July 16, 1998
The Dow Chemical Company
2030 Dow Center
Midland, Michigan 48674
Attention: Brian J. Taylorson
Dow AgroSciences LLC
9330 Zionsville Road
Indianapolis, Indiana 46268
Attention: Louis M. Pribila
Dear Mr. Taylorson and Mr. Pribila:
In order to evaluate the request by Dow AgroSciences LLC ("DAS") that
the Board of Directors of Mycogen Corporation ("MYCOGEN") consider amending
(the "PROPOSED AMENDMENT") the Exchange and Purchase Agreement dated as of
January 15, 1996 among Mycogen, Agrigenetics, Inc., DAS and United Agriseeds,
Inc., the Special Committee of independent directors (the "SPECIAL
COMMITTEE") appointed on April 30, 1998 by the Board of Directors of Mycogen
to consider the advisability of entering into the Proposed Amendment has
requested that The Dow Chemical Company ("TDCC") and DAS provide the Special
Committee and its representatives access to certain non-public, confidential,
proprietary and/or privileged TDCC and DAS information relating to Mycogen,
DAS or TDCC (the "CONFIDENTIAL INFORMATION"). As a condition to being
furnished the Confidential Information, the Special Committee and its
representatives, and any other person who receives Confidential Information
pursuant to this letter agreement, each agree to treat such Confidential
Information in accordance with the terms of this letter agreement.
The term "Confidential Information" includes information which has been
provided to the Special Committee and its representatives since April 30,
1998 as well as information which will be provided on or after the date of
this letter agreement. The term "Confidential Information" does not include
information which (i) was or becomes generally available to the public other
than as a result of a disclosure in violation of the terms of this letter
agreement, or (ii) was or becomes available to the Special Committee or its
representatives on a non-confidential basis from a source other than DAS or
TDCC, provided that the Special Committee or its representatives, as the case
may be, reasonably believes that such source has obtained such information
lawfully and is not under any obligation of confidentiality to DAS or TDCC.
The Special Committee agrees that the Confidential Information will be
kept confidential and will be used only for evaluating the Proposed Amendment
and, in the event the Proposed Amendment is entered into by Mycogen and DAS
subsequently makes an offer to purchase all of
Mycogen's capital stock (a "PROPOSED TRANSACTION"), for evaluating any
Proposed Transaction. The Special Committee further agrees that the
Confidential Information shall not be shown, made available or communicated
in any way to anyone other than members of the Special Committee, its
attorneys, Altheimer & Gray, and its financial advisor, Wasserstein Perella &
Co., Inc. (including, if determined by the Special Committee, Dr. Alan J.
Biloski, formerly of Wasserstein Perella & Co.). DAS, TDCC and the Special
Committee acknowledge that the Special Committee may believe it appropriate
to disclose Confidential Information to other parties in connection with its
deliberations. If the Special Committee desires to disclose any Confidential
Information to any other person(s), the Special Committee shall identify to
DAS and TDCC the person(s) and the Confidential Information desired to be
disclosed to such person(s) and request DAS' and TDCC's approval to such
disclosure, and may not disclose such Confidential Information without DAS's
and TDCC's prior written approval. Wasserstein Perella & Co., Inc., Dr.
Biloski (if the Special Committee determines to provide him with any
Confidential Information) and any other person approved by DAS and TDCC to
receive Confidential Information shall execute a copy of and agree to be
bound by the terms of this letter. All Confidential Information will remain
subject to the terms of this letter for ten years from the letterhead date.
In the event the Special Committee or its representatives, or any other
person who receives Confidential Information pursuant to this letter, receive
a subpoena or other legal administrative, regulatory (including
self-regulatory) or judicial process or notice requesting Confidential
Information, the person receiving such request shall, to the extent permitted
under such legal, administrative, regulatory or judicial process or notice,
provide prompt notice to TDCC and DAS of such request to allow TDCC and DAS
an opportunity to prevent disclosure of the Confidential Information, and
shall also reasonably cooperate with TDCC and DAS to prevent disclosure of
such Confidential Information. Except as provided in the immediately
preceding sentence, nothing in this letter shall restrict any use or
disclosure of Confidential Information required by law or required by or in
response to applicable legal, administrative, regulatory or judicial process
or rules or as required consistent with fiduciary duties of the directors or
officers of Mycogen in their capacities as such, in each case as advised by
counsel.
Without prejudice to the rights and remedies otherwise available to
them, TDCC and DAS shall each be entitled to equitable relief by way of
specific performance, injunction or otherwise in the event of any actual or
threatened breach of any provision of this letter agreement.
It is further understood and agreed that no failure or delay by TDCC or
DAS in exercising any right, power or privilege under this letter agreement
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
right, power or privilege under this letter agreement.
This letter agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without reference to conflicts of
laws principles.
* * *
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Please confirm your agreement with the foregoing by signing
and returning to the undersigned a duplicate copy of this letter.
Very truly yours,
Special Committee of the Board of
Directors of Mycogen Corporation
By:
---------------------------------
Peter Lieberman
Altheimer & Gray
10 S. Wacker Drive
Suite 4000
Chicago, IL 60606
Counsel for the Special Committee
Wasserstein, Perella & Co., Inc.
By:
---------------------------------
John Simpson
Managing Director
Accepted and Agreed
THE DOW CHEMICAL COMPANY
By:
----------------------------
Name:
Title:
DOW AGROSCIENCES LLC
By:
----------------------------
Name:
Title:
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