Exhibit 99(1)
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 Agreement
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 meanings 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
