with sales of Exchange Debt
Securities acquired in exchange for such Offered Debt Securities shall result in
such Exchange Debt Securities being not "freely tradeable" but (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection
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with sales of Exchange Debt Securities acquired in the Registered Exchange
Offers in exchange for Offered Debt Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Debt Securities being not "freely tradeable") (the events described in
clauses (i), (ii) and (iii) of this paragraph are each referred to herein as a
"Shelf Registration Event"), the following provisions shall apply:
(a) The Company shall promptly deliver to the applicable Holders
written notice of a Shelf Registration Event and, as promptly as practicable,
file with the Commission and thereafter use its reasonable efforts to cause to
be declared effective under the Act, a Shelf Registration Statement relating to
the offer and sale of the applicable Offered Debt Securities or the applicable
Exchange Debt Securities, as the case may be, by the applicable Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement; provided, however,
that with respect to Exchange Debt Securities received by the Initial Purchasers
in exchange for Offered Debt Securities constituting any portion of an unsold
allotment, the Company may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Regulation S-K
Items 507 and/or 508, as applicable, in satisfaction of their obligations under
this paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration Statement.
(b) The Company shall use its reasonable efforts to keep such Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by such Holders for a period of two years (or,
if Rule 144(k) is amended to provide a shorter restrictive period, such shorter
period) or such shorter period that will terminate when all the Offered Debt
Securities or Exchange Debt Securities, as applicable, covered by such Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
Period").
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of any Shelf Registration
Statement and any Exchange Offer Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus included
therein and the Company shall, if reasonably requested, promptly incorporate in
such Registration Statement, such information and comments as the Initial
Purchasers reasonably agree with the Company and its counsel should be included
therein provided that the Company shall not be required to take any action under
this Section 4(a) that is not in the reasonable opinion of counsel for the
Company in compliance with applicable law.
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(b) The Company shall ensure that, subject to Section 4(k), (i) any
Registration Statement and any amendment thereto and any Prospectus forming a
part thereof and any amendment or supplement thereto complies in all material
respects with the Act, (ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any Prospectus forming
part of any Registration Statement, and any amendment or supplement to such
Prospectus, does not, during the period when delivery thereof is required,
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading.
(c)(1) The Company shall advise the Initial Purchasers and, in the case
of a Shelf Registration Statement, the Holders of securities covered thereby
and, if requested by you or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when a Registration Statement or
any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to a Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer that has provided in writing to the
Company a telephone or facsimile number and address for notices, and,
if requested by you or any such Holder or Exchanging Dealer, confirm
such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the suspension of the use of a Prospectus.
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(d) Subject to Section 4(k), the Company shall use its reasonable
efforts to prevent the issuance or obtain the withdrawal of any order suspending
the effectiveness or use of any Registration Statement at the earliest possible
time.
(e) The Company shall furnish to each Holder of securities included
within the coverage of any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those incorporated by
reference).
(f) Subject to Section 4(k), the Company shall, during the Shelf
Registration Period, as promptly as is reasonably practicable deliver to each
Holder of securities included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request; and
subject to Section 4(k), the Company consents to the use of the Prospectus or
any amendment or supplement thereto as to which no notice has been given
pursuant to paragraph 4(c)(2) by each of the selling Holders of securities in
connection with the offering and sale of the securities covered by the
Prospectus or any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, any documents incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all exhibits (including those
incorporated by reference).
(h) Subject to Section 4(k), the Company shall, during the Exchange
Offer Registration Period, promptly deliver to each Exchanging Dealer, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Debt Securities received by it pursuant to
the Registered Exchange Offer; and subject to Section 4(k), the Company consents
to the use of the Prospectus or any amendment or supplement thereto as to which
no notice has been given pursuant to paragraph 4(c)(2) by any such Exchanging
Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offers or the effectiveness of
a Registration Statement, the Company shall, if required by applicable law,
register or qualify or cooperate with the Holders of securities included therein
and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holders reasonably request in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale
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<PAGE>
in such United States jurisdictions of the securities covered by such
Registration Statement; provided, however, that the Company will not be required
to (i) qualify generally to do business or as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 4(i), (ii) file any general consent
to service of process in any jurisdiction where it is not as of the date hereof
so subject or (iii) subject itself to taxation in any jurisdiction where it is
not otherwise subject.
(j) Unless the applicable securities shall be in book-entry only
form, the Company shall cooperate with the Holders of Offered Debt Securities to
facilitate the timely preparation and delivery of certificates representing
Offered Debt Securities to be sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered in such
names as Holders may request prior to sales of Offered Debt Securities pursuant
to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraphs
(c)(1)(ii), (c)(2)(i) or (c)(2)(iii) above, the Company agrees to notify the
Initial Purchasers, and in the case of a Shelf Registration Statement, the
Holders of securities covered thereby, to suspend use of the Prospectus and the
Company shall prepare, using its reasonable efforts to do so as soon as
possible, a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and the Initial Purchasers, and in the case of a Shelf
Registration Statement, the Holders of securities covered thereby, shall suspend
use of such Prospectus until the Company has amended or supplemented such
Prospectus so that such Prospectus does not contain any such untrue statement or
omission.
(l) The Company shall use its reasonable efforts to cause The
Depository Trust Company ("DTC") on the first business day following the
effective date of any Shelf Registration Statement hereunder or as soon as
possible thereafter to remove (i) from any existing CUSIP number assigned to any
Series of Offered Debt Securities, any designation indicating that such Offered
Debt Securities are "restricted securities," which efforts shall include
delivery to DTC of a letter executed by the Company substantially in the form of
Annex E hereto and (ii) any other stop or restriction on DTC's system with
respect to such Offered Debt Securities. In the event the Company is unable to
cause DTC to take the actions described in the immediately preceding sentence,
the Company shall take such actions as the Initial Purchasers may reasonably
request to provide, as soon as practicable, a CUSIP number for each Series of
Offered Debt Securities registered under such Registration Statement and to
cause such CUSIP numbers to be assigned to such Offered Debt Securities (or to
the maximum aggregate principal amount of such Offered Debt Securities to which
such number(s) may be assigned). Upon compliance with the foregoing requirements
of this Section 4(1), the Company shall provide the
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Trustee with printed certificates for each Series of Offered Debt Securities, in
a form eligible for deposit with DTC.
(m) The Company shall use its reasonable efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding such Holder and the distribution of such securities by
such Holder as the Company may from time to time reasonably require for
inclusion in such Registration Statement and securities of a Holder that does
not provide information necessary for inclusion in such Registration Statement
may be omitted from any Shelf Registration Statement.
(o) The Company shall, if reasonably requested, and in no event more
than three times, promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement, such information as
the Managing Underwriters and Holders of a majority in aggregate principal
amount of each Series of Offered Debt Securities reasonably agree with the
Company and its counsel should be included therein and shall make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment provided that the Company shall not be required to take
any action under this Section 4(o) that is not in the reasonable opinion of
counsel for the Company in compliance with applicable law.
(p) In the case of any Shelf Registration Statement, the Company
shall enter into such customary agreements (including underwriting agreements)
and take all other appropriate and reasonably required actions in connection
therewith in order to expedite or facilitate the registration or the disposition
of the applicable Offered Debt Securities or the applicable Exchange Debt
Securities, as the case may be, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures no less favorable than those set forth in Section 6 (or such
other provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of each applicable Series of Offered Debt Securities and the
Managing Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 6.
(q) In the case of any Shelf Registration Statement, the Company
shall (i) make reasonably available for inspection by the Holders of securities
to be registered thereunder, subject to their acceptance of the provisions of
this Section 4(q), any underwriter participating in any distribution pursuant to
such Registration Statement, and any Special Counsel, accountant or other agent
retained by such Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries as
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<PAGE>
shall reasonably be required in connection with the discharge of their due
diligence obligations; (ii) cause the Company's officers, directors and
employees and any relevant trustee to supply all relevant information reasonably
requested by such Holders or any such underwriter, Special Counsel, accountant
or agent in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that, in the case of
clause (i) and (ii) above, any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Holders and any such underwriter,
Special Counsel, accountant or agent, unless such disclosure is made in
connection with a court proceeding or as required by law after notice has been
given to the Company of such pending disclosure and a reasonable opportunity has
been provided, whenever reasonably possible, for the Company to obtain an
appropriate protective order for the information to be disclosed, or such
information becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality; and provided further,
however, that the foregoing inspection and information gathering shall be
coordinated on behalf of such Holders and the other parties entitled thereto by
the Special Counsel; (iii) make such representations and warranties to the
Holders of securities registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to underwriters in
secondary offerings and covering such matters as are customarily covered in
representations and warranties requested in secondary offerings; (iv) obtain
opinions of counsel to the Company and updates thereof addressed to each selling
Holder and the underwriters, if any, covering such matters and with such
exceptions as are customarily covered or taken in opinions requested in
secondary offerings; (v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of securities
registered thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with secondary offerings; and (vi) deliver such documents and
certificates as may be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, or their counsel including those to evidence
compliance with Section 4(k) and with conditions customarily contained in the
underwriting agreement or other agreement entered into by the Company. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(q) shall be performed at (A) the effectiveness of such Registration Statement
and each post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
Notwithstanding the foregoing, the Company shall not be required to
comply with the foregoing actions set forth in clauses (i) through (vi) above
more than twice in connection with an underwritten offering pursuant to a Shelf
Registration Statement.
(r) In the case of any Exchange Offer Registration Statement, if
requested by the Initial Purchasers, the Company shall (i) make reasonably
available for inspection by the
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<PAGE>
Initial Purchasers, subject to their acceptance of the provisions of this
Section 4(r), and any Special Counsel, accountant or other agent retained by the
Initial Purchasers, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries as shall
reasonably be required in connection with the discharge of their due diligence
obligations; (ii) cause the Company's officers, directors and employees and any
relevant trustee to supply all relevant information reasonably requested by the
Initial Purchasers or any such Special Counsel, accountant or agent in
connection with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that, in the case of clause (i) and
(ii) above, any information that is designated in writing by the Company, in
good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Initial Purchasers and any such Special Counsel,
accountant or agent, unless such disclosure is made in connection with a court
proceeding or as required by law after notice has been given to the Company of
such pending disclosure and a reasonable opportunity has been provided, whenever
reasonably possible, for the Company to obtain an appropriate protective order
for the information to be disclosed, or such information becomes available to
the public generally or through a third party without an accompanying obligation
of confidentiality; and provided further, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of the Initial
Purchasers and other parties entitled thereto by the Special Counsel and other
parties; (iii) make such representations and warranties to the Initial
Purchasers, in form, substance and scope as are customarily made by issuers to
underwriters in secondary offerings and covering such matters as are customarily
covered in representations and warranties requested in secondary offerings; and
(iv) deliver such documents and certificates as may be reasonably requested by
the Initial Purchasers or their counsel, including those to evidence compliance
with Section 4(k) and with conditions customarily contained in underwriting
agreements. The foregoing actions set forth in clauses (iii) and (iv) of this
Section 4(r) shall be performed, if reasonably requested by the Initial
Purchasers, at the closing of each of the Registered Exchange Offers and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) The Company shall cause the Indenture or the Exchange Debt
Securities Indenture, as the case may be, to be qualified under the Trust
Indenture Act in a timely manner.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the applicable Holders for the reasonable fees and disbursements of
the Special Counsel designated in connection therewith.
6. Indemnification; Contribution.
-----------------------------
(a) The Company will indemnify and hold harmless each Holder and
each Exchanging Dealer against any losses, claims, damages or liabilities, joint
or several, to which such Holder or Exchanging Dealer may become subject, under
the Act or otherwise, insofar as
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<PAGE>
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 Offered Debt Securities or
the Exchange Debt 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, and will reimburse each Holder and Exchanging Dealer for
any legal or other expenses reasonably incurred by such Holder or Exchanging
Dealer 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 Offered Debt Securities or
the Exchange Debt Securities, or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by any Holder or Exchanging Dealer expressly for inclusion in the
Prospectus; provided further, that if any preliminary Prospectus, any
preliminary Prospectus supplement, the Prospectus as amended or supplemented and
any other prospectus relating to the Offered Debt Securities or the Exchange
Debt Securities, or any amendment or supplement thereto, 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, any preliminary Prospectus supplement, the Prospectus as
amended or supplemented and any other prospectus relating to the Offered Debt
Securities or the Exchange Debt Securities, or any amendment or supplement
thereto, the Company shall not be liable to any Holder or Exchanging Dealer
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 Holder or Exchanging Dealer results from the fact that such Holder or
Exchanging Dealer sold Offered Debt Securities or Exchange Debt 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
(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 Offered Debt Securities or the Exchange Debt Securities
(excluding documents incorporated by reference) or any amendment or supplement
thereto relating to the Offered Debt Securities or the Exchange Debt 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 Holder or Exchanging Dealer prior to the
confirmation of such sale; and provided, further, that the Company shall not be
liable to any Holder or Exchanging Dealer under this subsection (a) to the
extent that any such loss, claim, damage or liability of such Holder or
Exchanging Dealer results from the use by such Holder or Exchanging Dealer of
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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
Offered Debt Securities or the Exchange Debt 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 Holder or Exchanging
Dealer uses the Prospectus as amended or supplemented as so further amended or
supplemented.
Each Holder and Exchanging Dealer acknowledges that the indemnity
agreement in this subsection (a) does not extend to any liability which such
Holder or Exchanging Dealer might have under Section 5(b) of the Act by reason
of the fact that such Holder or Exchanging Dealer sold Offered Debt Securities
or Exchange Debt 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 Offered Debt Securities or the Exchange Debt
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 Holder
or Exchanging Dealer.
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
Offered Debt Securities or the Exchange Debt 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 a Holder or Exchanging Dealer until such Holder or
Exchanging Dealer has received the same.
(b) Each Holder and Exchanging Dealer 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 any preliminary Prospectus, any preliminary Prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Offered Debt Securities or
the Exchange Debt 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
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<PAGE>
Prospectus as amended or supplemented and any other prospectus relating to the
Offered Debt Securities or the Exchange Debt Securities, or any such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by such Holder or Exchanging Dealer expressly for
inclusion 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 Section 8(c) 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
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 6 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 Holders and
Exchanging Dealers on the other from the offering of the Offered Debt Securities
or Exchange Debt 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 Holders and Exchanging Dealers on the other in connection with the
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<PAGE>
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 benefits received by the Company shall be deemed
to be equal to the sum of (x) the total net proceeds from the Initial Placement
(before deducting expenses) as set forth on the cover page of the Final Offering
Memorandum and (y) the total amount of additional interest which the Company was
not required to pay as a result of registering the securities covered by the
Registration Statement which resulted in such losses, claims, damages or
liabilities. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover
page of the Final Offering Memorandum, and benefits received by any other
Holders or Exchanging Dealers shall be deemed to be equal to the value of
receiving Offered Debt Securities or Exchange Debt Securities, as applicable,
registered under the Act. 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 Holders
or Exchanging Dealers 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 Holders and Exchanging Dealers 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 Holders and Exchanging Dealers
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 Holder or Exchanging
Dealer shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Offered Debt Securities or
Exchange Debt Securities sold pursuant to the Registration Statement exceeds the
amount of any damages which such Holder or Exchanging Dealer 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 Holders and Exchanging Dealers in this subsection (d) to
contribute are several and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of a Holder or
Exchanging Dealer and to each person, if any, who controls a Holder or
Exchanging Dealer within the meaning of the Act or the Exchange Act; and the
obligations of the Holders and Exchanging Dealers under this Section 6 shall be
in addition to any liability that the respective Holders and Exchanging Dealers
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the
17
<PAGE>
Company and to each person, if any, who controls the Company within the meaning
of the Act or the Exchange Act.
7. Liquidated Damages Under Certain Circumstances. (a) Liquidated
damages ("Liquidated Damages") shall become payable in respect of the Offered
Debt Securities as follows if any of the following events occur (each such event
in clauses (i) through (iii) below, a "Registration Default"):
(i) in the event that the Company is permitted under the law
and currently prevailing interpretations of the Commission's staff to
effect the Registered Exchange Offers and the Exchange Offer
Registration Statement is not declared effective on or prior to the
180th day following the Time of Delivery;
(ii) the Registered Exchange Offers are not consummated or the
applicable Shelf Registration Statement is not declared effective on or
prior to the 225th day following the Time of Delivery; or
(iii) after a Shelf Registration Statement is declared
effective, (A) such Shelf Registration Statement ceases to be effective
prior to the end of the Shelf Registration Period (except as permitted
in paragraph (b) of this Section 7); (B) such Shelf Registration
Statement or the related Prospectus ceases to be useable in connection
with resales of Offered Debt Securities or Exchange Debt Securities, as
the case may be, covered by such Shelf Registration Statement prior to
the end of the Shelf Registration Period (except as permitted in
paragraph (b) of this Section 7) because (1) the Company determines
that any event occurs as a result of which the related Prospectus
forming part of such Shelf Registration Statement would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, (2) the
Company determines that it shall be necessary to amend such Shelf
Registration Statement, or supplement the related Prospectus, to comply
with the Act or the Exchange Act or the rules thereunder, or (3) the
Company determines that it is advisable to suspend use of the
Prospectus for a discrete period of time due to pending material
corporate developments or similar material events that have not yet
been publicly disclosed and as to which the Company believes public
disclosure will be prejudicial to the Company.
Liquidated Damages shall accrue on the applicable Offered Debt
Securities or the applicable Exchange Debt Securities, as the case may be, over
and above the interest rate set forth in the title to the applicable Offered
Debt Securities or the applicable Exchange Debt Securities, as the case may be,
following the occurrence of each Registration Default set forth in clauses (i)
and (ii) above from and including the next day following each such Registration
Default, in each case at a rate equal to 0.25% per annum; provided, however,
that in any case, if one or more Registration Defaults referred to in Section
7(a)(iii) occurs and continues for more
18
<PAGE>
than 60 days (whether or not consecutive) in any twelve month period (the 61st
day being referred to as the "Default Day") then from the Default Day until the
earlier of (i) the date such Shelf Registration Statement is again deemed
effective or is useable, (ii) the date that is the second anniversary of the
Time of Delivery (or, if Rule 144(k) of the Act is amended to provide a shorter
restrictive period, such shorter period) or (iii) the date of which all the
Offered Debt Securities are sold pursuant to such Shelf Registration Statement,
Liquidated Damages shall accrue at a rate of 0.25% per annum; provided, further,
that the aggregate amount of Liquidated Damages payable pursuant to this Section
7 will in no event exceed 0.25% per annum. The Liquidated Damages attributable
to each Registration Default referred to in clauses (i) and (ii) above shall
cease to accrue from the date of effectiveness of the Exchange Offer
Registration Statement after such 180-day period, in the case of clause (i)
above, or the consummation of the Registered Exchange Offers or the date of
effectiveness of the applicable Shelf Registration Statement after such 225-day
period, in the case of clause (ii) above.
(b) A Registration Default referred to in Section 7(a)(iii) shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) the occurrence of other material
events or developments with respect to the Company that would need to be
described in such Registration Statement or the related Prospectus and (ii) in
the case of clause (y), the Company is proceeding promptly and in good faith to
amend or supplement such Registration Statement and related Prospectus to
describe such events.
(c) Any amounts of Liquidated Damages due pursuant to the foregoing
paragraphs will be payable in cash on June 1 and December 1 of each year to the
holders of record on the preceding May 15 and November 15, respectively.
8. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to the Offered Debt Securities that is inconsistent with
the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the then outstanding aggregate
principal amount of each Series of Offered Debt Securities (or, after the
consummation of any Exchange Offer in accordance with Section 2 hereof, of each
Series of
19
<PAGE>
Exchange Debt Securities); provided, however, that, with respect to any matter
that affects the rights of any Initial Purchaser hereunder, the Company shall
obtain the written consent of the Initial Purchasers. Notwithstanding the
foregoing (except the foregoing proviso), a waiver or consent to departure from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Offered Debt Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Holders of a majority of each Series
of Offered Debt Securities, determined on the basis of Offered Debt Securities
being sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
8(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the registrar under the Indenture,
with a copy in like manner to the Initial Purchasers;
(ii) if to you, initially at the address set forth in the
Purchase Agreement; and
(iii) if to the Company, initially at the address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers or the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Offered Debt Securities and/or
Exchange Debt Securities. The Company hereby agrees to extend the benefits of
this Agreement to any Holders of Offered Debt Securities and/or Exchange Debt
Securities and any such Holder may enforce the provisions of this Agreement as
if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
20
<PAGE>
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Offered
Debt Securities or Exchange Debt Securities is required hereunder, Offered Debt
Securities or Exchange Debt Securities, as applicable, held by the Company or
its Affiliates (other than subsequent Holders of Offered Debt Securities or
Exchange Debt Securities if such subsequent Holders are deemed to be Affiliates
solely by reason of their holdings of such Offered Debt Securities or Exchange
Debt Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
21
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Company and you.
Very truly yours,
MONSANTO COMPANY
By: /s/ Juanita H. Hinshaw
---------------------------------
Name: Juanita H. Hinshaw
Title: Vice President & Treasurer
Accepted, December 9, 1998
SALOMON SMITH BARNEY INC.
GOLDMAN, SACHS & CO.
By: SALOMON SMITH BARNEY INC.
By: /s/ Michael S. Canmann
-------------------------
Name: Michael S. Canmann
Title: Vice President
<PAGE>
ANNEX A
Annex A
-------
Each broker-dealer that receives Exchange Debt Securities for its own
account pursuant to the Exchange Offers must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Debt Securities. Each
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Debt Securities received in exchange for
Offered Debt Securities acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, ending on the close of business on the 180th day following the Expiration
Date (as defined herein), it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
<PAGE>
ANNEX B
Annex B
-------
Each broker-dealer that receives Exchange Debt Securities for its own
account in exchange for Offered Debt Securities, where such Offered Debt
Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Debt Securities. See
"Plan of Distribution."
<PAGE>
ANNEX C
Plan of Distribution
--------------------
Each broker-dealer that receives Exchange Debt Securities for its own
account pursuant to the Exchange Offers must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Debt Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Debt Securities
received in exchange for Offered Debt Securities where such Offered Debt
Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the applicable Expiration Date and ending on the close of business on the 180th
day following such Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale.
The Company will not receive any proceeds from any sale of Exchange
Debt Securities by broker-dealers. Exchange Debt Securities received by
broker-dealers for their own account pursuant to the Exchange Offers may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange Debt
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such Exchange Debt Securities. Any broker-dealer that resells
Exchange Debt Securities that were received by it for its own account pursuant
to the Exchange Offers and any broker or dealer that participates in a
distribution of such Exchange Debt Securities may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
Exchange Debt Securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
Each Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the applicable Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offers other than commissions or concessions
of any brokers or dealers and will indemnify the holders of the Offered Debt
Securities (including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
<PAGE>
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
<PAGE>
ANNEX D
Rider A
-------
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:___________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________
Rider B
-------
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Debt Securities. If the undersigned is a broker-dealer that will
receive Exchange Debt Securities for its own account in exchange for Offered
Debt Securities, it represents that the Offered Debt Securities to be exchanged
for Exchange Debt Securities were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such Exchange Debt Securities;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act.
<PAGE>
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
MONSANTO COMPANY
800 North Lindbergh Boulevard
St. Louis, MO 63167
__________________, 199__
The Depository Trust Company
55 Water Street, 49th Floor
New York, NY 10041
Attn: General Counsel's Office
Ladies and Gentlemen:
We refer to the Letter of Representations, dated December 7, 1998 (the
"Letter of Representations"), from Monsanto Company (the "Issuer") and The Bank
of New York, as trustee (the "Trustee") to The Depository Trust Company ("DTC")
regarding the Issuer's 5.375% Notes due 2001, 5.750% Notes due 2005, 5.875%
Notes due 2008, 6.500% Debentures due 2018 and 6.600% Debentures due 2028 (the
"Old Securities"). The CUSIP numbers of the Old Securities are 611662 AV 9,
611662 AY 3, 611662 BB 2, 611662 BE 8 and 611662 BH 9, respectively, for
qualified institutional buyers, U61166 AB 7,U61166 AC 5, U61166 AD 3, U61166 AE
1 and U61166 AF 8, respectively, for buyers who were sold Old Securities in
compliance with Regulation S under the Securities Act of 1933, as amended, and
611662 AW 7, 611662 AZ 0, 611662 BC 0, 611662 BF 3 and 611662 BJ 6,
respectively, for institutional accredited investors. The Issuer and the Trustee
hereby agree and notify DTC that as of ________ __, 199__, the Securities and
Exchange Commission declared effective a Registration Statement (File No. _____)
with respect to an offering of the Issuer's 5.375% Exchange Notes due 2001,
5.750% Exchange Notes due 2005, 5.875% Exchange Notes due 2008, 6.500% Exchange
Debentures due 2018 and 6.600% Exchange Debentures due 2028, (the "New
Securities") (CUSIP Nos. 611602 AX 5, 611662 BA 4, 611662 BD 0, 611662 BG 1 and
611662 BK 2, respectively) in exchange for the Old Securities. Following the
consummation of the exchange offer and the cancellation of the global securities
representing the Old Securities, the Issuer and the Trustee agree that, with the
exception of the Representations for Rule 144A Securities attached thereto, the
Letter of Representations and any applicable riders thereto shall remain in full
force and effect with respect to the New Securities.
Very Truly yours,
MONSANTO COMPANY
By:______________________________________
<PAGE>
Name:
Title:
THE BANK OF NEW YORK
By:______________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:________________________________
Name:
Title:
<PAGE>
Exhibit 5.1
WINSTON & STRAWN
35 West Wacker Drive
Chicago, Illinois 60601
March 2, 1999
Monsanto Company
800 North Lindbergh Boulevard
St. Louis, Missouri 63167
Re: Registration Statement on Form S-4
of Monsanto Company
Ladies and Gentlemen:
We have acted as special counsel to Monsanto Company, a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-4 (the "Registration Statement") filed on
behalf of the Company with the Securities and Exchange Commission (the
"Commission") relating to the Company's offer to exchange $500 million aggregate
principal amount of its 5.375% Notes due 2001, $600 million aggregate principal
amount of its 5.750% Notes due 2005, $200 million aggregate principal amount of
its 5.875% Notes due 2008, $500 million aggregate principal amount of its 6.500%
Debentures due 2018 and $700 million aggregate principal amount of its 6.600%
Debentures due 2028, respectively, which have been registered under the
Securities Act of 1933, as amended (the "Securities Act") (collectively, the
"Exchange Debt"), for its outstanding 5.375% Notes due 2001, 5.750% Notes due
2005, 5.875% Notes due 2008, 6.500% Debentures due 2018 and 6.600% Debentures
due 2028, respectively, which were issued and sold in a transaction exempt from
registration under the Securities Act (collectively, the "Outstanding Debt"),
all as more fully described in the Registration Statement. The Exchange Debt
will be issued under the Company's Indenture dated as of December 1, 1998
between the Company and The Bank of New York, as trustee (the "Trustee").
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the prospectus (the "Prospectus") contained in the
Registration Statement.
This opinion letter is delivered in accordance with the requirements of
Item 601 (b) (5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Securities Act").
In connection with this opinion letter, we have examined and are familiar
with originals or copies, certified or otherwise identified to our satisfaction,
of (i) the Registration Statement, in the form filed with the Commission and as
amended through the date hereof; (ii) the Certificate of Incorporation of the
Company, as currently in effect; (iii) the By-laws of the Company, as currently
in effect; (iv) the Indenture; (v) the form of the Exchange Debt; and (vi)
resolutions of the Board of
<PAGE>
Directors of the Company relating to, among other things, the issuance and
exchange of the Exchange Debt for the Outstanding Debt and the filing of the
Registration Statement. We also have examined such other documents as we have
deemed necessary or appropriate as a basis for the opinions set forth below.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents. As to certain facts
material to this opinion, we have relied without independent verification upon
oral or written statements and representations of officers and other
representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that:
1. The issuance and exchange of the Exchange Debt for the Outstanding
Debt has been duly authorized by requisite corporate action on the part of the
Company.
2. When (i) the Registration Statement, as finally amended (including all
necessary post-effective amendments), shall have become effective under the
Securities Act, (ii) the Exchange Debt is duly executed and authenticated in
accordance with the provisions of the Indenture, and (iii) the Exchange Debt
shall have been issued and delivered in exchange for the Outstanding Debt
pursuant to the terms set forth in the Prospectus, the Exchange Debt will be a
valid and binding obligation of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with its terms,
except to the extent that the enforceability thereof may be limited by (x)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (y) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
The foregoing opinions are limited to the laws of the United States, the
State of New York and the General Corporation Law of the State of Delaware. We
express no opinion as to the application of the securities or blue sky laws of
the various states to the issuance or exchange of the Exchange Debt.
We hereby consent to the reference to our firm under the heading "Validity
of the Exchange Debt" and in the Prospectus and to the filing of this opinion
letter with the Commission as an exhibit to the Registration Statement. In
giving such consent, we do not concede that we are experts within the meaning of
the Securities Act or the rules and regulations thereunder or that this consent
is required by Section 7 of the Securities Act.
Very truly yours,
/s/ Winston & Strawn
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Monsanto Company on Form S-4 of our report dated February 27, 1998, incorporated
by reference in the Annual Report on Form 10-K of Monsanto Company for the year
ended December 31, 1997 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
St. Louis, Missouri
February 26, 1999
<PAGE>
Exhibit 23.3
------------
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
by reference in this Monsanto Company registration statement of our report
(relating to the financial statements of DEKALB Genetics Corporation) dated
October 2, 1998, included in Monsanto Company's Form 8-K/A filed on February 8,
1999 and to all references to our Firm included in this Monsanto Company
registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
March 2, 1999
<PAGE>
Exhibit 24
----------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That each person whose signature appears below, as a Director or Officer of
Monsanto Company (the "Company"), a Delaware corporation with its general
offices in the County of St. Louis, Missouri, does hereby make, constitute and
appoint R. WILLIAM IDE III, BARBARA L. BLACKFORD, SONYA M. DAVIS or JANET L.
HORGAN, or any one of them acting alone, his or her true and lawful attorneys,
with full power of substitution and resubstitution, in his or her name, place
and stead, in any and all capacities, to execute and sign the Annual Report on
Form 10-K and the following registration statements: (i) any registration
statement under the Securities Act of 1933, as amended (the "Act"), covering the
issuance of debt securities, (ii) any registration statement on Form S-8
covering the registration of additional securities of the Company to be issued
under the Monsanto Shared Success Stock Option Plan, the Monsanto Company ERISA
Parity Savings and Investment Plan, the Monsanto Savings and Investment Plan or
the Monsanto Management Incentive Plan of 1996, in each case as approved by the
Board of Directors of the Company, (iii) any registration statement on Form S-8
covering the registration of securities of the Company to be issued under the
DEKALB Genetics Corporation Savings and Investment Plan, the Delta and Pine Land
Company Savings Plan or any new or existing stock-based incentive plans of the
Company or any subsidiary; (iv) any registration statement filed pursuant to
Rule 462(b) under the Act, and (v) any amendment or post-effective amendment to
any registration statement previously filed by the Company, and any and all
Amendments to any of the foregoing, and documents in connection therewith, all
to be filed with the Securities and Exchange Commission under the Act or the
Securities Exchange Act of 1934, as amended, giving and granting unto said
attorneys full power and authority to do and perform such actions as fully as
they might have done or could do if personally present and executing any of said
documents.
Dated and effective as of the 26th of February, 1999.
/s/ Robert B. Shapiro /s/ Philip Leder
_____________________________________ ___________________________________
Robert B. Shapiro, Director and Philip Leder, Director
Principal Executive Officer
/s/ Robert M. Heyssel /s/ Jacobus F. M. Peters
_____________________________________ ___________________________________
Robert M. Heyssel, Director Jacobus F. M. Peters, Director
/s/ Michael Kantor /s/ John S. Reed
_____________________________________ ___________________________________
Michael Kantor, Director John S. Reed, Director
<PAGE>
/s/ Gwendolyn S. King /s/ John E. Robson
_____________________________________ ___________________________________
Gwendolyn S. King, Director John E. Robson, Director
/s/ William D. Ruckelshaus /s/ Gary L. Crittenden
_____________________________________ ___________________________________
William D. Ruckelshaus, Director Gary L. Crittenden, Principal
Financial Officer
/s/ Richard B. Clark
_____________________________________
Richard B. Clark, Principal
Accounting Officer
2
<PAGE>
Exhibit 25.1
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
===========================
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
===========================
Monsanto Company
(Exact name of obligor as specified in its charter)
Delaware 43-0420020
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
800 North Lindbergh Boulevard 63167
St. Louis, Missouri (Zip code)
(Address of principal executive offices)
===========================
5.375% Notes due 2001
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 19th day of February, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
--------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
-3-
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 7,654,174
Interest-bearing balances........................... 2,182,604
Securities:
Held-to-maturity securities......................... 965,979
Available-for-sale securities....................... 3,894,193
Federal funds sold and Securities purchased under
agreements to resell................................ 1,001,780
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................ 38,117,615
LESS: Allowance for loan and
lease losses...................................... 625,317
LESS: Allocated transfer risk
reserve........................................... 0
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,492,298
Assets held in trading accounts........................ 2,240,241
Premises and fixed assets (including capitalized
leases)............................................. 678,458
Other real estate owned................................ 13,628
Investments in unconsolidated subsidiaries and
associated companies................................ 195,594
Customers' liability to this bank on acceptances
outstanding......................................... 1,077,122
Intangible assets...................................... 1,114,091
Other assets........................................... 1,955,491
-----------
Total assets........................................... $60,465,653
===========
LIABILITIES
Deposits:
In domestic offices................................. $26,473,392
Noninterest-bearing................................. 11,052,078
Interest-bearing.................................... 15,421,314
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 17,657,483
Noninterest-bearing................................. 118,775
Interest-bearing.................................... 17,538,708
Federal funds purchased and Securities sold under
agreements to repurchase............................ 2,102,186
Demand notes issued to the U.S.Treasury................ 245,825
Trading liabilities.................................... 1,641,447
Other borrowed money:
With remaining maturity of one year or less......... 2,063,359
With remaining maturity of more than one year
through three years............................... 0
With remaining maturity of more than three years.... 31,639
Bank's liability on acceptances executed and
outstanding......................................... 1,088,142
Subordinated notes and debentures...................... 1,314,000
Other liabilities...................................... 2,468,849
-----------
Total liabilities...................................... 55,086,322
-----------
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 731,319
Undivided profits and capital reserves................. 3,448,813
Net unrealized holding gains (losses) on
available-for-sale securities....................... 100,784
Cumulative foreign currency translation adjustments.... (36,869)
-----------
Total equity capital................................... 5,379,331
-----------
Total liabilities and equity capital................... $60,465,653
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Gerald L. Hassell )
Deno D. Papageorge ) Directors
Thomas A. Renyi )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.2
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
===========================
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
===========================
Monsanto Company
(Exact name of obligor as specified in its charter)
Delaware 43-0420020
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
800 North Lindbergh Boulevard 63167
St. Louis, Missouri (Zip code)
(Address of principal executive offices)
===========================
5.750% Notes due 2005
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 19th day of February, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
--------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
-3-
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 7,654,174
Interest-bearing balances........................... 2,182,604
Securities:
Held-to-maturity securities......................... 965,979
Available-for-sale securities....................... 3,894,193
Federal funds sold and Securities purchased under
agreements to resell................................ 1,001,780
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................ 38,117,615
LESS: Allowance for loan and
lease losses...................................... 625,317
LESS: Allocated transfer risk
reserve........................................... 0
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,492,298
Assets held in trading accounts........................ 2,240,241
Premises and fixed assets (including capitalized
leases)............................................. 678,458
Other real estate owned................................ 13,628
Investments in unconsolidated subsidiaries and
associated companies................................ 195,594
Customers' liability to this bank on acceptances
outstanding......................................... 1,077,122
Intangible assets...................................... 1,114,091
Other assets........................................... 1,955,491
-----------
Total assets........................................... $60,465,653
===========
LIABILITIES
Deposits:
In domestic offices................................. $26,473,392
Noninterest-bearing................................. 11,052,078
Interest-bearing.................................... 15,421,314
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 17,657,483
Noninterest-bearing................................. 118,775
Interest-bearing.................................... 17,538,708
Federal funds purchased and Securities sold under
agreements to repurchase............................ 2,102,186
Demand notes issued to the U.S.Treasury................ 245,825
Trading liabilities.................................... 1,641,447
Other borrowed money:
With remaining maturity of one year or less......... 2,063,359
With remaining maturity of more than one year
through three years............................... 0
With remaining maturity of more than three years.... 31,639
Bank's liability on acceptances executed and
outstanding......................................... 1,088,142
Subordinated notes and debentures...................... 1,314,000
Other liabilities...................................... 2,468,849
-----------
Total liabilities...................................... 55,086,322
-----------
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 731,319
Undivided profits and capital reserves................. 3,448,813
Net unrealized holding gains (losses) on
available-for-sale securities....................... 100,784
Cumulative foreign currency translation adjustments.... (36,869)
-----------
Total equity capital................................... 5,379,331
-----------
Total liabilities and equity capital................... $60,465,653
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Gerald L. Hassell )
Deno D. Papageorge ) Directors
Thomas A. Renyi )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.3
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
===========================
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
===========================
Monsanto Company
(Exact name of obligor as specified in its charter)
Delaware 43-0420020
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
800 North Lindbergh Boulevard 63167
St. Louis, Missouri (Zip code)
(Address of principal executive offices)
===========================
5.875% Notes due 2008
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 19th day of February, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
--------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
-3-
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 7,654,174
Interest-bearing balances........................... 2,182,604
Securities:
Held-to-maturity securities......................... 965,979
Available-for-sale securities....................... 3,894,193
Federal funds sold and Securities purchased under
agreements to resell................................ 1,001,780
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................ 38,117,615
LESS: Allowance for loan and
lease losses...................................... 625,317
LESS: Allocated transfer risk
reserve........................................... 0
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,492,298
Assets held in trading accounts........................ 2,240,241
Premises and fixed assets (including capitalized
leases)............................................. 678,458
Other real estate owned................................ 13,628
Investments in unconsolidated subsidiaries and
associated companies................................ 195,594
Customers' liability to this bank on acceptances
outstanding......................................... 1,077,122
Intangible assets...................................... 1,114,091
Other assets........................................... 1,955,491
-----------
Total assets........................................... $60,465,653
===========
LIABILITIES
Deposits:
In domestic offices................................. $26,473,392
Noninterest-bearing................................. 11,052,078
Interest-bearing.................................... 15,421,314
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 17,657,483
Noninterest-bearing................................. 118,775
Interest-bearing.................................... 17,538,708
Federal funds purchased and Securities sold under
agreements to repurchase............................ 2,102,186
Demand notes issued to the U.S.Treasury................ 245,825
Trading liabilities.................................... 1,641,447
Other borrowed money:
With remaining maturity of one year or less......... 2,063,359
With remaining maturity of more than one year
through three years............................... 0
With remaining maturity of more than three years.... 31,639
Bank's liability on acceptances executed and
outstanding......................................... 1,088,142
Subordinated notes and debentures...................... 1,314,000
Other liabilities...................................... 2,468,849
-----------
Total liabilities...................................... 55,086,322
-----------
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 731,319
Undivided profits and capital reserves................. 3,448,813
Net unrealized holding gains (losses) on
available-for-sale securities....................... 100,784
Cumulative foreign currency translation adjustments.... (36,869)
-----------
Total equity capital................................... 5,379,331
-----------
Total liabilities and equity capital................... $60,465,653
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Gerald L. Hassell )
Deno D. Papageorge ) Directors
Thomas A. Renyi )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.4
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
===========================
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
===========================
Monsanto Company
(Exact name of obligor as specified in its charter)
Delaware 43-0420020
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
800 North Lindbergh Boulevard 63167
St. Louis, Missouri (Zip code)
(Address of principal executive offices)
===========================
6.500% Notes due 2018
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 19th day of February, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
--------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
-3-
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 7,654,174
Interest-bearing balances........................... 2,182,604
Securities:
Held-to-maturity securities......................... 965,979
Available-for-sale securities....................... 3,894,193
Federal funds sold and Securities purchased under
agreements to resell................................ 1,001,780
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................ 38,117,615
LESS: Allowance for loan and
lease losses...................................... 625,317
LESS: Allocated transfer risk
reserve........................................... 0
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,492,298
Assets held in trading accounts........................ 2,240,241
Premises and fixed assets (including capitalized
leases)............................................. 678,458
Other real estate owned................................ 13,628
Investments in unconsolidated subsidiaries and
associated companies................................ 195,594
Customers' liability to this bank on acceptances
outstanding......................................... 1,077,122
Intangible assets...................................... 1,114,091
Other assets........................................... 1,955,491
-----------
Total assets........................................... $60,465,653
===========
LIABILITIES
Deposits:
In domestic offices................................. $26,473,392
Noninterest-bearing................................. 11,052,078
Interest-bearing.................................... 15,421,314
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 17,657,483
Noninterest-bearing................................. 118,775
Interest-bearing.................................... 17,538,708
Federal funds purchased and Securities sold under
agreements to repurchase............................ 2,102,186
Demand notes issued to the U.S.Treasury................ 245,825
Trading liabilities.................................... 1,641,447
Other borrowed money:
With remaining maturity of one year or less......... 2,063,359
With remaining maturity of more than one year
through three years............................... 0
With remaining maturity of more than three years.... 31,639
Bank's liability on acceptances executed and
outstanding......................................... 1,088,142
Subordinated notes and debentures...................... 1,314,000
Other liabilities...................................... 2,468,849
-----------
Total liabilities...................................... 55,086,322
-----------
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 731,319
Undivided profits and capital reserves................. 3,448,813
Net unrealized holding gains (losses) on
available-for-sale securities....................... 100,784
Cumulative foreign currency translation adjustments.... (36,869)
-----------
Total equity capital................................... 5,379,331
-----------
Total liabilities and equity capital................... $60,465,653
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Gerald L. Hassell )
Deno D. Papageorge ) Directors
Thomas A. Renyi )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.5
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
===========================
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
===========================
Monsanto Company
(Exact name of obligor as specified in its charter)
Delaware 43-0420020
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
800 North Lindbergh Boulevard 63167
St. Louis, Missouri (Zip code)
(Address of principal executive offices)
===========================
6.600% Notes due 2028
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 19th day of February, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
--------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
-3-
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 7,654,174
Interest-bearing balances........................... 2,182,604
Securities:
Held-to-maturity securities......................... 965,979
Available-for-sale securities....................... 3,894,193
Federal funds sold and Securities purchased under
agreements to resell................................ 1,001,780
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................ 38,117,615
LESS: Allowance for loan and
lease losses...................................... 625,317
LESS: Allocated transfer risk
reserve........................................... 0
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,492,298
Assets held in trading accounts........................ 2,240,241
Premises and fixed assets (including capitalized
leases)............................................. 678,458
Other real estate owned................................ 13,628
Investments in unconsolidated subsidiaries and
associated companies................................ 195,594
Customers' liability to this bank on acceptances
outstanding......................................... 1,077,122
Intangible assets...................................... 1,114,091
Other assets........................................... 1,955,491
-----------
Total assets........................................... $60,465,653
===========
LIABILITIES
Deposits:
In domestic offices................................. $26,473,392
Noninterest-bearing................................. 11,052,078
Interest-bearing.................................... 15,421,314
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 17,657,483
Noninterest-bearing................................. 118,775
Interest-bearing.................................... 17,538,708
Federal funds purchased and Securities sold under
agreements to repurchase............................ 2,102,186
Demand notes issued to the U.S.Treasury................ 245,825
Trading liabilities.................................... 1,641,447
Other borrowed money:
With remaining maturity of one year or less......... 2,063,359
With remaining maturity of more than one year
through three years............................... 0
With remaining maturity of more than three years.... 31,639
Bank's liability on acceptances executed and
outstanding......................................... 1,088,142
Subordinated notes and debentures...................... 1,314,000
Other liabilities...................................... 2,468,849
-----------
Total liabilities...................................... 55,086,322
-----------
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 731,319
Undivided profits and capital reserves................. 3,448,813
Net unrealized holding gains (losses) on
available-for-sale securities....................... 100,784
Cumulative foreign currency translation adjustments.... (36,869)
-----------
Total equity capital................................... 5,379,331
-----------
Total liabilities and equity capital................... $60,465,653
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Gerald L. Hassell )
Deno D. Papageorge ) Directors
Thomas A. Renyi )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 99.1
LETTER OF TRANSMITTAL
MONSANTO COMPANY
Offer to Exchange its
% [Notes][Debentures] due
which have been registered under the Securities Act
for any and all of its outstanding
% [Notes][Debentures] due
that were issued and sold in a transaction
exempt from registration under the Securities
Act of 1933, as amended
Pursuant to the Prospectus dated , 1999
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON, 1999, UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent for the Exchange Offer is:
The Bank of New York
By Registered or Certified Mail: Facsimile Transmissions
The Bank of New York (Eligible Institutions Only)
101 Barclay Street, 7E (212) 815-4699
New York, New York 10286
Attention: Noriko Miyazaki
By Hand or Overnight Delivery To Confirm by Telephone
The Bank of New York or for Information Call:
101 Barclay Street Noriko Miyazaki
Corporate Trust Services Window (212) 815-6333
Ground Level
New York, New York 10286
Attention: Noriko Miyazaki
----------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed either if (a) certificates are
to be forwarded herewith or (b) tenders are to be made pursuant to the
procedures for tender by book-entry transfer set forth under "The Exchange
Offer--Procedures for Tendering Outstanding Debt" in the Prospectus and an
Agent's Message (as defined below) is not delivered. Certificates, or book-
entry confirmation of a book-entry transfer of such Outstanding Debt into the
Exchange Agent's account at The Depository Trust Company ("DTC"), as well as
<PAGE>
this Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date. Tenders by
book-entry transfer also may be made by delivering an Agent's Message in lieu
of this Letter of Transmittal. The term "book-entry confirmation" means a
confirmation of a book-entry transfer of Outstanding Debt into the Exchange
Agent's account at DTC. The term "Agent's Message" means a message,
transmitted by DTC to and received by the Exchange Agent and forming a part of
a book-entry confirmation, which states that DTC has received an express
acknowledgment from the tendering participant, which acknowledgment states
that such participant has received and agrees to be bound by this Letter of
Transmittal and that Monsanto Company, a Delaware corporation (the "Company")
may enforce this Letter of Transmittal against such participant.
Holders (as defined below) of Outstanding Debt whose certificates (the
"Certificates") for such Outstanding Debt are not immediately available or who
cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date (as defined in the
Prospectus) or who cannot complete the procedures for book-entry transfer on a
timely basis, must tender their Outstanding Debt according to the guaranteed
delivery procedures set forth in "The Exchange Offer--Procedures for Tendering
Outstanding Debt" in the Prospectus.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
DESCRIPTION OF OUTSTANDING DEBT
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
If blank, please print name and address Outstanding Debt
of registered Holder(s) (Attach additional list if necessary)
- ---------------------------------------------------------------------------------
Aggregate Principal Amount
Principal of Outstanding
Amount of Debt Tendered
Certificate Outstanding (if less than
Number(s)* Debt all)**
- ---------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
<S> <C> <C> <C>
Total:
</TABLE>
- -------------------------------------------------------------------------------
* Need not be completed by book-entry Holders.
** Outstanding Debt may be tendered in whole or in part in multiples of
$1,000. All Outstanding Debt held shall be deemed tendered unless a
lesser number is specified in this column. See Instruction 4.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_]CHECK HERE IF TENDERED OUTSTANDING DEBT IS BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution ______________________________________________
DTC Account Number __________________ Transaction Code Number _____________
2
<PAGE>
[_]CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OUTSTANDING DEBT IS BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING (SEE INSTRUCTION 1):
Name(s) of Registered Holder(s) ____________________________________________
Window Ticket Number (if any) ______________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution which Guaranteed Delivery ______________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution ______________________________________________
DTC Account Number __________________ Transaction Code Number _____________
[_]CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OUTSTANDING
DEBT IS TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[_]CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: _________________________________________________________________________
Address: ______________________________________________________________________
3
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Monsanto Company, a Delaware corporation
(the "Company"), the above described principal amount of the Company's %
[Notes][Debentures] due (the "Outstanding Debt") in exchange for an
equivalent amount of the Company's % [Notes][Debentures] due (the
"Exchange Debt"), which have been registered under the Securities Act of 1933,
as amended (the "Securities Act"), upon the terms and subject to the
conditions set forth in the Prospectus dated , 1999 (as the same may be
amended or supplemented from time to time, the "Prospectus"), receipt of which
is hereby acknowledged, and in this Letter of Transmittal (which, together
with the Prospectus, constitute the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Outstanding Debt tendered herewith in accordance with the terms
and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Company all right, title and interest in and to such Outstanding
Debt as is being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company in connection with the Exchange Offer) with respect to the tendered
Outstanding Debt, with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest) subject only
to the right of withdrawal described in the Prospectus, to (i) deliver
Certificates for Outstanding Debt to the Company together with all
accompanying evidences of transfer and authenticity to, or upon the order of,
the Company, upon receipt by the Exchange Agent, as the undersigned's agent,
of the Exchange Debt to be issued in exchange for such Outstanding Debt, (ii)
present Certificates for such Outstanding Debt for transfer, and to transfer
the Outstanding Debt on the books of the Company, and (iii) receive for the
account of the Company all benefits and otherwise exercise all rights of
beneficial ownership of such Outstanding Debt, all in accordance with the
terms and conditions of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, exchange, sell, assign and transfer the
Outstanding Debt tendered hereby and that, when the same is accepted for
exchange, the Company will acquire good, marketable and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances,
and that the Outstanding Debt tendered hereby is not subject to any adverse
claims or proxies. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Company or the Exchange Agent to be
necessary or desirable to complete the exchange, assignment and transfer of
the Outstanding Debt tendered hereby, and the undersigned will comply with its
obligations under the Registration Rights Agreement. The undersigned has read
and agrees to all of the terms of the Exchange Offer.
The name(s) and address(es) of the registered Holder(s) of the Outstanding
Debt tendered hereby should be printed above, if they are not already set
forth above, as they appear on the Certificates representing such Outstanding
Debt. The Certificate number(s) and the Outstanding Debt that the undersigned
wishes to tender should be indicated in the appropriate boxes above.
If any tendered Outstanding Debt is not exchanged pursuant to the Exchange
Offer for any reason, or if Certificates are submitted for more Outstanding
Debt than are tendered or accepted for exchange, Certificates for such
nonexchanged or nontendered Outstanding Debt will be returned (or, in the case
of Outstanding Debt tendered by book-entry transfer, such Outstanding Debt
will be credited to an account maintained at DTC), without expense to the
tendering Holder, promptly following the expiration or termination of the
Exchange Offer.
The undersigned understands that tenders of Outstanding Debt pursuant to any
one of the procedures described in "The Exchange Offer--Procedures for
Tendering Outstanding Debt" in the Prospectus and in the instructions attached
hereto will, upon the Company's acceptance for exchange of such tendered
Outstanding Debt, constitute a binding agreement between the undersigned and
the Company upon the terms and subject to the conditions of the Exchange
Offer. The undersigned recognizes that, under certain circumstances set forth
in the Prospectus, the Company may not be required to accept for exchange any
of the Outstanding Debt tendered hereby.
4
<PAGE>
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Debt be
issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Outstanding Debt, that such Exchange Debt be credited to the
account indicated above maintained at DTC. If applicable, substitute
Certificates representing Outstanding Debt not exchanged or not accepted for
exchange will be issued to the undersigned or, in the case of a book-entry
transfer of Outstanding Debt, will be credited to the account indicated above
maintained at DTC. Similarly, unless otherwise indicated under "Special
Delivery Instructions," please deliver Exchange Debt to the undersigned at the
address shown below the undersigned's signature.
By tendering Outstanding Debt and executing this Letter of Transmittal or
effecting delivery of an Agent's Message in lieu thereof, the undersigned
hereby represents and agrees that (i) the undersigned is not an "affiliate" of
the Company, (ii) any Exchange Debt to be received by the undersigned is being
acquired in the ordinary course of its business, (iii) the undersigned has no
arrangement or understanding with any person to participate in a distribution
(within the meaning of the Securities Act) of Exchange Debt to be received in
the Exchange Offer, and (iv) if the undersigned is not a broker-dealer, the
undersigned is not engaged in, and does not intend to engage in, a
distribution (within the meaning of the Securities Act) of such Exchange Debt.
The Company may require the undersigned, as a condition to the undersigned's
eligibility to participate in the Exchange Offer, to furnish to the Company
(or an agent thereof) in writing information as to the number of "beneficial
owners" within the meaning of Rule 13d-3 under the Exchange Act on behalf of
whom the undersigned holds the Outstanding Debt to be exchanged in the
Exchange Offer. If the undersigned is a broker-dealer that will receive
Exchange Debt for its own account in exchange for Outstanding Debt, it
represents that the Outstanding Debt to be exchanged for Exchange Debt was
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a Prospectus in connection
with any resale of such Exchange Debt; however, by so acknowledging and by
delivering a Prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
The Company has agreed that, subject to the provisions of the Registration
Rights Agreement, the Prospectus, as it may be amended or supplemented from
time to time, may be used by a Participating Broker-Dealer (as defined below)
in connection with resales of Exchange Debt received in exchange for
Outstanding Debt, where such Outstanding Debt was acquired by such
Participating Broker-Dealer for its own account as a result of market-making
activities or other trading activities, for a period ending 180 days after the
expiration of the Exchange Offer (the "Expiration Date") (subject to extension
under certain limited circumstances described in the Prospectus) or, if
earlier, when all such Exchange Debt has been disposed of by such
Participating Broker-Dealer. In that regard, each broker-dealer who acquired
Outstanding Debt for its own account as a result of market-making or other
trading activities (a "Participating Broker-Dealer"), by tendering such
Outstanding Debt and executing this Letter of Transmittal or effecting
delivery of an Agent's Message in lieu thereof, agrees that, upon receipt of
notice from the Company of the occurrence of any event or the discovery of any
fact which makes any statement contained or incorporated by reference in the
Prospectus untrue in any material respect or which causes the Prospectus to
omit to state a material fact necessary in order to make the statements
contained or incorporated by reference therein, in light of the circumstances
under which they were made, not misleading or of the occurrence of certain
other events specified in the Registration Rights Agreement, such
Participating Broker-Dealer will suspend the sale of Exchange Debt pursuant to
the Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended
or supplemented Prospectus to the Participating Broker-Dealer or the Company
has given notice that the sale of the Exchange Debt may be resumed, as the
case may be. If the Company gives such notice to suspend the sale of the
Exchange Debt, it shall extend the 180-day period referred to above during
which Participating Broker-Dealers are entitled to use the Prospectus in
connection with the resale of Exchange Debt by the number of days during the
period from and including the date of the giving of such notice to and
including the date when Participating Broker-Dealers shall have received
copies of the supplemented or amended Prospectus necessary to permit resales
of the Exchange Debt or to and including the date on which the Company has
given notice that the sale of Exchange Debt may be resumed, as the case may
be.
5
<PAGE>
As a result, a Participating Broker-Dealer who intends to use the Prospectus
in connection with resales of Exchange Debt received in exchange for
Outstanding Debt pursuant to the Exchange Offer must notify the Company, or
cause the Company to be notified, on or prior to the Expiration Date, that it
is a Participating Broker-Dealer. Such notice may be given in the space
provided above or may be delivered to the Exchange Agent at the address set
forth in the Prospectus under "The Exchange Offer--Exchange Agent."
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Outstanding Debt tendered hereby. All
authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
The undersigned, by completing the box entitled "Description of Outstanding
Debt" above and signing this letter, will be deemed to have tendered the
Outstanding Debt as set forth in such box.
6
<PAGE>
IMPORTANT
HOLDERS: SIGN HERE
(Please Complete Substitute Form W-9 herein)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature(s) of Holders(s)
Date: _______________________________
(Must be signed by the registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Outstanding Debt hereby tendered or on a security
position listing or by person(s) authorized to become registered holder(s) by
certificates and documents transmitted herewith. If signature is by trustee,
executor, administrator, guardian, attorney-in-fact, officer of corporation or
other person acting in a fiduciary or representative capacity, please provide
the following information and see Instruction 2 below.)
Name(s): _______________________________________________________________________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print)
Capacity (full title): _________________________________________________________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Address: _______________________________________________________________________
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone No.: ___________________________________________________
(See Substitute Form W-9 herein)
GUARANTEE OF SIGNATURE(S)
(See Instruction 2 below)
Authorized Signature: __________________________________________________________
Name: __________________________________________________________________________
- --------------------------------------------------------------------------------
(Please Type or Print)
Title: _________________________________________________________________________
Name of Firm: __________________________________________________________________
Address: _______________________________________________________________________
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone No.: ___________________________________________________
Date: _______________________________
7
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED--
SEE INSTRUCTION 2)
TO BE COMPLETED ONLY if Exchange
Debt or Outstanding Debt not
tendered is to be issued in the
name of someone other than the
registered Holder of the
Outstanding Debt whose name(s)
appear(s) above.
[_]Outstanding Debt not tendered to:
[_]Exchange Debt to:
Name ______________________________
(Please Print)
Address ___________________________
-----------------------------------
-----------------------------------
-----------------------------------
(Include Zip Code)
-----------------------------------
(Tax Identification or
Social Security Number)
SPECIAL DELIVERY INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED--
SEE INSTRUCTION 2)
TO BE COMPLETED ONLY if Exchange
Debt or Outstanding Debt not
tendered is to be sent to someone
other than the registered Holder
of the Outstanding Debt whose
name(s) appear(s) above, or such
registered Holder at an address
other than that shown above.
[_]Outstanding Debt not tendered to:
[_]Exchange Debt to:
Name ______________________________
(Please Print)
Address ___________________________
-----------------------------------
-----------------------------------
-----------------------------------
(Include Zip Code)
8
<PAGE>
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made
pursuant to the procedures for tender by book-entry transfer set forth in "The
Exchange Offer--Procedures for Tendering Outstanding Debt" in the Prospectus
and an Agent's Message is not delivered. Certificates, or timely confirmation
of a book-entry transfer of such Outstanding Debt into the Exchange Agent's
account at DTC, as well as this Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
and any other documents required by this Letter of Transmittal, must be
received by the Exchange Agent at its address set forth herein on or prior to
the Expiration Date. Tenders by book-entry transfer may also be made by
delivering an Agent's Message in lieu thereof. Outstanding Debt may be
tendered in whole or in part in integral multiples of $1,000.
Holders who wish to tender their Outstanding Debt and (i) whose Outstanding
Debt is not immediately available or (ii) who cannot deliver their Outstanding
Debt, this Letter of Transmittal and all other required documents to the
Exchange Agent on or prior to the Expiration Date or (iii) who cannot complete
the procedures for delivery by book-entry transfer on a timely basis, may
tender their Outstanding Debt by properly completing and duly executing a
Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures
set forth in "The Exchange Offer--Procedures for Tendering Outstanding Debt"
in the Prospectus. Pursuant to such procedures: (i) such tender must be made
by or through an Eligible Institution (as defined below); (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in
the form made available by the Company, must be received by the Exchange Agent
on or prior to the Expiration Date; and (iii) the Certificates (or a book-
entry confirmation) representing all tendered Outstanding Debt, in proper form
for transfer, together with a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees
and any other documents required by this Letter of Transmittal, must be
received by the Exchange Agent within three New York Stock Exchange trading
days after the date of execution of such Notice of Guaranteed Delivery, all as
provided in "The Exchange Offer--Procedures for Tendering Outstanding Debt" in
the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice of Guaranteed
Delivery. For Outstanding Debt to be properly tendered pursuant to the
guaranteed delivery procedure, the Exchange Agent must receive a Notice of
Guaranteed Delivery on or prior to the Expiration Date. As used herein and in
the Prospectus, "Eligible Institution" means a firm or other entity identified
in Rule 17Ad-15 under the Exchange Act as "an eligible guarantor institution,"
including (as such terms are defined therein) (i) a bank; (ii) a broker,
dealer, municipal securities broker or dealer or government securities broker
or dealer; (iii) a credit union; (iv) a national securities exchange,
registered securities association or clearing agency; or (v) a savings
association that is a participant in a Securities Transfer Association.
The method of delivery of Certificates, this Letter of Transmittal and all
other required documents is at the option and sole risk of the tendering
Holder, and the delivery will be deemed made only when actually received by
the Exchange Agent. If delivery is by mail, then registered mail with return
receipt requested, properly insured, or overnight delivery service is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering Holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance
of such tender.
2. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required if:
i. this Letter of Transmittal is signed by the registered Holder (which
term, for purposes of this document, shall include any participant in DTC
whose name appears on a security position listing as the
9
<PAGE>
owner of the Outstanding Debt (the "Holder")) of Outstanding Debt tendered
herewith, unless such Holder(s) has completed either the box entitled
"Special Issuance Instructions" or the box entitled "Special Delivery
Instructions" above, or
ii. such Outstanding Debt is tendered for the account of a firm that is
an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned "Description
of Outstanding Debt" is inadequate, the Certificate number(s) and/or the
principal amount of Outstanding Debt and any other required information should
be listed on a separate signed schedule which is attached to this Letter of
Transmittal.
4. Partial Tenders and Withdrawal Rights. Tenders of Outstanding Debt will
be accepted only in integral multiples of $1,000. If less than all the
Outstanding Debt evidenced by any Certificate submitted is to be tendered,
fill in the principal amount of Outstanding Debt which is to be tendered in
the box entitled "Principal Amount of Outstanding Debt Tendered." In such
case, new Certificate(s) for the remainder of the Outstanding Debt that was
evidenced by your old Certificate(s) will only be sent to the Holder of the
Outstanding Debt, promptly after the Expiration Date. All Outstanding Debt
represented by Certificates delivered to the Exchange Agent will be deemed to
have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Outstanding Debt may be
withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to that time, a written or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at one of its addresses set forth above or in the Prospectus on
or prior to the Expiration Date. Any such notice of withdrawal must specify
the name of the person who tendered the Outstanding Debt to be withdrawn, the
aggregate principal amount of Outstanding Debt to be withdrawn, and (if
Certificates for Outstanding Debt have been tendered) the name of the
registered Holder of the Outstanding Debt as set forth on the Certificate for
the Outstanding Debt, if different from that of the person who tendered such
Outstanding Debt. If Certificates for the Outstanding Debt have been delivered
or otherwise identified to the Exchange Agent, then prior to the physical
release of such Certificates for the Outstanding Debt, the tendering Holder
must submit the serial numbers shown on the particular Certificates for the
Outstanding Debt to be withdrawn and the signature on the notice of withdrawal
must be guaranteed by an Eligible Institution, except in the case of
Outstanding Debt tendered for the account of an Eligible Institution. If
Outstanding Debt has been tendered pursuant to the procedures for book-entry
transfer set forth in the Prospectus under "The Exchange Offer--Procedures for
Tendering Outstanding Debt," the notice of withdrawal must specify the name
and number of the account at DTC to be credited with the withdrawal of
Outstanding Debt, in which case a notice of withdrawal will be effective if
delivered to the Exchange Agent by written, telegraphic, telex or facsimile
transmission. Withdrawals of tenders of Outstanding Debt may not be rescinded.
Outstanding Debt properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be retendered at any subsequent time
on or prior to the Expiration Date by following any of the procedures
described in the Prospectus under "The Exchange Offer--Procedures for
Tendering Outstanding Debt."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all
parties. The Company, any affiliates or assigns of the Company, the Exchange
Agent or any other person shall not be under any duty to give any notification
of any irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification. Any Outstanding Debt which has been
tendered but which is withdrawn will be returned to the Holder thereof without
cost to such Holder promptly after withdrawal.
5. Signatures on Letter of Transmittal, Assignments and Endorsements. If
this Letter of Transmittal is signed by the registered Holder(s) of the
Outstanding Debt tendered hereby, the signature(s) must correspond exactly
with the name(s) as written on the face of the Certificate(s) without
alteration, enlargement or any change whatsoever.
10
<PAGE>
If any Outstanding Debt tendered hereby is owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Outstanding Debt is registered in different name(s) on
several Certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal (or facsimiles thereof) as there are
different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing and, unless waived by the
Company, must submit proper evidence satisfactory to the Company, in its sole
discretion, of each such person's authority to so act.
When this Letter of Transmittal is signed by the registered owner(s) of the
Outstanding Debt listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) is required unless Exchange Debt is
to be issued in the name of a person other than the registered Holder(s).
Signature(s) on such Certificate(s) or bond power(s) must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Outstanding Debt listed, the Certificates must be
endorsed or accompanied by appropriate bond powers, signed exactly as the name
or names of the registered owner(s) appear(s) on the Certificates, and also
must be accompanied by such opinions of counsel, certifications and other
information as the Company or the Trustee for the Outstanding Debt may require
in accordance with the restrictions on transfer applicable to the Outstanding
Debt. Signatures on such Certificates or bond powers must be guaranteed by an
Eligible Institution.
6. Special Issuance and Delivery Instructions. If Exchange Debt is to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if Exchange Debt is to be sent to someone other than the
signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be
completed. Certificates for Outstanding Debt not exchanged will be returned by
mail or, if tendered by book-entry transfer, by crediting the account
indicated above maintained at DTC. See Instruction 4.
7. Irregularities. The Company will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time
of receipt) and acceptance for exchange of any tender of Outstanding Debt,
which determination shall be final and binding on all parties. The Company
reserves the absolute right to reject any and all tenders determined by it not
to be in proper form or the acceptance of which, or exchange for which, may,
in the view of counsel to the Company be unlawful. The Company also reserves
the absolute right, subject to applicable law, to waive any of the conditions
of the Exchange Offer set forth in the Prospectus under "The Exchange Offer--
Conditions to the Exchange Offer" or any conditions or irregularities in any
tender of Outstanding Debt of any particular Holder whether or not similar
conditions or irregularities are waived in the case of other Holders. The
Company's interpretation of the terms and conditions of the Exchange Offer
(including this Letter of Transmittal and the instructions hereto) will be
final and binding. No tender of Outstanding Debt will be deemed to have been
validly made until all irregularities with respect to such tender have been
cured or waived. The Company, any affiliates or assigns of the Company, the
Exchange Agent, or any other person shall not be under any duty to give
notification of any irregularities in tenders or incur any liability for
failure to give such notification.
8. Questions, Requests for Assistance and Additional Copies. Questions and
requests for assistance may be directed to the Exchange Agent at its address
and telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
11
<PAGE>
9. 31% Backup Withholding; Substitute Form W-9. Under the U.S. Federal
income tax law, a Holder whose tendered Outstanding Debt is accepted for
exchange is required to provide the Exchange Agent with such Holder's correct
taxpayer identification number ("TIN") on Substitute Form W-9 below. If the
Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the Holder or other payee to penalties. In
addition, payments to such Holders or other payees with respect to Outstanding
Debt exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the tendering
Holder has not been issued a TIN and has applied for a TIN or intends to apply
for a TIN in the near future. If the box in Part 2 is checked, the Holder or
other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN
is provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-
9. If the Holder furnishes the Exchange Agent with its TIN within 60 days
after the date of the Substitute Form W-9, the amounts retained during the 60-
day period will be remitted to the Holder and no further amounts shall be
retained or withheld from payments made to the Holder thereafter. If, however,
the Holder has not provided the Exchange Agent with its TIN within such 60-day
period, amounts withheld will be remitted to the IRS as backup withholding. In
addition, 31% of all payments made thereafter will be withheld and remitted to
the IRS until a correct TIN is provided.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Outstanding Debt or of the last transferee appearing on the transfers
attached to, or endorsed on, the Outstanding Debt. If the Outstanding Debt is
registered in more than one name or is not in the name of the actual owner,
consult the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional guidance on which number to
report.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to the backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the
face thereof, to avoid possible erroneous backup withholding. A foreign person
may qualify as an exempt recipient by submitting a properly completed IRS Form
W-8, signed under penalties of perjury, attesting to that Holder's exempt
status. Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
Holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax. Rather, the
U.S. Federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
10. Waiver of Conditions. The Company reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
11. No Conditional Tenders. No alternative, conditional or contingent
tenders will be accepted. All tendering Holders of Outstanding Debt, by
execution of this Letter of Transmittal, shall waive any right to receive
notice of the acceptance of Outstanding Debt for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated to
give notice of any defect or irregularity with respect to any tender of
Outstanding Debt nor shall any of them incur any liability for failure to give
any such notice.
12. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Outstanding Debt have been lost, destroyed or stolen, the Holder
should promptly notify the Exchange Agent. The Holder will then be instructed
as to the steps that must be taken in order to replace the Certificate(s).
This Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost, destroyed or stolen Certificate(s) have been
followed.
12
<PAGE>
13. Security Transfer Taxes. Holders who tender their Outstanding Debt for
exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, Exchange Debt is to be delivered to, or is to be
issued in the name of, any person other than the registered Holder of the
Outstanding Debt tendered, or if a transfer tax is imposed for any reason
other than the exchange of Outstanding Debt in connection with the Exchange
Offer, then the amount of any such transfer tax (whether imposed on the
registered Holder or any other persons) will be payable by the tendering
Holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering Holder.
13
<PAGE>
PAYER'S NAME: THE BANK OF NEW YORK
SUBSTITUTE
Part 1--PLEASE PROVIDE
Form W-9 YOUR TIN IN THE BOX AT TIN: __________________
Department of the RIGHT AND CERTIFY BY Social Security Number
Treasury SIGNING AND DATING BELOW. or Employer
Internal Revenue Identification Number
Service
- -------------------------------------------------------------------------------
Payer's Request for Part 2--TIN Applied For [_]
Taxpayer
Identification
Number ("TIN")
- -------------------------------------------------------------------------------
Certification: Under penalties of perjury, I certify that:
(1) the number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me); and
(2) I am not subject to backup withholding either because: (a) I have not
been notified by the Internal Revenue Service (the "IRS") that I am
subject to backup withholding as a result of a failure to report all
interest or dividends, or (b) the IRS has notified me that I am no
longer subject to backup withholding.
Certification Instructions--You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on
your tax return. However, if after being notified by the IRS that you were
subject to backup withholding, you received another notification from the
IRS that you were no longer subject to backup withholding, do not cross out
item (2). (Also see instructions in the enclosed Guidelines.)
- -------------------------------------------------------------------------------
Signature ________________________________ Date ____________________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU IN CONNECTION WITH THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING (OR WILL SOON
APPLY FOR) A TAXPAYER IDENTIFICATION NUMBER
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of the exchange, thirty-one (31%) percent of all reportable payments
made to me thereafter will be withheld until I provide a number.
Signature ________________________________ Date ____________________________
14
<PAGE>
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
MONSANTO COMPANY
Offer to Exchange its
% [Notes][Debentures] due
which have been registered under the Securities Act
for any and all of its outstanding
% [Notes][Debentures] due
that were issued and sold in a transaction
exempt from registration under the
Securities Act of 1933, as amended
Pursuant to the Prospectus dated , 1999
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Company's % [Notes][Debentures] due (the
"Outstanding Debt") are not immediately available, (ii) Outstanding Debt, the
Letter of Transmittal and all other required documents cannot be delivered to
The Bank of New York (the "Exchange Agent") on or prior to the Expiration Date
or (iii) the procedures for delivery by book-entry transfer cannot be
completed on a timely basis. This Notice of Guaranteed Delivery may be
delivered by hand, overnight courier or mail, or transmitted by facsimile
transmission, to the Exchange Agent. See "The Exchange Offer--Procedures for
Tendering Outstanding Debt" in the Prospectus. In addition, in order to
utilize the guaranteed delivery procedure to tender Outstanding Debt pursuant
to the Exchange Offer, a completed, signed and dated Letter of Transmittal
relating to the Outstanding Debt (or facsimile thereof) must also be received
by the Exchange Agent on or prior to the Expiration Date. Capitalized terms
not defined herein have the meanings assigned to them in the Prospectus.
The Exchange Agent for the Exchange Offer is:
The Bank of New York
Facsimile Transmissions:
By Registered or Certified Mail: (Eligible Institutions Only)
The Bank of New York (212) 815-4699
101 Barclay Street, 7E
New York, New York 10286 To Confirm by Telephone
Attention: Noriko Miyazaki or for Information Call:
Noriko Miyazaki
By Hand or Overnight Delivery: (212) 815-6333
The Bank of New York
101 Barclay Street
Corporate Trust Services Window
Ground Level
New York, New York 10286
Attention: Noriko Miyazaki
----------------
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A
VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Monsanto Company, a Delaware corporation
(the "Company"), upon the terms and subject to the conditions set forth in the
Prospectus dated , 1999 (as the same may be amended or supplemented
from time to time, the "Prospectus"), and the related Letter of Transmittal
(which together constitute the "Exchange Offer"), receipt of which is hereby
acknowledged, the aggregate principal amount of Outstanding Debt set forth
below pursuant to the guaranteed delivery procedures set forth in the
Prospectus under the caption "The Exchange Offer--Procedures for Tendering
Outstanding Debt."
Aggregate Principal Amount Name(s) of Registered Holder(s): ___________
Amount Tendered: $____________* --------------------------------------------
Certificate No(s) (if available): _____________________________________________
- -------------------------------------------------------------------------------
$ _____________________________________________________________________________
(Total Principal Amount Represented by Outstanding Debt Certificate(s))
If Outstanding Debt Notes will be tendered by book-entry transfer, provide the
following information:
DTC Account Number: ___________________________________________________________
Date: _________________________________________________________________________
*Must be in integral multiples of $1,000.
- -------------------------------------------------------------------------------
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
- -------------------------------------------------------------------------------
PLEASE SIGN HERE
X ___________________________________ -------------------------------------
X ___________________________________ -------------------------------------
Signature(s) of Owner(s) or Date
Authorized Signatory
Area Code and Telephone Number: _______________________________________________
Must be signed by the holder(s) of the Outstanding Debt as their name(s)
appear(s) on certificates for Outstanding Debt or on a security position
listing, or by person(s) authorized to become registered holder(s) by
endorsement and documents transmitted with this Notice of Guaranteed Delivery.
If signature is by a trustee, executor, administrator, guardian, attorney-in-
fact, officer or other person acting in a fiduciary or representative
capacity, such person must set forth his or her full title below and, unless
waived by the Company, provide proper evidence satisfactory to the Company of
such person's authority to so act.
<PAGE>
Exhibit 99.3
MONSANTO COMPANY
Instruction to Registered Holder and/or Depository
Trust Company Participant from Beneficial Owner
for
Offer to Exchange its
% [Notes][Debentures] due
which have been registered under the Securities Act
for any and all of its outstanding
% [Notes][Debentures] due
that were issued and sold in a transaction
exempt from registration under the
Securities Act of 1933, as amended
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON , 1999, UNLESS THE OFFER IS EXTENDED. TENDERS MAY
BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
To Registered Holder and/or Depository Trust Company Participant:
The undersigned hereby acknowledges receipt of the Prospectus dated ,
1999 (the "Prospectus") of Monsanto Company, a Delaware corporation (the
"Company"), and the accompanying Letter of Transmittal (the "Letter of
Transmittal"), that together constitute the Company's offer (the "Exchange
Offer") to exchange its % [Notes][Debentures] due (the "Exchange
Debt"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for all of its outstanding %
[Notes][Debentures] due (the "Outstanding Debt"). Capitalized terms used
but not defined herein have the meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder and/or Depository Trust
Company Participant, as to the action to be taken by you relating to the
Exchange Offer with respect to the Outstanding Debt held by you for the
account of the undersigned.
The aggregate face amount of the Outstanding Debt held by you for the
account of the undersigned is (FILL IN AMOUNT):
$ of the % [Notes][Debentures] due .
With respect to the Exchange Offer, the undersigned hereby instructs you
(CHECK APPROPRIATE BOX):
[_]To TENDER the following Outstanding Debt held by you for the amount of
the undersigned (INSERT PRINCIPAL AMOUNT OF OUTSTANDING DEBT TO BE
TENDERED (IF LESS THAN ALL)):
$
[_]NOT to TENDER any Outstanding Debt held by you for the account of the
undersigned.
If the undersigned instructs you to tender the Outstanding Debt held by you
for the account of the undersigned, it is understood that you are authorized
to make, on behalf of the undersigned (and the undersigned, by its signature
below, hereby makes to you), the representations and warranties contained in
the Letter of Transmittal that are to be made with respect to the undersigned
as a beneficial owner, including but not limited to the representations, that
(i) the undersigned is not an "affiliate" of the Company, (ii) any Exchange
Debt to be received by the undersigned is being acquired in the ordinary
course of its business, (iii) the undersigned has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of Exchange Debt to be received in the Exchange
Offer, and (iv) if the undersigned is not a broker-dealer, the undersigned is
not engaged in, and does not intend to engage in, a distribution (within the
1
<PAGE>
meaning of the Securities Act) of such Exchange Debt. The Company may require
the undersigned, as a condition to the undersigned's eligibility to
participate in the Exchange Offer, to furnish to the Company (or an agent
thereof) in writing information as to the number of "beneficial owners" within
the meaning of Rule 13d-3 under the Exchange Act on behalf of whom the
undersigned holds the Outstanding Debt to be exchanged in the Exchange Offer.
If the undersigned is a broker-dealer that will receive Exchange Debt for its
own account in exchange for Outstanding Debt, it represents that the
Outstanding Debt to be exchanged for Exchange Debt was acquired by it as a
result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale
of such Exchange Debt; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
SIGN HERE
-----------------------------------------------------------------------------
Name of beneficial owner(s)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Signature
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Name(s) (please print)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
(Address)
-----------------------------------------------------------------------------
(Telephone Number)
-----------------------------------------------------------------------------
(Taxpayer Identification or Social Security Number)
-----------------------------------------------------------------------------
Date
2
<PAGE>
Please print name(s) and address(es)
Name(s):
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
Capacity:
---------------------------------------------------------------------
Address(es):
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
GUARANTEE OF DELIVERY
(Not to be used for signature guarantee)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, as an "eligible guarantor
instruction," including (as such terms are defined therein): (i) a bank; (ii)
a broker, dealer, municipal securities broker, government securities broker or
government securities dealer; (iii) a credit union; (iv) a national securities
exchange, registered securities association or clearing agency; or (v) a
savings association that is a participant in a Securities Transfer Association
(each of the foregoing being referred to as an "Eligible Institution"), hereby
guarantees to deliver to the Exchange Agent, at one of its addresses set forth
above, either the Outstanding Debt tendered hereby in proper form for
transfer, or confirmation of the book-entry transfer of such Outstanding Debt
to the Exchange Agent's account at The Depository Trust Company ("DTC"),
pursuant to the procedures for book-entry transfer set forth in the
Prospectus, in either case together with one or more properly completed and
duly executed Letter(s) of Transmittal (or facsimile thereof) and any other
required documents within three New York Stock Exchange trading days after the
date of execution of this Notice of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal (or facsimile thereof) and the Outstanding Debt tendered hereby to
the Exchange Agent within the time period set forth above and that failure to
do so could result in a financial loss to the undersigned.
- ------------------------------------- -------------------------------------
Name of Firm
Authorized Signature
- ------------------------------------- -------------------------------------
Address
Title
- ------------------------------------- (Please Type or Print)
Zip Code
Area Code and Telephone Number: ______________________ Date: __________________
NOTE: DO NOT SEND CERTIFICATES FOR OUTSTANDING DEBT WITH THIS FORM.
CERTIFICATES FOR OUTSTANDING DEBT SHOULD ONLY BE SENT WITH YOUR LETTER OF
TRANSMITTAL.
