STOCK PURCHASE AGREEMENT
Agreement dated as of September 27, 1996 between Monsanto Company, a
Delaware corporation ("Monsanto"), and Calgene, Inc., a Delaware corporation
("Calgene").
In consideration of the mutual promises and covenants contained in this
Agreement, the parties hereto agree as follows:
1. Sale of Shares. Subject to the terms and conditions of this Agreement,
at the Closing (as defined below), Calgene will sell and issue to Monsanto, and
Monsanto will purchase, 6,250,000 shares (the "Shares") of Common Stock, $.001
par value per share, of Calgene ("Common Stock") for an aggregate purchase price
of $50,000,000. The number of Shares shall be appropriately adjusted for any
stock splits, stock dividends or similar events affecting the Common Stock after
the date hereof and prior to the Closing.
2. The Closing.
(a) The closing ("Closing") of the sale and purchase of the Shares under
this Agreement shall take place at the offices of Xxxx and Xxxx, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx at 9:00 a.m. on the first date on which all of the
conditions set forth in Sections 6 and 7 have been satisfied or duly waived. At
the Closing, Calgene shall deliver to Monsanto a certificate for the Shares,
registered in the name of Monsanto, against payment to Calgene of the purchase
price therefor, by wire transfer.
(b) Either Monsanto or Calgene may terminate this Agreement if the
conditions set forth in Sections 6 and 7 have not been satisfied or duly waived
prior to January 31, 1997, other than by reason of a breach of this Agreement by
the terminating party.
3. Representations of Calgene. Subject to and except as disclosed by
Calgene in the disclosure schedule provided by Calgene to Monsanto on the date
hereof (the "Disclosure Schedule"), Calgene hereby represents and warrants as
follows:
3.1 Organization and Standing. Calgene is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to conduct its business as presently
conducted and as proposed to be conducted by it and to enter into and perform
this Agreement and to carry out the transactions contemplated by this Agreement.
Calgene is duly qualified to do business as a foreign corporation and is in good
standing in the State of California and in every other jurisdiction in which the
failure to so qualify would have a material adverse effect on the assets,
business, results of operations or financial condition of Calgene. Calgene has
furnished to Monsanto true and complete copies of its Certificate of
Incorporation and By-Laws, each as amended to date and presently in effect.
3.2 Capitalization. The authorized capital stock of Calgene consists of
80,000,000 shares of Common Stock, of which 60,443,115 shares were issued and
outstanding as of August 31, 1996, and 10,000,000 shares of Preferred Stock,
$.001 par value per share, none of which shares are issued or outstanding. All
of the issued and outstanding shares of Common Stock have been duly authorized
and validly issued and are fully paid and nonassessable. Except as set forth in
Section 3.2 of the Disclosure Schedule hereto or provided in this Agreement, (i)
no subscription, warrant, option, convertible security or other right
(contingent or otherwise) to purchase or acquire any shares of capital stock of
Calgene is authorized or outstanding, (ii) Calgene has no obligation (contingent
or otherwise) to issue any subscription, warrant, option, convertible security
or other such right or to issue or distribute to holders of any shares of its
capital stock any evidences of indebtedness or assets of Calgene, and (iii)
Calgene has no obligation (contingent or otherwise) to purchase, redeem or
otherwise acquire any shares of its capital stock or any interest therein or to
pay any dividend or make any other distribution in respect thereof.
3.3 Issuance of Shares. The Shares, when issued, sold and delivered against
payment therefor in accordance with the provisions of this Agreement, will be
duly and validly issued, fully paid and non-assessable.
3.4 Authority for Agreement. The execution, delivery and performance by
Calgene of this Agreement and the Amended and Restated Stockholders Agreement
attached hereto as Exhibit A (the "Amendment"), and the consummation by Calgene
of the transactions contemplated hereby and thereby, have been duly authorized
by all necessary corporate action, subject to (i) approval of the Certificate of
Amendment attached hereto as Exhibit B (the "Certificate of Amendment") by the
stockholders of Calgene holding a majority of the shares of Common Stock
outstanding, and (ii) approval of the issuance of the Shares to Monsanto, the
Amendment and this Agreement by the holders of a majority of the outstanding
shares of Common Stock present or represented at the meeting of stockholders to
be held for such purpose (the "Stockholders Meeting"), excluding broker
non-votes and shares held by Monsanto; (such approvals being referred to
collectively as the "Requisite Stockholder Approval"). This Agreement has been,
and the Amendment as of the Closing will be, duly executed and delivered by
Calgene. This Agreement constitutes, and the Amendment will constitute as of the
Closing, valid and binding obligations of Calgene, enforceable in accordance
with their respective terms. The execution of and performance of the
transactions contemplated by this Agreement and the Amendment and compliance
with their provisions by Calgene will not violate any provision of law and will
not conflict with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under, or require a consent or waiver
under, its Certificate of Incorporation or ByLaws (each as amended to date) or
any indenture, lease, agreement or other instrument to which Calgene is a party
or by which it or any of its properties is bound, or any decree, judgment,
order, statute, rule or regulation applicable to Calgene.
3.5 Governmental Consents. No consent, approval, order or authorization of,
or registration, qualification, designation, declaration or filing with, any
governmental authority is required on the part of Calgene in connection with the
execution and delivery of this Agreement, the issuance, sale and delivery of the
Shares, or the other transactions to be consummated at the Closing, as
contemplated by this Agreement, except (i) the filing with the Secretary of
State of Delaware of the Certificate of Amendment and (ii) compliance with
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and (iii) compliance with the applicable requirements of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx").
3.6 Reports and Financial Statements. Calgene has previously furnished to
Monsanto complete and accurate copies, as amended or supplemented, of its (a)
Annual Report on Form 10-K for the fiscal year ended June 30, 1995, as filed
with the Securities and Exchange Commission (the "SEC"), (b) proxy statements
relating to all meetings of its stockholders (whether annual or special) since
June 30, 1995 and (c) all other reports or registration statements, other than
Registration Statements on Form S-8, filed by Calgene with the SEC since June
30, 1995 (such annual reports, proxy statements, registration statements and
other filings, together with any amendments or supplements thereto, are
collectively referred to herein as the "Calgene Reports"). The Calgene Reports
constitute all of the documents filed or required to be filed by Calgene with
the SEC since June 30, 1995, other than any Registration Statement on Form S-8.
As of their respective dates, the Calgene Reports did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The audited financial
statements and unaudited interim financial statements of Calgene included in the
Calgene Reports (together, the "Financial Statements") (i) comply as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, (ii) have been prepared
in accordance with United States generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods covered thereby
(except as may be indicated therein or in the notes thereto, and in the case of
quarterly financial statements, as permitted by Form 10-Q under the Exchange
Act), and (iii) fairly present in all material respects the consolidated
financial condition, results of operations and cash flows of Calgene as of the
respective dates thereof and for the periods referred to therein.
3.7 Litigation. Section 3.7 of the Disclosure Schedule identifies, and
contains a brief description of, (a) any unsatisfied judgment, order, decree,
stipulation or injunction and (b) any claim, complaint, action, suit,
proceeding, hearing or investigation of or in any court or governmental agency
or before any arbitrator to which Calgene or any subsidiary is a party or, to
the knowledge of Calgene, is threatened to be made a party, in each case which
could have a material adverse effect on the assets, business, financial
condition or results of operations of Calgene.
4. Representations of Monsanto. Monsanto represents and warrants as
follows:
4.1 Investment. Monsanto is acquiring the Shares for its own account for
investment and not with a view to, or for sale in connection with, any
distribution thereof, nor with any present intention of distributing or selling
the same.
4.2 Authority. Monsanto has full power and authority to enter into and to
perform this Agreement and the Amendment in accordance with their respective
terms.
4.3 Experience. Monsanto has sufficient knowledge and experience in
investing in companies similar to Calgene so as to be able to evaluate the risks
and merits of its investment in Calgene and is able financially to bear the
risks thereof.
5. Covenants.
5.1 Best Efforts.
(a) Each of the parties shall use its respective best efforts to take all
actions and to do all things necessary, proper or advisable to consummate the
transactions contemplated by this Agreement. Without limiting the foregoing,
Monsanto shall vote all of its shares of Common Stock in favor of the
Certificate of Amendment at the Stockholders Meeting.
(b) At the Closing, Monsanto and Calgene shall execute and deliver the
Amendment.
(c) At the Closing, Monsanto and Calgene shall execute a certificate
setting forth the "Effective Date Percentage" as defined in the Amendment.
5.2 Stockholders Meeting, Proxy Statement.
(a) As soon as practicable, Calgene shall prepare and file with the SEC
under the Exchange Act preliminary proxy materials (the "Proxy Statement") for
the purpose of soliciting proxies from its stockholders to vote in favor of (i)
the issuance of the Shares, (ii) the Certificate of Amendment, and (iii) the
election of the directors contemplated by the Amendment (the "Proposals") at the
Stockholders Meeting. Calgene shall promptly respond to any SEC comments on the
Proxy Statement and shall otherwise use its best efforts to resolve as promptly
as practicable all SEC comments to the satisfaction of the SEC. Calgene shall
furnish to Monsanto and its counsel copies of the preliminary Proxy Statement
prior to filing it with the SEC and copies of the final Proxy Statement prior to
mailing it to stockholders.
(b) Promptly following the resolution to the satisfaction of the SEC of all
SEC comments on the Proxy Statement (or the expiration of the ten-day period
under Rule 14a-6(a) under the Exchange Act, if no SEC comments are received by
such date), Calgene shall distribute the Proxy Statement to its stockholders and
solicit proxies from its stockholders to vote in favor of the Proposals.
(c) Calgene shall comply with all applicable provisions of and rules under
the Exchange Act and all applicable provisions of the Delaware General
Corporation Law in the preparation, filing and distribution of the Proxy
Statement, the solicitation of proxies thereunder, and the calling and holding
of the Stockholders Meeting. Without limiting the foregoing, Calgene shall
ensure that the Proxy Statement does not, as of the date on which it is
distributed to its stockholders, and as of the date of the Stockholders Meeting,
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading (provided that Calgene shall not be
responsible for the accuracy or completeness of any information furnished by
Monsanto in writing for inclusion in the Proxy Statement).
5.3 HSR Act. Each of the parties shall promptly file any Notification and
Report Forms and related material that it may be required to file with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the HSR Act, shall use its best efforts to obtain an
early termination of the applicable waiting period, and shall make any further
filings or information submissions pursuant thereto that may be necessary,
proper or advisable.
5.4 Pending Closing. Pending Closing Calgene shall carry on the business of
Calgene and its subsidiaries in the ordinary and regular course of business.
6. Conditions to the Obligations of Monsanto. The obligation of Monsanto to
purchase Shares at the Closing is subject to the fulfillment, or the waiver by
Monsanto, of each of the following conditions on or before the Closing:
6.1 Accuracy of Representations and Warranties. Each representation and
warranty contained in Section 3 shall be true and correct in all material
respects on and as of the Closing Date with the same effect as though such
representation and warranty had been made on and as of that date (except for
representations and warranties made as of a specific date, which shall be true
and correct as of such date).
6.2 Performance. Calgene shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed
or complied with by Calgene prior to or at the Closing.
6.3 Stockholder Agreement. The Amendment shall have been executed and
delivered by Calgene.
6.4 Certificate of Amendment. The Certificate of Amendment shall have been
filed with the Secretary of State of Delaware.
6.5 HSR Act. All applicable waiting periods (and any extensions thereof)
under the HSR Act shall have expired or otherwise been terminated.
6.6 No Injunctions or Other Proceedings. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court or other
legal or regulatory restraint or prohibition preventing the consummation of the
transactions contemplated hereby shall have been issued and remain outstanding.
No investigation, action, suit or proceeding by any governmental or regulatory
commission, agency, body or authority, and no action, suit or proceeding by any
other person or entity shall be pending on the Closing Date which challenges, or
might result in a challenge to, this Agreement or any transactions contemplated
hereby, or which claims, or might give rise to a claim for, damages in a
material amount as a result of the consummation of this Agreement.
6.7 NASDAQ. The Shares shall have been authorized for listing on the Nasdaq
National Market, subject to official notice of issuance.
6.8 Opinion of Counsel. Monsanto shall have received an opinion from Xxxx
and Xxxx, counsel for Calgene, dated the Closing Date, substantially in the form
attached hereto as Exhibit C.
6.9 Stockholder Approval. The issuance of the Shares and the Certificate of
Amendment shall have received the Requisite Stockholder Approval and the
directors contemplated by the Amendment shall have been elected.
6.10 Material Adverse Change. Between the date of this Agreement and the
Closing Date there shall have been no materially adverse change in the position,
financial or otherwise, or the operations, assets, liabilities or results of
operations of Calgene or its subsidiaries, provided that such a material adverse
change shall not be deemed to have occurred as a result of any change in the
customers, pricing or sales volume of Calgene or any outcome of the litigation
between Calgene and Enzo Biochem, Inc.
6.11 No Change in Capitalization. Prior to Closing Calgene shall not have
issued, agreed to issue or approve the issuance of any shares of its capital
stock or any options, warrants or other rights entitling the holder thereof to
convert into or receive shares of Calgene capital stock, except for the grant of
options for Calgene Common stock to employees and consultants in the ordinary
course of business and the issuance of shares of Calgene Common Stock pursuant
to the exercise of outstanding options or warrants, unless approved by Calgene
directors designated by Monsanto in writing.
7. Conditions to the Obligations of Calgene. The obligations of Calgene
under this Agreement are subject to fulfillment, or the waiver by Calgene, of
the following conditions on or before the Closing:
7.1 Accuracy of Representations and Warranties. The representations and
warranties of Monsanto contained in Section 4 shall be true and correct on and
as of the Closing Date with the same effect as though such representations and
warranties had been made on and as of that date.
7.2 Performance. Monsanto shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed
or complied with by Monsanto prior to or at the Closing.
7.3 Stockholder Agreement. The Amendment shall have been executed and
delivered by Monsanto.
7.4 HSR Act. All applicable waiting periods (and any extensions thereof)
under the HSR Act shall have expired or otherwise been terminated.
7.5 No Injunction or Other Proceedings. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court or other
legal or regulatory restraint or prohibition preventing the consummation of the
transaction contemplated hereby shall have been issued and remain outstanding.
No investigation, action, suit or proceeding by any governmental or regulatory
commission, agency, body or authority, and no action, suit or proceeding by any
other person or entity shall be pending on the Closing Date which challenges, or
might result in a challenge to, this Agreement or any transactions contemplated
hereby, or which claims, or might give rise to a claim for, damages in a
material amount as a result of the consummation of this Agreement.
7.6 Stockholder Approval. The issuance of the Shares and the Certificate of
Amendment shall have received the Requisite Stockholder Approval.
8. Miscellaneous.
8.1 Press Releases and Announcements. No party shall issue any press
release or public disclosure relating to the subject matter of this Agreement
without the prior written approval of the other party; provided, however, that
any party may make any public disclosure it believes in good faith is required
by law or regulation (in which case the disclosing party shall advise the other
party and provide it with a copy of the proposed disclosure prior to making the
disclosure).
8.2 No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the parties.
8.3 Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the parties and supersedes any
prior understandings, agreements, or representations by or among the parties,
written or oral, with respect to the subject matter hereof.
8.4 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective
successors. No party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of the
other party.
8.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8.6 Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Delaware.
8.8 Amendments and Waivers. The parties may mutually amend any provision of
this Agreement at any time prior to the Closing Date, provided, however, that
any amendment effected subsequent to the Requisite Stockholder Approval shall be
subject to the restrictions contained in the Delaware General Corporation Law.
No waiver by any party of any default, misrepresentation, or breach of warranty
or covenant hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
8.9 Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
8.10 Specific Performance. Each of the parties acknowledges and agrees that
the other party would be damaged irreparably in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the parties agrees that the other
party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the parties and the
matter, in addition to any other remedy to which it may be entitled, at law or
in equity.
8.11 Construction. The language used in this Agreement shall be deemed to
be the language chosen by the parties hereto to express their mutual intent, and
no rule of strict construction shall be applied against any party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CALGENE, INC.
By:/s/ Xxxxx X. Xxxxxxxx
Title: President
MONSANTO COMPANY
By:/s/ Xxxxxxx X. Xxxxxxxxxx
Title: Executive Vice President
