EXHIBIT 99
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated this 1st day of March,
1997, is by and between DowElanco, an Indiana general partnership
("Purchaser"), and KUBOTA Corporation, a Japanese corporation
("Seller").
WHEREAS, Seller owns and is willing to sell to Purchaser,
and Purchaser is willing to purchase from Seller, Four Hundred
Thousand (400,000) shares (the "Shares") of common stock, par
value $.001 per share, of Mycogen Corporation, a California
corporation (the "Company"), on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending
to be legally bound hereby, the parties hereto agree as follows.
Section 1. Representations and Warranties of Seller.
Seller represents and warrants to Purchaser as follows:
(a) Seller is a corporation duly organized, validly
existing and in good standing under the laws of Japan.
(b) Seller has all necessary corporate power and authority
to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transaction contemplated hereby.
(c) This Agreement has been duly and validly executed and
delivered by Seller and constitutes a legal, valid and binding
agreement of Seller enforceable against Seller in accordance with
its terms.
(d) The execution, delivery and performance by Seller of
this Agreement and the consummation of the transaction
contemplated hereby do not and will not (i) contravene or
conflict with the Certificate of Incorporation or By-Laws of
Seller or (ii) assuming that all consents, authorizations and
approvals contemplated by subsection (f) 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 Seller, any of its subsidiaries or any of
its properties.
(e) The execution, delivery and performance by Seller of
this Agreement and the consummation of the transaction
contemplated hereby by Seller require no action by Seller in
respect of, or filing by Seller with, any governmental body,
agency, official or authority (either domestic or foreign) other
than (i) compliance with the Securities Act of 1933, the
Securities Exchange Act of 1934, and any applicable requirements
of state securities, takeover and Blue Sky laws; and (ii) such
actions or filings which, if not taken or made, would not
individually or in the aggregate materially interfere with the
consummation of the transaction contemplated by this Agreement.
(f) Neither Seller nor any of its subsidiaries or its
properties is subject to any order, writ, judgment, injunction,
decree, determination or award which would prevent or delay the
consummation of the transaction contemplated hereby.
(g) Seller has good and valid title to the Shares, free and
clear of any Liens.
(h) There are no options or rights to acquire, or any
agreements to which Seller is a party relating to the Shares,
other than this Agreement.
(i) The transfer of the Shares hereunder to Purchaser will
transfer to Purchaser good and valid title to the Shares, free
and clear of any Liens.
(j) Seller has not offered any of the Shares for sale to
any party other than Purchaser within the last six (6) months.
Section 2. Representations and Warranties of Purchaser.
Purchaser represents and warrants to Seller as follows:
(a) Purchaser is a general partnership organized under the
laws of Indiana.
(b) Purchaser has all necessary power and authority to
execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transaction contemplated hereby.
(c) This Agreement has been duly and validly executed and
delivered by Purchaser and constitutes a legal, valid and binding
agreement of Purchaser enforceable against Purchaser in
accordance with its terms.
(d) The execution, delivery and performance by Purchaser of
this Agreement and the consummation of the transaction
contemplated hereby do not and will not (i) contravene or
conflict with the Partnership Agreement of Purchaser or (ii)
assuming that all consents, authorizations and approvals
contemplated by subsection (f) 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 Purchaser, any of its subsidiaries or any of its
properties.
(e) The execution, delivery and performance by Purchaser of
this Agreement and the consummation of the transaction
contemplated hereby by Purchaser require no action by Purchaser
or in respect of, or filing by Purchaser with, any governmental
body, agency, official or authority (either domestic or foreign)
other than (i) compliance with any applicable requirements of
the Securities Act of 1933, the Securities Exchange Act of 1934,
and any applicable requirements of state securities, takeover and
Blue Sky laws; and (ii) such actions or fillings which, if not
taken or made, would not individually or in the aggregate
materially interfere with the consummation of the transaction
contemplated by this Agreement.
(f) Purchaser is acquiring the Shares solely for its own
account for investment only and not with a view to resale in
connection with a distribution thereof as that term is defined in
the Securities Act of 1933 and the rules and regulations of the
Securities and Exchange Commission thereunder. Purchaser
acknowledges that the Shares to be purchased pursuant to this
Agreement have not been registered under the Securities Act of
1933, as amended, or any applicable state securities law and may
not be transferred or sold except pursuant to an effective
registration statement under the Securities Act of 1933 or
exemption therefrom and that certificates evidencing the Shares
will bear a restrictive legend to that effect. Purchaser has
conducted its own investigation with respect to the transaction
contemplated by this Agreement and has not relied upon Seller
with respect to information about the Company.
(g) Neither Purchaser nor any of its subsidiaries or their
respective properties is subject to any order, writ, judgment,
injunction, decree, determination or award which would prevent or
delay the consummation of the transaction contemplated by this
Agreement.
Section 3. Purchase and Sale of the Shares. Purchaser
hereby agrees to purchase all of the Shares as of April 1, 1997,
for Ten Million Four Hundred Nineteen Thousand Six Hundred
Dollars ($10,419,600 USD) (the "Purchase Price"). Seller hereby
agrees to sell, transfer and deliver the Shares to Purchaser as
of April 1, 1997, (duly endorsed for transfer to "DowElanco" or
accompanied by stock transfer powers duly executed in favor of
"DowElanco", with signatures guaranteed by a commercial bank or a
member of The New York Stock Exchange, Inc., with all necessary
stock transfer tax stamps affixed and canceled), and delivered to
the Company's transfer agent by express courier as soon as
practicable on or after April 1, 1997. Purchaser will wire
transfer to Seller (to such account(s) as Seller shall specify)
immediately available funds representing the Purchase Price
immediately upon the execution of this Agreement and delivery of
the Shares as described above. Seller will, upon request of
Purchaser, promptly execute and deliver all additional documents
reasonably deemed by Purchaser to be necessary, appropriate or
desirable to effect, complete and evidence the sale, assignment
and transfer of the Shares pursuant to this Agreement.
Section 4. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of
this Agreement was not performed in accordance with its terms and
that each party shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or in equity
such party may have.
Section 5. Indemnification. Each party (an "indemnitor"),
in connection with the transaction contemplated herein, shall
indemnify and hold the other party (the "indemnitee") harmless
from and against any and all losses, damages, claim, liabilities
or obligations (including attorney fees) with respect to (i) any
breach of any representation, warranty or agreement by the
indemnitor contained in this Agreement and (ii) any brokerage
fees, commissions or finders' fees payable on the basis of any
action taken by the indemnitor or any of its affiliates.
Section 6. Expenses. Each party shall bear its own
expenses and costs in connection with this Agreement and the
transaction contemplated hereby. Each party shall bear the cost
of compensating any investment banker it has retained.
Section 7. Survival of Representations and Warranties.
Notwithstanding anything contained in this Agreement to the
contrary, all representations, warranties and agreements made by
each party hereto in this Agreement shall survive the closing of
the transaction contemplated hereby.
Section 8. Amendment; Assignment. This Agreement may not
be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the
parties hereto. Neither party to this Agreement may assign any
of its rights or obligations under this Agreement without the
prior consent of the other party, except that the rights and
obligations of Purchaser may be assigned by Purchaser to any of
Purchaser's affiliates, but no such transfer shall relieve
Purchaser of its obligations hereunder.
Section 9. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto
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.
Section 10. Notices. All notices, requests, claims,
demands and other communications hereunder 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 or by
registered or certified mail (postage prepaid, return receipt
requested), to the other party as follows:
(a) If to Seller, to: (b) If to Purchaser, to:
KUBOTA Corporation DowElanco
2-47, Shikitsuhigash 1-chome 0000 Xxxxxxxxxx Xxxx
Xxxxxx xx Xxxxxxxxxxxx, Xxxxxxx 00000
Xxxxx 000 00, Xxxxx Fax: (000) 000-0000
Attention: Xxxxx Xxxx, Attention: Xxxxx X. Xxxxxxx,
Corporate Planning and Vice President, Secretary
Control Dept. and General Counsel
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 11. 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 hereof. 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 12. Entire Agreement. This Agreement constitutes
the entire Agreement between the parties hereto with respect to
the subject matter hereof and thereof and supersede all other
prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
Section 13. Descriptive Headings. The descriptive headings
herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning of interpretation
of this Agreement.
Section 14. Certain Definitions. For purposes of this
Agreement, the term:
(a) "affiliates" of a person means a person that directly
or indirectly, through one or more intermediates, controls, is
controlled by, or is under common control, with the first
mentioned person;
(b) "Blue Sky" laws means laws and regulations of nay state
or territory of the United States and relating to the regulation
of the offer and sales of securities.
(c) "control" (including the terms "controlled by" and
"under common control with") means the possession, directly or
indirectly or as trustee, of the power to direct or cause the
direction of the management policies of a person, whether through
the ownership of stock, as trustee by contract or credit
arrangement or otherwise;
(d) "knowledge" means knowledge after reasonable inquiry;
(e) "Liens" means any security interests, liens, claims,
pledges, charges, voting agreements or other encumbrances of any
nature whatsoever;
(f) "person" means an individual, corporation, partnership,
association, trust, unincorporated organization, other entity or
group (as defined in Section 13(d)(3) of the Securities Exchange
Act of 1934); and
(g) "subsidiary" or "subsidiaries" of any person means any
corporation, 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, a majority or
more of the stock other equity interests the holder of which is
generally entitled to vote to the election of the board
partnership, joint venture or other legal entity.
Section 15. 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.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its representatives
thereunto duly authorized, all as of the day and year first above
written.
DowElanco
By: Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
KUBOTA Corporation
By: Morihiko Jojima
Name: Morihiko Jojima
Title: General Manager-Finance Department
