<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
SCHEDULE 14D-9/A
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 2
--------------------
CALGENE, INC.
(Name of Subject Company)
--------------------
CALGENE, INC.
(Name of Person Filing Statement)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
129598 10 8
(CUSIP Number of Class of Securities)
--------------------
LLOYD M. KUNIMOTO
PRESIDENT AND ACTING CHIEF EXECUTIVE OFFICER
CALGENE, INC.
1920 FIFTH STREET
DAVIS, CALIFORNIA 95616
(916) 753-6313
(Name, address and telephone number of person authorized
to receive notice and communications on behalf
of the person filing statement)
--------------------
WITH A COPY TO:
MARK G. BORDEN, ESQ. STEVEN J. TONSFELDT, ESQ.
HALE AND DORR LLP VENTURE LAW GROUP
60 STATE STREET A PROFESSIONAL CORPORATION
BOSTON, MASSACHUSETTS 02109 2800 SAND HILL ROAD
(617) 526-6000 MENLO PARK, CALIFORNIA 94025
(415) 854-4488
================================================================================
<PAGE> 2
INTRODUCTION
This Amendment No. 2 (this "Amendment") amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 of Calgene, Inc. filed
with the Securities and Exchange Commission on April 8, 1997 (as amended from
time to time, the "Schedule 14D-9"). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the
Schedule 14D-9.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
Item 8 is hereby amended by adding after the last paragraph thereof the
following text:
"On April 30, 1997, Fletcher Capital Markets, Inc. ("Fletcher") brought
suit against the Company in Delaware federal district court. The complaint
alleges that the Company has breached a contractual obligation to sell Fletcher
2,353,942 Shares at a price of $4.25 per Share (for a total of $10,000,000), and
seeks damages equal to the difference between the fair value of such Shares and
$10,000,000, plus interest, attorney's fees, costs and disbursements. The
foregoing summary does not purport to be complete and is qualified in its
entirety by reference to the full text of the complaint, which is attached as
Exhibit 27 hereto and incorporated herein by reference in its entirety. The
Company has advised Parent and the Purchaser that it believes it has no
contractual obligation to sell Shares to Fletcher and that it believes
Fletcher's suit to be without merit."
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Item 9 is hereby amended by adding after the reference to Exhibit 26
thereof the following text:
"Exhibit 27 Complaint filed by Fletcher Capital Markets, Inc. in the United
States District Court for the District of Delaware on April 30,
1997."
-2-
<PAGE> 3
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
By: /s/ Lloyd M. Kunimoto
------------------------------------
Lloyd M. Kunimoto
President and Acting Chief Executive
Officer
Dated: May 1, 1997
<PAGE> 4
INDEX TO EXHIBITS
Exhibit No. Exhibit
Exhibit 1 Form of Offer to Purchase, dated April 7, 1997.*
Exhibit 2 Form of Letter of Transmittal.*
Exhibit 3 Agreement and Plan of Merger, dated as of March 31, 1997, among
Monsanto Company, Monsanto Acquisition Company and Calgene, Inc.*
Exhibit 4 Amendment to the Amended and Restated Stockholders Agreement,
dated as of March 31, 1997, between Calgene, Inc. and Monsanto
Company.*
Exhibit 5 Proxy Statement of Calgene, Inc. dated as of October 10, 1996
relating to the Company's 1996 Annual Meeting of Stockholders.*
Exhibit 6 Agreement and Plan of Reorganization between Calgene, Inc. and
Monsanto Company dated as of October 13, 1995. (A).*
Exhibit 7 Stock Purchase Agreement between the Calgene, Inc. and Monsanto
Company dated as of September 27, 1996. (B).*
Exhibit 8 Amended and Restated Stockholders Agreement between Calgene,
Inc. and Monsanto Company dated November 12, 1996. (B).*
Exhibit 9 Calgene Credit Facility Agreement between Calgene, Inc. and
Monsanto Company dated as of March 31, 1996. (A).*
Exhibit 10 Gargiulo Credit Facility Agreement between Calgene, Inc. and
Monsanto Company dated as of March 31, 1996. (A).*
Exhibit 11 Letter to Stockholders of Calgene, Inc. dated April 7, 1997.*+
Exhibit 12 Change of Control Employment Agreement between Roger Salquist and
Calgene, Inc. dated as of July 19, 1995. (A).*
Exhibit 13 Change of Control Employment Agreement between Michael Motroni
and Calgene, Inc. dated as of July 19, 1995. (A).*
Exhibit 14 Restated Certificate of Incorporation of Calgene, Inc. (B).*
Exhibit 15 Text of Joint Press Release issued by Calgene, Inc. and Monsanto
Company dated April 1, 1997.*
Exhibit 16 Opinion of Montgomery Securities, dated March 31, 1997.*
<PAGE> 5
Exhibit 17 Complaint filed January 29, 1997, in Obstfeld v. Salquist,
et al.*
Exhibit 18 Complaint filed January 29, 1997, in Siegel v. Calgene, Inc.,
et al.*
Exhibit 19 Complaint filed January 29, 1997, in Susser v. Kunimoto, et al.*
Exhibit 20 Complaint filed January 29, 1997, in Elstein v. Monsanto Company,
et al.*
Exhibit 21 Complaint filed January 29, 1997, in Manson v. Fortune, et al.*
Exhibit 22 Complaint filed January 30, 1997, in Settle v. Monsanto Company,
et al.*
Exhibit 23 Complaint filed January 31, 1997, in Glickberg v. Monsanto
Company, et al.*
Exhibit 24 Complaint filed February 5, 1997, in Lewis v. Monsanto Company,
et al.*
Exhibit 25 Order of Consolidation, dated March 10, 1997.*
Exhibit 26 Memorandum of Understanding, dated March 31, 1997.*
Exhibit 27 Complaint filed by Fletcher Capital Markets, Inc. in the United
States District Court for the District of Delaware on April 30,
1997.
- ----------
* Previously filed.
+ Included with Schedule 14D-9 mailed to stockholders.
(A) Incorporated by Reference to the Company's Registration Statement on Form
S-4 dated February 6, 1996.
(B) Incorporated by reference to the Company's Form 10-K for the six-month
period ended December 31, 1996, filed on March 31, 1997.
-5-
<PAGE> 1
Exhibit 27
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
______________________________
)
FLETCHER CAPITAL MARKETS, )
INC., )
)
Plaintiff, ) Civil Action No. ______
v. )
)
CALGENE, INC., )
)
Defendant. )
______________________________)
COMPLAINT
INTRODUCTION
1. This action arises out of the failure of Calgene, Inc. ("Calgene")
to honor the lawful exercise by Fletcher Capital Markets, Inc. ("Fletcher") of
its contractual right to purchase 2,352,942 shares of the Common Stock of
Calgene for $10,000,000, or $4.25 per share (the "Shares"), pursuant to a Common
Stock Purchase Agreement dated May 11, 1994 (the "Stock Purchase Agreement").
Pursuant to the Stock Purchase Agreement, Fletcher has the unqualified right
to purchase the Shares at a closing to be held "two business days after notice
by [Fletcher] to [Calgene] given prior to the date that [a] Registration
Statement [covering resales of the Shares by Fletcher] is declared effective by
the SEC [Securities and Exchange Commission]." Stock Purchase Agreement,
Article 2. Fletcher has
<PAGE> 2
duly given such notice, no Registration Statement has been declared effective
covering the Shares, and all conditions to the purchase and sale of the Shares
have been satisfied. Nevertheless, despite its obligation under the Stock
Purchase Agreement to sell and deliver the Shares to Fletcher, Calgene has
failed and refused to sell and deliver the Shares.
2. Calgene is currently the subject of a tender offer by Monsanto
Acquisition Company, Inc., a wholly-owned subsidiary of Monsanto Company
(together "Monsanto"), which has offered to purchase any and all of the
outstanding shares of Calgene common stock for $8.00 per share in cash. The
tender offer is being made by Monsanto pursuant to an Agreement and Plan of
Merger that contemplates the purchase of in excess of 90% of Calgene stock in
the tender offer, to be followed by a "short form" merger under 8 Del. Code
Sect. 253 in which the remaining shares of common stock of Calgene not purchased
by Monsanto in the tender offer will be converted into the right to receive
$8.00 per share in cash.
3. As a result of Calgene's wrongful failure and refusal to deliver the
Shares to Fletcher pursuant to the Stock Purchase Agreement, Fletcher has
wrongfully been prevented from tendering 2,352,942 shares of Calgene common
stock to Monsanto in the tender offer, and will be prevented from receiving the
cash consideration in the merger. Moreover, depending upon
-2-
<PAGE> 3
how many shares are tendered to Monsanto in the tender offer, Calgene may
wrongfully attempt to conclude the merger by a vote of its directors on the
assumption that Monsanto has acquired in excess of 90% of Calgene's common
stock, calculated without considering the 2,352,942 shares (representing 3.4% of
Calgene's fully diluted outstanding shares) to which Fletcher is entitled.
4. Fletcher is accordingly entitled to direct damages of at least
$8,823,532, representing the difference between the fair value of the Shares,
which is not less than $8.00 per share (the consideration offered in the tender
offer and merger) and Fletcher's $4.25 per share cost, plus attorney's fees,
costs and disbursements pursuant to the Stock Purchase Agreement.
PARTIES
5. The plaintiff Fletcher Capital Markets, Inc. is a corporation duly
organized and existing under the laws of the State of New York, with a principal
place of business in Boston, Massachusetts. Fletcher is a direct and indirect
wholly owned subsidiary of the President and Fellows of Harvard College. The
President and Fellows of Harvard College is a Massachusetts educational
corporation commonly referred to as Harvard University. The President and
Fellows received all of the outstanding shares of Fletcher Capital Markets, Inc.
as a
-3-
<PAGE> 4
charitable gift on or about December 28, 1994, and by this action is
exercising its fiduciary obligation to maximize the value of its assets and to
prevent the loss of a valuable contractual right.
6. The defendant Calgene, Inc. is a corporation duly organized and
existing under the laws of the State of Delaware, with a principal place of
business in Davis, California. Calgene will be the surviving corporation in
its contemplated merger with Monsanto Acquisition Company, Inc. As a result,
following consummation of the transaction contemplated by the Agreement and Plan
of Merger, Calgene will be a wholly owned subsidiary of Monsanto Company, and
will continue to be subject to the liability asserted in this Complaint.
JURISDICTION AND VENUE
7. This Court has jurisdiction over the subject matter of this action
by virtue of 28 U.S.C. Sect. 1332, because the parties are citizens of different
states and the amount in controversy exceeds $75,000.
8. Venue is proper in this judicial district under 28 U.S.C. Sect.
1391(c), as it is an action brought against a business corporation in the
district in which it is organized.
-4-
<PAGE> 5
BACKGROUND FACTS
The Terms of the Stock Purchase Agreement
9. On or about May 11, 1994, Fletcher and Calgene entered into a Common
Stock Purchase Agreement, a true and correct copy of which is attached hereto
as Exhibit A. The Stock Purchase Agreement conferred upon Fletcher the right to
purchase for $10,000,000 a number of shares of Calgene common stock calculated
at the time the right was exercised pursuant to a formula set forth in the Stock
Purchase Agreement (the "Formula Price"). Further, the Stock Purchase Agreement
obligated Calgene to sell and deliver such shares to Fletcher in accordance
with the contract's terms. Specifically, the Stock Purchase Agreement provided
that:
At the Closings (as defined in Article 2), [Calgene] will
issue and sell to [Fletcher], and [Fletcher] will purchase
from [Calgene], an aggregate number of shares (the "Shares")
of [Calgene's] heretofore unissued Common Stock determined
by dividing $10,000,000 by the Formula Price.
Stock Purchase Agreement, Article 1, Purchase and Sale of Securities.
10. The Stock Purchase Agreement also contemplated, but did not
require, the registration of the Shares under the Securities Act of 1933 in
order to permit the resale of the
-5-
<PAGE> 6
Shares by Fletcher on the public markets. Accordingly, the Stock Purchase
Agreement obligated Calgene to
file with the SEC a registration statement (the "Registration
Statement") on Form S-3 . . . covering resales of the Shares by
[Fletcher]. [Calgene] will use its best efforts to cause such
Registration Statement to be declared effective as soon as practicable
and to maintain its effectiveness until all the Shares have been sold
pursuant thereto, or all the Shares may be sold without registration
pursuant to Rule 144(k), whichever occurs first.
Stock Purchase Agreement, Article 5.4.
11. In fact, on information and belief, promptly after May 11, 1994
Calgene did file with the SEC the Registration Statement called for by the Stock
Purchase Agreement. The SEC, however, has never declared the Registration
Statement effective as to the Shares.
12. Although the Stock Purchase Agreement contemplated that Calgene
would use its best efforts to register the Shares under the Securities Act of
1933 so that Fletcher could resell them on the public markets, the prompt resale
of the securities, and even their registration, was not assured. Thus,
consistent with the possibility that registration would not occur, and that
immediate resale was not envisioned, the Stock Purchase Agreement provided,
inter alia:
(a) for Calgene only to use its "best efforts" to register the Shares;
-6-
<PAGE> 7
(b) for an "investment representation" by Fletcher, evidencing
Fletcher's confirmation that the "Shares will be acquired solely for
investment and not for distribution," which representation Calgene
further confirmed it relied upon, noting that the "Shares have not been
registered under the Securities Act . . . in reliance upon exemptions
which depend, among other things, upon the bona fide nature of this
representation to [Calgene]";
(c) for certain restrictions on the transferability of the
Shares, which conditions to transfer were intended to "insure
compliance with the Securities Act," including the imposition of a
restrictive legend on the certificates representing the Shares, and
notice to Calgene of any proposed transfer;
(d) for the prospect of the resale of the Shares pursuant to
Rule 144 promulgated under the Securities Act of 1933, which provides
for minimum holding periods as a condition to reliance upon the
exemption from registration that Rule 144 affords; and
(e) for the purchase of the Shares before the Registration
Statement that Calgene was obliged to file was declared effective.
Stock Purchase Agreement, Articles 5.4(a), 4.1, 5.1-5.3, 2.
13. In light of these possible means by which Fletcher could resell or
otherwise dispose of the Shares it would acquire from Calgene under the
contract, and in light of the contract's express recognition that the
Registration Statement might never become effective, the Stock Purchase
Agreement provided two alternate means for establishing a closing for
consummation of the purchase and sale (the "Closing"). Thus, the Stock Purchase
Agreement provided that the Closing would occur either within five days after
notice that the SEC had
-7-
<PAGE> 8
declared the Registration Statement effective, or within two business days after
notice by Fletcher before the SEC has declared the Registration Statement
effective. Thus, the Stock Purchase Agreement set the Closing to occur either:
(a) "on such day following the date that the Registration
Statement is declared effective by the Securities and Exchange
Commission . . . as [Calgene] may specify in a notice to [Fletcher],
but shall in no event be sooner than the second business day after the
date of such notice nor later than five business days after the date of
such notice"; or
(b) "[N]otwithstanding the immediately preceding sentence,
the . . . Closing may, at the option of [Fletcher], occur two business
days after notice by [Fletcher] to [Calgene] given prior to the date
the Registration Statement is declared effective by the SEC."
Stock Purchase Agreement, Article 2 (emphasis added).
Fletcher's Attempt to Exercise Its Contractual Rights
14. On Friday, April 18, 1997, in the absence of a declaration by the
SEC that any registration statement covering the resale of the Shares by
Fletcher had become effective, Fletcher gave notice to Calgene that is was
exercising its right to purchase the Shares. Based upon the Formula Price,
Fletcher's notice advised Calgene of its intent to purchase 2,352,942 shares of
Calgene common stock for the purchase price of $10,000,000, or $4.25 share. A
true and correct copy of Fletcher's letter constituting such notice is attached
hereto as Exhibit B. According to the terms of the Stock Purchase
-8-
<PAGE> 9
Agreement, Calgene thereby became obligated to "deliver stock certificates to
[Fletcher] evidencing the number of shares purchased" within two business days
after Fletcher's notice, i.e., on Tuesday, April 22, 1997. Stock Purchase
Agreement, Article 2.
15. By letter of April 23, 1997, Calgene informed Fletcher that it
would not honor Fletcher's exercise of its rights under the Stock Purchase
Agreement. A copy of this letter from counsel to the Special Committee of the
Board of Directors of Calgene is attached as Exhibit C. As of this date,
Calgene has failed and refused to deliver the Shares to Fletcher.
The Tender Offer and Merger That Establish Fletcher's Damages
16. Calgene is currently the subject of a tender offer by Monsanto in
which Monsanto has offered to purchase any and all outstanding shares of the
common stock of Calgene for $8.00 per share in cash. The tender offer is
currently due to expire on May 2, 1997. The tender offer is being made by
Monsanto pursuant to an Agreement and Plan of Merger that contemplates the
purchase of in excess of 90% of Calgene stock in the tender offer, to be
followed by a "short form" merger under 8 Del. Code Sect. 253 in which the
remaining shares of common stock of Calgene not purchased by Monsanto in the
tender offer will be converted into the right to receive $8.00 per share in
cash.
-9-
<PAGE> 10
17. As a result of Calgene's wrongful failure and refusal to deliver
the Shares to Fletcher pursuant to the Stock Purchase Agreement, Fletcher has
wrongfully been prevented from tendering 2,352,942 shares of Calgene common
stock to Monsanto in the tender offer, and will be prevented from receiving the
cash consideration offered in the merger.
18. Moreover, depending upon how many shares are tendered to Monsanto
in the tender offer, Calgene may wrongfully attempt to conclude the merger by a
vote of the directors on the assumption that Monsanto has acquired in excess of
90% of Calgene's common stock, calculated without considering the 2,352,942
shares (representing 3.4% of Calgene's fully diluted outstanding shares) to
which Fletcher is entitled.
19. Fletcher is accordingly entitled to direct damages equal to the
difference between the fair value of the Shares and Fletcher's $4.25 per share
cost, and in any event no less than $8,823,532, representing the difference
between the $8.00 per share tender offer/merger consideration and Fletcher's
cost.
20. In addition, Article 6.10 of the Stock Purchase Agreement specifies
that if any action is necessary to enforce the terms of the Stock Purchase
Agreement, "the prevailing party shall be entitled to reasonable attorney's
fees, costs
-10-
<PAGE> 11
and necessary disbursements in addition to any other relief to which such party
may be entitled." Fletcher accordingly is entitled to the attorney's fees, costs
and disbursements that it has incurred and will incur in bringing this action.
COUNT I
(Breach of Contract)
21. Fletcher repeats and incorporates herein by reference the
allegations of paragraphs 1-20, inclusive.
22. Under the Stock Purchase Agreement with Fletcher, in response to
Fletcher's April 18, 1997 notice to Calgene, Calgene was obligated to sell and
deliver 2,352,942 shares of Calgene common stock for $10,000,000 or $4.25 per
share, which is the Formula Price.
23. Fletcher has performed all conditions precedent to Calgene's
obligation to sell and deliver the Shares to Fletcher.
24. Calgene has wrongfully failed and refused to sell and deliver the
Shares to Fletcher and thus has materially breached the Stock Purchase Agreement
with Fletcher.
25. By reason of such breach, Fletcher has been damaged, in an amount
to be determined at trial, including but not limited to the difference between
Fletcher's $4.25 per share
-11-
<PAGE> 12
cost and the fair value of the Shares, which is at least the $8.00 per share to
which it would be entitled pursuant to the Agreement and Plan of Merger, for
each of the 2,352,942 shares of Calgene Stock to which Fletcher is entitled,
plus interest, attorney's fees, costs and disbursements.
WHEREFORE, Fletcher prays for the following relief:
A. Damages in an amount to be determined at trial, including but not
limited to the difference between Fletcher's $4.25 per share cost and the fair
value of the Shares, which is at least the $8.00 per share to which it would be
entitled pursuant to the Agreement and Plan of Merger, for each of the
2,352,942 shares of Calgene Stock to which Fletcher is entitled;
B. The attorney's fees, costs and expenses it has incurred in bringing
this action, pursuant to Article 6.10 of the Stock Purchase Agreement;
C. Such other relief as the Court deems appropriate.
-12-
<PAGE> 13
MORRIS, NICHOLS, ARSHT & TUNNELL
/s/ Kenneth J. Nachbar
----------------------------------
Kenneth J. Nachbar (2067)
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899
(302) 658-9200
Attorneys for Plaintiff
Fletcher Capital Markets, Inc.
OF COUNSEL:
John D. Donovan, Jr.
Lee Rubin-Collins
ROPES & GRAY
One International Place
Boston, Massachusetts 02110
(617) 951-7000
April 30, 1997
-13-
