-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, KIe8oiEbDQviUJ7w56gZefx8AdzXYOKPDFkvonSnvppGtdQSMW/bhGhx6I2jqWAU WcSyVZZmAJD/biUtcFk7Iw== 0000898430-95-000589.txt : 19950421 0000898430-95-000589.hdr.sgml : 19950421 ACCESSION NUMBER: 0000898430-95-000589 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19950420 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MYCOGEN CORP CENTRAL INDEX KEY: 0000813742 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE SERVICES [0700] IRS NUMBER: 953802654 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-58721 FILM NUMBER: 95529834 BUSINESS ADDRESS: STREET 1: 4980 CARROLL CANYON RD CITY: SAN DIEGO STATE: CA ZIP: 92121 BUSINESS PHONE: 6194538030 MAIL ADDRESS: STREET 1: 4980 CARROLL CANYON ROAD CITY: SAN DIEGO STATE: CA ZIP: 92121 S-3 1 FORM S-3 As filed with the Securities and Exchange Commission on April 20, 1995 Registration No. 33-______ ________________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ____________ MYCOGEN CORPORATION (Exact name of Registrant as specified in its charter) DELAWARE 95-3802654 (State or other juris- (I.R.S. Employer diction of incorpo- Identification No.) ration or organization) 4980 Carroll Canyon Road, San Diego, California 92121 (619) 453-8030 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) Carlton J. Eibl Executive Vice President and General Counsel MYCOGEN CORPORATION 4980 Carroll Canyon Road, San Diego, California 92121 (619) 453-8030 (Name, address, including zip code, and telephone number, including area code, of agent for service) ____________ Copies to: Craig S. Andrews, Esq. BROBECK, PHLEGER & HARRISON 550 West C Street, Suite 1300 San Diego, California 92101 ____________ Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [_] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box: [X]
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------- Title of Proposed Proposed Each Class of Maximum Maximum Securities Amount Offering Aggregate A to be to be Price Offering Registration Registered Registered Per Share(l) Price(l) Fee - ------------------------------------------------------------------------------------------------------------- Common Stock, par value $.001 153,846 $9.875 $1,519,229.25 $523.87 - -------------------------------------------------------------------------------------------------------------
(l) Estimated solely for the purpose of computing the amount of the registration fee in accordance with Rule 457(g) under the Securities Act of 1933. ____________ The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. ________________________________________________________________________________ 153,846 SHARES MYCOGEN CORPORATION COMMON STOCK (PAR VALUE $.001 PER SHARE) ________________ This Prospectus relates to the public offering, which is not being underwritten, of 153,846 shares of Common Stock, par value $.001 per share, of Mycogen Corporation ("Mycogen" or the "Company"). All 153,846 shares (the "Shares") may be offered by a certain stockholder of the Company ("Selling Stockholder") who received such Shares pursuant to that certain Purchase Agreement among the Company, its subsidiary Agrigenetics, Inc., doing business as Mycogen Plant Sciences ("MPS"), and Delta and Pine Land Company ("DPL"), dated as of February 15, 1995 (the "Purchase Agreement"). The Shares were issued pursuant to an exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act") provided by Section 4(2) thereof. The Shares are being registered by the Company pursuant to a registration rights obligation with the Selling Stockholder. See "The Company" and "Selling Stockholder." The sale of the Shares may be effected by the Selling Stockholder from time to time in transactions in the over-the-counter market, in negotiated transactions or a combination of such methods of sale, at fixed prices which may be changed, at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. The Selling Stockholder may effect such transactions by selling the Shares to or through broker-dealers, and such broker-dealers may receive compensation in the form of discounts, concession or commission from the Selling Stockholder and/or the purchasers of the Shares for whom such broker-dealers may act as agents or to whom they may sell as principals or both (which compensation as to a particular broker-dealer might be in excess of customary commissions). See "Plan of Distribution." None of the proceeds from the sale of the Shares by the Selling Stockholder will be received by the Company. The Company has agreed, among other things, to bear certain expenses (other than underwriting discounts and commission and brokerage commissions and fees) in connection with the registration and sale of the Shares being offered by the Selling Stockholder. See "Selling Stockholder." Mycogen Common Stock is traded on the Nasdaq National Market ("Nasdaq National Market") under the symbol "MYCO." On April 12, 1995, the last sale price of Mycogen Common Stock as reported on the Nasdaq National Market was $10.25 per share. The Selling Stockholder and any broker-dealers, agents or underwriters that participate with the Selling Stockholder in the distribution of Shares may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act, and any commissions received by them and any profit on the resale of the Shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. See "Plan of Distribution" for a description of indemnification arrangements. ________________ THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS." ________________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. _______________ The date of this Prospectus is April 20, 1995. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING MADE HEREBY, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE SELLING STOCKHOLDER OR BY ANY OTHER PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SHARES TO ANY PERSON OR BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION MAY NOT LAWFULLY BE MADE. AVAILABLE INFORMATION Mycogen is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and, in accordance therewith, files reports, proxy or information statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the following regional offices of the Commission: 7 World Trade Center, 13th Floor, New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material also can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Additional information regarding the Company and the shares offered hereby is contained in the Registration Statement on Form S-3 and the exhibits thereto (the "Registration Statement") filed with the Commission under the Securities Act of 1933, as amended (the "Securities Act"). For further information pertaining to the Company and the shares, reference is made to the Registration Statement and the exhibits thereto, which may be inspected without charge at, and copies thereof may be obtained at prescribed rates from, the office of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. INFORMATION INCORPORATED BY REFERENCE The following documents filed by the Company with the Commission (Commission File No. 0-15881) are hereby incorporated by reference in this Prospectus: (1) The Annual Report of the Company on Form 10-K for the fiscal year ended December 31, 1994; and (2) The description of the Company's Common Stock contained in its Registration Statement on Form 8-A filed with the Commission on May 19, 1987. All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to the termination of this Offering shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such reports and documents. Any statement incorporated herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person to whom this Prospectus is delivered, upon written or oral request of such person, a copy of any or all of the foregoing documents incorporated herein by reference (other than exhibits to such documents, unless such exhibits are specifically incorporated by reference into such document). Requests for such documents should be submitted in writing to the Secretary, at Mycogen Corporation, 4980 Carroll Canyon Road, San Diego, California 92121 or by telephone at (619) 453- 8030. -2- THE COMPANY Mycogen is a diversified agricultural biotechnology company that develops and markets environmentally compatible biopesticides and improved crop varieties to control pests and to increase food and fiber production. The Company has five operating units: (1) Agrigenetics, Inc., a majority-owned subsidiary doing business as Mycogen Plant Sciences ("Mycogen Plant Sciences" or "MPS"), that produces and markets planting seeds for agricultural and oilseed crops and uses biotechnology and traditional plant breeding techniques to develop pest- resistant and other value-added crop varieties; (2) a biopesticide division that develops, manufactures and markets microbial and fatty acid based biopesticide products; (3) Parasitix Corporation, a wholly owned animal health subsidiary that develops and markets pesticides for use in poultry and livestock operations; (4) an international division that markets internationally the Company's biopesticides and value-added crop varieties through several foreign subsidiaries and distribution networks present in over 50 countries; and (5) Soilserv, Inc., a wholly-owned customized crop protection services subsidiary. The Company's strategy is to use its proprietary Bacillus thuringiensis ("Bt") biotoxin gene technology (i) to expand its portfolio of biopesticide products and (ii) in combination with the plant transformation and other advanced plan science technology of its Mycogen Plant Sciences subsidiary, to develop pest-resistant crop varieties with improved food and fiber characteristics. With a total of 138 U.S. patents, more than 200 foreign patents and approximately 97 additional patent applications pending in the U.S., with corresponding applications pending in other countries, the Company believes that it has a strong proprietary position for its Bt and plant science technology. The Company also will continue to use traditional plant breeding techniques to obtain pest resistance and other value added characteristics from native plant sources, and to breed such characteristics into the Company's elite plant parent lines for its seed crops. Value-added planting seed products incorporating crop protection characteristics into the seed will be commercialized through Mycogen Plant Sciences. The primary focus of this effort will be in corn and cotton, two of the largest crops in terms of seed and pesticide sales. Biopesticides products embodying Mucogen's core technology are sold to the agricultural crop protection markets through the biopesticide division and will be sold to the poultry and livestock markets through the Parasitix subsidiary. The international division will coordinate marketing, sales and distribution of all products outside of North America. Mycogen intends to continue to broaden its participation in the crop protection industry by continuing to refine and apply its technology to better meet the needs of the market and by pursuing strategic transactions and acquisitions. Mycogen was incorporated in California in December 1982 and was reincorporated in Delaware in November 1986. The Company's headquarters are located at 5501 Oberlin Drive, San Diego, California 92121, and its telephone number is (619) 453-8030. RISK FACTORS The following are among the factors that should be considered carefully in evaluating the Company and its business before purchasing the Common Stock offered by this Prospectus. SEASONALITY OF BUSINESS AND PRODUCT TESTING The Company currently markets its products and services primarily for use in the northern hemisphere, where the growing season generally runs from March until October. The seasonal nature of the growing season will cause the Company's operating revenues to be concentrated primarily in the first and second calendar quarters and will result in substantial variations in quarter-to-quarter financial results. Commercial introduction of additional products is contingent on, among other factors, completion of field testing and receipt of required regulatory approvals. Unusual weather conditions during field tests or failure to receive regulatory -3- approvals prior to the growing season may delay field tests, or require additional field tests in subsequent growing seasons, with a resulting delay in product tests, development and commercialization. Such delays could result in additional losses from increased operating expenses in the intervening period without significant offsetting revenues. ABSENCE OF PROFITABLE OPERATIONS The Company first achieved profitability on an annual basis in fiscal 1994. There can be no assurance that profitability will continue on a quarterly or annual basis in the future. There also can be no assurance that the Company will experience revenue growth. As of December 31, 1994, the Company had an accumulated deficit of approximately $97,765,000. Funding to date has been provided primarily through public and private sales of equity securities, product sales, revenues from collaborative agreements with corporate partners and interest income. Operating losses may continue to occur as a result of expenses incurred in anticipation of additional product introductions and continued substantial research and development costs. AGRIBUSINESS RISKS In addition to the risks associated with the development, production and marketing of the Company's products, general market risks are present in the agricultural business. Government policies, both in the United States and overseas, year-to-year fluctuations in pest populations and weather conditions in the growing areas are significant factors in determining the volume of planting seeds and biopesticides sold and, therefore, the Company's revenues. Government policies affect, among other things, crop acreage planted, farmers' decisions as to which crops to plant, the export of agricultural crops, the types of pesticides used and commodity prices. Year-to-year fluctuations in pest populations are influenced by weather conditions, the gestation cycles for particular pests and the effectiveness of pesticides, among other factors. Weather conditions affect seed production yields, planting decisions by farmers and commodity prices. There can be no assurance that current or future government policies will not have a material adverse effect on the Company's business. There can be no assurance that year-to-year fluctuations in certain pest populations will not have a material adverse effect on the Company's business. There also can be no assurance that adverse weather conditions will not have a material adverse effect on the Company's business. HIGHLY COMPETITIVE INDUSTRY The Company faces stiff competition. There are many companies, including planting seed companies and chemical companies, that are seeking to develop new products to protect crops from pests and to increase crop yield. Many of these companies have substantially greater financial and technical resources and production and marketing capabilities than the Company. In addition, many of these companies have had significantly greater resources than the Company to obtain regulatory approval and to market new products. Although the crop protection and planting seed industry is already highly competitive, competition may increase further as a result of the potential advances in the commercial applicability of biotechnology and the greater availability of capital for investment in these fields. Accordingly, there can be no assurance that the Company will be able to continue to compete successfully with its existing competitors or will be able to compete successfully with new competitors. GOVERNMENT REGULATION; PRODUCT APPROVAL Many of the crop protection products under development by the Company are considered pesticides, and are subject to rigorous testing and approval processes by the U.S. Environmental Protection Agency ("EPA") and similar regulatory authorities in various states and in other countries. The process of obtaining such approvals can be lengthy and expensive. There can be no assurance that the Company will be able to obtain the necessary approvals for marketing additional crop protection products. For example, while the EPA has in place a registration procedure for biopesticides that is streamlined in comparison to the registration procedure for chemical pesticides, there can be no assurance that all of the Company's products will be eligible for the streamlined procedure or that additional requirements will not be added by the EPA, which could make the procedure more time-consuming and costly. In addition, the regulatory process for crop protection products using genetic engineering and other methods of biotechnology is evolving and additional restrictions on -4- research and product commercialization may result. If the Company is unable to obtain the necessary approvals to market additional crop protection products, such circumstances would have a material adverse effect on the Company. The field testing, production and marketing of genetically engineered planting seeds by the Company are also subject to federal, state, local and foreign government regulation. The United States Department of Agriculture ("USDA") has not exempted from its permit process the commercial production of genetically engineered plants other than one company's variety of tomato. The production and marketing of genetically engineered plants also are subject to review by the U.S. Food and Drug Administration ("FDA") if the plants are intended to be used as a food product. There can be no assurance that the agencies that oversee current or future regulations of genetically engineered planting seeds will allow the Company to produce and market their genetically- engineered planting seeds in a timely manner or under technically or commercially feasible conditions. In addition, regulatory action or private litigation could result in expenses, delays and other problems for the Company's product development programs and the commercialization of its products. In addition, the Company, and particularly its Soilserv subsidiary, is subject to a variety of federal, state and local environmental regulations in connection with the storage, application and disposal of pesticides and the storage of fuel used in operations. Although the Company believes that it is in compliance with all such environmental regulations, failure to comply with present or future regulations could result in substantial expense or the suspension or cessation of material operations, which could have a material adverse effect on the Company. In addition, in the event of a misapplication of pesticides or improper storage or disposal of pesticides or storage of fuels by the Company, the Company or one or more of its subsidiaries could be held liable for any resulting damages and clean up costs, which liability could have a material adverse effect on the Company. The Company also could be held liable for damages and clean up costs that could result from past storage and disposal of pesticides or storage of fuels, which liability could have a material adverse effect on the Company. MARKET ACCEPTANCE The predominant pest control products in use today are chemical pesticides. The Company's products usually require different pest control practices. The rate at which farmers adopt new pest control practices will affect directly the market acceptance of the Company's products. If market acceptance of the Company's products is slower than anticipated, the Company's product sales would be adversely affected, which could result in continuing or increased losses. There can be no assurance that such products will gain public acceptance, regardless of the status of the regulatory approvals. DEPENDENCE ON PATENTS AND PROPRIETARY TECHNOLOGY The Company has developed proprietary information and techniques and has received and applied for patents relating to its technology and products. There can be no assurance that the patents for which the Company has applied will be issued or that any issued patents will provide adequate protection for the Company's products and processes. In the absence of patent protection, the Company may be vulnerable to competitors who attempt to imitate the Company's products and processes with respect to the Company's products. In addition, other companies and inventors may receive patents that contain claims applicable to some of the Company's products. Sale of the Company's products covered by such patents could require licenses that may not be available on acceptable terms. The patent position of biotechnology firms in general is highly uncertain. There can be no assurance as to the degree and range of protection from biotechnology patents or to the Company's ability to pursue its strategy without infringing the patents of others. The Company also relies upon unpatented proprietary and trade secret technology. Although the Company takes precautions to protect its proprietary and trade secret technology, there can be no assurance that others will not independently develop substantially equivalent information and techniques or otherwise gain access to the Company's trade secrets or proprietary information. Certain companies have been issued patents or have obtained proprietary rights necessary or potentially useful to the Company. The scope and validity of patents and other proprietary rights held by others are presently unknown. If such rights are critical to the Company and cannot be obtained on terms favorable to the Company, delays in the development of products could result, and market introductions of products could be inhibited. -5- INFLUENCE OF CORPORATE RELATIONSHIPS The Company has corporate relationships and intends to enter into future corporate relationships to commercialize certain of its products in non- agricultural and foreign markets. Although the Company believes that its corporate partners will be economically motivated to commercialize the products covered by these relationships in a timely and effective manner, the amount and timing of financial and other resources devoted to these activities generally are influenced by the Company's corporate partners. EXCLUSIVE MANUFACTURING AGREEMENT The Company's microbial bioinsecticides are manufactured by Enzyme Bio-Systems, Ltd. ("EB") pursuant to an exclusive manufacturing agreement. The Company believes that EB has sufficient available capacity at its plant to satisfy the Company's needs for the immediate future. However, if EB were unable to manufacture bioinsecticides for the Company, manufacture of such products could be interrupted until alternative sources could be located. Such an interruption would have a short-term adverse effect and could have a long- term adverse effect on the Company's business. The Company intends to implement a new higher yielding production process for certain of its biopesticide products to improve economics. Implementation of this process at EB may require capital investment by the Company and delays may be encountered which could have a material adverse effect on the Company. PRODUCT LIABILITY The Company faces an inherent business risk of exposure to product liability claims in the event that the use of its current or prospective products results in adverse effects. While the Company will continue to attempt to take appropriate precautions, there can be no assurance that it will avoid significant product liability exposure. The Company currently maintains limited product liability insurance for its products. VOLATILITY OF STOCK PRICE The market prices for securities of emerging companies, including Mycogen, have been highly volatile. Announcements of technological innovations for new commercial products by the Company's present or potential competitors, actual or anticipated financial results, developments concerning patents or other proprietary rights, adverse results in the Company's field tests, adverse litigation, adverse legislation, regulatory decisions at any level of government or public concerns regarding biopesticides or biotechnology may have a significant impact on the Company's business and on the market price of the Company's Common Stock. SHARES ELIGIBLE FOR FUTURE SALE Future sales of shares by existing stockholders pursuant to Rule 144 of the Securities Act of 1933, as amended, or through the exercise of outstanding registration rights could have an adverse effect on the price of the Company's Common Stock. SELLING STOCKHOLDER The following table sets forth certain information regarding the Selling Stockholder's beneficial ownership of the Company's Common Stock as of February 28, 1995. Except as otherwise indicated in this Prospectus the Selling Stockholder has not had a material relationship with the Company within the past three years other than as a result of the ownership of the Shares or other securities of the Company. The numbers set forth in the column "Number of Shares Being Offered" below constitute all of the Shares that the Selling Stockholder may distribute in the offering; however, there are currently no agreements, arrangements or understandings with respect to the sale of any of the Shares and the table below assumes the sale of all Shares held by the Selling Stockholder. The Shares are being registered to permit public secondary trading of the Shares, and the Selling Stockholder may offer the Shares for resale from time to time. See "Plan of Distribution." -6- The Selling Stockholder received upon execution of the Purchase Agreement 153,846 shares of Mycogen Common Stock, as part of the consideration for the transactions under the Purchase Agreement. The following table sets forth the name of the Selling Stockholder, the number of shares of Mycogen Common Stock owned beneficially by the Selling Stockholder as of February 28, 1995 and the number of shares which may be offered pursuant to this Prospectus. Mycogen will not receive any of the proceeds from the sale of Shares by the Selling Stockholder. The Company has filed with the Commission a Registration Statement on Form S-3, of which this Prospectus forms a part, with respect to, among other things, the resale of the Shares from time to time at prevailing prices in the over-the- counter market or in privately-negotiated transactions and has agreed to prepare and file such amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement effective until all Shares offered hereby have been sold pursuant thereto or until, pursuant to the Purchase Agreement, Mycogen has repurchased all outstanding Shares.
Shares Beneficially Number of Shares Beneficially Owned Shares Being Owned Name and Address Prior to Offering/1/2/ Offered After Offering/2// - -------------------------------------------- ------------------------------ --------- ------------------------- Number Percent Number Percent ---------- ------------- ---------- --------- Delta and Pine Land Company................ 153,846 * 153,846 0 0% One Cotton Way Scott, Mississippi 38772
_______________________ * Less than 1%. /1// The persons named in the table have sole voting and sole investment power with respect to all shares beneficially owned. /2// Applicable percentage of ownership is calculated pursuant to Rule 13d- 3(d)(1) and is based on 19,309,047 shares of Common Stock outstanding of February 28, 1995. -7- PLAN OF DISTRIBUTION The Shares offered hereunder may be sold from time to time by the Selling Stockholder, or by pledgees, donees, transferees or other successors in interest. Such sales may be made on the Nasdaq National Market or in the over- the-counter market or otherwise, at prices and on terms then prevailing or related to the then-current market price, or in negotiated transactions. The Shares may be sold to or through one or more broker-dealers, acting as agent or principal, in underwritten offerings, block trades, agency placements, exchange distributions, brokerage transactions or otherwise, or in any combination of transactions. At the time a particular offer of Shares is made, to the extent required, a supplemental Prospectus will be distributed which will set forth the number of shares being offered and the terms of the offering including the name or names of any underwriters, dealers or agents, the purchase price paid by any underwriter for the Shares purchased from the Selling Stockholder, any discounts, commissions and other items constituting compensation from the Selling Stockholder and any discounts, concessions or commissions allowed or reallowed or paid to dealers. In connection with any transaction involving the Shares, broker-or others may receive from the Selling Stockholder, and may in turn pay to other broker- dealers or others, compensation in the form of commissions, discounts or concessions in amounts to be negotiated at the time (which compensation may be in excess of customary commissions). Broker-dealers and any other persons participating in a distribution of the Shares may be deemed to be "underwriters" within the meaning of the Act in connection with such distribution, and any such commissions, discounts or concessions may be deemed to be underwriting discounts or commissions under the Act. Any or all of the sales or other transactions involving the Shares described above, whether effected by the Selling Stockholder, any broker-dealer or others, may be made pursuant to this prospectus. In addition, any Shares that qualify for sale pursuant to Rule 144 under the Act may be sold under rule 144 rather than pursuant to this prospectus. In order to comply with the securities laws of certain states, if the Shares may be sold in such jurisdictions only through registered or licensed brokers or dealers. In addition, in certain states the Shares may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with. Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the Shares may not simultaneously engage in market making activities with respect to Mycogen Common Stock for a period of two business days prior to the commencement of such distribution. In addition and without limiting the foregoing, the Selling Stockholder will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, Rules 10b-6 and 10b-7, which provisions may limit the timing of purchases and sales of shares of the Shares by the Selling Stockholder. All costs associated with this offering will be paid by Mycogen. Mycogen and the Selling Stockholder may agree to indemnify certain persons, including broker-dealers or others, against certain liabilities in connection with any offering of the Shares, including liabilities under the Securities Act. LEGAL MATTERS The validity of the shares offered hereby will be passed upon for the Company by Carlton J. Eibl, vice president and general counsel of the Company. -8- EXPERTS The consolidated financial statements of Mycogen Corporation appearing in Mycogen Corporation's Annual Report (Form 10-K) for the year ended December 31, 1994, havee been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon icluded therein and incorporated herein by reference. Such financial statements are, and audited financial statements to be included in subsequently filed documents will be, incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission) given upon the authority of such firm as experts in accounting and auditing. -9- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth the various costs and expenses to be paid by the Company with respect to the sale and distribution of the securities being registered. All of the amounts shown are estimates except the Securities and Exchange Commission registration. SEC Registration Fee.............. $ 524 Legal Fees and Expenses........... $ 5,000 Accounting Fees and Expenses*..... $ 3,000 Printing and Engraving Expenses*.. $ 1,200 Miscellaneous*.................... $ 276 Total............................... $10,000 ======
__________________ *Estimated ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation law provides for indemnification of a corporation's officers and directors under certain circumstances. Section 145 of the Delaware General Corporation Law also provides that a corporation has the power to purchase and maintain insurance on behalf of its officers and directors against any liability asserted against such person and incurred by him or her in such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of Section 145 of the Delaware General Corporation Law. Section 7.7 of the Bylaws of the Company also provides for indemnification of officers and directors, as authorized by Section 145. Section 102(b)(7) of the Delaware General Corporation Law enables a corporation in its certificate of incorporation to limit the personal liability of members of its board of directors for violations of a director's fiduciary duty of care. The Section does not, however, limit the liability of a director for breaching his or her duty of loyalty, failing to act in good faith, engaging in intentional misconduct or knowingly violating a law, or from any transaction in which the director derived an improper personal benefit. The Section also will have no effect on claims arising under the federal securities laws. The Certificate of Incorporation of the Company limits the liability of its directors as authorized by Section 102(b)(7). The stockholders of the Company have approved indemnification agreements with each of its directors. These agreements provide for indemnification against liability incurred in their capacity as directors. ITEM 16. EXHIBITS (A) EXHIBITS 5.1 Opinion of Vice President and General Counsel of the Company 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Vice President and General Counsel of the Company (to be included in Exhibit 5.1). 24.1 Power of Attorney (see page II-4). II-1 99.1 Purchase Agreement among Mycogen, Agrigenetics, Inc. and Delta and Pine Land Company, dated February 15, 1995. ITEM 17. UNDERTAKINGS. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) If the registrant is a foreign private issuer, to file a post- effective amendment to the registration statement to include any financial statements required by Rule 3-19 of Regulation S-X at the state of any delayed offering or throughout a continuous offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. The undersigned Registrant hereby undertakes to deliver or cause to be delivered with the Prospectus, to each person to whom the Prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the Prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the Prospectus, to deliver, or cause to be delivered to each person to whom the Prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the Prospectus to provide such interim financial information. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, Delaware Corporation law, the Underwriting Agreement or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefor, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered hereunder, the Registrant will, unless in the opinion of its counsel the question has been II-2 settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Act, the information omitted from the form of Prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on the 19th day of April, 1995. MYCOGEN CORPORATION By /s/ Jerry D. Caulder ---------------------------------------------- Jerry D. Caulder Chairman, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jerry D. Caulder and Carlton J. Eibl and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Jerry D. Caulder Chairman, President, Chief April 19, 1995 - --------------------------- Executive Officer and Director (Jerry D. Caulder) (Principal Executive Officer) /s/ Carlton J. Eibl Executive Vice President April 19, 1995 - --------------------------- (Principal Financial Officer) (Carlton J. Eibl) /s/ James Baumker Controller (Principal Accounting April 19, 1995 - --------------------------- Officer) (James Baumker) /s/ Andrew C. Barnes Executive Vice President and April 19, 1995 - --------------------------- Director (Andrew C. Barnes) /s/ Thomas J. Cable Director April 19, 1995 - --------------------------- (Thomas J. Cable) /s/ Orville Freeman Director April 19, 1995 - --------------------------- (Orville Freeman) /s/ George R. Hill Director April 19, 1995 - --------------------------- (George R. Hill) /s/ David A. Rammler Director April 19, 1995 - --------------------------- (David A. Rammler) /s/ A. John Speziale Director April 19, 1995 - --------------------------- (A. John Speziale)
II-4 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 EXHIBITS TO FORM S-3 UNDER SECURITIES ACT OF 1933 MYCOGEN CORPORATION
EXHIBIT INDEX ------------- Exhibit Number Exhibit - ------- ------- 5.1 Opinion of Vice President and General Counsel of the Company. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Vice President and General Counsel of the Company (to be included in Exhibit 5.1). 24.1 Power of Attorney (see page II-4). 99.1 Purchase Agreement among Mycogen, Agrigenetics, Inc. and Delta and Pine Land Company, dated February 15, 1995.
EX-5.1 2 CONSENT OF EIBL EXHIBIT 5.1 OPINION OF VICE PRESIDENT AND GENERAL COUNSEL OF THE COMPANY April 19, 1995 Mycogen Corporation 5501 Oberlin Drive San Diego CA 92121 Ladies and Gentlemen: I have acted as counsel to Mycogen Corporation, a Delaware corporation (the "Company") in connection with the issuance and sale, and subsequent registration, of 153,846 shares of Common Stock (the "Common Stock") as described in the Company's Registration Statement on Form S-3 ("Registration Statement"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended. In connection with this opinion, I have examined and relied upon the Registration Statement and related Prospectus, the Company's Certificate of Incorporation, as amended, the Company's bylaws, as amended, and the originals, or copies certified to my satisfaction, of such records, documents, certificates, memoranda and other instruments as in my judgment are necessary or appropriate to enable me to render the opinion expressed below. It is my opinion that the Common Stock has been duly authorized, validly issued, fully paid and nonassessable. I consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Very truly yours, /s/ Carlton J. Eibl Carlton J. Eibl EXHIBIT 5.1 EX-23.1 3 CONSENT OF E&Y EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of Mycogen Corporation for the registration of shares of its commons stock and to the incorporation by reference therein of our report dated February 10, 1995, with respect to the consolidated financial statements of Mycogen Corporation inlcuded in its Annual Report (Form 10-K) for the year ended December 31, 1994, filed with the Securities and Exchange Commission. /s/ Ernst and Young LLP Ernst and Young LLP San Diego, California April 13, 1995 EXHIBIT 23.1 EX-23.2 4 CONSENT OF EIBL EXHIBIT 23.2 CONSENT OF VICE PRESIDENT AND GENERAL COUNSEL OF THE COMPANY (INCLUDED IN EXHIBIT 5.1) EXHIBIT 23.2 EX-24.1 5 POWER OF ATTORNEY EXHIBIT 24.1 POWER OF ATTORNEY (SEE PAGE II-4) EXHIBIT 24.1 EX-99.1 6 PURCHASE AGREEMENT EXHIBIT 99.1 PURCHASE AGREEMENT AMONG MYCOGEN, AGRIGENETICS, INC. AND DELTA AND PINE LAND COMPANY, DATED FEBRUARY 15, 1995 PURCHASE AGREEMENT This Purchase Agreement dated as of February 15, 1995, is made and entered into by and between Mycogen Corporation ("Mycogen") and its subsidiary Agrigenetics, Inc. doing business as Mycogen Plant Sciences ("MPS"), and Delta and Pine Land Company ("DPL"). Mycogen and MPS desire to purchase DPL's corn and sorghum business for the benefit of MPS and DPL desires to sell such business to MPS. The parties contemplate consummating such a transaction in three components. One component involves the exchange of certain facilities located in Lubbock, Texas owned by MPS for certain facilities located in Plainview and Dumas, Texas owned by DPL. Another component involves the acquisition by MPS of DPL's planting and foundation seed germplasm and contracts associated with DPL's corn and sorghum business. The final component involves an arrangement for the sale of DPL's current corn and sorghum inventories. NOW, THEREFORE, the parties hereby agree as follows: ARTICLE I EXCHANGE OF FACILITIES 1.1 EXCHANGE OF PROPERTY. MPS and DPL hereby agree that on June 30, 1995 (the "Property Closing Date"), MPS and DPL, subject to the terms and conditions set forth under this Article I, will consummate the exchange of the following properties (the "Exchange"): (i) MPS will convey to DPL, MPS's facilities and, except as set forth on Schedule 1.1A, all fixed assets located at and used predominantly in connection with the operation of such facilities located at 624 27th Street and 6201 Southeast Loop #289, Lubbock, Texas (the "MPS Property"); and (ii) DPL will convey to MPS, DPL's facilities and, except as set forth on Schedule 1.1B, all fixed assets located at and used predominantly in connection with the operation of such facilities located at 3600 North Columbia Street, Plainview, Texas, and Highway 152, Dumas, Texas (the "DPL Property"). Each party will keep their own rolling stock and, as to be agreed upon by the parties, certain portable assets (such as furniture, computers, supplies, etc.). Each party will be responsible for removing all of their own rolling stock and agreed-upon portable assets from their facilities on or before the Property Closing Date. 1.2 OPERATION OF PROPERTIES PRIOR TO THE EXCHANGE. Prior to the Property Closing Date, each party will continue to operate its own facilities at its own cost. 1.3 MISCELLANEOUS COSTS. (a) Each party will pay the cost of recording the warranty deed to the property being acquired by such party. (b) Each party will pay (i) the cost of preparing its warranty deed to be delivered to the other party and any documentary transfer tax on its warranty deed, and (ii) the cost of an ALTA policy of title insurance as described in Section 1.4(b) hereof. (c) Any other costs to effect the Exchange will be apportioned in a manner that is customary in the county where each of the MPS Property and the DPL Property, respectively, are located. EXHIBIT 99.1 1.4 CONDITIONS OF CLOSING. On the Property Closing Date, MPS (with respect to the MPS Property) and DPL (with respect to the DPL Property) will deliver to the other party the following items, which must be satisfied to effect the Exchange: (a) Subject to any exceptions and limitations set forth in the title insurance policy accepted by the acquiring party in accordance with Section 1.4(b) and (c), a warranty deed conveying title to such property to the acquiring party. (b) An ALTA standard policy of title insurance issued by a nationally recognized title company with liability in the amount of the value of the property as reflected in the financial records of MPS or, as the case may be, DPL showing title to such property as set forth in Section 1.1 above, subject only to: (i) Nondelinquent real property taxes, assessments, and improvement bonds; (ii) Utility, drainage and slope easements affecting such property that may be approved by the acquiring party in accordance with Section 1.4(c) below; (iii) Such liens, licenses, easements, encumbrances, covenants, conditions and restrictions and other matters of record that may be approved by the acquiring party in accordance with Section 1.4(c) below; and (iv) A reservation of the mineral estate under such property so long as such reservation shall not include the right to use the surface of such property or the upper 500 feet of the land lying below the surface thereof; and (v) Any other similar exceptions to title that do not interfere with the operation of the MPS Property and the DPL Property, respectively, as currently conducted. (c) As soon as possible after the date of this Agreement, MPS (with respect to the MPS Property) and DPL (with respect to the DPL Property) will deliver to the other party the following items: (i) A standard preliminary title commitment for a dollar amount equal to the book value of such property as reflected on the financial records of MPS and DPL, respectively (the "Title Commitment") issued by a nationally recognized title company showing the status of the title of such property; (ii) A copy of all existing leases and management, maintenance, security and other contracts pertaining to such property ("Contracts"), which Contracts are listed on Schedule 1.4; and (iii) Recorded tract map and other data pertaining to such property which are in the possession of, or are available without cost to, MPS or, as applicable, DPL. Within 30 days of each party's receipt of the other party's Title Commitment, the receiving party will notify the delivering party in writing of any unacceptable exceptions in the Title Commitment so that the receiving party may attempt to secure the removal thereof. Failure to disapprove in writing any such exceptions within said 30 day period will be deemed approval thereof. Each party will use diligent efforts to remove within 60 days of disapproval any exceptions to title disapproved by the acquiring party. In the event that any such disapproved exceptions to title cannot be removed to the acquiring party's satisfaction within such 60 day period, the parties will negotiate a mutually acceptable remedy to compensate and protect the acquiring party from risks associated with such disapproved exception to title. MPS will accept by assignment the DPL Contract listed on Schedule 1.4. There are no Contracts associated with the MPS Property to be assigned to DPL. (d) Any other instruments and documents customary in the respective counties in Texas where the MPS Property and the DPL Property are located in order to effect the exchange. EXHIBIT 99.1 (e) A certificate duly executed by each party certifying that the representations and warranties of such party as set forth under Section 1.6 are true and correct as of the Property Closing Date. (f) Satisfaction of the obligations with respect to environmental matters as set forth under Section 1.7. 1.5 POSSESSION, PRORATIONS AND CASUALTY. (a) Each party will be entitled to possession of the property to be acquired by such party under the terms of this Agreement upon the exchange of deeds under Section 1.4(a) above. (b) Real property taxes and assessments on each of the MPS Property and the DPL Property will be prorated as of the Property Closing Date. Said prorations to be based on a 30-day month and a 360-day year and the actual taxes for the most recent year available. (c) In the event of any casualty to the MPS Property or the DPL Property, the acquiring party will have the right to elect to have the selling party repair and restore the damage caused by such casualty or to accept such damaged property with any insurance proceeds collectable with respect to such casualty. 1.6 REPRESENTATIONS, WARRANTIES AND COVENANTS. (a) MPS, as the acquirer of the DPL Property, and DPL, as the acquirer of the MPS Property, hereby represent, warrant and covenant as follows: (i) Each party represents that there have been no representations or warranties by the other party other than those specified in this Agreement concerning the property being acquired by such party under this Agreement, that such party is not relying in acquiring such property on any oral or written statement made by the other party except as provided herein, and that such party will rely on its own independent inspections of such property. It is understood that the MPS Property and the DPL Property will be conveyed in an "as is" condition, and no warranties or representations have been or will be made by or on behalf of the conveying party concerning the property or title thereto other than as provided in Section 1.6(b) hereof. (ii) Each party is a corporation duly formed and existing under the laws of its state of incorporation. Each party has full legal right, power and authority to execute and fully perform its obligations under Article I of this Agreement, without the need for any further action. (b) MPS, as the conveyer of the MPS Property, and DPL, as the conveyer of the DPL Property, hereby represent, warrant and covenant as follows: (i) Each party is a corporation duly formed and existing under the laws of its state of incorporation. Each party has full legal right, power and authority to execute and fully perform its obligations under Article I of this Agreement, without the need for any further action. (ii) To the best of MPS's knowledge, with respect to the MPS Property, and of DPL's knowledge, with respect to the DPL Property, there is no pending or threatened condemnation of such property, or of any portion thereof. (iii) No claim, litigation, proceeding, or governmental investigation is pending or threatened against or relating to the property to be conveyed by such party under this Agreement, or affects such party's ability to fulfill all of its obligations under this Agreement. Each party is not aware of any basis for any such claim, litigation, other proceeding or governmental investigation. EXHIBIT 99.1 (iv) Each party has neither received notice nor has actual knowledge that any government authority, or any employee or agent thereof, considers the property to be conveyed by such party under this Agreement, or the current operation, use or ownership of the same to violate any ordinances, laws, regulations or orders of any governmental entity or any agency, body or subdivision thereof, or that any investigation has been commenced, or is contemplated, regarding such possible violation. (v) No third party holds any option to purchase, right of first refusal or right to purchase the property to be conveyed by such party under this Agreement or any portion thereof. After the date of this Agreement, each party will not create any such liens, encumbrances, covenants, leases, licenses, occupancy agreements, options, rights or other exceptions to title to the property to be conveyed by such party under this Agreement without the acquiring party's prior written consent. (vi) Except for fixed assets specifically excluded on Schedule 1.1A (with respect to the MPS Property) and on Schedule 1.1B (with respect to the DPL Property), each such property is being conveyed with all fixed assets located at such property. As set forth under Section 1.1, each party will keep their own rolling stock and, as to be agreed upon by the parties, certain portable assets (such as furniture, computers, supplies, etc.) and will remove such items from their respective facilities on or before the Property Closing Date. (vii) Except as set forth on Schedule 1.4, there are no leases or management, maintenance, security or other agreements (whether oral or written) affecting the property to be conveyed by such party under this Agreement, and no person has any right of possession to such property or any part thereof. (viii) The Exchange will not violate any contract, agreement or instrument to which MPS (with respect to the MPS Property) or DPL (with respect to the DPL Property) is a party which affects such property or any part thereof. 1.7 ENVIRONMENTAL ASSESSMENTS. (a) As promptly as possible after the date of this Agreement, the parties will have a Phase 1 environmental site assessment conducted with respect to the MPS Property located at 6201 Southeast Loop #289, Lubbock, Texas, the MPS Property located at 624 27th Street, Lubbock, Texas and the DPL Property located at 3600 North Columbia Street, Plainview, Texas. If the results of such Phase 1 assessments require a Phase 2 environmental site assessment with respect to any of such properties in order to adequately assess potential environmental liabilities, a Phase 2 assessment will be conducted on any such properties. (b) The environmental site assessments will be conducted by an environmental firm selected by DPL. The costs of all assessments conducted under this Agreement will be shared 50/50 by DPL and MPS. (c) Based on the environmental assessments of the above-referenced DPL Property and MPS Property, each selling party prior to the Property Closing Date (and as a condition precedent to consummating the Exchange) will remedy any environmental contamination not acceptable to the acquiring party to the reasonable satisfaction of the acquiring party. The Property Closing Date may be extended to permit sufficient time to remedy any such environmental contamination. In the event that the cost of any such remediation is unacceptably high to the selling party, such remediation will not be required and such contaminated property will not be included in the Exchange. In such event, the parties will negotiate (as a condition precedent to consummating the Exchange) mutually acceptable compensation for the party who will not receive all of the property contemplated by this Agreement to be received by such party in the Exchange. Each conveying party will EXHIBIT 99.1 indemnify and hold harmless the acquiring party from and against any and all liabilities, costs and expenses incurred by the acquiring party with respect to disposal of hazardous wastes on, or any violation prior to the Property Closing Date of environmental laws at, any property actually conveyed to the acquiring party as part of the Exchange. Each party may elect to have a third-party designee receive title and ownership of the property being acquired. ARTICLE II PURCHASE AND SALE OF DPL'S CORN AND SORGHUM BUSINESS 2.1 CONVEYANCE OF ASSETS. (a) Effective as of the date of this Agreement, DPL hereby conveys, assigns and transfers to MPS, and MPS hereby accepts such conveyance, assignment and transfer of all of DPL's right, title and interest in and to the following DPL assets related to DPL's corn and sorghum business: (i) All corn and sorghum foundation and parent seed germplasm (including, without limitation, all records and experimental seed stock related thereto); provided, however, that DPL will retain title to all existing corn and sorghum seed available for customer sales. (ii) Subject to obtaining any legally required consent of third parties to such written agreements, all written agreements (including, without limitation, any and all licenses to corn and sorghum parent lines and varieties licensed by DPL from third parties) associated with DPL's corn and sorghum business. (b) DPL represents and warrants that all written agreements associated with DPL's corn and sorghum business are set forth on Schedule 2.1 to this Agreement. Also, each agreement requiring such third-party consent is indicated on Schedule 2.1. Upon request by MPS, DPL will use diligent efforts to obtain as promptly as practical any and all third-party consents to assign to MPS the agreements set forth on Schedule 2.1, including, without limitation, the sorghum conditioning agreement with Asgrow, but specifically excluding the agreement relating to the supply and distribution of corn with Ciba Seeds. MPS will be solely responsible for conducting discussions with Ciba Seeds regarding any assignment and assumption of such agreement. (c) MPS hereby assumes all liabilities and responsibilities of DPL as of the date of this Agreement under all contracts and agreements assigned or sublicensed to MPS under this Section 2.1, which, in the case of agreements that require third-party consent, will be deemed assigned to and assumed by MPS upon receipt of such third-party consent. To the extent that any such agreements prohibit an assignment of such agreement, but permit the sublicense of rights thereunder by DPL, DPL hereby exclusively sublicenses to MPS all of DPL's right, title and interest under any such agreement. MPS agrees to continue to supply Ciba Seeds with sorghum seed as historically supplied by DPL and to enter into a supply agreement mutually acceptable to MPS and Ciba Seeds for such purpose. (d) Subject to obtaining the consent of Ciba-Geigy Corporation substantially in the form attached to this Agreement, DPL represents and warrants that (i) it has full power and authority to assign to MPS its ownership and irrevocable license to all sorghum germplasm owned or licensed by DPL without the need for any third party consent or approval; (ii) effective as of the date of this Agreement, all of DPL's right, title and interest in DPL's parent and foundation sorghum germplasm hereby is conveyed, assigned and transferred to MPS; and (iii) MPS has all the rights of DPL under DPL's sorghum germplasm license (as set forth in the excerpts to the Assets Purchase Agreement dated December 13, 1988 between DPL and Ciba Geigy attached as part of Schedule 2.1) subject only to the EXHIBIT 99.1 limitations to such license as set forth under the license grant provisions of such license agreement. This representation and warranty will survive the consummation of the transactions contemplated by this Agreement. 2.2 SALE OF EXISTING DPL CORN AND SORGHUM INVENTORY. (a) DPL will retain title to all existing DPL corn and sorghum inventory until title is transferred to MPS in accordance with Section 2.2.(a)(iv) for sale to MPS customers. MPS and DPL hereby agree that DPL's existing corn and sorghum available seed (including fiscal 1995 production to come into inventory) will be marketed and sold during the 1995 through 1997 marketing years (through December 1997) as follows: (i) DPL, in 1995, and MPS, in 1996 and 1997, will use diligent efforts to market and sell DPL available corn and sorghum seed on a FIFO basis to the extent commercial quality standards can be satisfied. Such quality standards are set forth on Schedule 2.2A by corn and sorghum hybrid. The quantity of corn and sorghum seed comprising DPL's available seed is set forth by hybrid, pedigree (to the extent DPL has pedigree information readily available) and, with respect to corn, by seed size on Schedule 2.2B. (ii) DPL will be responsible for marketing and selling the DPL available corn and sorghum seed for the benefit and account of MPS in 1995. DPL also will be responsible for shipments, invoicings and collections in 1995. With respect to all order entry, bagging and rebagging, shipments, invoicing and collections for 1995, DPL will send out all documentation to customers under its computer system and provide such information to MPS. Each invoice will indicate that the sale is made for the benefit of MPS. DPL will be responsible for cash collections with respect to 1995 sales. MPS will be responsible for bad debts with respect to 1995 sales consummated after the date of this Agreement; provided, however, that Mycogen will be able to offset the amount of such bad debts against any repurchase of Mycogen stock from DPL under Section 3.5. (iii) MPS will be responsible for marketing and selling the DPL available corn and sorghum seed in 1996 and 1997. MPS will also be responsible for order entry, bagging and rebagging, shipments, invoicing, and collections with respect to sales after 1995. In connection with marketing and selling DPL available corn seed, MPS will, in each of 1996 and 1997, sell (as a percentage of sales) a quantity of "small" or "undesirable" seed sizes of corn fitting the description of "small" or "undesirable" seed set forth on Schedule 2.2C equal to DPL's average annual quantity of small corn seed sizes sold by DPL (as a percentage of sales) over the last three years, which average annual quantity (as a percentage of sales) also is set forth on Schedule 2.2C. In each of 1996 and 1997, MPS will not sell any "small" or "undesirable" seed produced by MPS after the date of this Agreement until the annual average quantity (as a percentage of sales) of "small" or "undesirable" seed set forth on Schedule 2.2C has been sold in such year out of the DPL available seed. In the event that MPS fails to sell the annual average quantity of "small" or "undesirable" seed (as a percentage of sales) set forth on Schedule 2.2C in each of 1996 and 1997, MPS will purchase any shortfall (the difference between the quantity of "small" or "undesirable" seed actually sold, as a percentage of sales, and the annual average quantity, as a percentage of sales, set forth on Schedule 2.2C) out of DPL available seed on or before August 15 of each of 1996 and 1997. (iv) All sales of the DPL available corn and sorghum seed will be made for the account of MPS. Immediately prior to shipping seed to fill each customer order, the amount of seed required to fill such order automatically will be deemed to be assigned, conveyed and transferred to MPS at a transfer price equal to DPL's cost of such seed, less reserve for returns of 40% for sorghum and 35% for corn, for EXHIBIT 99.1 delivery on behalf of MPS to such customer. MPS and DPL hereby agree that for all purposes under this Section 2.2, DPL's costs of its available corn and sorghum seed for 1995, 1996 and 1997 is set forth on Schedule 2.2D. Within five business days after each calendar quarter ending March and June of 1995, 1996 and 1997 and on August 15 of each of 1995, 1996 and 1997, MPS will pay DPL for all DPL available seed shipped to customers during such calendar quarter and during the period of July 1 to August 15 of each such year. (v) With respect to all sales of the DPL available corn and sorghum seed, DPL will receive (1) 85% of total gross margins on all sales in 1995, (2) 50% of total gross margins on all sales in 1996, and (3) 30% of total gross margins on all sales in 1997. MPS will retain the balance of such gross margins. The costs (calculated on a basis consistent with prior periods) and the projected domestic selling prices of DPL sorghum and corn seed are set forth on Schedule 2.2D. Gross margin will be calculated based on total sales less cost of goods sold (as set forth on Schedule 2.2D), third-party commissions, discounts and rebates actually allowed. Payment of gross margin to reflect the sharing arrangement described above, together with an adjusting payment to reflect any difference between actual returns and reserve for returns, will be made between DPL and MPS on August 15 of each of 1995, 1996 and 1997. All customer returns of seed from DPL's existing corn and sorghum inventory will be returned to, and owned entirely by, DPL. (vi) At the end of 1997, DPL will be responsible for the disposal of any remaining DPL available corn and sorghum seed not sold by MPS in accordance with this Section 2.2 as of December 31, 1997. DPL will not sell such remaining seed in the United States as planting seed. DPL will market and sell any such remaining seed in the international retail or wholesale market or as grain (and not as planting seed) in the U.S. wholesale market. On or before March 30, 1998, DPL will remove, at its cost, all remaining DPL available seed located in MPS warehouses as of the end of 1997. (vii) DPL will continue, at DPL's cost, its Special DPL Salesman Incentive Program for current employee-salespersons for 1995 for sales of corn and sorghum. The cost of DPL's incentive program for 1995 will not be included in the calculation of gross margin in connection with the sharing of gross margins between DPL and MPS as set forth above. (viii) Any new production of corn and sorghum or new corn and sorghum hybrids (i.e., any sale of corn or sorghum other than out of DPL's existing inventory) will be owned and sold by MPS entirely for MPS's account. Sales by MPS of any new production of corn and sorghum will be made by hybrid on a FIFO basis consistent with Section 2.2(a)(i) so as to market and sell the DPL available seed (on a hybrid-by-hybrid basis) that satisfies the quality standards set forth on Schedule 2.2A prior to the sale of any newly produced seed. (ix) The DPL available corn and sorghum seed will be marketed and sold in DPL bags for the 1995 season. MPS will have the right, but not the obligation, to continue selling such inventory in DPL bags through 1997; provided, that if such inventory is sold in DPL bags after 1995, MPS hereby indemnifies and holds DPL harmless from and against any and all liabilities, costs and expenses related to any customer claims made against DPL with respect to such seed sold in DPL bags. In connection with MPS's right to sell DPL available corn and sorghum seed in 1996 and 1997 in DPL bags, DPL grants MPS a license, specifically limited to such sales, to use DPL's trademarks that are on DPL's sorghum and corn seed bags. DPL will have the right to inspect any DPL available seed bagged in DPL bags to insure that the seed in such bags satisfies the quality standards set forth on Schedule 2.2A and that the appearance of the filled bags are suitable for customer delivery and are not EXHIBIT 99.1 tattered or torn. DPL reserves the right to revoke the rights granted to MPS under this Section 2.2(a)(ix) if seed sold in such bags does not satisfy the quality standards set forth on Schedule 2.2A or if filled bags for customer delivery are tattered and torn so as not to be suitable for delivery. Upon reasonable advance notice from MPS, DPL will supply MPS on a timely basis with DPL bags for the purpose of selling DPL's existing corn and sorghum inventory in accordance with this Section 2.2(a)(ix). MPS will purchase such bags at prices equal to DPL's cost to produce the bags. (x) MPS agrees that it will not market and sell the DPL available corn and sorghum seed at prices greater than DPL's suggested retail selling price by hybrid as set forth on Schedule 2.2D plus a year-to-year annual five percent increase thereon in each of 1996 and 1997. (b) DPL and MPS agree that casualty and risk of loss of the DPL available corn and sorghum seed (including any and all customer returns) will remain with DPL until such time as seed is shipped to customer or unless such casualty or loss is caused by the negligence of MPS. 2.3 DPL NON-COMPETE IN CORN AND SORGHUM UNTIL THE YEAR 2000. From the date of this Agreement until January 1, 2000, DPL will not engage in the development, marketing or sale of corn or sorghum hybrids in the regions of the United States where DPL currently markets and sells corn and sorghum; provided, however, that this Section 2.3 automatically will terminate earlier than January 1, 2000 in the event (and effective upon the occurrence) that prior to such time a seed company engaged in the business of producing and selling corn and sorghum acquires a majority of the outstanding shares of capital stock of DPL or substantially all of the assets of DPL. ARTICLE III ISSUANCE OF MYCOGEN STOCK TO DPL 3.1 ISSUANCE OF MYCOGEN STOCK. On the date of this Agreement, Mycogen will issue 153,846 shares of Mycogen common stock as part of the consideration for the transactions under this Agreement. 3.2 REGISTRATION OF MYCOGEN SHARES. As promptly as practicable, and within 30 days of the date of this Agreement, Mycogen will file a registration statement on Form S-3 with the Securities and Exchange Commission to permit DPL to sell the Mycogen shares delivered under this Agreement under such registration statement. Mycogen will maintain such registration statement in full force and effect until the earlier to occur of (i) the sales of all such shares by DPL (whether by repurchase of such shares by Mycogen under Section 3.5 below or otherwise) or (ii) three years after the date of this Agreement so as to enable DPL to sell the Mycogen shares in the public market from the date of this Agreement until three years after the date of this Agreement. 3.3 REGISTRATION EXPENSES. Mycogen will pay all out-of-pocket expenses related to the registration of the shares of Mycogen common stock delivered to DPL under this Agreement, including, without limitation, NASD registration and filing fees, all fees and expenses incurred in complying with securities or blue sky laws, all printing, messenger and delivery expenses, the fees and disbursements of counsel to Mycogen and of its independent public accountants, and all registration, filing and qualification fees of the Securities and Exchange Commission and state securities or blue sky commissions. 3.4 INDEMNIFICATION BY MYCOGEN. Mycogen will indemnify, to the fullest extent permitted by law, DPL and its officers, directors and employees and each person who controls DPL (within the EXHIBIT 99.1 meaning of the Securities Act of 1933, as amended, or the Security Exchange Act of 1934, as amended) from and against any losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees) arising out of or based upon any untrue, or alleged untrue, statement of a material fact contained, or incorporated by reference, in the Form S-3 registration statement referred to above as originally filed and subsequently amended covering any sale or distribution by DPL of the shares of Mycogen common stock issued to DPL under this Agreement, or arising out of or based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by, or contained in, any information furnished in writing to Mycogen by DPL expressly for use in such registration statement. 3.5 MYCOGEN PURCHASE OPTION. DPL hereby grants to Mycogen an option exercisable at any time after January 1, 1996 and ending on December 31, 1997 to purchase from DPL 153,846 shares of Mycogen common stock for a cash payment of $1.35 million minus the amount, if any, of bad debts incurred by MPS from sales out of DPL inventory in 1995 pursuant to Section 2.2(a)(ii). ARTICLE IV MISCELLANEOUS 4.1 FORCE MAJEURE. "Force Majeure" will mean any event that is beyond the control of the parties, that is unforeseen, unavoidable or insurmountable, that arises after the execution of this Agreement and that prevents total or partial performance by one or more of the parties. Such events will include, without limitation, government regulations, war, strike, act of God, or other similar circumstances. If an event of Force Majeure occurs, a party's contractual obligations affected by such event will be suspended during the period of delay caused by the Force Majeure. A party claiming Force Majeure will promptly inform the other party in writing of the occurrence and the expected duration of such Force Majeure. The party claiming Force Majeure will use reasonable efforts to terminate the Force Majeure. In the event of Force Majeure, each party will remain obligated to perform all obligations that it is able to perform, the Force Majeure notwithstanding. The parties will immediately consult with each other in order to find an equitable solution and will use reasonable efforts to minimize the consequences of such Force Majeure, including amendments to this Agreement that are valid and legal and, to the maximum extent possible, carry out the original intent of the parties. 4.2 RESTRICTION ON ASSIGNMENT. Neither Mycogen, MPS nor DPL may assign its rights or obligations under this Agreement to any third party without the prior written consent of the other party; provided, however, that this restriction on assignment will not apply to an assignment to any entity that succeeds to the either party's position by merger, consolidation, or other corporate reorganization. 4.3 GOVERNING LAW; ENTIRE AGREEMENT. This Agreement will be governed by the laws of the State of Delaware, without the application of any choice of law statutes or regulations. This Agreement and the attached Schedules contain the entire agreement among the parties with respect to the purchase and sale of DPL's corn and sorghum business and the exchange of MPS and DPL facilities as contemplated hereunder, and supersedes all prior arrangements or understandings with respect thereto, whether written or oral. No modification or waiver of any provision of this Agreement will be effective unless made in writing and signed by all parties to this Agreement. The terms and conditions of this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. EXHIBIT 99.1 4.4 ADDITIONAL DOCUMENTS. The parties hereby agree to execute and deliver any additional instruments or documents, in form and substance mutually acceptable to the parties, to effect or evidence the transactions contemplated by this Agreement. 4.5 COUNTERPARTS. This Agreement may be executed in two or more counterparts, which, taken together, will constitute one and the same instrument. 4.6 PUBLIC ANNOUNCEMENT. Except for documents that are required to be flied with a government agency under applicable laws and regulations, neither party will make any press release, public announcement or public confirmation concerning the terms of this Agreement without prior written approval of the other party; provided, however, that once public disclosure is made in accordance with this Section 4.6, each party can make subsequent public disclosures consistent with such prior public disclosure without obtaining the prior approval of the other party. 4.7 MYCOGEN GUARANTY. By executing and delivering this Agreement, Mycogen guarantees the performance by MPS of all of MPS's obligations to DPL under this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the date first above written. MYCOGEN CORPORATION DELTA AND PINE LAND COMPANY By: /s/ J.R. Glynn By: /s/ Murray Robinson -------------------------------- ---------------------------------- Title: Executive Vice President Title: President ----------------------------- ------------------------------- AGRIGENETICS, INC. d/b/a Mycogen Plant Sciences By: /s/ Carlton J. Eibl -------------------------------- Title: Vice President ----------------------------- EXHIBIT 99.1 SCHEDULES TO PURCHASE AGREEMENT Schedule 1.1A MPS Excluded Fixed Assets Schedule 1.1B DPL Excluded Fixed Assets Schedule 1.4 Leases, Property Maintenance, Management and Security Contracts (if any) Schedule 2.1 DPL Agreements and Germplasm Licenses Related to Corn and Sorghum Business Schedule 2.2A Seed Quality Standards Schedule 2.2B Quantity of DPL Inventory (Detailed) Schedule 2.2C Definition and Annual Sales of Small or Undesirable Seed Sizes Schedule 2.2D Projected Selling Price and Cost of DPL Corn and Sorghum Product Line EXHIBIT 99.1 Purchase Agreement Schedules - -------------------------------------------------------------------------------- Schedule 1.1A MPS Excluded Fixed Assets and Rolling Stock - Attached Schedule 1.1B DPL Excluded Fixed Assets and Rolling Stock - Still Pending Note: Both parties have verbally agreed that portable equipment, such as trucks, computers, etc., will remain with the current owners. Other fixed assets which will be exchanged as part of this agreement will be determined by Randy Dismuke of DPL and Larry Price of MPS after the transaction is announced. EXHIBIT 99.1 Purchase Agreement Schedules - ----------------------------------------------------------------------------- Schedule 1.4 MPS leases, Property Maintenance, Management and Security Contracts (if any): None DPL Leases, Property Maintenance, Management and Security Contracts (if any): National Guardian Alarm service agreement attached. EXHIBIT 99.1 Purchase Agreement Schedules - ------------------------------------------------------------------------------ SCHEDULE 2.1 DPL AGREEMENTS AND GERMPLASM LICENSES RELATED TO CORN AND SORGHUM BUSINESS
ITEM DESCRIPTION EXPIRATION ASSIGNABLE? - -------------------------------------------------------------------------------- 1. Sorghum Purchase Agreement (Buyer: DPL; Seller: Ciba (Funk) 2. Asgrow Conditioning Agreement 6/30/95 Silent 3. Weaver Popcorn Storage Agreement 8/31/95 Yes; see p. 4, #13 4. Carter Processing Storage 3/23/95 Agreement 5. Northrup King Storage Agreement 6/1/95 Silent 6. D&PL General Distributor Policy Silent (list of distributors to be provided at closing) 7. Ciba Corn Distributorship 1 Yr. Notice Only with Agreement 2 Yr. Sales consent (p. 22)
EXHIBIT 99.1 Purchase Agreement Schedules - -------------------------------------------------------------------------------- Schedule 2.2A Seed Quality Standards Attached are MPS quality standards for corn and sorghum. These standards will apply to DPL FIFO inventory, except that acceptable warm and cold test standards for corn will be as follows: Warm Test: 92% Cold Test: 80% EXHIBIT 99.1 Purchase Agreement Schedules - -------------------------------------------------------------------------------- SCHEDULE 2.2B D&PL AVAILABLE SEED EXHIBIT 99.1 Purchase Agreement Schedules - -------------------------------------------------------------------------------- Schedule 2.2C Definition and Annual Sales of Small or Undesirable Seed Sizes Definition of Undesirable Seed Sizes: Small Flat F16 or Smaller Small Round R25 or Smaller Large Flat F12 or Larger Large Round R22 or Larger Plateless PP1 or PP2 Summary showing inventory and 3-year average attached, with supporting detail. EXHIBIT 99.1 SCHEDULE 2.2C SMALL/UNDESIRABLE SEED SIZE The plate sizes below are defined as "small" or "undesirable".
THREE-YEAR AVERAGE ANNUAL SALES PLATE SIZE/1/ (as a percentage of average total annual sales)/2/ --------------------------------------------------------------------------- Small Flat B9 or smaller B190 ----------------------------------------------- Small Round B3 (see attached B30 material) B25 ----------------------------------------------- Large Flat B5 or larger B8 ----------------------------------------------- Large Round B0 B54
_____________________________ /1/ The stated plate standard or comparable standard of any other plate size manufacturer. /2/ Based on average annual sales by DPL during 1992, 1993 and 1994 of corn seed by hybrid of the referenced small or undesirable size. EXHIBIT 99.1 Purchase Agreement Schedules - -------------------------------------------------------------------------------- SCHEDULE 2.2D PROJECTED SELLING PRICE AND COST OF DPL CORN AND SORGHUM PRODUCT LINE
PROJECTED NET 1995 DOMESTIC 1995 COST/1,3/ 1996/1997 SUGGESTED SELLING PRICE COST/2,3/ RETAIL PRICES ========================================================================================== Corn $49.25 $39.94 $34.24 See the - ------------------------------------------------------------------------- Grain Sorghum 33.73 21.99 14.33 attached - ------------------------------------------------------------------------- Sudan Sorghum 10.40 7.54 7.10 1995 price - ------------------------------------------------------------------------- Forage Sorghum 27.11 21.96 21.79 list. - ------------------------------------------------------------------------- Sweet G90Corn 71.30 51.10 48.47
_____________________________ /1/ Includes budgeted inventory cost, reprocessing cost and certain write off cost. Only adjustments will include cost of current year conditioning and bagging. Actual cost will not vary by more than 5% from stated cost. /2/ Includes inventory cost and will be adjusted only for the cost of additional seed added to inventory from 1995 seed production. No obsolete seed or other write off of inventory will impact this cost. Actual cost will not vary by more than 5% from stated cost. /3/ Costs exclude the cost of warehousing inventory. EXHIBIT 99.1 -----END PRIVACY-ENHANCED MESSAGE-----