AGREEMENT AND PLAN OF MERGER
Among
MYCOGEN CORPORATION,
DOW AGROSCIENCES LLC
and
AGROSCIENCES ACQUISITION INC.
dated as of August 31, 1998
TABLE OF CONTENTS
Page
ARTICLE I THE OFFER..................................................2
Section 1.1 The Offer................................................2
Section 1.2 Company Action...........................................4
Section 1.3 Options..................................................5
Section 1.4 Employee Stock Purchase Plan.............................6
Section 1.5 Restricted Stock.........................................7
ARTICLE II THE MERGER.................................................8
Section 2.1 The Merger...............................................8
Section 2.2 Effective Time; Closing..................................8
Section 2.3 Effects of the Merger; Subsequent Actions................9
Section 2.4 Articles of Incorporation; Bylaws........................9
Section 2.5 Directors................................................9
Section 2.6 Officers.................................................9
Section 2.7 Conversion of Securities.................................9
ARTICLE III DISSENTING SHARES; EXCHANGE OF CERTIFICATES...............10
Section 3.1 Dissenting Shares.......................................10
Section 3.2 Exchange of Certificates................................11
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE
COMPANY...................................................12
Section 4.1 Organization and Qualification; Subsidiaries............12
Section 4.2 Capitalization..........................................13
Section 4.3 Authority Relative to This Agreement....................13
Section 4.4 No Conflict; Required Filings and Consents..............14
Section 4.5 SEC Reports.............................................15
Section 4.6 Absence of Certain Changes..............................15
Section 4.7 Schedule 14D9; Offer Documents; Proxy Statement.........15
Section 4.8 Finder's Fee............................................16
Section 4.9 Stockholder Action......................................16
Section 4.10 Fairness Opinion........................................16
Section 4.11 Inapplicability of Rights Agreement.....................16
Section 4.12 Information Known by Parent.............................17
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT
AND ACQUISITION...........................................17
Section 5.1 Organization............................................17
Section 5.2 Authority Relative to this Agreement....................17
Section 5.3 No-Conflict; Required Filings and Consents..............18
Section 5.4 Offer Documents; Schedule 14D9; Proxy Statement.........18
Section 5.5 Acquisition.............................................19
Section 5.6 Financing...............................................19
Section 5.7 Brokers.................................................19
Section 5.8 Insurance...............................................19
ARTICLE VI COVENANTS.................................................19
Section 6.1 Conduct of Business of the Company......................19
Section 6.2 Reasonable Best Efforts................... .............20
Section 6.3 Public Announcements....................................21
Section 6.4 Indemnification.........................................21
Section 6.5 Notification of Certain Matters.........................23
Section 6.6 Exchange and Purchase Agreement; No Restrictions on
Purchase................................................23
Section 6.7 Compliance by Acquisition...............................24
Section 6.8 Financing...............................................24
Section 6.9 Access to and Retention of Information..................24
ARTICLE VII CONDITIONS TO CONSUMMATION OF THE MERGER..................24
Section 7.1 Conditions to Each Party's Obligations to Effect the
Merger....................................................24
ARTICLE VIII TERMINATION; EXPENSES; AMENDMENT; WAIVER..................25
Section 8.1 Termination.............................................25
Section 8.2 Effect of Termination...................................26
Section 8.3 Fees and Expenses.......................................26
Section 8.4 Amendment...............................................26
Section 8.5 Extension; Waiver.......................................26
ARTICLE IX MISCELLANEOUS.............................................27
Section 9.1 Nonsurvival of Representations and Warranties...........27
Section 9.2 Entire Agreement; Assignment............................27
Section 9.3 Notices.................................................27
Section 9.4 Governing Law; Jurisdiction and Venue; Waiver of Jury
Trial...................................................28
Section 9.5 Parties in Interest.....................................29
Section 9.6 Specific Performance....................................29
Section 9.7 Severability............................................29
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Section 9.8 Descriptive Headings....................................29
Section 9.9 Certain Definitions.....................................30
Section 9.10 Counterparts............................................31
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ANNEXES
Annex A - Offer Conditions
Annex B - Press Release
Annex C - Option Election
Annex D - Stock Purchase Election
Annex E - Restricted Stock Election
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
August 31, 1998, is among Mycogen Corporation, a California corporation (the
"Company"), Dow AgroSciences LLC, a Delaware limited liability company
("Parent"), AgroSciences Acquisition Inc., a Delaware corporation
("Acquisition"), and, solely for the limited purpose set forth in Section 6.8
below, The Dow Chemical Company, a Delaware corporation ("TDCC").
WHEREAS, Parent is the holder of 24,766,157 shares of the Company's
common stock, $.001 par value per share (including, unless the context otherwise
requires, the associated preferred stock purchase rights under the Rights
Agreement (as defined below)) ("Common Stock"), representing approximately 68.3%
of the shares of Common Stock ("Shares") outstanding; and
WHEREAS, Acquisition is a majority-owned subsidiary of Parent and an
indirect wholly owned subsidiary of TDCC; and
WHEREAS, Parent has proposed that Parent acquire all of the remaining
issued and outstanding Shares; and
WHEREAS, it is proposed that Acquisition shall make a tender offer to
acquire all outstanding Shares for a cash amount of $28 per Share (such amount,
or any greater amount per Share paid pursuant to the tender offer, is referred
to as the "Per Share Amount") net to the seller in cash in accordance with the
terms and subject to the conditions provided for in this Agreement (the
"Offer"); and
WHEREAS, the Special Committee of independent directors (the "Special
Committee") of the Board of Directors of the Company (the "Board"), at a meeting
duly called and held on August 31, 1998, has unanimously recommended that the
Board approve and authorize the Offer, the Merger (as defined below) and this
Agreement; and
WHEREAS, the Board, at a meeting duly called and held on August 31,
1998, has (A) determined that this Agreement and the transactions contemplated
by this Agreement (the "Transactions") are fair to and in the best interests of
the stockholders of the Company (other than TDCC or its affiliates), (B)
approved and adopted this Agreement and the Transactions, including the Offer
and the merger between Acquisition and the Company contemplated by Section 2.1
hereof (the "Merger") in accordance with the California General Corporation
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Law ("California Law") and the Delaware General Corporation Law ("Delaware Law")
and upon the terms and subject to the conditions set forth in this Agreement,
and (C) resolved to recommend that the stockholders of the Company accept the
Offer, tender their Shares thereunder to Acquisition and, if required by
applicable law, approve and adopt this Agreement and the Merger; and
WHEREAS, Xxxxxxxxxxx Xxxxxxx & Co., Inc. ("Xxxxxxxxxxx Xxxxxxx") has
delivered to the Special Committee, for its consideration, and for delivery to
the stockholders of the Company pursuant to Section 1203 of California Law, its
written opinion that, subject to the various assumptions and limitations set
forth thereon as of the date of such opinion, the cash consideration to be
received in the Offer and the Merger by the stockholders of the Company other
than TDCC or its affiliates is fair to such stockholders from a financial point
of view; and
WHEREAS, the members committee of Parent and the board of directors of
Acquisition have each (A) determined that this Agreement and the Transactions
are fair to and in the best interests of the stockholders of the Company, and
(B) approved and adopted this Agreement and approved the Transactions, including
the Merger, in accordance with Delaware Law and California Law and upon the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Agreement, and intending to be
legally bound, the Company, Parent and Acquisition agree as follows;
ARTICLE I
THE OFFER
Section 1.1 The Offer. (a) Provided that this Agreement shall not have
been terminated in accordance with Section 8.1, as promptly as practicable, but
in no event later than the fifth business day following the public announcement
of the terms of this Agreement, Acquisition shall commence the Offer.
Acquisition shall, and Parent shall cause Acquisition to, subject only to the
prior satisfaction or waiver of the conditions of the Offer, accept for payment
Shares validly tendered as soon as it is legally permitted to do so under
applicable law. As promptly as practicable after such acceptance, Acquisition
shall, subject to applicable law, pay for such Shares. The Per Share Amount
payable in the Offer shall be paid net to the seller in cash, upon the terms and
subject to the conditions of the Offer. Acquisition shall not, without the
consent
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of the Special Committee, accept for payment any Shares tendered pursuant to the
Offer unless a number of Shares shall have been validly tendered and not
withdrawn prior to the expiration of the Offer such that, upon purchase of such
Shares by Acquisition, Acquisition and Parent, collectively, would be the owners
of Shares representing at least 81.07% of the Fully Diluted Shares (as defined
on Section 9.9) (the "First Minimum Condition"). In addition to the First
Minimum Condition, the obligation of Acquisition to accept for payment and pay
for Shares tendered pursuant to the Offer shall be subject only to the
satisfaction or waiver of the conditions (i) that a number of Shares shall have
been validly tendered and not withdrawn prior to the expiration date of the
Offer such that, upon purchase of such Shares by Acquisition, Acquisition and
Parent, collectively, would be the owners of Shares representing at least 90% of
the Fully Diluted Shares as of the expiration date of the Offer (the "Second
Minimum Condition") and (ii) that are set forth in Annex A to this Agreement. It
is agreed that the Second Minimum Condition and the other conditions set forth
in Annex A are for the sole benefit of Acquisition and may be asserted by
Acquisition regardless of the circumstances unless the failure of any such
condition was caused by any breach by Parent or Acquisition of this Agreement.
Acquisition expressly reserves the right in its sole discretion to waive, in
whole or in part, at any time or from time to time, any such condition
(including, without limitation, the Second Minimum Condition, but not including
the First Minimum Condition) or to increase the cash price per Share payable in
the Offer; provided that no change may be made that decreases the Per Share
Amount payable in the Offer, changes the form of consideration payable in the
Offer, reduces the maximum number of Shares to be purchased in the Offer or
imposes conditions to the Offer in addition to those set forth in Annex A. If
requested to do so by Parent or Acquisition, the Company (acting at the
direction of the Special Committee) may, in the sole discretion of the Special
Committee, waive the First Minimum Condition and Acquisition may thereafter
accept for payment any and all Shares validly tendered and not withdrawn prior
to the expiration of the Offer whether or not the First Minimum Condition is
satisfied.
(b) The initial expiration date of the Offer shall be midnight
on the 20th business day following commencement of the Offer. The foregoing
notwithstanding, Acquisition may, without the consent of the Company, extend the
Offer (i) for any period required by any rule, regulation, interpretation or
position of the Securities and Exchange Commission (the "SEC") or the staff
thereof applicable to the Offer, (ii) if at any scheduled expiration date any of
the conditions to the Offer set forth in paragraphs (a) - (e) of Annex A have
not been satisfied or waived, until such time as all of such conditions shall
have been satisfied or waived, or (iii) in the event all of the conditions to
the Offer shall have been satisfied or waived, other than the Second Minimum
Condition,
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for a period or periods aggregating not more than 40 business days after the
later of (A) the initial expiration date of the Offer and (B) the date on which
all of the conditions set forth in paragraphs (a) - (e) of Annex A shall have
been satisfied or waived. If at any scheduled expiration date of the Offer the
Second Minimum Condition shall not have been satisfied, then, at the request of
the Company (acting at the direction of the Special Committee, which request
shall subsequently be confirmed in writing), Acquisition shall, and Parent shall
cause Acquisition to, extend the Offer for a period or periods aggregating not
more than 40 business days, subject to the right of Acquisition and Parent to
terminate this Agreement pursuant to Section 8.1. In addition, if at any
scheduled expiration date of the Offer, a condition set forth in paragraph (c)
or (d) of Annex A hereto shall not have been satisfied but all of the other
conditions set forth in paragraphs (a) - (e) of Annex A shall then have been
satisfied, then, at the request of the Company (acting at the direction of the
Special Committee, which request shall subsequently be confirmed in writing) and
so long as the Company is using its reasonable best efforts to cause such
conditions to become satisfied, Acquisition shall, and Parent shall cause
Acquisition to, extend the Offer for up to an additional 20 business days,
subject to the right of Acquisition and Parent to terminate this Agreement
pursuant to Section 8.1. Subject to the right of Acquisition and Parent to
terminate this Agreement pursuant to Section 8.1, Acquisition shall not
terminate or withdraw the Offer prior to any scheduled expiration date of the
Offer, including as extended pursuant to this Section 1.1; provided, however,
that Acquisition may, at its option, terminate and withdraw the Offer if, after
such extensions required to be made under this Section 1.1(b), the Offer has
expired in accordance with its terms.
(c) As soon as practicable on the date of commencement of the
Offer, Parent and Acquisition shall file with the Securities and Exchange
Commission (the "Commission") (i) a Tender Offer Statement on Schedule 14D- 1
with respect to the Offer which will contain the offer to purchase, the form of
the related letter of transmittal and related summary advertisement and (ii) a
Rule 13E-3 Transaction Statement with respect to the Offer and the other
transactions contemplated hereby (the Schedule 14D-1, the Schedule 13E-3, the
offer to purchase and such other documents, together with any supplements or
amendments thereto, the "Offer Documents"). Parent, Acquisition and the Company
each agrees promptly to correct any information provided by it for use in the
Offer Documents if and to the extent that any such information shall have become
false or misleading in any material respect and Parent and Acquisition each
further agrees to take all steps necessary to cause the Offer Documents as so
corrected to be filed with the Commission and to be disseminated to holders of
Shares, in each case as and to the extent required by applicable federal
securities laws. The Special Committee and its counsel shall be given a
reasonable opportunity to review and comment on the Offer Documents prior to
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their filing with the Commission and shall be provided with any written or
verbal comments Parent, Acquisition and their counsel may receive from the
Commission or its staff with respect to the Offer Documents promptly after
receipt of such comments.
Section 1.2 Company Action. (a) The Company hereby approves of and
consents to the Offer and represents that the Board, acting upon the unanimous
recommendation of the Special Committee, at a meeting duly called and held on
August 31, 1998, has unanimously (i) determined that this Agreement and the
Transactions are fair to and in the best interests of the stockholders of the
Company (other than TDCC or its affiliates), (ii) approved and adopted this
Agreement and approved the Transactions, including the Merger and the Offer, and
(iii) resolved to recommend that the stockholders of the Company accept the
Offer, tender their Shares thereunder to Acquisition and, if required by
applicable law, approve and adopt this Agreement and the Merger; provided that
such recommendation may be withdrawn, modified or amended to the extent the
Special Committee determines that the failure to do so would be inconsistent
with the fiduciary duties of the Special Committee to the Company's stockholders
under applicable law (as determined by the Special Committee in good faith after
consultation with independent counsel). Except as may be inconsistent with the
fiduciary duties of the Special Committee under applicable law (as determined by
the Special Committee in good faith after consultation with independent
counsel), the Company hereby consents to the inclusion in the Offer Documents
and the Proxy Statement (as defined in Section 4.7 below) of the recommendations
of the Board described in this Section 1.2(a).
(b) As soon as practicable on the date of commencement of the
Offer, the Company shall file with the Commission a Solicitation/Recommendation
Statement on Schedule 14D-9 (together with any amendments or supplements
thereto, the "Schedule 14D-9") and shall mail the Schedule 14D-9 to the
stockholders of the Company promptly after the commencement of the Offer. The
Schedule 14D-9 shall, except to the extent inconsistent with the fiduciary
duties of the Board under applicable law (as determined in good faith after
consultation with independent counsel), at all times contain the determinations,
approvals and recommendations described in Section 1.2(a). Parent, Acquisition
and the Company each agrees promptly to correct any information provided by it
for use in the Schedule 14D-9 if and to the extent that any such information
shall have become false or misleading in any material respect and the Company
further agrees to take all steps necessary to cause the Schedule 14D-9 as so
corrected to be filed with the Commission and to be disseminated to holders of
Shares, in each case as and to the extent required by applicable federal
securities laws. Parent, Acquisition and their
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counsel shall be given a reasonable opportunity to review and comment on the
Schedule 14D-9 prior to its filing with the Commission and shall be provided
with any written or verbal comments the Company and its counsel may receive from
the Commission or its staff with respect to the Schedule 14D-9 promptly after
receipt of such comments.
(c) In connection with the Offer, the Company will, or will
cause its transfer agent to, promptly furnish Acquisition with mailing labels,
security position listings and any available listing or computer file containing
the names and addresses of the record holders and non-objecting beneficial
owners of the Shares and of Options (as defined in Section 9.9) as of a recent
date and shall furnish Acquisition with such additional information and
assistance (including, without limitation, updated lists of stockholders,
mailing labels and lists of securities positions) as Acquisition or its agents
may reasonably request in communicating the Offer to the record and beneficial
holders of Shares. Subject to the requirements of applicable law, and except for
such steps as are necessary to disseminate the Offer Documents and any other
documents necessary to consummate the Merger, Acquisition and its affiliates and
associates shall hold in confidence the information contained in any such
labels, listings and files, will use such information only in connection with
the Offer and the Merger, and, if this Agreement shall be terminated, will
deliver to the Company all copies of such information received from the Company
pursuant to this Agreement.
Section 1.3 Options. (a) If the conditions in Article VII are
satisfied, the Company shall use its best efforts to cause all Options (as
defined in Section 9.9) still outstanding immediately prior to the Effective
Time (as defined below) to become exercisable immediately prior to the Effective
Time and to terminate and cease to be outstanding as of the Effective Time;
provided, however, that arrangements shall be made so that each holder of such
an Option who consents to the termination of Options (either before the
Effective Time or within a reasonable time thereafter) shall be entitled to
receive in respect of such Option an amount in cash equal to (x) the Merger
Consideration (as defined below) less the exercise price per Share under such
Option multiplied by (y) the number of Shares covered by such Option. Without
limiting the generality of the foregoing, the Company's best efforts shall, if
necessary, be deemed to include the Board amending the Mycogen Corporation 1992
Stock Option Plan (which incorporates outstanding options granted under the
Mycogen Corporation 1983 Stock Option Plan) (the "1992 Plan") to provide that
the term "Corporate Transaction" shall be deemed to include the Merger.
(b) As soon as practicable after the commencement of the
Offer, the Company shall use its reasonable best efforts to cause each holder of
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Options (whether or not such Options are vested as of the date of this
Agreement) to execute and deliver to the Company, prior to the expiration of the
Offer, an agreement substantially in the form of Annex C (an "Option Election")
under which such holder would agree, contingent upon the purchase of Shares by
Acquisition pursuant to the Offer, to cause, immediately prior to the expiration
of the Offer, such Option to be exercised and the Shares issued as a result of
that exercise to be tendered in the Offer. The Company and Acquisition shall
reflect on their books and records the transactions effected pursuant to the
Option Elections. Subject to the terms of the Option Elections and contingent
upon the purchase of Shares by Acquisition pursuant to the Offer, the Company
shall make available to each holder of Options the funds necessary to exercise
such Options, and Parent shall advance such funds to the Company. The funds
advanced to any Option holders in accordance with the preceding sentence shall
be deducted from the amount payable to such Option holder pursuant to the Offer,
and the Option Election and the Offer shall so provide. The funds so deducted
shall be retained by Acquisition as repayment of the amount advanced to the
Company by Parent. The Company represents that the Plan Administrator of the
1992 Plan has taken action to provide that each outstanding Option as to which a
valid Option Election with respect to such Option is executed (and not revoked)
and delivered to the Company will become exercisable immediately prior to the
purchase of Shares (and contingent upon such purchase) by Acquisition pursuant
to the Offer. The parties to this Agreement consent to the action of the Plan
Administrator of the 1992 Plan referenced in the immediately preceding sentence,
agree that they will not cause the revocation of such action and will use their
best efforts to take whatever steps are necessary to make it possible for Shares
issuable upon the exercise of Options resulting from the execution and delivery
of valid Option Elections to be tendered in the Offer.
(c) Notwithstanding the foregoing, if Acquisition purchases
Shares pursuant to the Offer, the Company immediately shall purchase Options
granted to Xxxxxxx Xxxxxxx for an amount equal to the product of (i) 7500 and
(ii) the difference between the Per Share Amount and $23.9380. The Company shall
take all action required to make such purchase comply with Rule 16b-3(e) under
the Securities Exchange Act of 1934, as amended.
Section 1.4 Employee Stock Purchase Plan. (a) The Company shall use its
best efforts to effectuate the provisions of Section 1.4(b) below, to provide
for termination of the Mycogen Corporation 1995 Employee Stock Purchase Plan
(the "Stock Purchase Plan") effective no later than the Effective Time and to
provide that, upon termination of the Stock Purchase Plan and contingent upon
the purchase by Acquisition of Shares pursuant to the Offer, any payroll
deductions accumulated under the Stock Purchase Plan and not used
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to purchase Shares under the Stock Purchase Plan for tender in the Offer
pursuant to Section 1.4(b) shall be returned to the applicable participants;
provided, however, that arrangements shall be made so that each holder of
Purchase Rights as described in Section 1.4(b) who consents to the termination
of all of such holder's Purchase Rights (either before the Effective Time or
within a reasonable time thereafter) shall be entitled to receive an amount in
cash equal to the net amount such holder of Purchase Rights would have received
pursuant to Section 1.4(b) if such holder had made a Stock Purchase Election.
(b) As soon as practicable after the commencement of the
Offer, the Company shall use its reasonable best efforts to cause each
individual who has purchase rights outstanding under the Stock Purchase Plan
("Purchase Rights") to execute and deliver to the Company, prior to the
expiration of the Offer, an agreement substantially in the form of Annex D (a
"Stock Purchase Election") under which such holder would agree, contingent upon
the purchase of Shares by Acquisition pursuant to the Offer, to cause,
immediately prior to the expiration of the Offer, such Purchase Rights to be
exercised (the date on which the Shares are purchased by a holder of Purchase
Rights being a "Purchase Date" for purposes of the Stock Purchase Plan) and the
Shares issued as a result of such exercise to be tendered in the Offer. The
Company and Acquisition shall reflect on their books and records the
transactions effected pursuant to the Stock Purchase Elections. Subject to the
terms of the Stock Purchase Elections and contingent upon the purchase of Shares
by Acquisition pursuant to the Offer, the Company shall make available to each
holder of Purchase Rights who has delivered to the Company an executed Stock
Purchase Election (and has not revoked such election) the funds necessary to
exercise such Purchase Rights for the amount of Shares that would have been
purchased upon such exercise if the purchase period under the Stock Purchase
Plan had expired on November 30, 1998 (assuming that the Fair Market Value (as
defined in the Stock Purchase Plan) for November 30, 1998 for purposes of
calculating the purchase price (within the meaning of the Stock Purchase Plan)
would be the Per Share Amount and that payroll deductions had continued at the
same level through November 30, 1998), less any payroll deductions accumulated
with respect to the holder pursuant to normal operation of the Stock Purchase
Plan through the date on which the Offer terminates, and Parent shall advance
such funds to the Company. The funds advanced to any holder of Purchase Rights
in accordance with the preceding sentence shall be deducted from the amount
payable to such holder of Purchase Rights pursuant to the Offer, and the Stock
Purchase Election and the Offer shall so provide. The funds so deducted shall be
retained by Acquisition as repayment of the amount advanced to the Company by
Parent. The parties to this Agreement will use their best efforts to take
whatever steps are necessary to make it possible for
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Shares issuable upon the exercise of Purchase Rights resulting from the
execution and delivery of valid Stock Purchase Elections to be tendered in the
Offer.
Section 1.5 Restricted Stock. The Company represents that the Plan
Administrator of the Mycogen Corporation Restricted Stock Issuance Plan (the
"Restricted Stock Plan") has taken action to provide that each unvested Share
("Restricted Stock") outstanding under the Restricted Stock Plan as to which a
valid Restricted Stock Election (as defined below) with respect to such
Restricted Stock is executed (and not revoked) and delivered to the Company will
become fully vested and nonforfeitable immediately prior to the purchase of
Shares (and contingent upon such purchase) by Acquisition pursuant to the Offer.
The parties to this Agreement consent to the action of the Plan Administrator of
the Restricted Stock Plan referenced in the immediately preceding sentence,
agree that they will not cause the revocation of such action and will use their
best efforts to take whatever steps are necessary to make it possible for the
Restricted Stock as to which a valid Restricted Stock Election has been made to
be tendered in the Offer. As soon as practicable after the commencement of the
Offer, the Company shall use its reasonable best efforts to cause each holder of
shares of Restricted Stock to execute and deliver to the Company, prior to the
expiration of the Offer, an agreement substantially in the form of Annex E (a
"Restricted Stock Election") under which such holder would agree, contingent
upon the purchase of Shares by Acquisition pursuant to the Offer, to cause,
immediately prior to the expiration of the Offer, the shares of Restricted Stock
(which would be vested in accordance with the foregoing provisions of this
Section 1.5) to be tendered in the Offer. Immediately prior to the Effective
Time, if the conditions to Article VII are satisfied, the Company shall cause
the Plan Administrator of the Restricted Stock Plan to cause all shares of
Restricted Stock outstanding as of the Effective Time to be fully vested and
nonforfeitable.
ARTICLE II
THE MERGER
Section 2.1 The Merger. At the Effective Time (as defined below) upon
the terms and subject to the conditions of this Agreement and in accordance with
California Law and Delaware Law, Acquisition shall be merged with and into the
Company, whereupon the separate corporate existence of Acquisition shall cease
and the Company shall continue as the surviving corporation (the "Surviving
Corporation").
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Section 2.2 Effective Time; Closing. (a) At the Designated Time (as
defined below) the parties will (i) file a certificate of ownership pursuant to
Section 1110 of California Law with the Secretary of State of the State of
California in accordance with California Law (the "California Filing") and (ii)
file a certificate of ownership and merger with the Secretary of State of the
State of Delaware in accordance with Delaware Law (the "Delaware Filing"). The
Merger shall become effective at such time as the California Filing and the
Delaware Filing are duly filed in accordance with California Law and Delaware
Law, respectively, or at such later time as is agreed upon by the parties and
specified in the California Filing and the Delaware Filing (the "Effective
Time"). Prior to such filings, a closing shall be held at the offices of Xxxxx,
Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such other
place as the parties shall agree, for the purpose of confirming the satisfaction
or waiver of the conditions set forth in Article VII.
(b) Immediately following the satisfaction or waiver of all
conditions set forth in Article VII below (assuming the transfer of all of
Parent's Shares to Acquisition), Parent shall cause Acquisition to become the
beneficial and record owner of all Shares then owned of record by Parent (the
time immediately following such action is referred to herein as the "Designated
Time").
Section 2.3 Effects of the Merger; Subsequent Actions. (a) At the
Effective Time, the Merger shall have the effects set forth in California Law
and Delaware Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the properties, rights, privileges, powers
and franchises of the Company and Acquisition shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and
Acquisition shall become the debts, liabilities and duties of the Surviving
Corporation.
(b) If, at any time after the Effective Time, the Surviving
Corporation shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of either of the Company or Acquisition acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with, the
Merger, or otherwise to carry out this Agreement, the officers and directors of
the Surviving Corporation shall be authorized to execute and deliver, in the
name and on behalf of either of the Company or Acquisition, all such deeds,
bills of sale, assignments and assurances and to take and do, in the name and on
behalf of each of such corporations or otherwise, all such other actions and
things as may be necessary or desirable to vest, perfect or confirm of record or
otherwise
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any and all right, title and interest in, to and under such rights, properties
or assets of the Surviving Corporation or otherwise to carry out this Agreement.
Section 2.4 Articles of Incorporation; Bylaws. (a) The Articles of
Incorporation of the Company in effect immediately prior to the Effective Time
shall be the Articles of Incorporation of the Surviving Corporation until
amended in accordance with applicable law.
(b) The First Amended and Restated Bylaws of the Company in
effect at the Effective Time shall be the Bylaws of the Surviving Corporation
until amended in accordance with applicable law.
Section 2.5 Directors. The directors of Acquisition at the Effective
Time shall be the initial directors of the Surviving Corporation, each to hold
office in accordance with the Articles of Incorporation and Bylaws of the
Surviving Corporation and until his or her successor is duly elected and
qualified.
Section 2.6 Officers. The officers of the Company at the Effective
Time, and any additional individuals designated by Parent, shall be the initial
officers of the Surviving Corporation, each to hold office in accordance with
the Articles of Incorporation and Bylaws of the Surviving Corporation and until
his or her successor is duly appointed and qualified.
Section 2.7 Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of Parent, Acquisition (except
as required by Section 1110 of California Law), the Company or the holder of any
of the following securities:
(a) Each Share issued and outstanding immediately prior to the
Effective Time (other than Shares to be canceled pursuant to Section 2.7(b) of
this Agreement and Dissenting Shares (as defined in Section 3.1)), shall by
virtue of the Merger and without any action on the part of the holder thereof be
canceled and extinguished and be converted into the right to receive an amount
in cash equal to the Per Share Amount (the "Merger Consideration").
(b) Each Share issued and outstanding immediately prior to the
Effective Time and owned by Parent or Acquisition or any direct or indirect
wholly owned subsidiary of Parent or Acquisition, or which is held in the
treasury of the Company or by any of the Company's subsidiaries, shall be
canceled and retired and no payment of any consideration shall be made with
respect thereto.
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(c) Each share of common stock, par value $0.01 per share, of
Acquisition issued and outstanding immediately prior to the Effective Time shall
be converted into and become one validly issued, fully paid and nonassessable
share of common stock, par value $0.001 per share, of the Surviving Corporation.
ARTICLE III
DISSENTING SHARES; EXCHANGE OF CERTIFICATES
Section 3.1 Dissenting Shares. Notwithstanding anything in this
Agreement to the contrary, if demands for payment are filed (within the meaning
of Section 1300(b)(1) of California Law) with respect to five percent or more of
the outstanding Shares, Shares outstanding immediately prior to the Effective
Time and held by a holder who has not voted such Shares in favor of the Merger
or consented thereto in writing and who has demanded appraisal for such Shares
in accordance with California Law ("Dissenting Shares") shall not be converted
into a right to receive the Merger Consideration unless such holder fails to
perfect or withdraws or otherwise loses his, her or its right to appraisal under
California Law. If, after the Effective Time, such holder fails to perfect or
withdraws (with the consent of the Company to the extent such consent is
required by applicable law) or loses his, her or its right to appraisal under
California Law, such holder's Shares shall be treated as if they had been
converted as of the Effective Time into a right to receive the Merger
Consideration without interest thereon. The Company shall give Parent prompt
notice of any demands received by the Company for appraisal of Shares, and,
prior to the Effective Time, Parent shall have the right to participate in all
negotiations and proceedings with respect to such demands. Prior to the
Effective Time, the Company shall not, except with the prior written consent of
Parent, voluntarily make any payment with respect to, or settle or offer to
settle, any such demands.
Section 3.2 Exchange of Certificates. (a) Prior to the Effective Time,
a bank or trust company reasonably acceptable to the Company shall be designated
by Parent (the "Paying Agent") to act as agent in connection with the Merger to
receive and pay the Merger Consideration to which holders of Shares shall become
entitled pursuant to Section 2.7(a). Promptly after the Effective Time, the
Surviving Corporation shall cause to be mailed to each record holder, as of the
Effective Time, of a certificate or certificates (the "Certificates") that,
prior to the Effective Time, represented Shares, a form of letter of transmittal
and instructions for use in effecting the surrender of the Certificates in
exchange for the appropriate Merger Consideration therefor. Subject to Section
3.2(c),
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upon the surrender of each such Certificate formerly representing Shares,
together with such letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, the Paying Agent shall deliver to the
holder of such Certificate the Merger Consideration multiplied by the number of
Shares formerly represented by such Certificate in exchange therefor, and such
Certificate shall forthwith be canceled. Until so surrendered and exchanged,
each such Certificate (other than Certificates representing Dissenting Shares or
Shares held by Parent, Acquisition or the Company, or any direct or indirect
subsidiary thereof) shall represent solely the right to receive the appropriate
Merger Consideration. No interest shall be paid or accrue on the Merger
Consideration. If the Merger Consideration (or any portion thereof) is to be
delivered to any person other than the person in whose name the Certificate
formerly representing Shares surrendered in exchange therefor is registered, it
shall be a condition to such exchange that the Certificate so surrendered shall
be properly endorsed or otherwise be in proper form for transfer and that the
person requesting such exchange shall pay to the Paying Agent any transfer or
other taxes required by reason of the payment of the Merger Consideration to a
person other than the registered holder of the Certificate surrendered, or shall
establish to the satisfaction of the Paying Agent that such tax has been paid or
is not applicable.
(b) When and as needed, Parent or Acquisition shall deposit,
or cause to be deposited, in trust with the Paying Agent the appropriate Merger
Consideration to which holders of Shares shall be entitled at the Effective Time
pursuant to Section 2.7(a) of this Agreement. The funds held by the Paying Agent
pursuant to this Section 3.2 shall not be used for any purpose other than the
payment of the Merger Consideration pursuant to this Agreement.
(c) Promptly following the date which is six months after the
Effective Time, Parent will cause the Paying Agent to deliver to the Surviving
Corporation all cash and documents in its possession relating to the
transactions described in this Agreement, and the Paying Agent's duties shall
terminate. Thereafter, each holder of a Certificate formerly representing a
Share may surrender such Certificate to the Surviving Corporation and (subject
to applicable abandoned property, escheat and similar laws) receive in exchange
therefor the appropriate Merger Consideration, without any interest thereon.
(d) After the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of any Shares. If, after
the Effective Time, Certificates formerly representing Shares are presented to
the Surviving Corporation or the Paying Agent, such Certificates shall be
canceled and exchanged for the Merger Consideration, as provided in this Article
III, subject to applicable law in the case of Dissenting Shares.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Acquisition as
follows:
Section 4.1 Organization and Qualification; Subsidiaries. (a) Except as
set forth in Section 4.1 of the Disclosure Letter delivered by the Company to
Parent concurrently with the execution hereof (the "Disclosure Letter") each of
the Company and its subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority and all
necessary governmental approvals to own, lease and operate its properties and to
carry on its business as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power and authority
would not, individually or in the aggregate, have a Material Adverse Effect (as
defined in Section 9.9).
(b) Each of the Company and its subsidiaries is duly qualified
or licensed and in good standing to do business in each jurisdiction (including
any foreign country) in which the property owned, leased or operated by it or
the nature of the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so duly qualified or licensed and in
good standing would not, individually or in the aggregate, have a Material
Adverse Effect.
(c) The Company has heretofore made available to Parent
complete and correct copies of the Company's Articles of Incorporation and First
Amended and Restated Bylaws and the equivalent organizational documents of each
of its subsidiaries, each as amended to the date of this Agreement. Such
Articles of Incorporation, Bylaws and equivalent organizational documents are in
full force and effect and no other organizational documents are applicable to or
binding upon the Company or its subsidiaries. The Company is not in violation of
any of the provisions of its Articles of Incorporation or First Amended and
Restated Bylaws and no subsidiary of the Company is in violation of any of the
provisions of such subsidiary's equivalent organizational documents except, in
each case, for such violations that would not, individually or in the aggregate,
have a Material Adverse Effect.
(d) The Company has heretofore furnished to Parent a complete
and correct list of all entities in which the Company owns, directly or
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indirectly, any equity or voting interest which is material to the Company,
which list sets forth the amount of capital stock of or other equity interests
in such entities, directly or indirectly.
Section 4.2 Capitalization. The authorized capital stock of the Company
consists of 45,000,000 shares as follows:(i) 40,000,000 Shares, of which, as of
August 31, 1998, 36,275,538 Shares were issued and outstanding; (ii) 4,996,060
shares of undesignated preferred stock, par value $0.001 per share, of which, as
of August 31, 1998 no shares were issued and outstanding; and (iii) 3,940 shares
of Senior Redeemable Convertible Preferred Stock, Series A, par value $.001 per
share, of which, as of August 31, 1998 no shares were issued and outstanding.
All outstanding shares of capital stock of the Company have been validly issued,
and are fully paid, nonassessable and except pursuant to the Exchange and
Purchase Agreement (as defined below), free of preemptive rights. As of August
31, 1998, Options to purchase an aggregate of 3,568,635 Shares were outstanding
and the weighted average exercise price of such Options was $13.6174 per Share.
None of these Options are Incentive Stock Options under federal tax law. All
Options were issued under the Company Option Plan or are deemed to be
outstanding under the Company Option Plan pursuant to Article One, Section I.C.
thereof. Except as set forth above, and except as a result of the exercise of
Options outstanding as of August 31, 1998, there are outstanding (i) no shares
of capital stock or other voting securities of the Company, (ii) no securities
of the Company convertible into or exchangeable for shares of capital stock or
voting securities of the Company, (iii) except pursuant to the Exchange and
Purchase Agreement, the Stock Purchase Plan and the Rights Plan, no options,
subscriptions, warrants, stock appreciation rights, convertible securities,
calls or other rights to acquire from the Company, and no obligation of the
Company to issue, deliver or sell any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of the Company, and (iv) except pursuant to the Exchange and Purchase
Agreement, no equity equivalents, interests in the ownership or earnings of the
Company or other similar rights (collectively, "Company Securities"). There are
no outstanding obligations of the Company or any of its subsidiaries to
repurchase, redeem or otherwise acquire any Company Securities. Except as set
forth in Section 4.2 of the Disclosure Letter, each of the outstanding shares of
capital stock of each of the Company's subsidiaries is duly authorized, validly
issued, fully paid and nonassessable and is directly or indirectly owned by the
Company, free and clear of all security interests, liens, claims, pledges,
charges, voting agreements or other encumbrances of any nature whatsoever
(collectively, "Liens"). There are no existing options, calls or commitments of
any character relating to the issued or unissued capital stock or other
securities of any subsidiary of the Company.
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Section 4.3 Authority Relative to This Agreement. The Company has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations under this Agreement and to consummate the
Transactions. The execution, delivery and performance of this Agreement and the
consummation of the Transactions have been duly and validly authorized by the
Board and the Special Committee and no other corporate proceedings on the part
of the Company are necessary to authorize this Agreement or to consummate the
Transactions (other than, with respect to the Merger, any actions required of
Acquisition and its board of directors if and to the extent required by
applicable law and the filing of the appropriate merger documents as required by
California Law and Delaware Law). This Agreement has been duly and validly
executed and delivered by the Company and constitutes a legal, valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws, now or hereafter in effect, relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
Section 4.4 No-Conflict; Required Filings and Consents. (a) Except as
set forth in Section 4.4 of the Disclosure Letter the execution, delivery and
performance by the Company of this Agreement and the consummation of the
Transactions (including the Merger) do not and will not (i) contravene or
conflict with the Articles of Incorporation or First Amended and Restated Bylaws
of the Company or the equivalent organizational documents of any of its
subsidiaries; (ii) assuming that all consents, authorizations and approvals
contemplated by subsection (b) below have been obtained and all filings
described therein have been made, contravene or conflict with or constitute a
violation of any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to the Company, any of its subsidiaries or
any of their respective properties; (iii) conflict with, or result in the breach
or termination of any provision of or constitute a default (with or without the
giving of notice or the lapse of time or both) under, or give rise to any right
of termination, cancellation, or loss or impairment of any benefit to which the
Company or any of its subsidiaries is entitled under any provision of any
agreement, contract, license or other instrument binding upon the Company, any
of its subsidiaries or any of their respective properties, or allow the
acceleration of the performance of, any obligation of the Company or any of its
subsidiaries under any indenture, mortgage, deed of trust, lease, license,
contract, instrument or other agreement to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of their respective assets or properties is subject or bound; or (iv) result
in the creation or imposition of any Lien on any asset of the Company or any of
its
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subsidiaries, except in the case of clauses (ii), (iii) and (iv) for any such
contraventions, conflicts, violations, breaches, terminations, defaults,
cancellations, losses, impairments, accelerations and Liens which would not
individually or in the aggregate have a Material Adverse Effect.
(b) The execution, delivery and performance by the Company of
this Agreement and the consummation of the Transactions (including the Merger)
by the Company require no action by or in respect of, or filing with, any
governmental body, agency, official or authority (either domestic, foreign or
supranational) other than (i) the filing of the California Filing in accordance
with California Law; (ii) the filing of the Delaware Filing in accordance with
Delaware Law; (iii) compliance with any applicable requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and state
securities, takeover and Blue Sky laws; and (iv) such actions or filings which,
if not taken or made, would not, individually or in the aggregate, have a
Material Adverse Effect.
(c) All actions required to be taken by the Company, the Board
or the Special Committee under the Exchange and Purchase Agreement dated as of
January 15, 1996 among the Company, Agrigenetics, Inc., Parent and United
Agriseeds, Inc., as amended by the amendment thereto dated as of July 22, 1998
(as so amended, the "Exchange and Purchase Agreement") to permit the execution,
delivery and performance of this Agreement and the consummation of the
Transactions have been taken.
Section 4.5 SEC Reports. The Company has filed all required forms,
reports and documents with the Commission since August 31, 1996 (collectively,
the "SEC Reports"), each of which has complied in all material respects with
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the Exchange Act. As of their respective dates, none of
the SEC Reports, including, without limitation, any financial statements or
schedules included therein, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The audited consolidated financial statements
and unaudited consolidated interim financial statements of the Company included
in the SEC Reports fairly present, in all material respects, in conformity with
generally accepted accounting principles applied on a consistent basis (except
as may be indicated in the notes thereto or, in the case of interim financial
statements, as permitted by Form 10-Q under the Exchange Act), the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and their consolidated results of operations and cash
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flows for the periods then ended (subject to normal recurring audit and year-end
adjustments in the case of any unaudited interim financial statements).
Section 4.6 Absence of Certain Changes. Since May 31, 1998, except as
set forth in Section 4.6 of the Disclosure Letter or as specifically disclosed
to the Board on or prior to the date of this Agreement or in the SEC Reports
filed prior to the date of this Agreement and except for matters arising in
connection with or as a result of this Agreement, the transactions contemplated
hereby or the work of the Special Committee, there has not been any condition,
change or event that has resulted in or would reasonably be expected to result
in a Material Adverse Effect.
Section 4.7 Schedule 14D-9; Offer Documents; Proxy Statement. Neither
the Schedule 14D-9, nor any of the information provided by the Company and/or by
its auditors, legal counsel, financial advisors or other consultants or advisors
specifically for use in the Offer Documents shall, on the respective dates the
Schedule 14D-9, the Offer Documents or any supplements or amendments thereto are
filed with the Commission or on the date first published, sent or given to the
Company's stockholders, as the case may be, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Any proxy or
information statement or similar materials distributed to the Company's
stockholders in connection with the Merger, including any amendments or
supplements thereto (the "Proxy Statement"), shall not, at the time filed with
the Commission, at the time mailed to the Company's stockholders, or at the
Effective Time, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are made,
not misleading. Notwithstanding the foregoing, the Company makes no
representation or warranty with respect to any information provided by Parent,
Acquisition and/or by their auditors, legal counsel, financial advisors or other
consultants or advisors specifically for use in the Schedule 14D-9 or the Proxy
Statement. The Schedule 14D-9 and the Proxy Statement will comply as to form in
all material respects with the provisions of the Exchange Act and the rules and
regulations thereunder.
Section 4.8 Finder's Fee. No broker, finder, investment banker or other
intermediary (other than Xxxxxxxxxxx Xxxxxxx and Xxxxxxx Xxxxx & Co.) is
entitled to any brokerage, finder's financial advisory or other fee or
commission in connection with the Transactions based upon arrangements made by
and on behalf of the Company or the Special Committee. The Company has
heretofore furnished to Parent a complete and correct copy of all agreements
between the
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Company and Xxxxxxxxxxx Xxxxxxx and between the Company and Xxxxxxx Xxxxx
& Co. pursuant to which Xxxxxxxxxxx Xxxxxxx and Xxxxxxx Xxxxx & Co. would
be entitled to any payment relating to the Transactions.
Section 4.9 Stockholder Action. Assuming the condition set forth in
Section 7.1(a) below is satisfied, no vote or other approval of the holders of
any class of any Company Securities is required to approve the Merger or to
approve or adopt this Agreement except any actions required to be taken by
Acquisition pursuant to Section 1110 of California Law.
Section 4.10 Fairness Opinion. Xxxxxxxxxxx Xxxxxxx has delivered to the
Special Committee, and has authorized it to deliver to the Company's
stockholders pursuant to Section 1203 of California Law, Xxxxxxxxxxx Xxxxxxx'x
written opinion to the effect that, as of the date of such opinion, subject to
the various assumptions and limitations set forth therein as of the date of such
opinion, the cash consideration to be received by the holders of Shares (other
than TDCC or its affiliates) pursuant to the Offer and the Merger is fair to
such holders from a financial point of view. The Company has been authorized by
Xxxxxxxxxxx Xxxxxxx to permit the inclusion of such fairness opinion and any
other reports, opinions or appraisals (within the meaning of Item 9 of Schedule
13E-3 under the Exchange Act) of Xxxxxxxxxxx Xxxxxxx related to the Transactions
in the Offer Documents, the Schedule 14D-9 and the Proxy Statement, as required
by California Law or the rules and regulations of the SEC.
Section 4.11 Inapplicability of Rights Agreement. Based on the terms of
the Exchange and Purchase Agreement and the certified resolutions of the Board
included in Section 4.11 of the Disclosure Letter (which resolutions have not
been rescinded), the Company and the Board have heretofore taken all necessary
action so that from and after January 15, 1996 (a) Parent and its affiliates
(including, without limitation, Acquisition) have never been and will never be
included in the definition of "Acquiring Person" under the Company's Amended and
Restated Rights Agreement dated as of October 19, 1995, as amended, between the
Company and the First National Bank of Boston (the "Rights Agreement") and (b)
the acquisition of Shares (whether pursuant to the Exchange and Purchase
Agreement, this Agreement or otherwise) by Parent and its affiliates (including,
without limitation, Acquisition) has never caused and will never cause under any
circumstances whatsoever any adverse consequence to Parent, any of its
affiliates (including, without limitation, Acquisition), or the Company pursuant
to the Rights Agreement, including, without limitation, the occurrence of a
Distribution Date (as defined in the Rights Agreement) or any adjustment to the
Purchase Price (as defined in the Rights Agreement).
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Section 4.12 Information Known by Parent. No representation or warranty
is made by the Company as to any matter or condition which (a) J. Xxxxx
Xxxxxxxx, Xxxxxxxx X. Xxxx, Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx or G. Xxxxxxx
Xxxxxxx (each a "Parent Designee") had actual knowledge of on or prior to the
date of this Agreement (i) through a written disclosure which the Parent
Designee received, (ii) through a written or oral disclosure made by Xxxxxxx X.
Xxxx, or (iii) through any means if any such Parent Designee freely acknowledges
a clear recollection of such actual knowledge, (b) existed on or prior to the
date of this Agreement and relates to pending patent litigation involving the
Company or (c) was discussed at any meeting of the Board on or prior to the date
of this Agreement or any committee of the Board on or prior to the date of this
Agreement at which any Parent Designee was present.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION
Each of Parent and Acquisition represents and warrants to the Company
as follows:
Section 5.1 Organization. Parent is a limited liability company and
Acquisition is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and each has all requisite
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted, except where the failure to be so organized,
existing and in good standing or to have such power and authority would not
reasonably be likely to prevent or materially delay the consummation of the
Offer or the Merger.
Section 5.2 Authority Relative to this Agreement. Each of Parent and
Acquisition has all necessary power and authority to execute and deliver and
perform its obligations under this Agreement and to consummate the Transactions.
The execution, delivery and performance of this Agreement and the consummation
of the Transactions have been duly and validly authorized by the members of
Parent, by the members committee of Parent, by the shareholders of Acquisition
and by the board of directors of Acquisition, and no other proceedings on the
part of Parent or Acquisition are necessary to authorize this Agreement or to
consummate the Transactions. This Agreement has been duly and validly executed
and delivered by each of Parent and Acquisition and constitutes a legal, valid
and binding agreement of each of Parent and
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Acquisition, enforceable against each of Parent and Acquisition in accordance
with its terms.
Section 5.3 No-Conflict; Required Filings and Consents. (a) The
execution, delivery and performance by Parent and Acquisition of this Agreement
and the consummation of the Transactions (including the Merger) do not and will
not (i) contravene or conflict with the limited liability company agreement of
Parent or the Certificate of Incorporation or Bylaws of Acquisition; (ii)
assuming that all consents, authorizations and approvals contemplated by
subsection (b) below have been obtained and all filings described therein have
been made, contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon or applicable to Parent or Acquisition or any of their respective
properties; (iii) conflict with, or result in the breach or termination of any
provision of or constitute a default (with or without the giving of notice or
the lapse of time or both) under, or give rise to any right of termination,
cancellation, or loss of any benefit to which Parent or Acquisition is entitled
under any provision of any agreement, contract, license or other instrument
binding upon Parent, Acquisition or any of their respective properties, or allow
the acceleration of the performance of, any obligation of Parent or Acquisition
under any indenture, mortgage, deed of trust, lease, license, contract,
instrument or other agreement to which Parent or Acquisition is a party or by
which Parent or Acquisition or any of their respective assets or properties is
subject or bound; or (iv) result in the creation or imposition of any Lien on
any asset of Parent or Acquisition, except in the case of clauses (ii), (iii)
and (iv) for any such contraventions, conflicts, violations, breaches,
terminations, defaults, cancellations, losses, accelerations and Liens which,
individually or in the aggregate, would not reasonably be likely to prevent or
materially delay the consummation of the Offer or the Merger.
(b) The execution, delivery and performance by Parent and
Acquisition of this Agreement and the consummation of the Transactions
(including the Merger) by Parent and Acquisition require no action by or in
respect of, or filing with, any governmental body, agency, official or authority
(whether domestic, foreign or supranational) other than (i) the filing of the
California Filing in accordance with California Law; (ii) the filing of the
Delaware Filing in accordance with Delaware Law; (iii) compliance with any
applicable requirements of the Exchange Act and state securities, takeover and
Blue Sky laws; and (iv) such actions or filings which, if not taken or made,
would not, individually or in the aggregate, reasonably be likely to prevent the
consummation of the Offer or the Merger.
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Section 5.4 Offer Documents; Schedule 14D-9; Proxy Statement. Neither
the Offer Documents, nor any of the information provided by Parent or
Acquisition and/or by their auditors, legal counsel, financial advisors or other
consultants or advisors specifically for use in the Schedule 14D-9 shall, on the
respective dates the Offer Documents, the Schedule 14D-9 or any supplements or
amendments thereto are filed with the Commission or on the date first published,
sent or given to the Company's stockholders, as the case may be, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, neither Parent nor Acquisition makes any
representation or warranty with respect to any information provided by the
Company and/or by its auditors, legal counsel, financial advisors or other
consultants or advisors specifically for use in the Offer Documents. None of the
information provided by Parent or Acquisition and/or by their auditors,
attorneys, financial advisors or other consultants or advisors specifically for
use in the Proxy Statement shall, at the time filed with the Commission, at the
time mailed to the Company's stockholders, or at the Effective Time, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The Offer
Documents will comply as to form in all material respects with the provisions of
the Exchange Act and the rules and regulations thereunder.
Section 5.5 Acquisition. Since the date of its incorporation,
Acquisition has not engaged in any activities other than in connection with or
as contemplated by this Agreement or in connection with arranging any financing
required to consummate the Transactions. The outstanding common stock of
Acquisition is owned 69% by Parent and 31% by Centen Ag Inc., a wholly-owned
subsidiary of TDCC.
Section 5.6 Financing. Acquisition has available to it all funds
necessary to satisfy its obligations under this Agreement, including, without
limitation, the obligation to pay the Per Share Amount pursuant to the Offer and
the Merger Consideration pursuant to the Merger and to pay all related fees and
expenses in connection with the Offer and the Merger.
Section 5.7 Brokers. Except for Xxxxxxx Xxxxx Xxxxxx, whose fees will
be paid by Parent, there is no investment banker, broker, finder or other
intermediary who might be entitled to any fee or commission from the Company or
any of its subsidiaries upon consummation of the transactions contemplated by
this Agreement.
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Section 5.8 Insurance. As of the date of this Agreement, the members of
the Special Committee are secondarily insured under "director and officer"
insurance coverage generally provided to individuals who serve on boards of
directors of TDCC or its subsidiaries.
ARTICLE VI
COVENANTS
Section 6.1 Conduct of Business of the Company. Except as set forth in
Section 6.1 of the Disclosure Letter and except for matters arising in
connection with or as a result of this Agreement, the Transactions or the work
of the Special Committee, during the period from the date of this Agreement to
the earlier of the Effective Time or the date on which this Agreement is
terminated in accordance with its terms, the Company and its subsidiaries will
each conduct its operations in the ordinary course of business consistent with
past practice, and, subject to the foregoing, the Company and its subsidiaries
will each use its reasonable best efforts to preserve intact its business
organization, to keep available the services of its officers and employees and
to maintain existing relationships with licensors, licensees, suppliers,
contractors, distributors, customers and others having significant business
relationships with it. Without limiting the generality of the foregoing, and
except as otherwise expressly provided in this Agreement, prior to the Effective
Time neither the Company nor any of its subsidiaries will, without the prior
written consent of Acquisition:
(a) authorize for issuance, issue, sell, deliver or agree to
commit to issue, sell or deliver (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to purchase or otherwise)
any Shares, any stock of any other class or any other securities or equity
equivalents (including, without limitation, stock appreciation rights), except
as required by agreements in effect prior to the date of this Agreement, or
amend any of the terms of any such securities or agreements outstanding as of
the date of this Agreement; or
(b) split, combine or reclassify any shares of its capital
stock, declare, set aside or pay any dividend or other distribution (whether in
cash, stock, or property or any combination thereof) in respect of its capital
stock, or redeem, repurchase or otherwise acquire any of its securities or any
securities of its subsidiaries; or
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(c) take, or agree in writing or otherwise to take, any of the
actions described above in Section 6.1 or any action which would cause the
condition set forth in paragraph (d) of Annex A not to be satisfied.
Section 6.2 Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement (including, without limitation, Section 1.2(a)),
each of the parties agrees to use its reasonable best efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things reasonably
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the Transactions in accordance with the terms and
conditions of this Agreement. Without limiting the generality of the foregoing,
Parent, Acquisition and the Company shall cooperate with one another (i) in the
preparation and filing of the Offer Documents, the Schedule 14D-9, the Proxy
Statement and any required filings under the laws referred to in Sections 4.4(b)
and 5.3(b); (ii) in determining whether action by or in respect of, or filing
with, any governmental body, agency, official or authority (either domestic or
foreign) is required, proper or advisable or any actions, consents, waivers or
approvals are required to be obtained from parties to any contracts, in
connection with the Transactions; and (iii) in seeking to obtain in a timely
manner any such actions, consents and waivers and to make any such filings.
Section 6.3 Public Announcements. Parent and Acquisition, on the one
hand, and the Company, on the other hand, will consult with each other before
issuing any press release or otherwise making any public statements with respect
to the Transactions, except as may be required by applicable law or by
applicable rules of any securities exchange or inter-dealer quotation system.
The initial joint announcement of the Transactions shall be in the form attached
as Annex B.
Section 6.4 Indemnification. (a) Parent shall cause the Surviving
Corporation to keep in effect in its Articles of Incorporation and Bylaws the
provisions with respect to exculpation of director and officer liability and
indemnification and advancement of expenses set forth in the Articles of
Incorporation and First Amended and Restated Bylaws of the Company on the date
of this Agreement to the fullest extent permitted under applicable law, which
provisions shall not be amended, repealed or otherwise modified for at least six
years after the Effective Time except as required by applicable law or except to
make changes permitted by applicable law that would enlarge the exculpation or
rights of indemnification or advancement of expenses thereunder. Parent shall
also cause the Surviving Corporation to honor in accordance with their terms the
existing Indemnification Agreements between the Company and its directors and
executive officers.
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(b) From and after the Effective Time, Parent hereby agrees to
guarantee the obligations of the Surviving Corporation under the Surviving
Corporation's Articles of Incorporation and Bylaws with respect to
indemnification and to cause the Surviving Corporation to perform all such
obligations.
(c) The Company shall, to the fullest extent permitted under
applicable law and regardless of whether the Merger becomes effective, indemnify
and hold harmless, to the fullest extent permitted under applicable law, Xxxxxx
X. Xxxxxxxx and Xxxxxxx X. Xxxxxxx (collectively, the "Indemnified Parties")
against all costs and expenses (including attorneys' fees), judgments, fines,
losses, claims, damages, liabilities and settlement amounts paid in connection
with any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of or pertaining to any
action or omission in such Indemnified Party's capacity as a director
(including, without limitation, as a member of the Special Committee) or
fiduciary of the Company (including, without limitation, in connection with the
Transactions) occurring on or before the Effective Time (or, if this Agreement
is terminated without the Merger becoming effective, occurring on or before the
termination of this Agreement), until the expiration of the statute of
limitations relating thereto (and shall pay any expenses in advance of the final
disposition of such action or proceeding to each Indemnified Party to the
fullest extent permitted under applicable law, upon receipt, in the case of the
Company or the Surviving Corporation, as the case may be, from the Indemnified
Party to whom expenses are advanced of any undertaking to repay such advances
required under applicable law). If the Merger becomes effective, Parent shall be
jointly and severally responsible, to the fullest extent permitted under
applicable law (it being understood that applicable law may permit Parent to
indemnify or advance expenses to the Indemnified Parties under circumstances in
which the Company could not do so), for the indemnification and advancement of
expenses obligations provided for in the first sentence of this Section 6.4(c).
If the Merger does not become effective, Parent shall have the same
responsibilities set forth in the immediately preceding sentence except that
Parent shall have no responsibility for indemnifying or advancing expenses to
the Indemnified Parties with respect to matters that do not arise out of or
pertain to the work of the Special Committee, this Agreement or the
Transactions. In the event of any claim, action, suit, proceeding or
investigation covered by this Section 6.4(c), (i) the Company, Parent or the
Surviving Corporation, as the case may be, shall pay the reasonable fees and
expenses of counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to the Company or the Surviving Corporation, promptly
after statements therefor are received and (ii) the Company, Parent and the
Surviving Corporation shall cooperate in the defense of any such matter;
provided, however, that neither the Company nor
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Parent nor the Surviving Corporation shall be liable for any settlement effected
without its written consent; and provided, further, that neither the Company,
Parent nor the Surviving Corporation, as the case may be, shall be obligated
pursuant to this Section 6.4(c) to pay the fees and expenses of more than one
counsel (plus appropriate local counsel) for all Indemnified Parties in any
single action except to the extent that two or more of such Indemnified Parties
shall have conflicting interests in the outcome of such action, in which case
additional counsel (including local counsel) as may be required to avoid any
such conflict or likely conflict may be retained by the Indemnified Parties at
the expense of the Company, Parent or the Surviving Corporation (as the case may
be); and provided further that, in the event any claim for indemnification is
asserted or made within the period prior to the expiration of the applicable
statute of limitations, all rights to indemnification in respect of such claim
shall continue until the disposition of such claim. In connection with Parent or
the Surviving Corporation making any payment or advancing any funds pursuant to
this Section 6.4(c), Parent or the Surviving Corporation, as the case may be,
shall be entitled to require the Indemnified Party in question to use their
reasonable best efforts, at the cost and expense of Parent and the Surviving
Corporation, to cause Parent or the Surviving Corporation, as the case may be,
to be subrogated to the rights of such Indemnified Party under any insurance
coverage maintained by the Surviving Corporation, Parent or any of their
respective affiliates with respect to the underlying subject matter of, and to
the extent of, such payment or advance.
(d) Parent shall cause the Surviving Corporation to maintain
in effect for six years from the Effective Time, if available, the coverage
provided by the current directors' and officers' liability insurance policies
maintained by the Company (provided that the Surviving Corporation may
substitute therefor policies of at least the same coverage containing terms and
conditions which are not less favorable) with respect to matters occurring prior
to the Effective Time; provided, however, that nothing contained in this
Agreement shall require the Surviving Corporation to incur any annual premium in
excess of 200% of the last annual aggregate premium paid prior to the date of
this Agreement for all current directors' and officers' liability insurance
policies maintained by the Company, which the Company represents and warrants to
be $63,000 (the "Current Premium"). If such premiums for such insurance would at
any time exceed 200% of the Current Premium, then the Surviving Corporation
shall cause to be maintained policies of insurance which, in the Surviving
Corporation's good faith determination, provide the maximum coverage available
at an annual premium equal to 200% of the Current Premium. In addition, Parent
shall cause the Indemnified Parties to receive, for six years following the date
of this Agreement, the same directors and officers
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insurance coverage that other present or former independent directors of TDCC or
its subsidiaries receive.
(e) In the event Parent, the Company or the Surviving
Corporation or any of their respective successors or assigns (i) consolidates
with or merges into any other person and shall not be the continuing or
surviving corporation or entity of such consolidation or merger or (ii)
transfers all or substantially all of its properties and assets to any person,
then, and in each such case, proper provision shall be made so that the
successors and assigns of Parent, the Company or the Surviving Corporation, as
the case may be, shall assume the obligations set forth in this Section 6.4.
(f) Heirs, representatives and estates of the Indemnified
Parties shall have the right to enforce the obligations arising under this
Section 6.4.
Section 6.5 Notification of Certain Matters. The Company shall give
prompt notice to Parent or Acquisition, and Parent or Acquisition shall give
prompt notice to the Company, as the case may be, of (i) the occurrence, or
non-occurrence, of any event the respective occurrence, or non-occurrence, of
which would be likely to cause any condition contained in this Agreement to be
unsatisfied and (ii) any failure of the Company, Parent or Acquisition, as the
case may be, to comply with or satisfy any covenant or agreement to be complied
with under this Agreement; provided, that the delivery of any notice pursuant to
this Section 6.5 shall not limit or otherwise affect any remedies available
under this Agreement to the party receiving such notice.
Section 6.6 Exchange and Purchase Agreement; No Restrictions on
Purchase. The parties agree that the Exchange and Purchase Agreement is hereby
amended to the extent necessary to permit the execution, delivery and
performance of this Agreement and the consummation of the Transactions. From and
after the date that Acquisition first makes payment with respect to validly
tendered and not withdrawn Shares pursuant to the Offer, the Exchange and
Purchase Agreement shall be deemed to have been canceled and terminated and no
longer binding on the parties thereto and shall be of no further force or
effect; provided, however, that the provisions of Section 6.10 of the Exchange
and Purchase Agreement shall remain in full force and effect without any
amendment thereto. Without limiting the generality of the foregoing, from and
after the date that Acquisition first makes payment with respect to validly
tendered and not withdrawn Shares pursuant to the Offer, Parent, Acquisition and
their affiliates shall no longer be bound by the restrictions set forth in
Sections 6.12 and 6.13 of the Exchange and Purchase Agreement and, subject to
Acquisition's obligations under this Agreement to effect the Merger, Parent,
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Acquisition and their affiliates shall be permitted to acquire additional Shares
and/or increase its percentage ownership of the Company (whether through any
tender offer, open market purchase, negotiated transaction, merger,
consolidation, reverse stock split or otherwise) without restriction under the
Exchange and Purchase Agreement.
Section 6.7 Compliance by Acquisition. Parent shall cause Acquisition
to timely perform and comply with all of its obligations under or related to
this Agreement, including, without limitation, all obligations in or with
respect to the Offer.
Section 6.8 Financing. TDCC shall ensure that Acquisition has
sufficient funds to acquire all the outstanding Shares in the Offer and the
Merger. TDCC has all necessary power and authority to execute and deliver and
perform its obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by TDCC and constitutes a legal, valid and
binding agreement of TDCC, enforceable against TDCC in accordance with its
terms.
Section 6.9 Access to and Retention of Information. From the date of
this Agreement to the Effective Time, subject to any applicable legal
restrictions, fiduciary duties or applicable privileges, the Company shall (and
shall cause its subsidiaries to) afford to authorized representatives
(including, without limitation, attorneys, auditors and financial advisors) of
Parent and Acquisition reasonable access during normal business hours to the
Company's personnel, offices and other facilities and to all books and records
of the Company and shall cause its officers and employees to furnish Parent and
Acquisition and their authorized representatives such financial and operating
data and other information with respect to the Company's business and properties
as Parent and Acquisition and their authorized representatives may from time to
time reasonably request. In addition, from and after the date of this Agreement,
the Company shall (and shall use its reasonable best efforts to cause its
officers and employees to) retain copies of all information furnished by the
Company to the Special Committee from the inception of the Special Committee.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 7.1 Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party to this Agreement to effect
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the Merger are subject to the satisfaction or, if appropriate, waiver by each
party in its sole discretion at or prior to the Effective Time of the
following conditions:
(a) Acquisition shall have purchased all Shares validly
tendered and not withdrawn pursuant to the Offer and Acquisition shall be the
record and beneficial owner of a sufficient number of Shares to permit the
Merger to be effected pursuant to Section 1110 of California Law; and
(b) there shall not be in effect any order, decree or ruling
or other action restraining, enjoining or otherwise prohibiting the Merger,
which order, decree, ruling or action shall have been issued or taken by any
court of competent jurisdiction or other governmental body located or having
jurisdiction within the United States or any country or economic region in which
the Company or any of its subsidiaries or Parent or any of its affiliates,
directly or indirectly, has material assets or operations.
ARTICLE VIII
TERMINATION; EXPENSES; AMENDMENT; WAIVER
Section 8.1 Termination. This Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time,
notwithstanding approval thereof by the stockholders of the Company:
(a) by mutual written consent of Parent and Acquisition, on
the one hand, and of the Company acting upon the direction of the Special
Committee, on the other hand;
(b) by the Company acting upon the direction of the Special
Committee or by Parent if any court of competent jurisdiction or other
governmental body located or having jurisdiction within the United States or any
country or economic region in which the Company or any of its subsidiaries or
Parent or any of its subsidiaries, directly or indirectly, has material assets
or operations, shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the Offer or the Merger
and such order, decree, ruling or other action shall have become final and
nonappealable; provided, however, that each of the parties hereto shall have
used reasonable best efforts to prevent the entry of any such order, decree,
ruling or other action and to appeal as promptly as possible any such order,
decree, ruling of other action that may be entered.
-29-
(c) by the Company acting upon the direction of the Special
Committee or by Parent if, due to an occurrence or circumstance that would
result in a failure to satisfy any condition set forth in Annex A hereto,
Acquisition shall have (i) failed to commence the Offer within 60 days following
the date of this Agreement or (ii) terminated the Offer without having accepted
any Shares for payment thereunder; provided, that the right to terminate this
Agreement under this Section 8.1(c) shall not be available to any party whose
failure to fulfill any material obligation under this Agreement has been the
cause or resulted in the circumstances described in this Section 8.1(c);
(d) by the Company, acting upon the direction of the Special
Committee if, prior to the purchase of Shares pursuant to the Offer, Parent or
Acquisition shall have failed to comply in all material respects with any of its
covenants or agreements contained in this Agreement required to be complied with
prior to the date of such termination, which failure to comply has not been
cured within 20 business days following receipt by Parent or Acquisition of
written notice of such failure to comply;
(e) by the Company acting upon the direction of the Special
Committee if, prior to the purchase of Shares pursuant to the Offer, there has
been (i) a breach in any material respect by Parent or Acquisition of any
representation or warranty that is not qualified as to materiality which has the
effect of making such representation or warranty not true and correct in all
material respects or (ii) a breach by Parent or Acquisition of any
representation that is qualified as to materiality, in each case which breach
has not been cured within 20 business days following receipt by Parent or
Acquisition of written notice of the breach; or
(f) by either the Company acting upon the direction of the
Special Committee or by Parent if the Merger shall not have occurred on or prior
to April 30, 1999; provided that the right to terminate this Agreement under
this Section 8.1(f) shall not be available to any party whose failure to fulfill
any material obligation under this Agreement has been the case of, or resulted
in, the failure of the Merger to have occurred on or before such date.
Section 8.2 Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 8.1, this Agreement shall
forthwith become void and have no effect, other than the provisions of this
Section 8.2, Section 8.3 and Section 9.1. No termination of this Agreement and
nothing contained in this Section 8.2 or in Section 9.1 shall relieve any party
from liability for any willful breach of any representation or warranty
contained in this Agreement or any breach of any covenant contained in this
Agreement occurring prior to such termination.
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Section 8.3 Fees and Expenses. Subject to Section 8.2 above, each party
shall bear its own expenses and costs in connection with this Agreement and the
Transactions.
Section 8.4 Amendment. This Agreement may be not be amended except by
an instrument in writing signed by Parent, Acquisition and the Company. Any
amendment to this Agreement, any termination of this Agreement by the Company,
any extension by the Company of the time for the performance of any of the
obligations or other acts of Parent or Acquisition or any waiver of any of the
Company's rights under this Agreement will require the unanimous concurrence of
the Special Committee.
Section 8.5 Extension; Waiver. Subject to the provisions of Section
8.4, at any time prior to the Effective Time, the Company, on the one hand, and
Parent and Acquisition, on the other hand, may (i) extend the time for the
performance of any of the obligations or other acts of the other party, (ii)
waive any inaccuracies in the representations and warranties of the other party
contained in this Agreement or in any document, certificate or writing delivered
pursuant to this Agreement, or (iii) waive compliance by the other party with
any of the agreements or conditions contained in this Agreement. Any agreement
on the part of any party to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such party. The
failure of any party to assert any of its rights under this Agreement shall not
constitute a waiver of such rights.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Nonsurvival of Representations and Warranties. The
representations and warranties made in this Agreement shall not survive beyond
the Effective Time or any termination of this Agreement pursuant to Section 8.1.
The covenants and agreements in this Agreement shall survive the Effective Time
or the termination of this Agreement pursuant to Section 8.1 in accordance with
their terms or as contemplated by such terms.
Section 9.2 Entire Agreement; Assignment. This Agreement and the
Exchange and Purchase Agreement (as amended by this Agreement) (i) constitute
the entire agreement among the parties with respect to the subject matter of
this Agreement and supersede all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter of this
Agreement and (ii) shall not be assigned by operation of
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law or otherwise; provided that Acquisition may assign its rights and
obligations in whole or in part to Parent or any affiliate of Parent, but no
such assignment shall relieve Acquisition of its obligations under this
Agreement if such assignee does not perform such obligations.
Section 9.3 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
facsimile, by recognized overnight courier or by registered or certified mail
(postage prepaid, return receipt requested), to the other party as follows:
if to Parent, Acquisition or, following the Effective Time, the
Surviving Corporation:
AgroSciences Acquisition Inc.
0000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attention: Secretary
and
Dow AgroSciences LLC
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Attention: General Counsel
with a copy (which shall not constitute notice to any party) to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx
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if to the Company:
Mycogen Corporation
c/o Xxxxxx Xxxxxxxx
000 Xxxx Xxxxxxxx, Xxx. 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
with a copy (which shall not constitute notice to any party) to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxx X. Gold
Xxxxx X. Xxxxxxxxx
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 9.4 Governing Law; Jurisdiction and Venue; Waiver of Jury
Trial. This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts executed in and to be
performed in that State (it being understood that matters of internal corporate
law relevant to the Company are governed by California Law). Each party
irrevocably and unconditionally consents and submits to the jurisdiction of the
courts of the State of Delaware and of the United States of America located in
the State of Delaware for any actions, suits or proceedings arising out of or
relating to this Agreement and the Transactions, and further agrees that service
of any process, summons, notice or document by U.S. registered or certified mail
to the party at the address specified in Section 9.2, shall be effective service
of process for any action, suit or proceeding brought against such party in any
such court. Each party hereby irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the Transactions in the courts of the State of Delaware
located in Wilmington, Delaware or the United States of America located in
Wilmington, Delaware, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
Each party hereby expressly waives any right to a trial by jury in any action or
proceeding to enforce or defend any rights under this Agreement, or under any
amendment, instrument, document or agreement
-33-
delivered or which may in the future be delivered pursuant hereto, and agrees
that any such action or proceeding shall be tried before a court and not before
a jury.
Section 9.5 Parties in Interest. Except for Section 6.4, which shall
inure to the benefit of the persons identified therein, this Agreement shall be
binding upon and inure solely to the benefit of each party and its successors
and permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement. Without
limiting the rights of any other party to this Agreement, the Special Committee
shall have the right to exercise the Company's rights and enforce the terms of
this Agreement on behalf of the Company.
Section 9.6 Specific Performance. The parties agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with its terms and that the parties shall be entitled to
specific performance of the terms of this Agreement, in addition to any other
remedy at law or in equity.
Section 9.7 Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity and enforceability of the other provisions of this
Agreement. If any provision of this Agreement, or the application thereof to any
person or entity or any circumstance, is invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid and unenforceable provision and (b) the remainder of this Agreement and
the application of such provision to other persons, entities or circumstances
shall not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
Section 9.8 Descriptive Headings. The descriptive headings in this
Agreement are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
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Section 9.9 Certain Definitions. For purposes of this Agreement,
the term:
"affiliate" of a person means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first mentioned person;
"associate" of a person means a corporation or organization of which
such person is an officer or partner or is, directly or indirectly, the
beneficial owner of 10 percent or more of any class of equity securities or any
person who is a director or officer of such person or any of its parents or
subsidiaries;
"business day" has the meaning set forth in Rule 14d-1(e) under the
Exchange Act.
"control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management
policies of a person, whether through the ownership of stock, as trustee or
executor, by contract or credit arrangement or otherwise;
"Fully Diluted Shares" as of a particular date means the issued and
outstanding Shares (including Shares of Restricted Stock) as of such date, plus
the Shares that would be issued if all Options (whether or not vested)
outstanding as of that date were exercisable and exercised and all Shares that
would be issued if all eligible persons executed and delivered valid Stock
Purchase Elections to the Company. For purposes of determining whether either
the First Minimum Condition or the Second Minimum Condition is satisfied, Shares
issuable upon the exercise of an Option shall be deemed issued and outstanding,
and such Option shall be deemed no longer outstanding, if a valid Option
Election with respect to such Option has been executed (and not revoked) and
delivered to the Company.
"Material Adverse Effect" means a material adverse effect on the
business, results of operations or financial condition of the Company and its
subsidiaries, taken as a whole.
"Options" means stock options under the 1992 Plan.
"person" means an individual, corporation, partnership, association,
trust, unincorporated organization, other entity or group (within the meaning of
Section 13(d)(3) of the Exchange Act); and
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"subsidiary" or "subsidiaries" of any person means any corporation,
limited liability company, partnership, joint venture or other legal entity of
which such person (either alone or through or together with any other
subsidiary), owns, directly or indirectly, more than 50% of the stock or other
equity interests the holder of which is generally entitled to vote for the
election of the board of directors or other governing body of such corporation,
partnership, joint venture or other legal entity.
Section 9.10 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed by its duly authorized representative.
MYCOGEN CORPORATION
By:______________________
Name:
Title:
DOW AGROSCIENCES LLC
By:______________________
Name:
Title:
AGROSCIENCES ACQUISITION INC.
By:______________________
Name:
Title:
Solely for the limited purpose set forth
in Section 6.8 above,
THE DOW CHEMICAL COMPANY
By:______________________
Name:
Title:
-37-
ANNEX A
OFFER CONDITIONS
The capitalized terms used in this Annex A have the meanings set forth
in the attached Agreement, except that the term "Merger Agreement" refers to the
attached Agreement.
Notwithstanding any other provision of the Offer, Acquisition shall not
be required to accept for payment any Shares tendered pursuant to the Offer, and
may postpone the acceptance for payment of any Shares tendered pursuant to the
Offer, if (i) the Second Minimum Condition shall not have been satisfied, or
(ii) at any time on or after September 4, 1998 and prior to the acceptance for
payment of Shares, any of the following conditions occurs and remains in effect:
(a) there shall have been any action or proceeding brought by
any governmental authority before any court, or any order or preliminary or
permanent injunction entered in any action or proceeding before any court or
governmental, administrative or regulatory authority or agency, located or
having jurisdiction within the United States or any other country or economic
region in which the Company or any of its subsidiaries or Parent or any of its
subsidiaries, directly or indirectly, has material assets or operations, or any
statute, rule, regulation, legislation, judgment or order, enacted, entered,
enforced, promulgated, amended, issued or deemed applicable to the Offer or the
Merger by any court, governmental, administrative or regulatory authority or
agency located or having jurisdiction within the United States or any other
country or economic region in which the Company or any of its subsidiaries or
Parent or any of its subsidiaries, directly or indirectly, has material assets
or operations, which has the effect of: (i) making illegal, or otherwise
directly or indirectly restraining or prohibiting or imposing material penalties
or fines or requiring the payment of material damages in connection with the
making of the Offer, the acceptance for payment of, payment for, or ownership,
directly or indirectly, of some of or all the Shares by Parent or Acquisition,
the consummation of the Offer or the Merger; (ii) prohibiting or materially
limiting the direct or indirect ownership or operation by the Company or by
Parent of all or any material portion of the business or assets of the Company
and its subsidiaries, taken as a whole as currently constituted, or compelling
Parent to dispose of or hold separate all or any material portion of the
business or assets of the Company and its subsidiaries, taken as a whole as
currently constituted, as a result of the transactions contemplated by the
Merger Agreement; (iii) imposing or confirming material limitations on the
ability of Parent effectively directly or indirectly to acquire or hold or to
exercise full rights of ownership of Shares, including, without limitation, the
right to vote any Shares on all matters properly presented to the stockholders
of the Company or the right to vote any
shares of capital stock of any subsidiary of the Company; or (iv) requiring
divestiture by Parent or Acquisition, directly or indirectly, of any Shares; or
(b) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on any securities exchange
or in the over-the-counter market in the United States (other than a shortening
of trading hours or any coordinated trading halt triggered solely as a result of
a specified increase or decrease in a market index), or (ii) the declaration of
a banking moratorium or any suspension of payments in respect of banks in the
United States; or
(c) the Company shall have breached or failed to perform in
any material respect any of its material covenants or agreements under the
Merger Agreement; or
(d) any of the representations and warranties of the Company
set forth in the Merger Agreement which is qualified as to Material Adverse
Effect shall not be true and correct when made and as of the expiration of the
Offer, or any of the other representations and warranties of the Company set
forth in the Merger Agreement shall not be true and correct when made and as of
the expiration of the Offer, which failure would have a Material Adverse Effect
or, in the case of the representations and warranties contained in Sections
4.1(c) (other than the last sentence thereof), 4.1(d), 4.2, 4.3, 4.7, 4.8, 4.9,
4.10 or 4.11 of the Merger Agreement, which failure would be material with
respect to the transactions contemplated by the Merger Agreement (except in each
case in the case of representations and warranties of the Company which address
matters only as of a particular date, which need only be true and correct as
aforesaid as of such date); or
(e) the Merger Agreement shall have been terminated in
accordance with its terms or the Offer shall have been terminated with the
consent of the Company, acting at the direction of the Special Committee; which,
in the reasonable judgment of Acquisition in any such case, and regardless of
the circumstances (including any action or omission by Acquisition other than
any breach by Parent or Acquisition of the Merger Agreement or, in the case of
(c) or (d) above, a failure of such condition which Parent or Acquisition has
caused to occur) giving rise to any such condition makes it inadvisable to
proceed with such acceptance for payment or payment for Shares.
The foregoing conditions are for the sole benefit of Parent
and Acquisition and may be asserted by Acquisition regardless of the
circumstances (including any action or omission by Acquisition other than any
breach by Parent or Acquisition of the Merger Agreement or, in the case of (c)
or (d) above, a failure of such condition which Parent or Acquisition has caused
to occur) giving rise to any such condition or may be waived by Acquisition in
whole or in part at any time or from time to time in its sole discretion. The
failure by Acquisition at any time to exercise any of the foregoing rights shall
not be deemed a waiver of any such right, the waiver of any such right with
respect to particular facts or circumstances shall not be deemed a waiver with
respect to any other facts or circumstances, and each such right shall be deemed
an ongoing right that may be asserted at any time or from time to time.
ANNEX B
FOR MORE INFORMATION CONTACT:
[Each entity's contact]
August 31, 1998
DOW To Acquire All Outstanding Mycogen Shares
Dow AgroSciences LLC, a wholly owned subsidiary of The Dow Chemical Company, and
Mycogen Corporation (NASDAQ: MYCO) today announced that they have signed a
definitive agreement for Dow AgroSciences to acquire all of the outstanding
shares of Mycogen that it does not already own. Dow AgroSciences currently owns
approximately 68% of the outstanding shares of Mycogen. Under the terms of the
agreement, a subsidiary of Dow AgroSciences will make a tender offer to acquire
all of the remaining shares of Mycogen at $xx.00 per share. Following the tender
offer, if Dow AgroSciences and the subsidiary own at least 90% of Mycogen's
shares, the Dow AgroSciences subsidiary will be merged into Mycogen and each
remaining Mycogen shareholder will receive $xx.00 per share in exchange for each
Mycogen share held.
Mycogen Corporation, based in San Diego, Calif., is a diversified agribusiness
and biotechnology company that develops and markets seeds and value-added traits
for genetically enhanced crops and provides crop protection products and
services.
Dow AgroSciences LLC, based in Indianapolis, Indiana, is a global leader in
providing pest management and biotechnology products that improve the quality
and quantity of the earth's food supply and contribute to the safety, health and
quality of life of the world's growing population. The company employs more than
3,000 people in over 50 countries and has worldwide sales of more than $2
billion.
The Dow Chemical Company, with headquarters in Midland, Michigan, is the fifth
largest chemical company in the world, with annual sales of more than $20
billion. Dow manufactures and supplies chemicals, plastics, and agricultural
products for customers in 164 countries, and employs approximately 43,000 people
worldwide.
# # #
ANNEX C
OPTION ELECTION
The undersigned holder of an option or options (the "Options") to
purchase ______________ shares (the "Option Shares") of common stock of Mycogen
Corporation (the "Company"), par value $0.001 per share ("Common Stock"), hereby
agrees that, immediately prior to the purchase of shares of Common Stock by
AgroSciences Acquisition Inc. ("Acquisition") in its pending tender offer for
any and all outstanding shares of Common Stock (the "Offer"), and contingent
upon such purchase, the undersigned shall be deemed to have fully exercised each
such Option (whether or not the Option was previously exercisable) and to have
tendered each of the Option Shares to Acquisition pursuant to the Offer. The
undersigned agrees that the exercise price per Option Share (the "Exercise
Price") shall be deemed to be paid with the proceeds of an interest free advance
from the Company (the "Advance"). The Advance shall be deemed to be repaid in
full on behalf of the undersigned by Acquisition from a portion of the
consideration due the undersigned for such Shares in the Offer. After such
repayment, the undersigned shall be entitled to receive from Acquisition with
respect to each Option Share purchased by Acquisition pursuant to the Offer an
amount equal to the difference between (a) the Exercise Price and (b) the price
per share of Common Stock paid by Acquisition pursuant to the Offer.
The undersigned acknowledges that he or she has been advised that (i)
Options for which a valid Option Election has been executed and delivered to the
Company that are not already vested will become vested immediately prior to the
expiration of the Offer (but contingent upon the purchase by Acquisition of
shares of Common Stock pursuant to the Offer), (ii) the Company and Parent will
make it possible for Option Shares issuable upon exercise of the Options covered
by Option Elections above to be tendered in the Offer, and (iii) upon the
purchase of Option Shares pursuant to this Option Election, the undersigned
shall have no further rights under such Option.
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ANNEX D
STOCK PURCHASE ELECTION
The undersigned holder of purchase rights ("Purchase Rights") under the
Mycogen Corporation Employee Stock Purchase Plan (the "Plan") to purchase ____
shares ("Stock Purchase Shares") of common stock of Mycogen Corporation (the
"Company"), par value $0.001 per share ("Common Stock") [such number of Stock
Purchase Shares calculated assuming your payroll deductions had continued at the
same level through November 30, 1998 and the Purchase Price under the Plan is
$20.08] hereby agrees that, immediately prior to the purchase of shares of
Common Stock by AgroSciences Acquisition Inc. ("Acquisition") in its pending
tender offer for any and all outstanding shares of Common Stock (the "Offer"),
and contingent upon such purchase, the Purchase Rights shall be deemed to have
been fully exercised and the undersigned shall be deemed to have tendered each
of the Stock Purchase Shares acquired upon such exercise to Acquisition pursuant
to the Offer. The undersigned agrees that the amount of payroll deductions
accumulated in the undersigned's account under the Plan shall be used to
exercise the Purchase Rights and that the difference between the entire purchase
price for the Stock Purchase Shares and the amount of the accumulated payroll
deductions will be deemed to be paid with the proceeds of an interest free
advance from the Company (the "Advance"). The Advance shall be deemed to be
repaid in full on behalf of the undersigned by Acquisition from a portion of the
consideration due the undersigned for such Shares in the Offer. After such
repayment, the undersigned shall be entitled to receive from Acquisition the
balance of such consideration with respect to each Stock Purchase Share
purchased by Acquisition pursuant to the Offer an amount equal to the price per
share of Common Stock paid by Acquisition pursuant to the Offer.
The undersigned acknowledges that he or she has been advised that (i)
the Company and Parent will make it possible for the Stock Purchase Shares
issuable upon exercise of the Purchase rights to be tendered in the Offer, and
(ii) upon exercise of the Purchase Rights pursuant to this Stock Purchase
Election, the undersigned shall have no further rights under the Purchase
Rights.
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Date:
Annex E
RESTRICTED STOCK ELECTION
The undersigned holder of shares ("Restricted Shares") of common stock
of Mycogen Corporation (the "Company"), par value $0.001 per share ("Common
Stock"), which were granted pursuant to the Mycogen Corporation Restricted Stock
Issuance Plan (the "Plan") and which shares are not vested hereby agrees that,
immediately prior to the purchase of shares of Common Stock by AgroSciences
Acquisition Inc. ("Acquisition") in its pending tender offer for any and all
outstanding shares of Common Stock (the "Offer"), and contingent upon such
purchase, the undersigned shall be deemed to have tendered each of the
Restricted Shares (regardless of the fact that the Restricted Shares were not
previously vested) to Acquisition pursuant to the Offer. Following expiration of
the Offer, the undersigned shall be entitled to receive from Acquisition with
respect to each Restricted Share an amount equal to the price per share of
Common Stock paid by Acquisition pursuant to the Offer.
The undersigned acknowledges that he or she has been advised that (i)
Restricted Shares for which a valid Restricted Stock Election has been executed
and delivered to the Company will become vested immediately prior to expiration
of the Offer (but contingent upon the purchase by Acquisition of shares of
Common Stock pursuant to the Offer), (ii) that the Company and Parent will make
it possible for the Restricted Shares to be tendered in the Offer, and (iii)
upon the purchase of Restricted Shares pursuant to the Offer, the undersigned
shall have no further rights under the Restricted Shares.
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