AMENDMENT TO EXCHANGE AND PURCHASE AGREEMENT
This AMENDMENT TO EXCHANGE AND PURCHASE AGREEMENT, (this "Amendment")
dated as of July 22, 1998, is among MYCOGEN CORPORATION, a California
corporation (the "Company") and DOW AGROSCIENCES LLC ("DAS" or "Parent").
WHEREAS, DAS is the successor to DowElanco, an Indiana general
partnership ("DowElanco");
WHEREAS, the Company and DAS desire to amend the Exchange and Purchase
Agreement dated as of January 15, 1996 among the Company, Agrigenetics, Inc.,
DowElanco and United Agriseeds, Inc. (the "Exchange and Purchase Agreement");
and
WHEREAS, each of the Independent Directors and the Company's Board of
Directors have approved this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Amendment, and intending to be
legally bound, the Company and DAS, as the successor to DowElanco, agree as
follows.
1. Section 6.12 of the Exchange and Purchase Agreement is hereby amended by
inserting the following Section 6.12.3 at the end of Section 6.12:
6.12.3 Notwithstanding anything to the contrary contained in this
Agreement, (i) Parent or its affiliates may during the period (the
"Exception Period") beginning on July 22, 1998 and ending on August 31,
1998 (which Exception Period may be extended from time to time in
writing signed by Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxx, acting as the
Special Committee of the Board of Directors of the Company (the "Special
Committee")), discuss and negotiate with the Special Committee and its
legal and financial representatives the terms and conditions (including
terms relating to valuation and pricing) of a possible transaction
involving the acquisition by Parent or any of its affiliates of all
outstanding shares of Common Stock and the acquisition of, or other
arrangement providing for the exchange, cancellation or amendment of,
all outstanding options to purchase shares of Common Stock from the
holders of such shares and options; and (ii) if appropriate terms and
conditions of such a transaction have been approved in writing during
the Exception Period by the Special Committee in its sole and absolute
discretion, then Parent or its affiliates may, thereafter during the
Exception Period and for such period thereafter as permitted by such
approval, formally propose to the Company's shareholders and option
holders to effect such approved transaction, and thereafter consummate
such approved transaction in accordance with its terms. Nothing in this
Section 6.12.3 shall affect the rights or obligations of the parties set
forth in Section 6.13 for the period following the third anniversary of
the Measurement Date.
2. In all other respects the Exchange and Purchase remains in full force and
effect in accordance with its terms without any amendment thereto. If there
is any perceived conflict between this Amendment and the remainder of the
Exchange and Purchase Agreement, such a conflict shall be resolved in favor
of implementing this Amendment.
3. This Amendment will be governed by and construed in accordance with the
law of the State of Delaware, without regard to the principles of conflicts
of law thereof.
4. This Amendment may be executed in two or more counterparts, each of which
will be deemed to be an original, but all of which will constitute one and
the same agreement.
5. References to Parent in this Amendment and the Exchange and Purchase
Agreement shall be deemed to apply to DAS as the successor of DowElanco.
6. Capitalized terms used but not otherwise defined in this Amendment shall
have the meaning assigned to those terms in the Exchange and Purchase
Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed on its behalf by its authorized representatives as of the day and
year first above written.
MYCOGEN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Director
DOW AGROSCIENCES LLC
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President,
Secretary and General
Counsel
