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EXH. 99(a)(1)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated this 15th day of January, 1996,
effective as OF January 15, 1996, is among DowElanco, an Indiana genera1
partnership ("Purchaser"), The Lubrizol Corporation, an Ohio corporation
("Lubrizol"), and AGC Holdings, Inc., a Delaware corporation ("Seller"), a
second tier wholly owned subsidiary of Lubrizol.
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Purchaser, United AgriSeeds, Inc., a Delaware corporation and wholly
owned subsidiary of Purchaser ("Subsidiary"), Mycogen Corporation, a California
Corporation (the "Company") and Agrigenetics, Inc., a Delaware corporation
("Acquisition"), are entering into an Exchange and Purchase Agreement (the
"Mycogen Purchase Agreement");
WHEREAS, Seller owns 6,134,067 shares (the "Common Shares") of
Common Stock, par value $.001 per share, of the Company (the "Common Stock");
WHEREAS, Seller owns 3,158 shares of Senior Redeemable Convertible
Preferred Stock, Series A (the "Preferred Shares") of the Company convertible
into 1,815,274 shares (the "P Common Shares") of Common Stock as of the date
of this Agreement;
WHEREAS, Seller owns 1,946 shares of the Common Stock of Acquisition
and has the right to convert such ownership interest in Acquisition (the
"Acquisition Shares") into 1,538,008 shares (the "A Common Shares") of Common
Stock as of the date of this Agreement under the Amended and Restated Equity
Investment Agreement, dated December 31, 1993 between Lubrizol, the Company,
Acquisition and Mycogen Plant Sciences, Inc. ("Holding") (the "Equity
Investment Agreement");
WHEREAS, Lubrizol is the equitable owner of exercisable options to
purchase 14,999 shares of Common Stock (the "0 Common Shares" which, for the
purposes of this Agreement, are treated as part of Seller's Shares); and
WHEREAS, given the Common Shares, the P Common Shares, the A Common
Shares and the 0 Common Shares, Seller owns or has the right to acquire
9,502,348 shares of Common Stock (collectively, the "Seller's Shares") as of
the date of this Agreement.
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.
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Section 1. CONVERSION. On the date of this Agreement, Lubrizol shall
cause Seller to, and Seller shall, convert the Preferred Shares into 1,815,274
shares of Common Stock and the Acquisition Shares into 1,538,008 shares of
Common Stock. Prior to the Closing (as defined below)' Lubrizol shall
exercise, or cause to be exercised, the options to purchase the 0 Common
Shares. Lubrizol and Seller will take whatever steps are necessary so that
Lubrizol and Seller will own, by the Closing, the Seller's Shares.
Section 2. REPRESENTATIONS AND WARRANTIES OF LUBRIZOL AND SELLER.
Lubrizol and Seller represent and warrant to Purchaser as follows:
(a) Lubrizol and Seller are corporations duly organized, validly
existing and in good standing under the laws of the jurisdiction of their
incorporation.
(b) Lubrizol and Seller have all necessary corporate power and
authority to execute and deliver this Agreement, to perform their obligations
hereunder and to consummate the transactions contemplated hereby.
(C) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the board of directors of Lubrizol and Seller and approved by the
sole shareholder of Seller, and no other corporate proceedings on the part of
Lubrizol and Seller are necessary to authorize this Agreement or to consummate
the transactions so contemplated.
(d) This Agreement has been duly and validly executed and delivered by
Lubrizol and Seller and constitutes a legal, valid and binding agreement of
Lubrizol and Seller enforceable against Lubrizol and Seller in accordance with
its terms.
(e) The execution, delivery and performance by Lubrizol and Seller of
this Agreement and the consummation of the transactions contemplated hereby do
not and will not (i) contravene or conflict with the Certificate of
Incorporation or By-Laws of Lubrizol or Seller; (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
Lubrizol or Seller, any of their subsidiaries or any of their properties; (iii)
conflict with, or result in the breach or termination of any provision of or
constitute a default (with or without the giving of notice or the lapse of time
or both) under, or give rise to any right of termination, cancellation, or loss
of any benefit to which Lubrizol or Seller or any of their subsidiaries is
entitled under
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any provision of any agreement, contract, license or other instrument binding
upon Lubrizol or Seller, any of their subsidiaries or any of their
respective properties, or allow the acceleration of the performance of, any
obligation of Lubrizol or Seller or any of their subsidiaries under any
indenture, mortgage, deed of trust, lease, license, contract, instrument or
other agreement to which Lubrizol or Seller or any of their subsidiaries is a
party or by which Lubrizol or Seller or any of their subsidiaries or any of
their respective assets or properties is subject or bound; or (iv) result in
the creation or imposition of any Lien on any asset of Lubrizol or Seller or
any of their subsidiaries, except in the case of clauses (ii), (iii) and (iv)
for any such contraventions, conflicts, violations, breaches, terminations,
defaults, cancellations, losses, accelerations and Liens which would not
individually or in the aggregate materially interfere with the consummation of
the transactions contemplated by this Agreement.
(f) The execution, delivery and performance by Lubrizol and Seller of
this Agreement and the consummation of the transactions contemplated hereby by
Lubrizol and Seller require no action by Lubrizol or Seller in respect of, or
filing by Lubrizol or Seller with, any governmental body, agency, official or
authority (either domestic or foreign) other than (i) compliance with any
applicable requirements of the HSR Act; (ii) 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 (iii) such actions or
filings which, if not taken or made, would not individually or in the aggregate
materially interfere with the consummation of the transactions contemplated by
this Agreement.
(g) Neither Lubrizol, Seller, nor any of their 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 transactions contemplated hereby.
(h) At the Closing, Lubrizol or Seller will have good and valid title
to Seller's Shares, free and clear of any Liens.
(i) There are no options or rights to acquire, or any agreements to
which Lubrizol or Seller is a party relating to, Seller's Shares, other than
this Agreement, the Equity Investment Agreement and the rights of the Company
under the provisions for the Preferred Shares and the options with respect to
the 0 Common Shares.
(j) The transfer of Seller's Shares hereunder to Purchaser will
transfer to Purchaser good and valid title to Seller's Shares, free and clear
of any Liens.
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(k) Seller's Shares represent all of the Common Shares beneficially
owned (within the meaning of Rule 13d-3 under the Exchange Act) by Lubrizol or
Seller except for options that are not exercisable at or prior to the Closing.
Section 3. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller as follows:
(a) Purchaser is a genera1 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 transactions contemplated hereby.
(c) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by the board of directors of Purchaser and no other
proceedings on the part of Purchaser are necessary to authorize this Agreement
or to consummate the transactions so contemplated.
(d) 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.
(e) The execution, delivery and performance by Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (I) contravene or conflict with the Partnership Agreement of
Purchaser; (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; (iii) conflict with, or result in the breach or
termination of any provision of or constitute a default (with or without the
giving of notice or the lapse of time or both) under, or give rise to any right
of termination, cancellation, or loss of any benefit to which Purchaser or any
of its subsidiaries is entitled under any provision of any agreement, contract,
license or other instrument binding upon Purchaser, any of its subsidiaries or
any of their respective properties, or allow the acceleration of the
performance of, any obligation of Purchaser or any of its subsidiaries under
any indenture, mortgage, deed of trust, lease, license, contract, instrument or
other agreement to which Purchaser or any of its subsidiaries is a party or by
which Purchaser or any of its subsidiaries or any of their respective assets or
properties is subject or bound; or (iv) result in the
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creation or imposition of any Lien on any asset of Purchaser or any of its
subsidiaries, except in the case of clauses (ii), (iii) and (iv) for any such
contraventions, conflicts, violations, breaches, terminations, defaults,
cancellations, losses, accelerations and Liens which would not individually or
in the aggregate materially interfere with the consurnrnation of the
transactions contemplated by this Agreement.
(f) The execution, delivery and performance by Purchaser of this
Agreement and the consummation of the transactions 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 the HSR Act; (ii)
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 (iii) such actions or filings
which, if not taken or made, would not individually or in the aggregate
materially interfere with the consummation of the transactions contemplated by
this Agreement.
(g) Purchaser or its affiliates are acquiring Seller's Shares solely
for their 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 Seller's 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 Seller's Shares will bear a restrictive legend to that
effect. Purchaser has conducted its own investigation with respect to the
transactions contemplated by this Agreement and has not relied upon Lubrizol or
Seller with respect to information about Mycogen.
(h) 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 transactions contemplated by this Agreement.
Section 4. PURCHASE OF SELLER'S SHARES BV PURCHASER. As soon as
practicable (but at least one business day) following the satisfaction or
waiver of all of the conditions set forth in Section 12 hereof and subject to
Section S, Purchaser shall purchase all of Seller's Shares for (a) $126,200,000
plus (b) $17,849 (an amount equal to (i) 14,999 multiplied by (ii) the
difference between $13 and the average option exercise price of
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$11.61) plus (c) if the Closing occurs on or after February 29, 1996, for
each day beginning on February 29, 1996 through and including the Closing, the
interest on $124,938,000 at a rate equal to the Six-Month London Interbank
Offered Rate in effect from time to time divided by 365 (collectively, the "L
Purchase Price"). The closing of such purchase and sale (the "Closing") shall
occur at the offices ot Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx, 00000, or at such other place as the parties may mutually
agree.
Section 5. NEW OPTIONS. In the event additional options to purchase
Common Stock vest prior to the Closing, Lubrizol shall exercise, or cause to be
exercised, such options, the resulting shares of Common Stock shall be included
in Seller's Shares and the L Purchase Price shall be increased by an amount
equal to (a) the number of shares of Common Stock, if any, resulting from the
exercise of such options multiplied by (b) the difference between $13 and the
average option exercise price for such options.
Section 6. DEPOSIT. One day following the execution and delivery of
this Agreement by the parties hereto, Purchaser will deposit with Seller
$1,262,000 (the "Deposit") to be held by Seller until the Closing. The Deposit
shall be credited against the L Purchase Price so that, at the Closing,
Purchaser will be required to pay the L Purchase Price less the Deposit.
Seller shall immediately (and in any event within one business day) refund to
Purchaser the full amount of the Deposit (without any right of counterclaim,
indemnity, rebate, recoupment, retention, offset, set-off or other similar
right or claim) unless (i) this Agreement has terminated without the
consummation of the transactions contemplated hereunder and the Mycogen
Purchase Agreement has terminated pursuant to Section 8.1.8 or Section 8.1.9 of
that agreement without the consummation of the transactions contemplated
thereunder or (ii) the transactions contemplated by the Mycogen Purchase
Agreement have been consuinmated and Purchaser has failed to consummate the
transactions contemplated by this Agreement when it was required by this
Agreement to do so.
Section 7. TRANSFER OF SHARES. At the Closing, subject to the
conditions set forth in Section 12 of this Agreement, Lubrizol and Seller will
sell, transfer and deliver Seller's Shares to Purchaser (duly endorsed for
transfer in blank or accompanied by stock transfer powers duly executed in
blank, 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 cancelled) and Purchaser will purchase Seller's Shares and wire transfer to
Lubrizol or Seller (to such account(s) as Lubrizol shall specify on at least
two business days prior notice) immediately available funds representing the
aggregate L Purchase Price for Seller's Shares.
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Lubrizol or 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 sa1e,
assignment and transfer of Seller's Shares pursuant to this Agreement.
Section 8. ANTI-DILUTION ADJUSTMENTS. In the event of any change in
the number of shares of Common Stock outstanding by recapitalization,
declaration of a stock split or combination or payment of a stock dividend or
the like, the number of Seller's Shares to be transferred to Purchaser shall be
adjusted appropriately. Seller's Shares shall not include all dividends or
cash distributions in respect of Seller's Shares.
Section 9. ADDITIONAL COVENANTS OF LUBRIZOL AND SELLER. Lubrizol and
Seller agree that from the date hereof:
(a) subject to the terms and conditions hereof, Lubrizol and Seller
shall take all actions necessary to fulfill their obligations under the terms
of this Agreement and shall use their best efforts to effect the consummation
of the transactions contemplated hereby, including, without limitation, the
execution of such instruments as Purchaser may reasonably request as well as
any other actions to ensure that Purchaser becomes the owner of Seller's Shares
free and clear of all Liens;
(b} except as provided for herein, Lubrizol and Seller agree not to
(either directly or indirectly) sell, transfer, pledge, assign, hypothecate or
otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the sale, transfer, pledge, assignment,
hypothecation or other disposition of Seller's Shares (including, without
limitation, through the disposition or transfer of control of another person);
(c) except as provided for herein, Lubrizol and Seller agree not to
(either directly or indirectly) grant any proxies with respect to the Seller's
Shares, deposit the Seller's Shares into a voting trust or enter into a voting
agreement with respect to any of the Seller's Shares;
(d) except as provided for herein, Lubrizol and Seller agree not to
(either directly or indirectly) take any action that would make any
representation or warranty of Lubrizol or Seller herein untrue or incorrect in
any material respect; and
(e) Lubrizol and Seller shall cause the existing members of the board
of directors of the Company nominated by Lubrizol or Seller to deliver duly
executed resignations from such positions effective as of the Closing.
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Section 10. NO SOLICITATION. (a) Lubrizol and Seller will immediately
cease any existing discussions or negotiations with any third parties conducted
prior to the date hereof with respect to any Acquisition Proposal (as defined
below). Lubrizol and Seller shall not, directly or indirectly, through any
officer, director, employee, representative or agent or any of their
subsidiaries, (i) solicit, initiate, or encourage any inquiries or proposals
that Constitute, or could reasonably be expected to lead to, a proposal or
offer for a merger, consolidation, business combination, sale of substantial
assets, sale of shares of capital stock (including without limitation by way of
a tender offer) or similar transactions involving the Company or any of its
subsidiaries, other than the transactions contemplated by this Agreement (any
of the foregoing inquiries or proposals being referred to in this Agreement as
an "Acquisition Proposal") or (ii) engage in negotiations or discussions
concerning, or provide any non-public information to any person or entity
relating to, any Acquisition Proposal.
(b) Lubrizol and Seller shall notify Purchaser immediately (and no
later than 24 hours) after receipt by Lubrizol or Seller of any Acquisition
Proposal. Such notice shall be made orally and in writing and shall indicate
in reasonable detail the identity of the of feror and the terms and conditions
of such proposal, inquiry or contract.
Section 11. PROXY; VOTING AGREEMENT.
(a) Lubrizol (with respect to shares acquired upon exercise of
options, after they are issued) and Seller (with respect to the remaining
Seller's Shares) hereby grant Purchaser an irrevocable proxy and irrevocably
appoint Purchaser or its designees, with full power of substitution, their
attorney and proxy to vote all Seller's Shares at any meeting of the
stockholders of the Company however called, or in connection with any action by
written consent by the stockholders of the Company. Lubrizol and Seller
acknowledge and agree that such proxy is coupled with an interest, constitutes,
among other things, an inducement for Purchaser to enter into this Agreement,
is irrevocable and shall not be terminated upon the occurrence of any event
(other than the termination of this Agreement) and that no subsequent proxies
will be given (and if given will not be effective). This proxy shall terminate
upon the termination of this Agreement.
(b) If the proxy granted in Section 11 (a) above is for any reason
invalid, for so long as this Agreement is in effect, in any meeting of the
stockholders of the Company, however called, and in any action by consent of
the stockholders of the Company, Lubrizol or Seller shall vote or cause to be
voted all of Seller's Shares: (i) against any action or agreement that would
result in a breach in any material respect of any covenant,
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representation or warranty or any other obligation of Lubrizol or Seller under
this Agreement or of Purchaser, Subsidiary, Acquisition or the Company under
the Mycogen Purchase Agreement; (ii) against any action or agreement that would
impede, interfere with or discourage the transactions Contemplated by this
Agreement or the Mycogen Purchase Agreement, including, without limitation:
(1) any extraordinary corporate transaction, such as a merger, reorganization
or liquidation involving the Company or any or its subsidiaries, (2) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries or the issuance of securities by the Company or any of its
subsidiaries, (3) any change in the board of directors of the Company (other
than as contemplated by this Agreement or the Nycogen Purchase Agreement), (4)
any change in the present capitalization or dividend policy of the Company
(other than as contemplated by the Mycogen Purchase Agreement) or (5) any other
material change in the Company's corporate structure or business; and (iii) in
favor of any action or agreement that would further the consummation of the
transactions contemplated by this Agreement or the Mycogen Purchase Agreement.
Section 12. CONDITIONS. (a) The obligation of Purchaser to purchase
Seller's Shares hereunder shall be subject to the satisfaction or, in the case
of Section 12(a) (iii) through 12 (a) (vii), waiver by Purchaser at or prior to
the Closing of each of the following conditions:
(i) any waiting period applicable to the purchase and sale of
Seller's Shares pursuant to this Agreement under the HSR Act shall have
terminated or expired;
(ii) no statute, rule, regulation, executive order, temporary
restraining order, decree, ruling, injunction or other order shall have been
enacted, entered, promulgated or enforced by any court or governmental
authority of competent jurisdiction which prohibits or makes illegal the sale
of Seller's Shares pursuant to this Agreement;
(iii) the representations and warranties of Lubrizol and Seller
contained in this Agreement shall be true in all material respects both when
made and at and as of the Closing as though newly made at and as of that time;
(iv) Lubrizol and Seller shall have performed and complied in
all material respects with all agreements, covenants, obligations and
conditions required by this Agreement to be performed or complied with by
Lubrizol and Seller on or prior to the Closing Date;
(v) Lubrizol or Seller shall have caused the existing members
of the board of directors of the Company
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nominated by Lubrizol or Seller to have delivered duly executed resignations
from such positions effective as of the Closing;
(vi) Purchaser shall have purchased the Purchase Shares (as
defined in the Mycogen Purchase Agreement); and
(vii) no third party shall have acquired, or shall have an
agreement to acquire, a majority of the outstanding Common Stock.
(b) The obligation of Lubrizol and Seller to sell Seller's Shares
shall be subject to the satisfaction or, in the case of Section 12 (b) (iii),
waiver by Lubrizol and Seller at or prior to the Closing of each of the
following conditions:
(i) no statute, rule, regulation, executive order, decree,
ruling, injunction or other order shall have been enacted, entered, promulgated
or enforced by any court or governmental authority of competent jurisdiction
which prohibits or makes illegal the sale of Seller's Shares pursuant to this
Agreement;
(ii) any waiting period applicable to the purchase and sale of
Seller's Shares pursuant to this Agreement under the HSR Act shall have
terminated or expired; and
(iii) the representations and warranties of Purchaser contained
in this Agreement shall be true in all material respects both when made and at
and as of the Closing as though newly made at and as of that time.
Section 13. PUBLIC ANNOUNCEMENTS. Purchaser, Lubrizol and Seller
will consult with each other before issuing any press release or otherwise
making any public statements with respect to the transactions contemplated by
this Agreement and shall not issue any such press release or make any such
public statement prior to such consultation, except as may be required by
applicable law or by applicable rules of any securities exchange or upon advice
of outside counsel.
Section 14. 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 15. INDEMNIFICATION. Each party (an "indemnitor"), in
connection with the transactions contemplated herein, shall indemnify and hold
the other party (the "indemnitee") harmless from and against any and all
losses, damages, claims, liabilities or obligations (including attorney
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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 16. EXPENSES. Each party shall bear its own expenses and
costs in connection with this Agreement and the transactions contemplated
hereby. Each party shall bear the cost of compensating any investment banker
it has retained.
Section 17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; AGREEMENTS
JOINT AND SEVERAL. 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 for a period of five (5)
years.
Section 16. 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. No party to
this Agreement may assign any of its rights or obligations under this Agreement
without the prior consent of the other parties 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 19. 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 20. 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 Lubrizol or Seller, to;
The Lubrizol Corporation
00000 Xxxxxxxx Xxxx.
Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Vice President and Secretary
with a copy to:
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Xxxx X. Xxxxxx, Special Counsel
c/o The Lubrizol Corporation
00000 Xxxxxxxx Xxxx.
Xxxxxxxxx, Xxxx 00000-0000
(b) If to Purchaser, to:
DowElanco
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxxx, Vice President Secretary and
General Counsel
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx
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 21. REASONABLE BEST EFFORTS. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things reasonably necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. Without limiting the generality
of the foregoing, the parties hereto shall cooperate with one another (i) in
determining whether action by or in respect of, or filing with, any
governmental body, agency, official or authority (either domestic or foreign)
is required, proper or advisable or any actions, Consents, waivers or approvals
are required to be obtained from parties to any contracts, in connection with
the transactions contemplated by this Agreement and (ii) in seeking to obtain
on a timely basis any such actions, consents, waivers or to make any such
filings. In case at any time after the Closing any further action is necessary
or desirable to carry out the purposes of this Agreement, the proper officers
and directors of each party hereto shall take all such necessary action.
Section 22. TERMINATION. This Agreement may be terminated by either
party on or after July 31, 1996 if Purchaser has not purchased Seller's Shares
pursuant to this Agreement. No
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such termination shall relieve any party from liability for any
breach of this Agreement.
Section 23. 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 24. ENTIRE AGREEMENT. This Agreement and the
Confidentiality Agreement between Purchaser and Lubrizol dated November 17,
1995 (to the extent that Confidentiality Agreement, by its terms, survives the
execution of this Agreement) constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and thereof and supersede all
other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
Section 25. 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 or interpretation of this Agreement.
Section 26. CERTAIN DEFINITIONS. For purposes of this Agreement,
the term:
(a) "affiliate" of a person means a person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the first mentioned person;
(b) "Blue Sky" laws means laws and regulations of any state or
territory of the United States relating to the regulation of the offer and sale
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;
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(x) "XXX Xxx" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
(e) "knowledge" means knowledge after reasonable inquiry;
(f) "Liens" means any security interests, liens, claims, pledges,
charges, voting agreements or other encumbrances of any nature whatsoever;
(g) "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
(h) "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 or other equity interests the
holder of which is generally entitled to vote for the election of the board of
directors or other governing body of such corporation, partnership, joint
venture or other legal entity.
Section 27. 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.
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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: /s/ Xxxxxxx X. Xxxxxxx
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Name:
Title:
ThE LUBRIZOL CORPORATION
By: /s/ X. X. Xxxxxxx
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Name:
Title:
AGC HOLDINGS, INC.
By: /s/ O. F. Xxxxxx
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Name:
Title: President
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