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EXHIBIT 4
EXECUTION COPY
AMENDMENT
AMENDMENT (the "Amendment") dated as of March 31,
1997, among Calgene, Inc., a Delaware corporation (the "Com-
pany"), and Monsanto Company, a Delaware corporation ("Par-
ent").
W I T N E S S E T H:
WHEREAS, Parent and the Company are parties to the
Amended and Restated Stockholders Agreement, dated as of Novem-
ber 12, 1996 (the "Stockholders Agreement");
WHEREAS, the Company, Parent and a wholly owned sub-
sidiary of Parent ("Purchaser") have entered into an Agreement
and Plan of Merger (the "Merger Agreement"), dated as of the
date hereof, pursuant to which, among other things, Purchaser
shall make a cash tender offer (the "Offer") to acquire all of
the issued and outstanding shares of common stock, par value
$.001 per share, of the Company (the "Shares") not currently
owned by Parent or Purchaser, and, following consummation of
the Offer, Purchaser shall, upon the terms and subject to the
conditions of the Merger Agreement, merge with and into the
Company (the "Merger" and together with the Offer and the other
transactions contemplated by the Merger Agreement, the "Trans-
actions");
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WHEREAS, the Special Committee (the "Special Commit-
tee") of the Board of Directors of the Company (the "Company
Board"), consisting of three Independent Directors (as defined
in the Stockholders Agreement), has unanimously recommended
that the Company Board approve the Merger Agreement and the
Transactions, which recommendation was based in part on the
opinion of Xxxxxxxxxx Securities, Inc., independent financial
advisors to the Special Committee, that the consideration to be
received by the holders of Shares (other than Parent and Pur-
chaser) in the Offer and the Merger is fair to such holders
from a financial point of view;
WHEREAS, the Company Board has duly approved and au-
thorized the Merger Agreement and the Transactions contemplated
thereby and has recommended that holders of Shares accept the
Offer, and, if approval is required by applicable law, approve
and adopt the Merger Agreement and the Merger;
WHEREAS, Parent and the Company (with the unanimous
approval of the Independent Directors) have agreed to enter in
this Amendment;
NOW, THEREFORE, in consideration of the foregoing and
the respective representations, warranties, covenants and
agreements contained in this Amendment, the parties hereto
agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. Capitalized terms de-
fined in the Stockholders Agreement and used herein shall have
the meanings given to them in the Stockholders Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1. Representations and Warranties of the
Company. The Company hereby represents and warrants to Parent
as follows:
(a) Amendment Approved. This Amendment has been
approved, in accordance with Section 6.3 of the Stockhold-
ers Agreement, by all of the Independent Directors of the
Company.
(b) Required Actions Taken. Each of the Company,
the Company Board, the Special Committee and the Indepen-
dent Directors has taken any action and given any consent
or approval required of it or them required to permit the
acquisition of Shares by Purchaser in the Offer, the en-
tering into of the Merger Agreement by the Company and the
consummation of the Transactions contemplated thereby wit-
hout violating or conflicting with the Stockholders Agree-
ment. The actions referred to in the previous sentence
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include, without limitation, (i) approval by the disinter-
ested Directors of the Company, based upon a fairness opi-
nion delivered to the Company Board by an investment bank-
ing firm, of the price to be offered to holders of the
Shares in the Offer and (ii) approval of the Merger Agree-
ment and the Transactions by a majority of the Company
Board, including at least two Company Directors.
ARTICLE III
AMENDMENTS
SECTION 3.1. Definitions. Section 2.1 of the
Stockholders Agreement is hereby amended by adding the follow-
ing definitions at their respective appropriate alphabetic-
order locations in such section:
"`Merger' shall have the meaning ascribed to it in
the Merger Agreement."
"`Merger Agreement' shall mean that certain Agreement
and Plan of Merger (the "Merger Agreement"), dated as of
March 31, 1997, by and among the Company, Monsanto, and
Purchaser."
"`Offer' shall have the meaning ascribed to it in the
Merger Agreement."
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"`Purchaser' shall mean Monsanto Acquisition Company,
Inc., a Delaware corporation and a wholly owned subsidiary
of Monsanto."
"`Transactions' shall mean the transactions contem-
plated by the Merger Agreement, including, without limita-
tion, the Offer and the Merger."
SECTION 3.2. Amendment to Section 3.6(a). Section
3.6(a) of the Stockholders Agreement is hereby amended by re-
placing the period at the end of clause (iii) with a semicolon
and adding the following clause (iv) after clause (iii):
"(iv) Any of the Transactions."
SECTION 3.3. Amendment to Section 6.9. Section 6.9
of the Stockholders Agreement is hereby amended by deleting the
text thereof in its entirety and replacing it with the follow-
ing:
"SECTION 6.9. Termination. In the event the Offer
is consummated, this Agreement shall terminate and cease
to be of any force or effect as of the date Purchaser
first accepts for payment any Shares tendered pursuant to
the Offer."
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ARTICLE IV
GENERAL PROVISIONS
SECTION 4.1. No Other Amendments. Except as ex-
pressly amended, modified and supplemented hereby, the provi-
sions of the Stockholders Agreement are and shall remain in
full force and effect.
SECTION 4.2. Governing Law. This Amendment shall
be governed in all respects by the laws of the State of Dela-
ware (exclusive of such state's choice of laws rules).
SECTION 4.3. Counterparts. This Amendment may be
executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.
SECTION 4.4. Headings. Headings as to the contents
of particular articles and sections are for convenience only
and are in no way to be construed as part of this Amendment or
as a limitation of the scope of the particular articles or sec-
tions to which they refer.
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IN WITNESS WHEREOF, Parent and the Company have
caused this Amendment to be executed as of the date first writ-
ten above by their respective officers thereunto duly autho-
rized.
MONSANTO COMPANY
/s/ Xxxxxxx X. Xxxxxxxxxx
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By: Xxxxxxx X. Xxxxxxxxxx
Title: Executive Vice President
CALGENE, INC.
/s/ Xxxxx X. Xxxxxxxx
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By: Xxxxx X. Xxxxxxxx
Title: Acting Chief Executive
Officer and President
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