STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated this 15th day of January, 1996,
effective as of January 15, 1996, is among DowElanco, an Indiana general
partnership ("Purchaser"), The Lubrizol Corporation, an Ohio corporation
("Lubrizol"), and AGC Holdings, Inc., a Delaware corporation ("Seller"), a
second tier wholly owned subsidiary of Lubrizol.
WHEREAS, simultaneously with the execution and delivery of this Agreement,
Purchaser, United AgriSeeds, Inc., a Delaware corporation and wholly owned
subsidiary of Purchaser ("Subsidiary"), Mycogen Corporation, a California
Corporation (the "Company") and Agrigenetics, Inc., a Delaware corporation
("Acquisition"), are entering into an Exchange and Purchase Agreement (the
"Mycogen Purchase Agreement");
WHEREAS, Seller owns 6,134,067 shares (the "Common Shares") of common
stock, par value $.001 per share, of the Company (the "Common Stock");
WHEREAS, Seller owns 3,158 shares of Senior Redeemable Convertible
Preferred Stock, Series A (the "Preferred Shares") of the Company convertible
into 1,815,274 shares (the "P Common Shares") of Common Stock as of the date of
this Agreement;
WHEREAS, Seller owns 1,946 shares of the common stock of Acquisition and
has the right to convert such ownership interest in Acquisition (the
"Acquisition Shares") into 1,538,008 shares (the "A Common Shares") of Common
Stock as of the date of this Agreement under the Amended and Restated Equity
Investment Agreement, dated December 31, 1993 between Lubrizol, the Company,
Acquisition and Mycogen Plant Sciences, Inc. ("Holding") (the "Equity Investment
Agreement");
WHEREAS, Lubrizol is the equitable owner of exercisable options to purchase
14,999 shares of Common Stock (the "O Common Shares" which, for the purposes of
this Agreement, are treated as part of Seller's Shares); and
WHEREAS, given the Common Shares, the P Common Shares, the A Common Shares
and the O Common Shares, Seller owns or has the right to acquire 9,502,348
shares of Common Stock (collectively, the "Seller's Shares") as of the date of
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows.
Section 1. Conversion. On the date of this Agreement, Lubrizol shall
cause Seller to, and Seller shall, convert the Preferred Shares into 1,815,274
shares of Common Stock and the Acquisition Shares into 1,538,008 shares of
Common Stock. Prior to the Closing (as defined below), Lubrizol shall exercise,
or cause to be exercised, the options to purchase the O Common Shares. Lubrizol
and Seller will take whatever steps are necessary so that Lubrizol and Seller
will own, by the Closing, the Seller's Shares.
Section 2. Representations and Warranties of Lubrizol and Seller.
Lubrizol and Seller represent and warrant to Purchaser as follows:
(a) Lubrizol and Seller are corporations duly organized, validly existing
and in good standing under the laws of the jurisdiction of their incorporation.
(b) Lubrizol and Seller have all necessary corporate power and authority to
execute and deliver this Agreement, to perform their obligations hereunder and
to consummate the transactions contemplated hereby.
(c) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the board of directors of Lubrizol and Seller and approved by the
sole shareholder of Seller, and no other corporate proceedings on the part of
Lubrizol and Seller are necessary to authorize this Agreement or to consummate
the transactions so contemplated.
(d) This Agreement has been duly and validly executed and delivered by
Lubrizol and Seller and constitutes a legal, valid and binding agreement of
Lubrizol and Seller enforceable against Lubrizol and Seller in accordance with
its terms.
(e) The execution, delivery and performance by Lubrizol and Seller of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) contravene or conflict with the Certificate of Incorporation or
By-Laws of Lubrizol or Seller; (ii) assuming that all consents, authorizations
and approvals contemplated by subsection (f) below have been obtained and all
filings described therein have been made, contravene or conflict with or
constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to Lubrizol or Seller,
any
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of their subsidiaries or any of their properties; (iii) conflict with, or result
in the breach or termination of any provision of or constitute a default (with
or without the giving of notice or the lapse of time or both) under, or give
rise to any right of termination, cancellation, or loss of any benefit to which
Lubrizol or Seller or any of their subsidiaries is entitled under any provision
of any agreement, contract, license or other instrument binding upon Lubrizol or
Seller, any of their subsidiaries or any of their respective properties, or
allow the acceleration of the performance of, any obligation of Lubrizol or
Seller or any of their subsidiaries under any indenture, mortgage, deed of
trust, lease, license, contract, instrument or other agreement to which Lubrizol
or Seller or any of their subsidiaries is a party or by which Lubrizol or Seller
or any of their subsidiaries or any of their respective assets or properties is
subject or bound; or (iv) result in the creation or imposition of any Lien on
any asset of Lubrizol or Seller or any of their subsidiaries, except in the case
of clauses (ii), (iii) and (iv) for any such contraventions, conflicts,
violations, breaches, terminations, defaults, cancellations, losses,
accelerations and Liens which would not individually or in the aggregate
materially interfere with the consummation of the transactions contemplated by
this Agreement.
(f) The execution, delivery and performance by Lubrizol and Seller of this
Agreement and the consummation of the transactions contemplated hereby by
Lubrizol and Seller require no action by Lubrizol or Seller in respect of, or
filing by Lubrizol or Seller with, any governmental body, agency, official or
authority (either domestic or foreign) other than (i) compliance with any
applicable requirements of the HSR Act; (ii) compliance with the Securities Act
of 1933, the Securities Exchange Act of 1934, and any applicable requirements of
state securities, takeover and Blue Sky laws; and (iii) such actions or filings
which, if not taken or made, would not individually or in the aggregate
materially interfere with the consummation of the transactions contemplated by
this Agreement.
(g) Neither Lubrizol, Seller, nor any of their subsidiaries or their
respective properties is subject to any order, writ, judgment, injunction,
decree, determination or award which would prevent or delay the consummation of
the transactions contemplated hereby.
(h) At the Closing, Lubrizol or Seller will have good and valid title to
Seller's Shares, free and clear of any Liens.
(i) There are no options or rights to acquire, or any agreements to which
Lubrizol or Seller is a party relating to, Seller's Shares, other than this
Agreement, the Equity Investment Agreement and the rights of the Company under
the provisions for
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the Preferred Shares and the options with respect to the O Common Shares.
(j) The transfer of Seller's Shares hereunder to Purchaser will transfer to
Purchaser good and valid title to Seller's Shares, free and clear of any Liens.
(k) Seller's Shares represent all of the Common Shares beneficially owned
(within the meaning of Rule 13d-3 under the Exchange Act) by Lubrizol or Seller
except for options that are not exercisable at or prior to the Closing.
Section 3. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller as follows:
(a) Purchaser is a general partnership organized under the laws of Indiana.
(b) Purchaser has all necessary power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby.
(c) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the board of directors of Purchaser and no other proceedings on
the part of Purchaser are necessary to authorize this Agreement or to consummate
the transactions so contemplated.
(d) This Agreement has been duly and validly executed and delivered by
Purchaser and constitutes a legal, valid and binding agreement of Purchaser
enforceable against Purchaser in accordance with its terms.
(e) The execution, delivery and performance by Purchaser of this Agreement
and the consummation of the transactions contemplated hereby do not and will not
(i) contravene or conflict with the Partnership Agreement of Purchaser; (ii)
assuming that all consents, authorizations and approvals contemplated by
subsection (f) below have been obtained and all filings described therein have
been made, contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon or applicable to Purchaser, any of its subsidiaries or any of its
properties; (iii) conflict with, or result in the breach or termination of any
provision of or constitute a default (with or without the giving of notice or
the lapse of time or both) under, or give rise to any right of termination,
cancellation, or loss of any benefit to which Purchaser or any of its
subsidiaries is entitled under any provision of any agreement, contract,
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license or other instrument binding upon Purchaser, any of its subsidiaries or
any of their respective properties, or allow the acceleration of the performance
of, any obligation of Purchaser or any of its subsidiaries under any indenture,
mortgage, deed of trust, lease, license, contract, instrument or other agreement
to which Purchaser or any of its subsidiaries is a party or by which Purchaser
or any of its subsidiaries or any of their respective assets or properties is
subject or bound; or (iv) result in the creation or imposition of any Lien on
any asset of Purchaser or any of its subsidiaries, except in the case of clauses
(ii), (iii) and (iv) for any such contraventions, conflicts, violations,
breaches, terminations, defaults, cancellations, losses, accelerations and Liens
which would not individually or in the aggregate materially interfere with the
consummation of the transactions contemplated by this Agreement.
(f) The execution, delivery and performance by Purchaser of this Agreement
and the consummation of the transactions contemplated hereby by Purchaser
require no action by Purchaser or in respect of, or filing by Purchaser with,
any governmental body, agency, official or authority (either domestic or
foreign) other than (i) compliance with the HSR Act; (ii) compliance with any
applicable requirements of the Securities Act of 1933, the Securities Exchange
Act of 1934, and any applicable requirements of state securities, takeover and
Blue Sky laws; and (iii) such actions or filings which, if not taken or made,
would not individually or in the aggregate materially interfere with the
consummation of the transactions contemplated by this Agreement.
(g) Purchaser or its affiliates are acquiring Seller's Shares solely for
their own account for investment only and not with a view to resale in
connection with a distribution thereof as that term is defined in the Securities
Act of 1933 and the rules and regulations of the Securities and Exchange
Commission thereunder. Purchaser acknowledges that Seller's Shares to be
purchased pursuant to this Agreement have not been registered under the
Securities Act of 1933, as amended, or any applicable state securities law and
may not be transferred or sold except pursuant to an effective registration
statement under the Securities Act of 1933 or exemption therefrom and that
certificates evidencing Seller's Shares will bear a restrictive legend to that
effect. Purchaser has conducted its own investigation with respect to the
transactions contemplated by this Agreement and has not relied upon Lubrizol or
Seller with respect to information about Mycogen.
(h) Neither Purchaser nor any of its subsidiaries or their respective
properties is subject to any order, writ, judgment, injunction, decree,
determination or award which would
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prevent or delay the consummation of the transactions contemplated by this
Agreement.
Section 4. Purchase of Seller's Shares by Purchaser. As soon as
practicable (but at least one business day) following the satisfaction or waiver
of all of the conditions set forth in Section 12 hereof and subject to Section
5, Purchaser shall purchase all of Seller's Shares for (a) $126,200,000 plus (b)
$17,849 (an amount equal to (i) 14,999 multiplied by (ii) the difference between
$13 and the average option exercise price of $11.81) plus (c) if the Closing
occurs on or after February 29, 1996, for each day beginning on February 29,
1996 through and including the Closing, the interest on $124,938,000 at a rate
equal to the Six-Month London Interbank Offered Rate in effect from time to time
divided by 365 (collectively, the "L Purchase Price"). The closing of such
purchase and sale (the "Closing") shall occur at the offices of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or at such other
place as the parties may mutually agree.
Section 5. New Options. In the event additional options to purchase
Common Stock vest prior to the Closing, Lubrizol shall exercise, or cause to be
exercised, such options, the resulting shares of Common Stock shall be included
in Seller's Shares and the L Purchase Price shall be increased by an amount
equal to (a) the number of shares of Common Stock, if any, resulting from the
exercise of such options multiplied by (b) the difference between $13 and the
average option exercise price for such options.
Section 6. Deposit. One day following the execution and delivery of this
Agreement by the parties hereto, Purchaser will deposit with Seller $1,262,000
(the "Deposit") to be held by Seller until the Closing. The Deposit shall be
credited against the L Purchase Price so that, at the Closing, Purchaser will be
required to pay the L Purchase Price less the Deposit. Seller shall immediately
(and in any event within one business day) refund to Purchaser the full amount
of the Deposit (without any right of counterclaim, indemnity, rebate,
recoupment, retention, offset, set-off or other similar right or claim) unless
(i) this Agreement has terminated without the consummation of the transactions
contemplated hereunder and the Mycogen Purchase Agreement has terminated
pursuant to Section 8.1.8 or Section 8.1.9 of that agreement without the
consummation of the transactions contemplated thereunder or (ii) the
transactions contemplated by the Mycogen Purchase Agreement have been
consummated and Purchaser has failed to consummate the transactions contemplated
by this Agreement when it was required by this Agreement to do so.
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Section 7. Transfer of Shares. At the Closing, subject to the conditions
set forth in Section 12 of this Agreement, Lubrizol and Seller will sell,
transfer and deliver Seller's Shares to Purchaser (duly endorsed for transfer in
blank or accompanied by stock transfer powers duly executed in blank, with
signatures guaranteed by a commercial bank or a member of The New York Stock
Exchange, Inc., with all necessary stock transfer tax stamps affixed and
cancelled) and Purchaser will purchase Seller's Shares and wire transfer to
Lubrizol or Seller (to such account(s) as Lubrizol shall specify on at least two
business days prior notice) immediately available funds representing the
aggregate L Purchase Price for Seller's Shares. Lubrizol or Seller will, upon
request of Purchaser, promptly execute and deliver all additional documents
reasonably deemed by Purchaser to be necessary, appropriate or desirable to
effect, complete and evidence the sale, assignment and transfer of Seller's
Shares pursuant to this Agreement.
Section 8. Anti-Dilution Adjustments. In the event of any change in the
number of shares of Common Stock outstanding by recapitalization, declaration of
a stock split or combination or payment of a stock dividend or the like, the
number of Seller's Shares to be transferred to Purchaser shall be adjusted
appropriately. Seller's Shares shall not include all dividends or cash
distributions in respect of Seller's Shares.
Section 9. Additional Covenants of Lubrizol and Seller. Lubrizol and
Seller agree that from the date hereof:
(a) subject to the terms and conditions hereof, Lubrizol and Seller shall
take all actions necessary to fulfill their obligations under the terms of this
Agreement and shall use their best efforts to effect the consummation of the
transactions contemplated hereby, including, without limitation, the execution
of such instruments as Purchaser may reasonably request as well as any other
actions to ensure that Purchaser becomes the owner of Seller's Shares free and
clear of all Liens;
(b) except as provided for herein, Lubrizol and Seller agree not to
(either directly or indirectly) sell, transfer, pledge, assign, hypothecate or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, assignment,
hypothecation or other disposition of Seller's Shares (including, without
limitation, through the disposition or transfer of control of another person);
(c) except as provided for herein, Lubrizol and Seller agree not to
(either directly or indirectly) grant any proxies with respect to the Seller's
Shares, deposit the Seller's Shares
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into a voting trust or enter into a voting agreement with respect to any of the
Seller's Shares;
(d) except as provided for herein, Lubrizol and Seller agree not to
(either directly or indirectly) take any action that would make any
representation or warranty of Lubrizol or Seller herein untrue or incorrect in
any material respect; and
(e) Lubrizol and Seller shall cause the existing members of the board of
directors of the Company nominated by Lubrizol or Seller to deliver duly
executed resignations from such positions effective as of the Closing.
Section 10. No Solicitation. (a) Lubrizol and Seller will immediately
cease any existing discussions or negotiations with any third parties conducted
prior to the date hereof with respect to any Acquisition Proposal (as defined
below). Lubrizol and Seller shall not, directly or indirectly, through any
officer, director, employee, representative or agent or any of their
subsidiaries, (i) solicit, initiate, or encourage any inquiries or proposals
that constitute, or could reasonably be expected to lead to, a proposal or offer
for a merger, consolidation, business combination, sale of substantial assets,
sale of shares of capital stock (including without limitation by way of a tender
offer) or similar transactions involving the Company or any of its subsidiaries,
other than the transactions contemplated by this Agreement (any of the foregoing
inquiries or proposals being referred to in this Agreement as an "Acquisition
Proposal") or (ii) engage in negotiations or discussions concerning, or provide
any non-public information to any person or entity relating to, any Acquisition
Proposal.
(b) Lubrizol and Seller shall notify Purchaser immediately (and no later
than 24 hours) after receipt by Lubrizol or Seller of any Acquisition Proposal.
Such notice shall be made orally and in writing and shall indicate in reasonable
detail the identity of the offeror and the terms and conditions of such
proposal, inquiry or contract.
Section 11. Proxy; Voting Agreement.
(a) Lubrizol (with respect to shares acquired upon exercise of options,
after they are issued) and Seller (with respect to the remaining Seller's
Shares) hereby grant Purchaser an irrevocable proxy and irrevocably appoint
Purchaser or its designees, with full power of substitution, their attorney and
proxy to vote all Seller's Shares at any meeting of the stockholders of the
Company however called, or in connection with any action by written consent by
the stockholders of the Company. Lubrizol and Seller acknowledge and agree that
such proxy is coupled with an interest, constitutes, among other things, an
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inducement for Purchaser to enter into this Agreement, is irrevocable and shall
not be terminated upon the occurrence of any event (other than the termination
of this Agreement) and that no subsequent proxies will be given (and if given
will not be effective). This proxy shall terminate upon the termination of this
Agreement.
(b) If the proxy granted in Section 11(a) above is for any reason invalid,
for so long as this Agreement is in effect, in any meeting of the stockholders
of the Company, however called, and in any action by consent of the stockholders
of the Company, Lubrizol or Seller shall vote or cause to be voted all of
Seller's Shares: (i) against any action or agreement that would result in a
breach in any material respect of any covenant, representation or warranty or
any other obligation of Lubrizol or Seller under this Agreement or of Purchaser,
Subsidiary, Acquisition or the Company under the Mycogen Purchase Agreement;
(ii) against any action or agreement that would impede, interfere with or
discourage the transactions contemplated by this Agreement or the Mycogen
Purchase Agreement, including, without limitation: (1) any extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company or any or its subsidiaries, (2) a sale or transfer of a material
amount of assets of the Company or any of its subsidiaries or the issuance of
securities by the Company or any of its subsidiaries, (3) any change in the
board of directors of the Company (other than as contemplated by this Agreement
or the Mycogen Purchase Agreement), (4) any change in the present capitalization
or dividend policy of the Company (other than as contemplated by the Mycogen
Purchase Agreement) or (5) any other material change in the Company's corporate
structure or business; and (iii) in favor of any action or agreement that would
further the consummation of the transactions contemplated by this Agreement or
the Mycogen Purchase Agreement.
Section 12. Conditions. (a) The obligation of Purchaser to purchase
Seller's Shares hereunder shall be subject to the satisfaction or, in the case
of Section 12(a)(iii) through 12(a)(vii), waiver by Purchaser at or prior to the
Closing of each of the following conditions:
(i) any waiting period applicable to the purchase and sale of
Seller's Shares pursuant to this Agreement under the HSR Act shall have
terminated or expired;
(ii) no statute, rule, regulation, executive order, temporary
restraining order, decree, ruling, injunction or other order shall have been
enacted, entered, promulgated or enforced by any court or governmental authority
of competent jurisdiction which prohibits or makes illegal the sale of Seller's
Shares pursuant to this Agreement;
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(iii) the representations and warranties of Lubrizol and Seller
contained in this Agreement shall be true in all material respects both when
made and at and as of the Closing as though newly made at and as of that time;
(iv) Lubrizol and Seller shall have performed and complied in all
material respects with all agreements, covenants, obligations and conditions
required by this Agreement to be performed or complied with by Lubrizol and
Seller on or prior to the Closing Date;
(v) Lubrizol or Seller shall have caused the existing members of the
board of directors of the Company nominated by Lubrizol or Seller to have
delivered duly executed resignations from such positions effective as of the
Closing;
(vi) Purchaser shall have purchased the Purchase Shares (as defined
in the Mycogen Purchase Agreement); and
(vii) no third party shall have acquired, or shall have an agreement
to acquire, a majority of the outstanding Common Stock.
(b) The obligation of Lubrizol and Seller to sell Seller's Shares shall be
subject to the satisfaction or, in the case of Section 12(b)(iii), waiver by
Lubrizol and Seller at or prior to the Closing of each of the following
conditions:
(i) no statute, rule, regulation, executive order, decree, ruling,
injunction or other order shall have been enacted, entered, promulgated or
enforced by any court or governmental authority of competent jurisdiction which
prohibits or makes illegal the sale of Seller's Shares pursuant to this
Agreement;
(ii) any waiting period applicable to the purchase and sale of
Seller's Shares pursuant to this Agreement under the HSR Act shall have
terminated or expired; and
(iii) the representations and warranties of Purchaser contained in
this Agreement shall be true in all material respects both when made and at and
as of the Closing as though newly made at and as of that time.
Section 13. Public Announcements. Purchaser, Lubrizol and Seller will
consult with each other before issuing any press release or otherwise making any
public statements with respect to the transactions contemplated by this
Agreement and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by
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applicable law or by applicable rules of any securities exchange or upon advice
of outside counsel.
Section 14. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with its terms and that each party shall be entitled
to specific performance of the terms hereof, in addition to any other remedy at
law or in equity such party may have.
Section 15. Indemnification. Each party (an "indemnitor"), in connection
with the transactions contemplated herein, shall indemnify and hold the other
party (the "indemnitee") harmless from and against any and all losses, damages,
claims, liabilities or obligations (including attorney fees) with respect to (i)
any breach of any representation, warranty or agreement by the indemnitor
contained in this Agreement and (ii) any brokerage fees, commissions or finders'
fees payable on the basis of any action taken by the indemnitor or any of its
affiliates.
Section 16. Expenses. Each party shall bear its own expenses and costs in
connection with this Agreement and the transactions contemplated hereby. Each
party shall bear the cost of compensating any investment banker it has retained.
Section 17. Survival of Representations and Warranties; Agreements Joint
and Several. Notwithstanding anything contained in this Agreement to the
contrary, all representations, warranties and agreements made by each party
hereto in this Agreement shall survive the Closing for a period of five (5)
years.
Section 18. Amendment; Assignment. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto. No party to this Agreement
may assign any of its rights or obligations under this Agreement without the
prior consent of the other parties except that the rights and obligations of
Purchaser may be assigned by Purchaser to any of Purchaser's affiliates, but no
such transfer shall relieve Purchaser of its obligations hereunder.
Section 19. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
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Section 20. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
or by registered or certified mail (postage prepaid, return receipt requested),
to the other party as follows:
(a) If to Lubrizol or Seller, to:
The Lubrizol Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Secretary
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Special Counsel
c/o The Lubrizol Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(b) If to Purchaser, to:
DowElanco
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Secretary and General Counsel
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 21. Reasonable Best Efforts. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things reasonably necessary, proper or advisable under applicable laws
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and regulations to consummate and make effective the transactions contemplated
by this Agreement. Without limiting the generality of the foregoing, the
parties hereto shall cooperate with one another (i) in determining whether
action by or in respect of, or filing with, any governmental body, agency,
official or authority (either domestic or foreign) is required, proper or
advisable or any actions, consents, waivers or approvals are required to be
obtained from parties to any contracts, in connection with the transactions
contemplated by this Agreement and (ii) in seeking to obtain on a timely basis
any such actions, consents, waivers or to make any such filings. In case at any
time after the Closing any further action is necessary or desirable to carry out
the purposes of this Agreement, the proper officers and directors of each party
hereto shall take all such necessary action.
Section 22. Termination. This Agreement may be terminated by either party
on or after July 31, 1996 if Purchaser has not purchased Seller's Shares
pursuant to this Agreement. No such termination shall relieve any party from
liability for any breach of this Agreement.
Section 23. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity and enforceability of the other provisions hereof. If
any provision of this Agreement, or the application thereof to any person or
entity or any circumstance, is invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid and
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons, entities or circumstances shall
not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
Section 24. Entire Agreement. This Agreement and the Confidentiality
Agreement between Purchaser and Lubrizol dated November 17, 1995 (to the extent
that Confidentiality Agreement, by its terms, survives the execution of this
Agreement) constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and thereof and supersede all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
Section 25. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
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Section 26. Certain Definitions. For purposes of this Agreement, the
term:
(a) "affiliate" of a person means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first mentioned person;
(b) "Blue Sky" laws means laws and regulations of any state or territory
of the United States relating to the regulation of the offer and sale of
securities.
(c) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee, of
the power to direct or cause the direction of the management policies of a
person, whether through the ownership of stock, as trustee, by contract or
credit arrangement or otherwise;
(d) "HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
(e) "knowledge" means knowledge after reasonable inquiry;
(f) "Liens" means any security interests, liens, claims, pledges, charges,
voting agreements or other encumbrances of any nature whatsoever;
(g) "person" means an individual, corporation, partnership, association,
trust, unincorporated organization, other entity or group (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934); and
(h) "subsidiary" or "subsidiaries" of any person means any corporation,
partnership, joint venture or other legal entity of which such person (either
alone or through or together with any other subsidiary), owns, directly or
indirectly, a majority or more of the stock or other equity interests the holder
of which is generally entitled to vote for the election of the board of
directors or other governing body of such corporation, partnership, joint
venture or other legal entity.
Section 27. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its representatives thereunto duly authorized, all as
of the day and year first above written.
DOWELANCO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
THE LUBRIZOL CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
AGC HOLDINGS, INC.
By: /s/ O. F. ▇▇▇▇▇▇
-------------------------------
Name: O. F. ▇▇▇▇▇▇
Title: President
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