AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 1, 1997
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
(AMENDMENT NO. 1)
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
CALGENE, INC.
(Name of issuer)
MONSANTO ACQUISITION COMPANY, INC.
MONSANTO COMPANY
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of class of securities)
129598 10 8
(CUSIP number of class of securities)
R. WILLIAM IDE, III, ESQ.
MONSANTO COMPANY & MONSANTO ACQUISITION
800 N. LINDBERGH BOULEVARD
ST. LOUIS, MISSOURI 63167
(314) 694-1000
(Name, address and telephone number of persons authorized to receive
notices and communications on behalf of persons filing statement)
COPY TO:
ERIC S. ROBINSON, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ
51 WEST 52ND STREET
NEW YORK, NY 10019
(212) 403-1000
APRIL 7, 1997
(Date Tender Offer First Published, Sent or Given to Security Holders)
THIS STATEMENT IS FILED IN CONNECTION WITH A TENDER OFFER.
CALCULATION OF FILING FEE
TRANSACTION VALUATION AMOUNT OF FILING FEE
$242,759,368* $48,553**
* For purposes of fee calculation only. The total transaction
value is based on 66,741,035 Shares outstanding as of April 2,
1997 less 36,396,114 Shares owned by Parent and Purchaser,
multiplied by the offer price of $8.00 per Share.
** The amount of the filing fee calculated in accordance with
Regulation 240.0-11 of the Securities Exchange Act of 1934 equals
1/50 of 1% of the value of the shares to be purchased.
[X] Check box if any part of the fee is offset as provided by Rule
0-11(a)(2).
<PAGE>
Amount Previously Paid: $48,553
Filing Parties: Monsanto Company, Monsanto
Acquisition Company, Inc.
Form of Registration No.: Schedule 14D-1
Date Filed: April 7, 1997<PAGE>
INTRODUCTION
This Amendment No. 1 (this "Amendment") amends and
supplements the Tender Offer Statement on Schedule 14D-1 filed
with the Securities and Exchange Commission on April 7, 1997 (as
amended from time to time, the "Schedule 14D-1") by Monsanto
Company ("Parent") and Monsanto Acquisition Company, Inc.
("Purchaser"). The Schedule 14D-1 and this Amendment relate to
a tender offer by Purchaser for all outstanding shares of common
stock, par value $.001 per share (the "Shares"), of Calgene, Inc.
(the "Company"), upon the terms and subject to the conditions set
forth in the Offer to Purchase dated April 7, 1997 (the "Offer to
Purchase") and the related Letter of Transmittal (which together
constitute the "Offer"), copies of which are filed as Exhibits (a)(1)
and (a)(2), respectively, to the Schedule 14D-1. Capitalized terms
used herein and not otherwise defined shall have the meanings as-
cribed to them in the Offer to Purchase.
The information contained in this Amendment concerning
the Company and the Special Committee was supplied by the
Company. Parent and Purchaser take no responsibility for the
accuracy of such information.
ITEM 10. ADDITIONAL INFORMATION
Item 10 is hereby amended by deleting the words "and (e)"
from the second paragraph thereof and by adding immediately prior
to the last paragraph thereof the following text:
"(e) 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 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.
"The information set forth in the Offer to
Purchase under "THE OFFER -- Certain Legal Matters" is
incorporated herein by reference."
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
(c)(19) Complaint filed by Fletcher Capital Markets, Inc.
in the United States District Court for the District of Delaware
on April 30, 1997. <PAGE>
SIGNATURES
After due inquiry and to the best of his knowledge and
belief, each of the undersigned certifies that the information
set forth in this statement is true, complete and correct.
MONSANTO COMPANY
By: /s/ Hendrik A. Verfaillie
Name: Hendrik A. Verfaillie
Title: Executive Vice President
MONSANTO ACQUISITION COMPANY
By: /s/ Hendrik A. Verfaillie
Name: Hendrik A. Verfaillie
Title: President
Dated: May 2, 1997<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
(a)(1)* Form of Offer to Purchase, dated April 7, 1997.
(a)(2)* Form of Letter of Transmittal.
(a)(3)* Form of Letter from Goldman, Sachs & Co. to Brokers,
Dealers, Commercial Banks, Trust Companies and Nominees.
(a)(4)* Form of Letter from Brokers, Dealers, Commercial Banks,
Trust Companies and Nominees to Clients.
(a)(5)* Form of Notice of Guaranteed Delivery.
(a)(6)* Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
(a)(7)* Summary Advertisement as published in The Wall Street
Journal on April 7, 1997.
(a)(8)* Text of Joint Press Release, dated April 7, 1997, issued
by the Company and Parent.
(b) Not applicable.
(c)(1) Agreement and Plan of Merger, dated as of March 31, 1997,
by and among Parent, Purchaser and the Company
(incorporated herein by reference to Exhibit 1 to the
Schedule 13D (Amendment No. 5) filed by Parent and
Purchaser with the Commission on April 1, 1997).
(c)(2) Amendment to the Amended and Restated Stockholders
Agreement, dated as of March 31, 1997, by and between
Parent and the Company (incorporated herein by reference
to Exhibit 2 to the Schedule 13D (Amendment No. 5) filed
by Parent and Purchaser with the Commission on April 1,
1997).
(c)(3) Agreement and Plan of Reorganization, dated as of October
13, 195, between Monsanto Company and Calgene, Inc. (A)
(c)(4) Stock Purchase Agreement, dated as of September 27, 1996,
between Monsanto Company and Calgene, Inc. (B)
(c)(5) Amended and Restated Stockholders Agreement, dated as of
November 12, 1996, between Monsanto Company and Calgene,
Inc. (B)
(c)(6) Stockholders Agreement, dated as of March 31, 1996,
between Monsanto Company and Calgene, Inc. (A)
* Previously filed
(A) Incorporated herein by reference to the Registration Statement on
Form S-4, filed by the Company with the SEC on February 6, 1996.
(B) Incorporated herein by reference to the Transition Report on Form
10-K for the six-month period ended December 31, 1996, filed by the
Company with the SEC on March 31, 1997.<PAGE>
(c)(7) Calgene Credit Facility Agreement, dated as of March 31,
1996, between Calgene, Inc. and Monsanto Company. (A)
(c)(8) Gargiulo Credit Facility Agreement, dated as of March 31,
1996, between Calgene, Inc. and Monsanto Company. (A)
(c)(9)* Complaint filed January 29, 1997, in Obstfeld v.
Salquist, et al.
(c)(10)* Complaint filed January 29, 1997, in Siegel v. Calgene,
Inc. et al.
(c)(11)* Complaint filed January 29, 1997, in Susser v. Kunimoto,
et al.
(c)(12)* Complaint filed January 29, 1997, in Elstein v. Monsanto
Company, et al.
(c)(13)* Complaint filed January 29, 1997, in Manson v. Fortune,
et al.
(c)(14)* Complaint filed January 30, 1997, in Settle v. Monsanto
Company, et al.
(c)(15)* Complaint filed January 31, 1997, in Glickberg v.
Monsanto Company, et al.
(c)(16)* Complaint filed February 5, 1997, in Lewis v. Monsanto
Company, et al.
(c)(17)* Order of Consolidation, dated March 10, 1997.
(c)(18)* Memorandum of Understanding, dated March 31, 1997.
(c)(19) Complaint filed by Fletcher Capital Markets, Inc. in the
United States District Court for the District of Delaware
on April 30, 1997.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
* Previously filed
(A) Incorporated herein by reference to the Registration Statement on
Form S-4, filed by the Company with the SEC on February 6, 1996.
(B) Incorporated herein by reference to the Transition Report on Form
10-K for the six-month period ended December 31, 1996, filed by the
Company with the SEC on March 31, 1997.
Exhibit (c)(19)
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 Capi-
tal Markets, Inc. ("Fletcher") of its contractual right to pur-
chase 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 Agree-
ment, 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] Regis-
tration Statement [covering resales of the Shares by Fletcher]
is declared effective by the SEC [Securities and Exchange Com-
mission]." Stock Purchase Agreement, Article 2. Fletcher has<PAGE>
duly given such notice, no Registration Statement has been de-
clared effective covering the Shares, and all conditions to the
purchase and sale of the Shares have been satisfied. Neverthe-
less, 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 of-
fer by Monsanto Acquisition Company, Inc., a wholly-owned sub-
sidiary 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 how
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many shares are tendered to Monsanto in the tender offer, Cal-
gene 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 dam-
ages of at least $8,823,532, representing the difference be-
tween 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 at-
torney'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 Bos-
ton, Massachusetts. Fletcher is a direct and indirect wholly
owned subsidiary of the President and Fellows of Harvard Col-
lege. The President and Fellows of Harvard College is a Mas-
sachusetts educational corporation commonly referred to as Har-
vard University. The President and Fellows received all of the
outstanding shares of Fletcher Capital Markets, Inc. as a
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charitable gift on or about December 28, 1994, and by this ac-
tion is exercising its fiduciary obligation to maximize the
value of its assets and to prevent the loss of a valuable con-
tractual 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. Cal-
gene 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 mat-
ter 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.
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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 cor-
rect copy of which is attached hereto as Exhibit A. The Stock
Purchase Agreement conferred upon Fletcher the right to pur-
chase 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 obli-
gated 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 unis-
sued Common Stock determined by dividing $10,000,000
by the Formula Price.
Stock Purchase Agreement, Article 1, Purchase and Sale of Secu-
rities.
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
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Shares by Fletcher on the public markets. Accordingly, the
Stock Purchase Agreement obligated Calgene to
file with the SEC a registration statement (the "Reg-
istration Statement") on Form S-3 . . . covering re-
sales of the Shares by [Fletcher]. [Calgene] will
use its best efforts to cause such Registration
Statement to be declared effective as soon as practi-
cable 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 Registra-
tion 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 contem-
plated 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>
(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 transfer-
ability of the Shares, which conditions to transfer
were intended to "insure compliance with the Securi-
ties 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 State-
ment 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>
declared the Registration Statement effective, or within two
business days after notice by Fletcher before the SEC has de-
clared 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 preced-
ing 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>
Agreement, Calgene thereby became obligated to "deliver stock
certificates to [Fletcher] evidencing the number of shares pur-
chased" 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 let-
ter from counsel to the Special Committee of the Board of Di-
rectors 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 Mon-
santo pursuant to an Agreement and Plan of Merger that contem-
plates 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>
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 wrong-
fully 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 dam-
ages 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>
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 ref-
erence 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 dam-
aged, in an amount to be determined at trial, including but not
limited to the difference between Fletcher's $4.25 per share
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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 pur-
suant to the Agreement and Plan of Merger, for each of the
2,352,942 shares of Calgene Stock to which Fletcher is en-
titled;
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 appropri-
ate.
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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
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