-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ux2Rs1spxQvH31poxDdFvrJRg0PkVR3jFW5nTKjF0kJupS/7ONfYnDirWTglm4X0 OAFOsTiUCOa+H5ey4Gz63Q== 0000898430-96-000485.txt : 19960216 0000898430-96-000485.hdr.sgml : 19960216 ACCESSION NUMBER: 0000898430-96-000485 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960213 EFFECTIVENESS DATE: 19960303 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: 0831 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-00899 FILM NUMBER: 96517680 BUSINESS ADDRESS: STREET 1: 5501 OBERLIN DRIVE CITY: SAN DIEGO STATE: CA ZIP: 92121 BUSINESS PHONE: 6194538030 MAIL ADDRESS: STREET 1: 5501 OBERLIN DRIVE CITY: SAN DIEGO STATE: CA ZIP: 92121 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on February 13, 1996 Registration No. 33-__________________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MYCOGEN CORPORATION ----------------------------------------------------------------- (Exact name of registrant as specified in its charter) California 95-3802654 - -------------------------------- ---------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 5501 Oberlin Drive, San Diego, California 92121 - ------------------------------------------ ----------- (Address of principal executive offices) (Zip Code) 1995 EMPLOYEE STOCK PURCHASE PLAN -------------------------------------- (Full title of the plan) CARLTON J. EIBL President, Chief Operating Officer and Secretary 5501 Oberlin Drive, San Diego, California 92121 ---------------------------------------------------- (Name and address of agent for service) 619-453-8030 ------------ (Telephone number, including area code, of agent for service) ------------------------------------ This Registration Statement shall become effective immediately upon filing with the Securities and Exchange Commission, and sales of the registered securities will begin as soon as reasonably practicable after such effective date. ------------------------------------ CALCULATION OF REGISTRATION FEE
Title of securities Amount to be Proposed maximum Proposed maximum Amount of to be registered registered offering price per share aggregate offering price registration fee - ----------------------------------------------------------------------------------------------------------------- Common Stock, 250,000 (1) $16.00 (2) $4,000,000 (2) $1,379.31 $.001 par value
- ------------ (1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 1995 Employee Stock Purchase Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Calculated solely for purposes of this offering under rule 457 (h) of the Securities Act of 1933, as amended, on the basis of the last sale reported per share of Common Stock of Mycogen Corporation on February 7, 1996, as reported on the NASDAQ National Market System. 2 Item 3. Incorporation Of Certain Documents By Reference. ------------------------------------------------ Mycogen Corporation (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "Commission"): (a) the Registrant's Annual Report on Form 10-K for the fiscal year ended August 31, 1995, filed by the Registrant on November 3, 1995; (b) (1) The Registrant's Quarterly Report on Form 10-Q for the quarterly period ended November 30, 1995, filed by the Registrant on January 16, 1996; (2) The Registrant's report on Form 8-K, filed with the Commission on November 27, 1995; (c) The Registrant's Registration Statement No. 0-15881 on Form 8-A filed with the Commission on May 7, 1992, in which there is described the terms, rights and provisions applicable to the Registrant's Common Stock. All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filling of such documents. Item 4. Description of Securities. -------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. --------------------------------------- Registrant's President has delivered to Registrant a legal opinion as to the validity of the issuance of Common Stock under this Registration Statement. Item 6. Indemnification of Directors and Officers. ------------------------------------------ The California General Corporation Law provides that directors will not be liable to the Registrant for monetary damages arising from a breach of their fiduciary duty as directors in certain circumstances, including such conduct during a merger or tender offer. Such limitation does not affect liability for any breach of a director's duty to the Registrant or its shareholders (i) with respect to approval by the director of any transaction from which he or she derives an 3 improper personal benefit; (ii) with respect to any acts or omissions involving an absence of good faith, which he or she believes to be contrary to the best interests of the Company or its shareholders, which involve intentional misconduct or a knowing and culpable violation of law, which constitute an unexcused pattern of inattention that amounts to an abdication of his or her duty to the Registrant or its shareholders, or which show a reckless disregard for his or her duty to the Registrant or its shareholders in circumstances in which he or she was, or should have been, aware, in the ordinary course of performing his or her duties, of a risk of serious injury to the Registrant or its shareholders; or (iii) based on transactions between the Registrant and its directors or another corporation with interrelated directors, or on improper distributions, loans or guarantees under applicable sections of the California Corporations Code. In addition, such limitation of liability does not affect the availability of equitable remedies such as injunctive relief or rescission, although in certain circumstances equitable relief may not be available as a practical matter. Such limitation may relieve the directors of monetary liability to the Registrant for grossly negligent conduct, including conduct in situations involving attempted takeovers of the Registrant. No claim or litigation is currently pending against the Registrant's directors that would be affected by such limitation of liability. Article X of the Articles of Incorporation of the Registrant and Article V of the Registrant's Bylaws provide for indemnification of its directors, officers and other agents to the maximum extent permitted by the California Corporations Code. The Registrant maintains insurance for the benefit of its current directors and officers that insures such persons against certain liabilities, including liabilities under the securities laws. The Registrant has entered into an indemnification agreement with each of its current directors and executive officers whereby the Registrant will reimburse its current directors and such officers against certain liabilities, including liabilities arising under the securities laws. Item 7. Exception from Registration Claimed. ------------------------------------ Not applicable. Item 8. Exhibits. --------- Exhibit Number Exhibit - ------ ------- 5 Opinion and Consent of Carlton J. Eibl, Esq. 10.1 1995 Employee Stock Purchase Plan 10.2 Employee Stock Purchase Plan Summary and Prospectus 23 Consent of Ernst & Young LLP, Independent Auditors 24 Power of Attorney 4 Item 9. Undertakings. ------------- A. 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 this 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 this Registration Statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall -------- not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference into this Registration Statement; (2) that for the purpose of determining any liability under the Securities Act of 1933 each such post-effective amendment will 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; and (3) to remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold upon the termination of the 1995 Employee Stock Purchase Plan. B. 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 that is incorporated by reference into this Registration Statement will 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. C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnity provisions incorporated by reference in Item 6, or otherwise, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the 1933 Act and is, therefore, 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, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. 5 SIGNATURES ---------- Pursuant to the requirements of the 1933 Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 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 this 9th day of February, 1996. MYCOGEN CORPORATION Date: February 9, 1996 By /s/ Jerry Caulder -------------------- ------------------------------- Jerry Caulder, Chairman and Chief Executive Officer 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 date indicated. /s/ Jerry Caulder Chairman, Chief Executive - ------------------------- Officer and Director (Principal February 9, 1996 (Jerry Caulder) Executive Officer) /s/ James A. Baumker - ------------------------- Director February 9, 1996 (Thomas J. Cable*) /s/ James A. Baumker - ------------------------- Director February 9, 1996 (George R. Hill*) /s/ James A. Baumker - ------------------------- Director February 9, 1996 (Kenneth H. Hopping) /s/ James A. Baumker - ------------------------- Director February 9, 1996 (David H. Rammler*) /s/ James A. Baumker - ------------------------- Director February 9, 1996 (A. John Speziale*) /s/ James A. Baumker Vice President and Chief - ------------------------- Financial Officer (Principal February 9, 1996 (James A. Baumker) Financial and Accounting Officer)
* By James A. Baumker under power of attorney. 6 EXHIBIT INDEX Exhibit Number Exhibit - ------ ------- 5 Opinion and Consent of Carlton J. Eibl, Esq. 10.1 1995 Employee Stock Purchase Plan 10.2 Employee Stock Purchase Plan Summary and Prospectus 23 Consent of Ernst & Young LLP, Independent Auditors 24 Power of Attorney 7 EX-5 2 OPINION AND CONSENT EXHIBIT 5 Opinion and Consent of Carlton J. Eibl, President and Chief Operating Officer of Mycogen Corporation February 9, 1996 Mycogen Corporation 5501 Oberlin Drive San Diego, CA 92121 Ladies and Gentlemen: I have acted as counsel to Mycogen Corporation, a California corporation, (the "Company") with respect to certain matters in connection with the filing by the Company of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") for (i) an aggregate of 250,000 shares of Common Stock, $.001 par value, reserved for issuance under the Company's 1995 Employee Stock Purchase Plan (the "Registered Shares"). In connection with this opinion, I have examined, issued and relied upon the Registration Statement No. 0-15881 on Form 8-A filed by the Company with the Commission on May 7, 1992, the Company's Articles of Incorporation and 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 is necessary or appropriate to enable me to render the opinion expressed below. On the basis of the foregoing, and in reliance thereon, I am of the opinion that the Registered Shares, when sold and issued in accordance with the Registration Statement and related prospectus, will be validly issued, fully paid and nonassessable. I consent to the filing of this opinion as Exhibit 5 to this Registration Statement. Very truly yours, /s/ Carlton J. Eibl Carlton J. Eibl President and Chief Operating Officer EX-10.1 3 EMPLOYEE STOCK PURCHASE PLAN EXHIBIT 10.1 1995 Employee Stock Purchase Plan MYCOGEN CORPORATION 1995 EMPLOYEE STOCK PURCHASE PLAN --------------------------------- I. PURPOSE OF THE PLAN This Employee Stock Purchase Plan is intended to promote the interests of MYCOGEN CORPORATION by providing eligible employees with the opportunity to acquire a proprietary interest in the Corporation through participation in a payroll-deduction based employee stock purchase plan. Capitalized terms herein shall have the meanings assigned to such terms in the attached Appendix. II. ADMINISTRATION OF THE PLAN The Compensation Committee of the Board in its capacity as Plan Administrator shall have full authority to interpret and construe any provision of the Plan and to adopt such rules and regulations for proper administration of the Plan as it may deem necessary or appropriate. Decisions of the Plan Administrator shall be final and binding on all parties having an interest in the Plan. III. STOCK SUBJECT TO PLAN A. The stock purchasable under the Plan shall be shares of authorized but unissued or reacquired Common Stock, including shares of Common Stock purchased on the open market. the maximum number of shares of Common Stock which may be issued over the term of the plan shall not exceed 250,000 shares. Such authorized share reserve is comprised of (i) the estimated number of shares (184,000 shares) which will remain available for issuance under the Predecessor Plan following the November 30, 1995 purchase date thereunder plus (ii) an additional increase of approximately 66,000 shares. B. Should any change be made to the Common Stock by reason of any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without the Corporation's receipt of consideration, appropriate adjustments shall be made to (i) the maximum number and class of securities issuable under the Plan, (ii) the maximum number and class of securities purchasable per Participant on any one Purchase Date and (iii) the number and class of securities and the price per share in effect under each outstanding purchase right in order to prevent the dilution or enlargement of benefits thereunder. IV. PURCHASE PERIODS A. Shares of Common Stock shall be offered for purchase under the Plan through a series of successive Purchase Periods until such time as (i) the maximum number of shares of Common Stock available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been sooner terminated. B. Each Purchase Period shall be of six (6) months duration. The initial Purchase Period shall commence on the Effective Date and shall end on the last business day in May 1996. Subsequent Purchase Periods shall run from the first business day in June to the last business day in November each year and from the first business day of December each year to the last business day of May in the succeeding year. C. Under no circumstances shall any shares of Common Stock be issued under the Purchase Plan until such time as (i) the Plan shall have been approved by the Corporation's stockholders and (ii) the Corporation shall have complied with all applicable requirements of the Securities Act, all applicable listing requirements of any securities exchange (or the NASDAQ National Market if applicable) on which shares of the Common Stock are listed for trading and all other applicable statutory and regulatory requirements. V. ELIGIBILITY A. Each Eligible Employee may commence participation in the Plan on the start date of any Purchase Period coincident with or subsequent to his or her completion of one month of continuous service with the Corporation or any Corporate Affiliate, provided he or she remains an Eligible Employee on such start date. B. To participate in the Plan for a particular Purchase Period, the Eligible Employee must complete the enrollment forms prescribed by the Plan Administrator (including a stock purchase agreement and a payroll deduction authorization form) and file such forms with the Plan Administrator (or its designate) prior to the start date of that Purchase Period. VI. PAYROLL DEDUCTIONS A. The payroll deduction authorized by the Participant for purposes of acquiring shares of Common Stock under the Plan may be any multiple of one percent (1%) of the Base Salary paid to the Participant during the Purchase Period, up to a maximum of fifteen percent (15%). the deduction rate so authorized shall continue in effect from Purchase Period to Purchase Period. However, the Participant may, prior to the commencement of any new Purchase Period, increase or decrease the rate of his or her payroll deduction by filing the appropriate form with the Plan Administrator prior to the start date of that Purchase Period. The new rate (which may not exceed the fifteen percent (15%) maximum) shall become effective as of the start date of the first Purchase Period following the filing of such form. B. Payroll deductions shall begin on the first pay day following the start date of the Purchase Period and shall (unless sooner terminated by the Participant) continue through the pay day ending with or immediately prior to the last day of that Purchase Period. The amounts so collected shall be credited to the Participant's book account under the Plan, but no interest shall be paid on the balance from time to time outstanding in such account. The amounts collected from the Participant shall not be held in any segregated account or trust fund and may be commingled with the general assets of the Corporation and used for general corporate purposes. C. Payroll deductions shall automatically cease upon the termination of the Participant's purchase right in accordance with the provisions of the Plan. D. The Participant's acquisition of Common Stock under the Plan on any Purchase Date shall neither limit nor require the Participant's acquisition of Common Stock on any subsequent Purchase Date. VII. PURCHASE RIGHTS A. GRANT OF PURCHASE RIGHT. A Participant shall be granted a separate ----------------------- purchase right for each Purchase Period in which he or she participates. The purchase right shall be granted on the start date of the Purchase Period and shall provide the Participant with the right to purchase shares of Common Stock upon the terms set forth below. The Participant shall execute a stock purchase agreement embodying such terms and such other provisions (not inconsistent with the Plan) as the Plan Administrator may deem advisable. Under no circumstances shall purchase rights be granted under the Plan to any Eligible Employee if such individual would, immediately after the grant, own (within the meaning of Code Section 424(d)) or hold outstanding options or other rights to purchase, stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Corporation or any Corporate Affiliate. B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall be ------------------------------ automatically exercised on the last day of the Purchase Period by applying the Participant's payroll deductions for that Purchase Period to the purchase of whole shares of Common Stock at the purchase price in effect for the Purchase Period. C. PURCHASE PRICE. The purchase price per share at which Common Stock -------------- will be purchased on the Participant's behalf on the last day of each Purchase Period shall be equal to eighty-five percent (85%) of the lower of (i) the Fair Market Value per share of Common Stock on the ----- last business day immediately preceding the start date of that Purchase Period or (ii) the Fair Market Value per share of Common Stock on the Purchase Date. D. NUMBER OF PURCHASABLE SHARES. The number of shares of Common Stock ---------------------------- purchasable per Participant at the end of each Purchase Period shall be the number of whole shares obtained by dividing the amount collected from the Participant through payroll deductions during the Purchase Period by the purchase price in effect for that Purchase Period. However, the maximum number of shares of Common Stock purchasable per Participant on any one Purchase Date shall not exceed Three Hundred Seventy-Five (375) shares, subject to periodic adjustments in the event of certain changes in the Corporation's capitalization. E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not applied to the ------------------------- purchase of shares of Common Stock at the end of any Purchase Period because they are not sufficient to purchase a whole share of Common Stock shall be held for the purchase of Common Stock on the next Purchase Date. However, any payroll deductions not applied to the purchase of Common Stock by reason of the limitation on the maximum number of shares which the Participant may purchase on any one Purchase Date shall be promptly refunded. F. TERMINATION OF PURCHASE RIGHT. The following provisions shall govern ----------------------------- the termination of outstanding purchase rights: (I.) A Participant may, at any time prior to the last day of the Purchase Period, terminate his or her outstanding purchase right by filing the appropriate form with the Plan Administrator (or its designate), and no further payroll deductions shall be collected from the Participant with respect to the terminated purchase right. Any payroll deductions collected on the Participant's behalf during the Purchase Period in which such termination occurs shall be held for the purchase of shares at the end of that Purchase Period. (II.) The termination of such purchase right shall be irrevocable, and the Participant may not subsequently rejoin the Purchase Period for which the terminated purchase right was granted. In order to resume participation in any subsequent Purchase Period, such individual must re-enroll in the Plan (by making a timely filing of the prescribed enrollment forms) prior to the start date of that Purchase Period. (III.) A Participant's purchase right shall immediately terminate upon his or her cessation of Eligible Employee status for any reason (other than death or Disability), and the payroll deductions collected on behalf of the Participant pursuant to the terminated purchase right shall be promptly refunded. (IV.) Should the Participant cease to remain an Eligible Employee by reason of death or Disability while his or her purchase right remains outstanding, then such individual (or the personal representative of the estate of a deceased Participant) shall have the following election, exercisable up until the end of the Purchase Period in which such cessation of Eligible Employee status occurs: . to withdraw all of the payroll deductions collected to date on the Participant's behalf during that Purchase Period or . to have such funds held for the purchase of shares at the end of that Purchase Period. In the absence of such a timely election, the Participant's payroll deductions shall be refunded as soon as possible after the close of the Purchase Period. (V.) In no event may any payroll deductions be made on the Participant's behalf following his/her cessation of Eligible Employee status. (VI.) Should the Participant cease to remain in active service by reason of an approved unpaid leave of absence, then the Participant shall have the election, exercisable up until the last business day of the Purchase Period in which such leave commences, to (a) withdraw all the payroll deductions collected to date on the Participant's behalf during that Purchase Period or (b) have such funds held for the purchase of shares at the end of such Purchase Period. In no event, however, shall any further payroll deductions be collected on the Participant's behalf during such unpaid leave. Upon the Participant's return to active service, his or her payroll deductions under the Plan shall automatically resume at the rate in effect at the time the leave began, provided the Participant returns to service prior to the expiration date of the Purchase Period in which such leave began. G. CHANGE IN CONTROL. Each outstanding purchase right shall ----------------- automatically be exercised, immediately prior to the effective date of any Change in Control, by applying the payroll deductions of each Participant for the Purchase Period in which such Change in Control occurs to the purchase of whole shares of Common Stock at a purchase price per share equal to eighty-five percent (85%) of the lower of (i) ----- the Fair Market Value per share of Common Stock on the last business day immediately preceding the start date of the Purchase Period in which such Change in Control occurs or (ii) the Fair Market Value per share of Common Stock immediately prior to the effective date of such Change in Control. H. PRORATION OF PURCHASE RIGHTS. Should the total number of shares of ---------------------------- Common Stock to be purchased pursuant to outstanding purchase rights on any particular date exceed the number of shares then available for issuance under the Plan, the Plan Administrator shall make a pro-rata allocation of the available shares on a uniform and nondiscriminatory basis, and the payroll deductions of each Participant, to the extent in excess of the aggregate purchase price payable for the Common Stock pro-rated to such individual, shall be refunded. I. ASSIGNABILITY. No purchase right granted under the Plan shall be ------------- assignable or transferable by the Participant other than by will or by the laws of descent and distribution following the Participant's death, and during the Participant's lifetime the purchase right shall be exercisable only by the Participant. J. STOCKHOLDER RIGHTS. A Participant shall have no stockholder rights ------------------ with respect to the shares subject to his or her outstanding purchase right until the shares are purchased on the Participant's behalf in accordance with the provisions of the Plan and the Participant has become a holder of record of the purchased shares. A Participant shall be issued, as soon as practicable after the end of each Purchase Period, a statement showing the number of shares purchased on the Participant's behalf for that Purchase Period and the purchase price paid per share. The Participant may at any time request the issuance of a stock certificate for any shares purchased on his or her behalf under the Plan. However, not more than one certificate shall be issued per Participant for each Purchase Period of participation in the Plan, and such certificate may, upon the Participant's request, be issued in the names of the Participant and his or her spouse as community property or as joint tenants with right of survivorship. Alternatively, the stock certificate may be delivered to a designated stock brokerage account maintained for the Participant and held in "street name" in order to facilitate the subsequent sale of the purchased shares. VIII. ACCRUAL LIMITATIONS A. No Participant shall be entitled to accrue rights to acquire Common Stock pursuant to any purchase right outstanding under this Plan if and to the extent such accrual, when aggregated with (i) rights to purchase Common Stock accrued under any other purchase right granted under this Plan and (ii) similar rights accrued under other employee stock purchase plans (within the meaning of Code Section 423) of the Corporation or any Corporate Affiliate, would otherwise permit such Participant to purchase more than Twenty-Five Thousand Dollars ($25,000) worth of stock of the Corporation or any Corporate Affiliate (determined on the basis of the Fair Market Value of such stock on the date or dates such rights are granted) for each calendar year such rights are at any time outstanding. B. For purposes of applying such accrual limitations to the purchase rights granted under this Plan, the following provisions shall be in effect: (I.) The right to acquire Common Stock under each outstanding purchase right shall accrue on the last day of the Purchase Period for which such right is granted. (II.) No right to acquire Common Stock under any outstanding purchase right under the Plan shall accrue to the extent the Participant has already accrued in the same calendar year the right to acquire Common Stock under one (1) or more other purchase rights at a rate equal to Twenty-Five Thousand Dollars ($25,000) worth of Common Stock (determined on the basis of the Fair Market Value of such stock on the date or dates of grant) for each calendar year such rights were at any time outstanding. C. If by reason of such accrual limitations, any purchase right of a Participant does not accrue for a particular Purchase Period, then the payroll deductions collected on the Participant's behalf with respect to that purchase right shall be promptly refunded. D. In the event there is any conflict between the provisions of this Article and one or more provisions of the Plan or any instrument issued thereunder, the provisions of this Article shall be controlling. IX. EFFECTIVE DATE AND TERM OF THE PLAN A. The Plan was adopted by the Board on October 19, 1995 and shall become effective on the Effective date, provided the Plan is approved by the -------- Corporation's stockholders at the 1995 Annual Meeting. The Plan is intended to be the successor to the Predecessor Plan, and should such stockholder approval be obtained, the Predecessor Plan, together with all outstanding purchase rights thereunder, shall terminate with the November 30, 1995 quarterly purchase date thereunder, and no more purchase rights shall be granted or exercised and no shares of Common Stock shall be issued under the Predecessor Plan after the November 30, 1995 purchase date. In the event such stockholder approval is not obtained, then this Plan shall not be implemented, and the Predecessor Plan shall continue in full force and effect with its existing terms and provisions. B. Unless sooner terminated by the Board, the Plan shall terminate upon the earliest of (i) the last business day in November 2005, (ii) the -------- date on which all shares available for issuance under the Plan shall have been sold pursuant to purchase rights exercised under the Plan or (iii) the date on which all purchase rights are exercised in connection with a Change in Control. No further purchase rights shall be granted or exercised, and no further payroll deductions shall be collected, under the Plan following such termination. X. AMENDMENT OF THE PLAN The Board may alter, amend, suspend or discontinue the Plan at any time to become effective immediately following the close of any Purchase Period. However, the Board may not, without the approval of the Corporation's stockholders, (i) materially increase the number of shares of Common Stock issuable under the Plan or the maximum number of shares purchasable per Participant at the end of each Purchase Period, except for permissible adjustments in the event of certain changes in the Corporation's capitalization, (ii) alter the purchase price formula so as to reduce the purchase price payable for the shares of Common Stock purchasable under the Plan, or (iii) materially increase the benefits accruing to Participants under the Plan or materially modify the requirements for eligibility to participate in the Plan. XI. GENERAL PROVISIONS A. The Plan shall NOT be administered as a qualified employee stock purchase plan under Code Section 423. Accordingly, each Participant shall, in connection with his or her purchases of Common Stock under the Plan, satisfy all applicable federal, state and local income and employment tax withholding requirements. B. All costs and expenses incurred in the administration of the Plan shall be paid by the Corporation. C. Nothing in the Plan shall confer upon the Participant any right to continue in the employ of the Corporation or any Corporate Affiliate for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Corporation (or any Corporate Affiliate employing such person) or of the Participant, which rights are hereby expressly reserved by each, to terminate such person's employment at any time for any reason, with or without cause. D. The provisions of the Plan shall be governed by the laws of the State of California without resort to that State's conflict-of-laws rules. SCHEDULE A ---------- CORPORATIONS PARTICIPATING IN EMPLOYEE STOCK PURCHASE PLAN AS OF THE EFFECTIVE DATE ------------------------ Mycogen Corporation Mycogen Plant Sciences Mycogen Crop Protection Mycogen Canada, Inc. Mycogen Plant Sciences Puerto Rico Corporation APPENDIX -------- The following definitions shall be in effect under the Plan: A. BASE SALARY shall mean the (i) regular base salary paid to a ----------- Participant by one or more Participating Companies during such individual's period of participation in the Plan plus (ii) any pre-tax contributions made by the Participant to any Code Section 401(k) salary deferral plan or any Code Section 125 cafeteria benefit program now or hereafter established by the Corporation or any Corporate Affiliate. Base Salary shall NOT include overtime payments, bonuses, commissions, profit-sharing distributions or other incentive-type payments, or any contributions (other than Code Section 401(k) or Code Section 125 contributions) made on the Participant's behalf by the Corporation or any Corporate Affiliate to any deferred compensation plan or welfare benefit program now or hereafter established. B. BOARD shall mean the Corporation's Board of Directors. ----- C. CHANGE IN CONTROL shall mean a change in ownership or control of the ----------------- Corporation effected through any of the following transactions: (I.) a merger or consolidation in which securities possessing more than fifty percent (50%) of the total combined voting power of the Corporation's outstanding securities are transferred to a person or persons different from the persons holding those securities immediately prior to such transaction, or (II.) the sale, transfer or other disposition of all or substantially all of the assets of the Corporation in complete liquidation or dissolution of the Corporation, or (III.) the acquisition by any person or group of related persons (other than the Corporation or any person controlled by, controlling or under common control with the Corporation) of beneficial ownership of securities possessing more than fifty percent (50%) of the total combined voting power of the Corporation's outstanding securities pursuant to a tender or exchange offer made directly to the Corporation's stockholders. D. CODE shall mean the Internal Revenue Code of 1986, as amended. ---- E. COMMON STOCK shall mean the Corporation's common stock. ------------ F. CORPORATE AFFILIATE shall mean any parent or subsidiary corporation of ------------------- the Corporation (as determined in accordance with Code Section 424), whether now existing or subsequently established. G. CORPORATION shall mean Mycogen Corporation, a California corporation, ----------- and any corporate successor to all or substantially all of the assets or voting stock of Mycogen Corporation which shall by appropriate action adopt the Plan. H. DISABILITY shall mean the Participant's inability, by reason of any ---------- medically determinable physical or mental impairment expected to result in death or to be of continuous duration of twelve (12) months or more, to engage in any substantial gainful employment. I. EFFECTIVE DATE shall mean December 1, 1995. Any Corporate Affiliate -------------- which becomes a Participating Corporation after such Effective Date shall designate a subsequent Effective Date with respect to its employee-Participants. J. ELIGIBLE EMPLOYEE shall mean any person expected on a regularly- ----------------- scheduled basis expected to work than twenty (20) hours per week for more than five (5) months per calendar year in the employ of any Participating Corporation for earnings considered wages under Code Section 3401(a). K. FAIR MARKET VALUE per share of Common Stock on any relevant date shall ----------------- be determined in accordance with the following provisions: (I.) If the Common Stock is at the time traded on the NASDAQ National Market, then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question, as such price is reported by the National Association of Securities Dealers on the NASDAQ National Market or any successor system. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists. (II.) If the Common Stock is at the time listed on any Stock Exchange, then the Fair Market Value shall be the closing selling price per share on the date in question on the Stock Exchange determined by the Plan Administrator to be the primary market for the Common Stock, as such price is officially quoted in the composite tape of transactions on such exchange. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists. L. PARTICIPANT shall mean any Eligible Employee of a Participating ----------- Corporation who is actively participating in the Plan. M. PARTICIPATING CORPORATION shall mean the Corporation and such ------------------------- Corporate Affiliate or Affiliates as may be authorized from time to time by the Board to extend the benefits of the Plan to their Eligible Employees. The Participating Corporations in the Plan as of the Effective Date are listed in attached Schedule A. N. PLAN shall mean the Corporation's 1995 Employee Stock Purchase Plan, ---- as set forth in this document. O. PLAN ADMINISTRATOR shall mean the Compensation Committee of the Board ------------------ in its capacity as administrator of the Plan. P. PREDECESSOR PLAN shall mean the Corporation's existing Employee Stock ---------------- Purchase Plan. Q. PURCHASE PERIOD shall mean each successive six (6) month period at the --------------- end of which there shall be purchased shares of Common Stock on behalf of each Participant. R. PURCHASE DATE shall mean the last business day of each Purchase Period ------------- and shall accordingly occur on the last business day of May and November each year. S. SECURITIES ACT shall mean the Securities Act of 1933, as amended. -------------- T. STOCK EXCHANGE shall mean either the American Stock Exchange or the -------------- New York Stock Exchange. EX-10.2 4 PLAN SUMMARY AND PROSPECTUS EXHIBIT 10.2 Employee Stock Purchase Plan Summary and Prospectus MYCOGEN CORPORATION ------------------------------ EMPLOYEE STOCK PURCHASE PLAN PLAN SUMMARY AND PROSPECTUS ------------------------------ The date of this Prospectus is December 1, 1995 TABLE OF CONTENTS -----------------
PAGE ---- INFORMATION ON THE 1995 EMPLOYEE STOCK PURCHASE PLAN............................................ 1
QUESTIONS AND ANSWERS ABOUT THE PURCHASE PLAN................................................... 1 1. What is the purpose of the Purchase Plan?.................................................. 1 2. When will the new Purchase Plan become effective?.......................................... 1 3. What happens to my outstanding purchase rights under the Predecessor Plan?................. 1 4. Who administers the Purchase Plan?......................................................... 1 5. How many shares of Common Stock may be issued under the Purchase Plan?..................... 1 6. How will the Common Stock be made available for purchase?.................................. 2 7. Who is eligible to participate in the Purchase Plan?....................................... 2 8. When may I become a participant?........................................................... 2 9. How do I become a participant?............................................................. 2 10. How much may I invest through the Purchase Plan?........................................... 2 11. May I change the rate of my payroll deductions?............................................ 3 12. What happens to my payroll deductions?..................................................... 3 13. When will my purchase right be exercised?.................................................. 3 14. How will my purchase right be exercised?................................................... 3 15. What is the purchase price of the Common Stock?............................................ 3 16. How is the fair market value of the Common Stock determined?............................... 3 17. Will I receive a report indicating the amount and status of my account?.................... 3 18. Are there any limitations on the number of shares I may purchase?.......................... 4 19. What if there are not enough shares available to cover all the exercised purchase rights on a particular purchase date?............................................................. 4 20. May I terminate my purchase right?......................................................... 4 21. How do I rejoin the Purchase Plan if I terminate my purchase right?........................ 4 22. What happens if my employment terminates or my eligibility status changes?................. 4 23. What happens if I die while a participant?................................................. 5 24. What happens if I go on an approved unpaid leave of absence?............................... 5 25. What happens if I become permanently disabled while a participant?......................... 5 26. May I assign or transfer my rights under the Purchase Plan?................................ 5 27. What happens if the Corporation is acquired?............................................... 5 28. What happens if there is a change in the Corporation's capital structure?.................. 5 29. When will I receive the stock certificate for my purchased shares?......................... 6 30. After becoming a stockholder, may I vote my shares?........................................ 6 31. When may I sell my purchased shares?....................................................... 6 32. What restrictions apply if I am a Section 16 Insider?...................................... 6 33. What restrictions apply if I am an affiliate?.............................................. 7 34. Should I be concerned about taxes?......................................................... 7 35. May the Corporation terminate the Purchase Plan?........................................... 7 36. May the Purchase Plan be amended?.......................................................... 7 37. What is the maximum duration of the Purchase Plan?......................................... 7 38. Does the Purchase Plan have any impact on the terms of my employment?...................... 8 39. Is the Purchase Plan subject to ERISA?..................................................... 8
TABLE OF CONTENTS (CONTINUED) -----------------------------
PAGE ---- QUESTIONS AND ANSWERS ON FEDERAL TAX CONSEQUENCES................................. 8 T1. Will the receipt of purchase rights or the purchase of shares on my behalf under the Purchase Plan result in taxable income?............................ 8 T2. What if I subsequently sell or dispose of the purchased shares?.............. 8 T3. How do I calculate my taxable income for Purchase Plan transactions?......... 8 T4. What are the applicable Federal tax rates?................................... 9 T5. Are there any special tax rules applicable to Section 16 Insiders?........... 9 T6. What are the Federal tax consequences to the Corporation?.................... 10 REGISTRANT INFORMATION AND PURCHASE PLAN ANNUAL INFORMATION....................... 10
THIS DOCUMENT CONSTITUTES PART OF THE OFFICIAL PROSPECTUS COVERING SECURITIES THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. INFORMATION ON THE 1995 EMPLOYEE STOCK PURCHASE PLAN ---------------------------------------------------- Mycogen Corporation, a Delaware corporation (the "Corporation"), has established a new employee stock purchase program which will allow eligible individuals to acquire shares of the Corporation's common stock (the "Common Stock") at periodic intervals through their accumulated payroll deductions. The new program is officially titled the Mycogen Corporation 1995 Employee Stock Purchase Plan and will be referred to in this document as the Purchase Plan. The Purchase Plan is the successor plan to the Mycogen Corporation Restated 1988 Employee Stock Purchase Plan (the "Predecessor Plan"). QUESTIONS AND ANSWERS ABOUT THE PURCHASE PLAN --------------------------------------------- The Plan Summary and Prospectus sets forth in question and answer format the major features of the Purchase Plan and the principal rights and benefits available to the participating employees. 1. WHAT IS THE PURPOSE OF THE PURCHASE PLAN? The purpose of the Purchase Plan is to provide eligible employees with the opportunity to acquire stock ownership in the Corporation through periodic payroll deductions. These deductions will be applied at semi- annual intervals to purchase shares of Common Stock at a discount from the then current market price. 2. WHEN WILL THE NEW PURCHASE PLAN BECOME EFFECTIVE? The Purchase Plan will be submitted to the Corporation's stockholders for approval at the 1995 Annual Meeting and, subject to such approval, will become effective on December 1, 1995. 3. WHAT HAPPENS TO MY OUTSTANDING PURCHASE RIGHTS UNDER THE PREDECESSOR PLAN? Your purchase rights under the Predecessor Plan will automatically terminate on November 30, 1995. As of that date, the Predecessor Plan will come to an end, and no further purchase rights will thereafter be granted or exercised and no further payroll deductions will be collected under the terminated plan. 4. WHO ADMINISTERS THE PURCHASE PLAN? The Purchase Plan will be administered by the Compensation Committee of the Board. All references in this document to "Plan Administrator" will accordingly mean the Compensation Committee in its capacity as administrator of the Purchase Plan. The members of the Compensation Committee are appointed by the Board and may be removed by the Board at any time. The members of the Board are elected annually by the Company's stockholders, and each Board member serves until he or she resigns or until his or her successor is duly elected and qualified. 5. HOW MANY SHARES OF COMMON STOCK MAY BE ISSUED UNDER THE PURCHASE PLAN? A total of 250,000 shares of Common Stock have been reserved for issuance under the Purchase Plan. This authorized share reserve is comprised of (i) the estimated number of shares (184,000 shares) which will remain available for issuance under the Predecessor Plan following the November 30, 1995 purchase date thereunder plus (ii) an additional increase of approximately 66,000 shares. These shares will be made available either from the Corporation's authorized but unissued shares of Common Stock or from shares of Common Stock reacquired by the Corporation, including shares repurchased on the open market. 6. HOW WILL THE COMMON STOCK BE MADE AVAILABLE FOR PURCHASE? Shares of Common Stock will be offered for purchase through a series of successive purchase periods, each with a duration of six (6) months. Purchase periods will run from the first business day in June to the last business day in November each year and from the first business day in December each year to the last business day in May in the following year. The initial purchase period will begin on December 1, 1995. 7. WHO IS ELIGIBLE TO PARTICIPATE IN THE PURCHASE PLAN? Employees of the Corporation or any participating subsidiary will be eligible to participate in the Purchase Plan if employed on a basis under which they are regularly expected to work more than twenty (20) hours per week for more than five (5) months per calendar year. As of the initial purchase period beginning on December 1, 1995, the following subsidiaries will be participating in the Purchase Plan: Mycogen Plant Sciences, Mycogen Crop Protection, Mycogen Canada and Mycogen Plant Sciences Puerto Rico. You will be notified from time to time as additional subsidiaries extend the Purchase Plan to their eligible employees. Certain individuals eligible to participate in the Purchase Plan will be subject to special provisions designed to assure their compliance with the short-swing profit restrictions of Section 16(b) of the Securities Exchange Act of 1934, as amended (the "1934 Act"). These individuals, who will be referred to in this document as "Section 16 Insiders," include all executive officers of the Corporation. The special provisions applicable to Section 16 Insiders will be discussed from time to time in this document.0 8. WHEN MAY I BECOME A PARTICIPANT? You may participate in any purchase period if you satisfy the following requirements on the start date of that purchase period: . you are an eligible employee of the Corporation or any participating subsidiary, and . you have been employed for at least one month. On the start date of each purchase period in which you participate in the Plan, you will be granted a purchase right to acquire shares of Common Stock at the end of that purchase period. IF YOU DO NOT JOIN THE PURCHASE PERIOD ON THE START DATE, YOU MAY NOT SUBSEQUENTLY JOIN THAT PARTICULAR PURCHASE PERIOD AT ANY LATER DATE. ACCORDINGLY, YOU WILL NOT BE ABLE TO PARTICIPATE IN THE PURCHASE PLAN UNTIL THE START OF THE NEXT PURCHASE PERIOD. 9. HOW DO I BECOME A PARTICIPANT? In order to participate in a particular purchase period, you must complete and file the appropriate enrollment form with the Plan Administrator before the start date of the purchase period. The enrollment form includes a stock purchase agreement along with a payroll deduction authorization. This form may be obtained from the Human Resources Department. 10. HOW MUCH MAY I INVEST THROUGH THE PURCHASE PLAN? You may authorize payroll deductions in 1% multiples of your eligible earnings each purchase period, up to a maximum of fifteen percent (15%). Your eligible earnings will be limited to your regular base pay before any pre-tax or after-tax contributions now or hereafter maintained by the Corporation or any participating subsidiary. 11. MAY I CHANGE THE RATE OF MY PAYROLL DEDUCTIONS? You may NOT change your rate of payroll deduction in effect for a particular purchase period once that purchase period begins. However, you may increase or decrease your rate of payroll deduction for any subsequent purchase period by filing a new payroll deduction authorization with the Plan Administrator prior to the start date of that purchase period. The new rate (which may not be in excess of fifteen percent (15%) of your eligible earnings) will become effective on the start date of the first purchase period following the filing of your new authorization. 12. WHAT HAPPENS TO MY PAYROLL DEDUCTIONS? Your payroll deductions will be credited to an account established in your name on the Corporation's books. No interest will be paid on the balance credited to your account. However, since the Corporation pays all administrative expenses of the Purchase Plan, the full amount of your payroll deductions will be applied to the purchase of Common Stock. Your payroll deductions may be commingled with the general assets of the Corporation and may be used for general corporate purposes. 13. WHEN WILL MY PURCHASE RIGHT BE EXERCISED? Your purchase right will be exercised on the last business day of each purchase period. 14. HOW WILL MY PURCHASE RIGHT BE EXERCISED? Your purchase right will be exercised by applying the payroll deductions credited to your account to the purchase of whole shares of Common Stock on each purchase date. Any remaining amount in your account will be carried over to the next purchase period. However any payroll deductions not applied to the purchase of Common Stock by reason of the limitations on the number of shares purchasable per participant (see Question 18) will be promptly refunded. 15. WHAT IS THE PURCHASE PRICE OF THE COMMON STOCK? The purchase price per share of Common Stock will be eighty-five percent (85%) of the lower of (i) the fair market value per share of ----- Common Stock on the last business day immediately preceding the start date of the purchase period or (ii) the fair market value per share on the purchase date. In any event, your purchases of Common Stock will always be at a discount of at least fifteen percent (15%) of fair market value on the purchase date. 16. HOW IS THE FAIR MARKET VALUE OF THE COMMON STOCK DETERMINED? The fair market value per share on any relevant date under the Purchase Plan will be the closing selling price of the Common Stock on that date, as reported on the NASDAQ National Market. If there is no reported selling price for such date, then the closing selling price on the last preceding date for which there is such a quotation will be used. Stock prices are reported daily in most major newspapers. 17. WILL I RECEIVE A REPORT INDICATING THE AMOUNT AND STATUS OF MY ACCOUNT? After each purchase date, you will receive a report indicating the number of shares purchased on your behalf and the purchase price paid per share. 18. ARE THERE ANY LIMITATIONS ON THE NUMBER OF SHARES I MAY PURCHASE? Yes. The following limitations apply: (a.) The total number of shares of Common Stock available for purchase over the ten (10)-year term of the Purchase Plan is limited to 250,000 shares (subject to the adjustments described under Question 28). (b.) The maximum number of shares of Common Stock that you may purchase on any one purchase date may not exceed 375 shares (subject to the adjustments described under Question 28). (c.) You may not purchase shares at a rate in excess of $25,000 worth of Common Stock (determined on the basis of the fair market value of the Common Stock on the start date of the purchase period) for each calendar year your purchase right is outstanding. (d.) Finally, no purchase right will be granted to any employee who, immediately after the grant of such right, would own (or otherwise hold options or other rights to purchase) stock possessing five percent (5%) or more of the total voting power or value of all classes of stock of the Corporation or any parent or subsidiary corporation. Any payroll deductions collected from you which cannot be applied to the purchase of Common Stock by reason of one or more of these limitations will be refunded. 19. WHAT IF THERE ARE NOT ENOUGH SHARES AVAILABLE TO COVER ALL THE EXERCISED PURCHASE RIGHTS ON A PARTICULAR PURCHASE DATE? If the total number of shares for which purchase rights are to be exercised on any purchase date exceeds the number of shares at the time available for issuance under the Purchase Plan, then the Plan Administrator will make a pro-rata allocation of the available shares on a uniform and non-discriminatory basis, and any payroll deductions not applied to the purchase of the available shares will be refunded. 20. MAY I TERMINATE MY PURCHASE RIGHT? Yes. You may terminate your purchase right by filing the prescribed notification form with the Plan Administrator at any time before the last day of any purchase period. No further payroll deductions will be collected on your behalf during the remainder of that period. Any payroll deductions already collected for that purchase period will be applied to the purchase of Common Stock at the end of the period. Once you have terminated your purchase right for a particular purchase period, you may not rejoin that purchase period at any later date, and you must wait until the start of a new purchase period to resume participation. 21. HOW DO I REJOIN THE PURCHASE PLAN IF I TERMINATE MY PURCHASE RIGHT? Individuals who terminate their purchase rights may participate in any subsequent purchase period by filing a new enrollment form on or before the start date of that purchase period. Section 16 Insiders, however, will be subject to certain restrictions on their ability to rejoin a new purchase period following their withdrawal from an earlier purchase period. See Question 32 below. 22. WHAT HAPPENS IF MY EMPLOYMENT TERMINATES OR MY ELIGIBILITY STATUS CHANGES? Your participation in the Purchase Plan will immediately cease should your employment terminate for any reason (other than death or disability) or should you otherwise lose your status as an eligible employee. Any payroll deductions collected on your behalf for the purchase period in which your termination or loss of eligibility occurs will automatically be refunded to you. 23. WHAT HAPPENS IF I DIE WHILE A PARTICIPANT? The person to whom your rights under the Purchase Plan are transferred by will or the laws of inheritance may elect to (i) withdraw any payroll deductions collected on your behalf for the purchase period in which your death occurs or (ii) have those funds held for the purchase of Common Stock on the next scheduled purchase date. The election may be made at any time prior to that purchase date, and in the absence of such election, your payroll deductions will automatically be refunded. In no event may any further payroll deductions be made on your behalf after your death. 24. WHAT HAPPENS IF I GO ON AN APPROVED UNPAID LEAVE OF ABSENCE? Your payroll deductions will cease with the paycheck immediately preceding the start of your leave and will not resume unless you return to active service before the end of the purchase period in which your leave began. Your existing payroll deductions for that purchase period may either be withdrawn or applied to the purchase of Common Stock on the next scheduled purchase date. Your must, however, make your election at the time your leave begins; otherwise, your payroll deductions will automatically be refunded. 25. WHAT HAPPENS IF I BECOME PERMANENTLY DISABLED WHILE A PARTICIPANT? If your employment terminates due to permanent disability, you may elect to (i) withdraw all the payroll deductions collected on your behalf for the purchase period in which such termination occurs or (ii) have those funds held for purchase of Common Stock on the next scheduled purchase date. The election may be made at any time prior to that purchase date. In the absence of such election, your payroll deductions will automatically be refunded. In no event, however, will any further payroll deductions be collected on your behalf following your termination of employment. You will be deemed to be permanently disabled should you become unable to engage in any substantial gainful employment by reason of any medically determinable physical or mental impairment expected to result in death or to be of continuous duration of at least twelve (12) months. 26. MAY I ASSIGN OR TRANSFER MY RIGHTS UNDER THE PURCHASE PLAN? No. Your purchase rights cannot be assigned or transferred, except by will or the laws of inheritance following your death. 27. WHAT HAPPENS IF THE CORPORATION IS ACQUIRED? If the Corporation is acquired, whether by merger or asset sale or sale of more than fifty percent (50%) of the Corporation's outstanding voting stock (an "Acquisition"), then all payroll deductions for the purchase period in which such Acquisition occurs will automatically be applied to the purchase of Common Stock immediately prior to the effective date of the Acquisition, subject to the share limitations summarized in Question 18. The purchase price of such shares will be eighty-five percent (85%) of the lower of (i) the fair market value of ----- the Common Stock on the last business day immediately preceding the purchase period in which such Acquisition occurs or (ii) the fair market value of the Common Stock immediately prior to the effective date of the Acquisition. 28. WHAT HAPPENS IF THERE IS A CHANGE IN THE CORPORATION'S CAPITAL STRUCTURE? In the event of any stock dividend, stock split, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without the Corporation's receipt of consideration, appropriate adjustments will be made to (i) the maximum number and class of securities issuable under the Purchase Plan, (ii) the maximum number and class of securities purchasable per participant on each purchase date and (iii) the number and class of securities and the price per share in effect under each outstanding purchase right. Such adjustments will prevent any dilution or enlargement of the rights and benefits of Purchase Plan participants. 29. WHEN WILL I RECEIVE THE STOCK CERTIFICATE FOR MY PURCHASED SHARES? You may at any time request the issuance of a stock certificate for any shares purchased on your behalf under the Purchase Plan. However, not more than one certificate will be issued to your for each purchase period of participation. Your may specify whether the certificate should be issued in your name alone or in the name of you and your spouse as community property or as joint tenants with right of survivorship. Alternatively, you may request the certificate to be issued directly to a Corporation-designated brokerage account so that you can sell the shares promptly at any time. 30. AFTER BECOMING A STOCKHOLDER, MAY I VOTE MY SHARES? Yes, even if you do not have physical possession of a stock certificate. 31. WHEN MAY I SELL MY PURCHASED SHARES? Individuals who purchase Common Stock under the Purchase plan may resell such shares without restriction, except for Section 16 Insiders and other persons who are considered to be affiliates of the Corporation. 32. WHAT RESTRICTIONS APPLY IF I AM A SECTION 16 INSIDER? Section 16(b) of the 1934 Act requires the Corporation to recover any profit realized by any Section 16 Insider from any purchase and sale, or sale and purchase, of shares of Common stock made within a period of less than six (6) months. As a result, the following rules will be in effect for Section 16 Insiders who participate in the Purchase Plan: (i.) The acquisition of Common Stock under the Purchase Plan will NOT be treated as a purchase of those shares for short-swing liability purposes, provided the acquired shares are held for at least six (6) months after the purchase date. The exempt purchase must be reported on the Form 5 filed by the Section 16 Insider for the fiscal year in which the shares are acquired or may be reported on any earlier Form 4 filed after the purchase date. (ii.) In the event the Section 16 Insider makes a special irrevocable election to participate in the Purchase Plan at a specified rate of payroll deduction, with no right to withdraw the funds so contributed to the Purchase Plan, then any acquisition of Common Stock made under the Purchase Plan more than six (6) months after the effective date of that election will NOT be treated as a purchase of those shares for short-swing liability purposes, and the acquisition will NOT be matched against any sale of Common Stock made within six (6) months before or after the acquisition date. (iii.) Should a Section 16 Insider who has not made such an irrevocable election sell any Purchase plan shares within six (6) months after the purchase date, then the acquisition of those shares will be treated as a purchase for short-swing liability purposes, retroactive to such purchase date, and must be reported on a Form 4 filed by the Section 16 Insider within ten (10) days after the close of the calendar month in which the sale is made. The non-exempt acquisition will be matched with any sales of Common stock made by the Section 16 Insider within six (6) months before or after the retroactive purchase date, including the sale which triggered the non-exempt treatment. NOTE: The exemption for the acquisition of common stock under the Purchase Plan will not be lost if other shares of Common Stock held by the Section 16 Insider are sold within six (6) months after the purchase date. (iv.) If the Section 16 Insider who has not filed the special irrevocable election withdraws from a purchase period, then that individual may be precluded from rejoining the Purchase plan until the start date of a new purchase period beginning at least six (6) months after the earlier withdrawal date in order to preserve the exempt status of any Purchase Plan acquisitions he or she may have made within the preceding six (6) months. (v.) Any change made by the Section 16 Insider to the special irrevocable election filed under the Purchase Plan (including a decision to withdraw from the offering period) will not become effective for at least six (6) months. 33. WHAT RESTRICTIONS APPLY IF I AM AN AFFILIATE? In general, persons with power to manage and direct the policies of the Corporation, relatives of these people and trusts, estates, corporations or other entities controlled by any of these people may be deemed to be affiliates of the Corporation. Affiliates of the Corporation are obligated to resell their shares of Common Stock in compliance with Rule 144 of the Securities and Exchange Commission ("SEC"). This rule requires sales to be effected in "broker's transactions," as defined in such rule, and a written notice of each sale must be filed with the SEC at the time of the sale. The rule also limits the number of shares which may be sold in any three (3)-month period to no more than the greater of (i) one percent (1%) of the ------- outstanding shares of Common Stock or (ii) the average weekly reported volume of trading in such shares on all securities exchanges during the four (4) calendar weeks preceding the filing of the required notice of proposed sale. However, the two (2)-year holding period requirement of Rule 144 will not be applicable to any Common Stock acquired under the Purchase Plan. OFFICERS OF THE CORPORATION SHOULD CONSULT WITH COUNSEL BEFORE OFFERING FOR SALE ANY SHARES OF COMMON STOCK ACQUIRED UNDER THE PURCHASE PLAN IN ORDER TO ASSURE THEIR COMPLIANCE WITH RULE 144, SECTION 16 AND ALL OTHER APPLICABLE PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS. 34. SHOULD I BE CONCERNED ABOUT TAXES? Yes. A summary description of the Federal tax consequences applicable to your participation in the Purchase Plan is included below. 35. MAY THE CORPORATION TERMINATE THE PURCHASE PLAN? Yes. The Plan Administrator has the discretion to terminate all outstanding purchase rights immediately following the close of any purchase period. If the Plan Administrator exercises this discretion, the Purchase Plan will terminate in its entirety, no further purchase rights will thereafter be granted or exercised and no further payroll deductions will be collected under the terminated plan. 36. MAY THE PURCHASE PLAN BE AMENDED? The Board may alter or amend the Purchase Plan at any time to become effective immediately following the close of any purchase period. However, no amendment may be made without approval of the Corporation's stockholders if the amendment would (i) materially increase the number of shares of Common Stock which may be issued over the term of the Purchase Plan or the number of shares which may be purchased per participant on each purchase date, except for certain permissible adjustments in the event of changes to the Corporation's capital structure, (ii) reduce the purchase price formula specified in the Purchase Plan or (iii) otherwise materially increase the benefits available under the Purchase Plan or materially modify the eligibility requirements for participation. 37. WHAT IS THE MAXIMUM DURATION OF THE PURCHASE PLAN? The Purchase Plan will in all events terminate upon the earliest of -------- (i) the last business day in November 2005, (ii) the date on which all shares available for issuance under the Purchase Plan have been sold or (iii) the date on which all purchase rights are exercised in connection with an Acquisition. 38. DOES THE PURCHASE PLAN HAVE ANY IMPACT ON THE TERMS OF MY EMPLOYMENT? Neither the Purchase Plan nor any outstanding purchase right is intended to provide any participant with the right to remain in the Corporation's employ for any specific period, and both you and the Corporation will each have the right to terminate your employment at any time and for any reason, with or without cause. 39. IS THE PURCHASE PLAN SUBJECT TO ERISA? The Purchase Plan is not subject to the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA") or Section 401(a) of the Internal Revenue Code. QUESTIONS AND ANSWERS ON FEDERAL TAX CONSEQUENCES ------------------------------------------------- The following is a description of the Federal income tax consequences of participation in the Purchase Plan. State and local tax treatment, which is not discussed below, may vary from such Federal income tax treatment. You should consult with your own tax advisor as to the tax consequences of your particular transactions under the Purchase Plan. T1. WILL THE RECEIPT OF PURCHASE RIGHTS OR THE PURCHASE OF SHARES ON MY BEHALF UNDER THE PURCHASE PLAN RESULT IN TAXABLE INCOME? No taxable income will be reportable upon your receipt of a purchase right under the Purchase Plan. However, the Purchase Plan is not a --- qualified employee stock purchase plan under Section 423 of the Internal Revenue Code, and you will accordingly recognize compensation income at the time your purchase right is exercised. The amount of such income will be equal to the fair market value of the shares of Common Stock purchased on your behalf at the time of such purchase less the purchase price paid for those shares. The Corporation will include this income on your W-2 statement for the calendar year in which you acquire the shares, and you must satisfy all Federal, state and local withholding and other payroll taxes applicable to such income at the time your purchase right is exercised. T2. WHAT IF I SUBSEQUENTLY SELL OR DISPOSE OF THE PURCHASED SHARES? Any gain or loss recognized upon your subsequent sale or disposition of the purchased shares will be either capital gain or capital loss. Whether the capital gain or loss is long-term or short-term will depend on the period of time the shares are held prior to sale. Gain or loss on shares held for more than one (1) year will be long-term. T3. HOW DO I CALCULATE MY TAXABLE INCOME FOR PURCHASE PLAN TRANSACTIONS? The following example will illustrate the taxable income you will have to report upon your acquisition of Purchase Plan shares and the additional taxable income you will recognize upon your subsequent sale of those shares. EXAMPLE: On December 1, 1995 you enroll in the Purchase Plan when the ------- fair market value per share is $12.00 and contribute $1,000.00 for the purchase period ending May 31, 1996. On May 31, 1996, the fair market value per share is $15.00, and the purchase price for your shares will accordingly be $10.20 per share (85% of $12.00). 98 shares of Common Stock will be purchased on your behalf on May 31, 1996 at the $10.20 price per share (1,000/$10.20). Your taxable income at the time of such purchase will be determined as follows: Ordinary Income Per Share ------------------------- $15.00 fair market value at May 31, 1996 purchase less $10.20 per share purchase price = $4.80 per share at the time of purchase Assume you subsequently sell the shares for $20.00 per share. Your taxable income at that time will be determined as follows: Capital Gain Per Share ---------------------- $20.00 per share selling price less $15.00 fair market value on May 31, 1996 = $5.00 per share The capital gain will be long-term if you hold the shares for at least one (1) year after the May 31, 1996 purchase date. T4. WHAT ARE THE APPLICABLE FEDERAL TAX RATES? Ordinary income is subject to a maximum Federal tax rate of 39.6% on taxable income in excess of $256,500 ($128,250 for a married taxpayer filing a separate return). The applicable $256,500 or $128,250 threshold is subject to cost-of-living adjustments in taxable years beginning after December 31, 1995. Certain limitations are imposed upon a taxpayer's itemized deductions, and the personal exemptions claimed by the taxpayer are subject to phase-out. These limitations may result in the taxation of ordinary income at an effective top marginal rate in excess of 39.6%. Long-term capital gains are taxed at the same rates as ordinary income, subject to a maximum rate of 28%. For the tax year ending December 31, 1995, itemized deductions are reduced by 3% of the amount by which the taxpayer's adjusted gross income for the year exceeds $114,700 ($57,350 for a married taxpayer filing a separate return). The reduction may not, however, exceed 80% of the total itemized deductions (excluding medical expenses, casualty and theft losses, and certain investment interest expenses) claimed by the taxpayer. The applicable $114,700 or $57,350 threshold is subject to cost-of-living adjustments in taxable years beginning after December 31, 1995. In addition, the deduction for personal exemptions claimed by the taxpayer is reduced by 2% for each $2,500 ($1,250 for a married taxpayer filing a separate return) or fraction thereof by which the taxpayer's adjusted gross income for the year exceeds a specified threshold amount. The applicable thresholds for 1995 are $172,050 for married taxpayers filing joint returns, $114,700 for single taxpayers and $86,025 for married taxpayers filing separate returns. Accordingly, the deduction is completely eliminated for any taxpayer whose adjusted gross income for the year exceeds the applicable threshold amount by more than $122,500. The threshold amounts will be subject to cost-of-living adjustments in taxable years beginning after December 31, 1995. T5. ARE THERE ANY SPECIAL TAX RULES APPLICABLE TO SECTION 16 INSIDERS? If you are a Section 16 Insider, the applicable tax rules for the acquisition and sale or other disposition of Purchase Plan shares acquired by you will be as follows: . Purchase Plan shares acquired by you will, under the Federal tax laws, be deemed to be subject to a substantial risk of forfeiture for the six (6)-month period following the purchase date, since the sale of those shares at a profit during that six (6)-month period will trigger short-swing liability under Section 16(b) of the 1934 Act. Accordingly, there will be no taxable income recognized at the time the Purchase Plan shares are acquired, unless you make a Section 83(b) election to be taxed at that time (see next paragraph). Without such a Section 83(b) election, taxation will be deferred for six (6) months, and you will, at the end of such deferral period, recognize ordinary income in an amount equal to the excess of (i) the fair market value of the purchased shares at that time over (ii) the purchase price paid for those shares. . If your Purchase Plan shares are deemed to be subject to a substantial risk of forfeiture, then you may elect under Code Section 83(b) to include as ordinary income in the year those shares are purchased an amount equal to the excess of (i) the fair market value of those shares at the time of purchase over (ii) the purchase price paid for the shares. If your make the Section 83(b) election, you will not recognize any additional income when the forfeiture period subsequently lapses. . If you choose to file a special irrevocable election to participate in the Purchase Plan at a specified rate of payroll deduction, with no right to withdraw the funds so contributed, then any acquisition of Purchase Plan shares made more than six (6) months after the effective date of such election will be an exempt transaction under the Federal securities laws, and the acquired shares will NOT be deemed to be subject to a substantial risk of forfeiture for purposes of the Federal tax laws. Accordingly, you will recognize taxable income, immediately upon your acquisition of those shares, in an amount equal to their fair market value at the time of purchase less the purchase price paid for those shares. . Whether or not you file the special irrevocable election, your sale of the Purchase Plan shares will result in capital gain to the extent the amount realized upon the sale exceeds the fair market value of the shares at the time you recognized the ordinary income with respect to their acquisition. A capital loss will result to the extent the amount realized upon the sale is less than such fair market value. The gain or loss will be long-term if the shares are held for more than one (1) year prior to the sale. For shares issued to Section 16 Insiders, the capital gain holding period will generally start six (6) months after the purchase date, unless the Section 16 Insider files a Section 83(b) election to be taxed on the shares at the time of purchase or the shares are otherwise purchased pursuant to the special irrevocable election. T6. WHAT ARE THE FEDERAL TAX CONSEQUENCES TO THE CORPORATION? The Corporation will be entitled to a business expense deduction equal to the amount of ordinary income recognized by the participant in connection with his or her acquisition of the Purchase Plan shares. The deduction will normally be allowed for the taxable year in which such acquisition occurs. REGISTRANT INFORMATION AND PURCHASE PLAN ANNUAL INFORMATION ----------------------------------------------------------- Mycogen Corporation is a Delaware corporation which maintains its principal executive offices at 5501 Oberlin Drive, San Diego, California 92121. The telephone number at the executive offices is (619) 453-8030. You may contact the Corporation at this address or telephone number for further information concerning the Purchase Plan and its administration. A copy of the Corporation's Annual Report to Stockholders for the most recent fiscal year will be furnished to each participant in the Purchase Plan, and additional copies will be furnished, without charge, to each participant upon written or oral request to the Corporate Secretary of the Corporation at its principal executive offices, or upon telephoning the Corporation at its principal executive offices. In addition, any person receiving a copy of this Prospectus may obtain without charge, upon written or oral request to the Corporate Secretary, a copy of any of the documents listed below, which are hereby incorporated by reference into this Prospectus, other than certain exhibits to such documents: (a.) The Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1994 filed with the SEC on March 3, 1995; (b.) The Corporation's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 1995 and June 30, 1995, filed with the SEC on May 15, 1995 and August 10, 1995, respectively; (c.) The Corporation's Registration Statement No. 0-15881 on Form 8-A filed with the SEC on May 7, 1992 in which there is described the terms, rights and provisions applicable to the Corporation's Common Stock; and (d.) Any similar report filed subsequently with the SEC and distributed to the Corporation's stockholders. The Corporation will also deliver to each participant in the Purchase Plan who does not otherwise receive such materials a copy of all reports, proxy statements and other communications distributed to the Corporation's stockholders EX-24 5 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 24 Consent of Ernst & Young, Independent Auditors CONSENT OF ERNST & YOUNG, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Mycogen Corporation 1995 Employee Stock Purchase Plan and of our report dated October 17, 1995, with respect to the consolidated financial statements and schedules of Mycogen Corporation included and incorporated by reference in its Annual Report (Form 10-K) for the year ended August 31, 1995, filed with the Securities and Exchange Commission. /s/ Ernst & Young ERNST & YOUNG San Diego, California February 9, 1996 EX-25 6 POWER OF ATTORNEY EXHIBIT 25 Power of Attorney POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: WHEREAS, Mycogen Corporation (the "Corporation") intends to file a Registration Statement of Form S-8, regarding the registration of shares reserved for issuance under the Corporation's 1995 Employee Stock Purchase Plan, with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended. WHEREAS, the undersigned are directors of the Corporation. NOW, THEREFORE, the undersigned hereby constitute and appoint Jerry Caulder, Carlton J. Eibl, James A. Baumker, or any of them, as their attorneys- in-fact to act in their place and stead and to execute and to file such Registration Statement and any amendments or supplements thereto, giving and granting to said attorneys full power and authority to do and perform each and every act whatsoever requisite and necessary to be done in and about the premises, with full power of substitution, as fully to all intents and purposes as the undersigned might or could do if personally present at the doing thereof, and hereby ratifying and confirming all that said attorneys may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney this 9th day of February, 1996. /s/ Thomas J. Cable - -------------------- (Thomas J. Cable) /s/ George R. Hill - ------------------- (George R. Hill) /s/ Kenneth H. Hopping - ----------------------- (Kenneth H. Hopping) /s/ David H. Rammler - -------------------- (David H. Rammler) /s/ A. John Speziale - --------------------- (A. John Speziale) -----END PRIVACY-ENHANCED MESSAGE-----