-----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, IE2zNncrQRG8/r24mvLE+fa3vRWWSpbR165Uk283Muc26DFQT6JMRcwizq4Hja1g reMk4yAJAU/7i+BP3mqfjw== 0000950135-95-002265.txt : 19951031 0000950135-95-002265.hdr.sgml : 19951031 ACCESSION NUMBER: 0000950135-95-002265 CONFORMED SUBMISSION TYPE: 10-K405/A PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19950630 FILED AS OF DATE: 19951030 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CALGENE INC /DE/ CENTRAL INDEX KEY: 0000793931 STANDARD INDUSTRIAL CLASSIFICATION: FATS & OILS [2070] IRS NUMBER: 680115089 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-K405/A SEC ACT: SEC FILE NUMBER: 000-14802 FILM NUMBER: 95585444 BUSINESS ADDRESS: STREET 1: 1920 FIFTH ST CITY: DAVIS STATE: CA ZIP: 95616 BUSINESS PHONE: 9167536313 MAIL ADDRESS: STREET 2: 1920 FIFTH STREET CITY: DAVIS STATE: CA ZIP: 95616 10-K405/A 1 AMENDMENT TO FORM 10-K FOR CALGENE, INC. 1 SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 ________ FORM 10-K/A AMENDMENT NO. 1 TO ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 (Mark One) [X] Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 [Fee Required] For the fiscal year ended June 30, 1995 or [ ] Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 [No Fee Required] For the transition period from to . ---------- ---------- For the Fiscal Year ended Commission File Number June 30, 1995 0-14802 CALGENE, INC. (Exact name of registrant as specified in its charter) Delaware 68-0115089 (State or other jurisdiction (I.R.S. employer of incorporation or organization) identification no.) 1920 Fifth Street, Davis, CA 95616 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (916) 753-6313 ___________ Securities registered pursuant to Section 12(b) of the Act NONE Securities registered pursuant to Section 12(g) of the Act Common Stock, par value $.001 per share (Title of Class) ___________ Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities and Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Registration S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. (X) The aggregate market value of the voting stock held by nonaffiliates of the Registrant was approximately $188,699,924 as of August 31, 1995 based upon the closing price on the NASDAQ National Market System reported for such date. Shares of Common Stock held by each officer and director and by each person who owns 5% or more of the outstanding Common Stock have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes. 30,250,408 shares of Common Stock were Issued and Outstanding as of August 31, 1995. DOCUMENTS INCORPORATED BY REFERENCE NONE 2 ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT -------------------------------------------------- The Board of Directors of Calgene, Inc. (the "Company") is as follows:
Director Name of Director Age Principal Occupation Since ---------------- --- -------------------- ------- Donald L. Baeder 70 Chairman and Chief Executive Officer, 1993 Regency Group, Inc. Robert E. Baker 48 Vice President, Marketing and Strategy, 1994 Specialty Foods Corporation Warren R. Haug 57 Vice President, Research & Development 1992 for Laundry and Fabric Conditioner Products, The Procter & Gamble Company Donald Helinski 62 Former Director, Center for Molecular 1988 Genetics, University of California, San Diego, Retired Howard D. Palefsky 48 President and Chief Executive Officer, 1986 Collagen Corporation Roger H. Salquist 54 Chairman and Chief Executive Officer, 1981 Calgene, Inc. Roderick N. Stacey 50 President and Chief Operating Officer, 1990 Calgene, Inc. Carl V. Stinnett 61 Principal, The Market Connection 1991 Allen J. Vangelos 63 President and Chief Executive Officer, 1994 Calavo Growers of California
There is no family relationship between any director and any other director or executive officer of the Company. Mr. Baeder has served since 1987 as Chairman and Chief Executive Officer of Regency Group, Inc., a firm specializing in the acquisition, repositioning and restructuring of environmentally sensitive and other businesses. Previously, he served as President and Chief Executive Officer of Occidental Chemical Company, Executive Vice President of Occidental Petroleum Corporation and Vice President of Exxon Corporation's corporate and government research group. Mr. Baker has been Vice President, Marketing and Strategy, for Specialty Foods Corporation since February 1994. From 1992 to 1994, Mr. Baker was President and Founder of The Baker Group, Inc., a marketing services company. Previously, he served as Vice President, Marketing and Marketing Services of the frozen foods division of Kraft General Foods. Dr. Haug joined The Procter & Gamble Company in 1965. Since then, he has held various positions and has been a Vice President since 1988 with research and development responsibilities involving laundry, cleaning and fabric conditioner products. His title since December 1992 has been Vice President, Research and Development for Laundry and Fabric Conditioner Products. -2- 3 Dr. Helinski has been a Professor of Biology since 1965 and the Director of the Center for Molecular Genetics since 1984 at the University of California, San Diego. Mr. Palefsky has been the President and Chief Executive Officer of Collagen Corporation, a medical products company, since 1978. He is also a director of Collagen Corporation and Target Therapeutics, Inc., both medical products companies. Mr. Salquist has been an executive officer of the Company since September 1983 and its Chief Executive Officer since November 1985. Mr. Salquist is a director of Collagen Corporation and Chairman of the Board of Directors of Celtrix Pharmaceuticals, Inc., both medical products companies. Mr. Stacey was elected President and Chief Operating Officer of the Company in December 1992. He was the founder of United Agriseeds Inc., a hybrid corn and soybean company, and was its President and Chief Executive Officer from 1982 until October 1989. United Agriseeds was acquired by Dow Chemical Company in 1987. In November 1989, Mr. Stacey became the President and Chief Executive Officer of Sunseeds Genetics Inc., a financially distressed vegetable seed company which subsequently filed for protection under Chapter 11 of the Bankruptcy Code and was sold to Westinghouse Credit Corporation in June 1990. Mr. Stacey was the President of R. Matthew Neil & Co., Inc., a business consulting company, from December 1990 until December 1992. Mr. Stinnett has been a Principal of the Northern Group, a financial partnership which acquires and operates food companies, since July 1990. Mr. Stinnett was President of the Campbell Enterprises Division of Campbell Soup Company from November 1985 to July 1990. Mr. Vangelos has been the President and Chief Executive Officer of Calavo Growers of California since September 1986, prior to which he held management positions at Castle & Cooke, including Vice President and General Manager of Processed Products and President of International Diversified Business and Fresh Marketing. From 1980 to 1984, he was the Chief Executive Officer of Impact Corporate Group, a food brokerage company, Mr. Vangelos was the 1993 Chairman of the Board of Directors of the Agricultural Council of California and a past Chairman of the United Fresh Fruit and Vegetable Association. BOARD MEETINGS, COMMITTEES AND DIRECTOR COMPENSATION The Board of Directors of the Company (the "Board") held ten meetings during the fiscal year ended June 30, 1995, including telephone meetings. No nominee attended fewer than 75% of the meetings of the Board of Directors and of the committee of the Board on which he served that were held during the period of the director's service, except Mr. Baeder who attended 60% of the meetings due to health reasons. The Board has an Audit Committee and a Human Resources Committee. It does not have a nominating committee or a committee performing the functions of a nominating committee. From time to time, the Board has created various ad hoc committees for special purposes. The Audit Committee consists of Messrs. Palefsky and Vangelos. The Audit Committee held four meetings in the last fiscal year. The Audit Committee recommends engagement of the Company's independent auditors and is primarily responsible for approving the services performed by the Company's independent auditors and for reviewing and evaluating the Company's accounting principles and its system of internal accounting controls. The Human Resources Committee consists of Messrs. Baker, Baeder, Helinski and Stinnett. The Human Resources Committee held six meetings during the last fiscal year. The Human Resources Committee reviews and makes recommendations to the Board concerning the Company's executive compensation policy, bonus plans and equity incentive plans. The Human Resources Committee also has sole authority to grant stock options to the Company's executive officers. -3- 4 Directors who are not also employees of the Company or its subsidiaries receive a fee of $1,000 per meeting ($250 per telephone meeting) attended, $500 per Board committee meeting attended (unless held on the same day as a Board meeting) and an annual retainer of $3,000 (accruing and payable $250 per month), plus out-of-pocket travel expenses. Under the 1991 Stock Option Plan, non-employee directors receive an option to purchase 10,000 shares of Common Stock at the time of their initial election to the Board, and receive annually thereafter options to purchase 3,000 shares of Common Stock. These automatically granted options have terms of five years (subject to continued service on the Board), become exercisable in equal monthly increments over the twelve months following the respective grant dates and have exercise prices equal to the fair market value of the Common Stock on their respective dates of grant. On November 16, 1994, annual options were automatically granted to each of the nonemployee directors then serving (except Dr. Haug, who regularly declines to receive such options because of his affiliation with Procter & Gamble) at an exercise price of $7.50 per share. There were no consulting fees paid to directors in fiscal 1995. FILING OF REPORTS BY DIRECTORS AND OFFICERS The Company's officers and directors are required to file with the Securities and Exchange Commission (the "Commission") reports of their acquisitions and dispositions of equity securities of the Company. Based on the Company's review of copies of such reports received by it, or written representations from reporting persons, the Company believes that during the fiscal year ended June 30, 1995, its officers and directors filed all required reports on a timely basis. ITEM 11. EXECUTIVE COMPENSATION ---------------------- COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION During the fiscal year ended June 30, 1995, the members of the Human Resources Committee (the "Committee") were Messrs. Baker, Baeder, Helinski and Stinnett. John Vohs was a director and member of the Committee until his resignation on November 17, 1994. None of the members has ever been an officer or employee of the Company or any of its subsidiaries. During fiscal 1995, there were no Committee "interlocks" within the meaning of the Commission's rules, and there continue to be no such "interlocks." Mr. Salquist, Chairman of the Board and Chief Executive Officer, participated in portions of meetings of the Committee at the invitation of the Committee and made various proposals to the Committee at its request. In addition, at the Committee's direction, Mr. Salquist has set the cash compensation of certain other executives. -4- 5 SUMMARY OF CASH AND OTHER COMPENSATION The following table provides certain summary information concerning compensation earned during the last three fiscal years by the Company's Chief Executive Officer and each of the four other most highly compensated executive officers of the Company who were serving at the end of fiscal 1995 (the "named executive officers"). SUMMARY COMPENSATION TABLE
Long-Term Compensation Annual Compensation(1) Awards ---------------------- -------- Securities Name and Salary Bonus Underlying All other Principal Position Year ($) ($) Options(#) Compensation $(4) ------------------ ---- ------ ----- ---------- ---------------- Roger H. Salquist(2) 1995 $242,404 $ -- 100,000 $1,212 Chairman of the Board and 1994 225,865 -- 104,762 -- Chief Executive Officer 1993 220,673 60,000 40,000 -- Roderick N. Stacey(3) 1995 233,558 -- -- 1,077 President and 1994 200,673 -- 100,000 -- Chief Operating Officer 1993 125,250 40,000 153,000 -- Danilo Lopez 1995 171,635 -- 100,000 815 President, Calgene Fresh Andrew M. Baum 1995 162,600 10,000 25,000 840 Vice President; President, 1994 154,592 -- -- -- Oils Division 1993 149,538 20,000 -- -- Vic C. Knauf 1995 138,210 5,000 -- 642 Vice President of Research 1994 131,403 -- -- 1,177 1993 127,125 4,904 -- 2,247 --------------------------------- (1) Includes amounts earned in the fiscal year even if paid in the subsequent fiscal year or deferred pursuant to the Company's 401(k) savings plan. Excludes amounts paid during the fiscal year that were earned in a prior year. (2) The options shown in the table as granted to Mr. Salquist in fiscal 1994 were originally granted in 1987 for a six-year term and extended for four additional years in fiscal 1994. (3) Mr. Stacey became an executive officer in December 1992. Salary for fiscal 1993 includes director fees received prior to December 1992. (4) Amounts reported as "All Other Compensation" represent the Company's matching contributions under its 401(k) savings plan.
-5- 6 CHANGE OF CONTROL EMPLOYMENT AGREEMENTS Messrs. Salquist, Stacey and Motroni have entered into Change of Control Employment Agreements, dated as of July 19, 1995, with the Company. Each Agreement becomes effective only upon a Change of Control (as defined) of the Company and provides that, if the employment of the officer is terminated by the Company without Cause (as defined) or by the officer for Good Reason (as defined) within the three-year term of the Agreement or if (in the case of Mr. Salquist) he resigns upon the six-month or three-year anniversaries of the effective date of the Agreement, the officer shall receive severance benefits that include a payment equal to 2.99 times his base salary and average bonus for the prior three fiscal years. Such severance benefits are subject to reduction to the extent necessary to prevent the recipient from incurring liability for excise taxes and the Company from incurring nondeductible compensation expense. For purposes of such agreements, a Change of Control would include the closing of the proposed transaction pursuant to which Monsanto Company would acquire a 49.9% equity interest in the combined business of the Company and Gargiulo, L.P. OPTION GRANTS IN LAST FISCAL YEAR The following table provides information regarding stock options granted in fiscal 1995 to the named executive officers in the Summary Compensation Table. In accordance with rules of the Commission, the table shows the hypothetical gains that would be produced by the respective options based on assumed 5% and 10% rates of annual compound stock price appreciation from the date the options were granted until the end of the ten-year option terms. The actual value an executive may realize will depend on the spread between the market price and the exercise price on the date the option is exercised. OPTION GRANTS IN LAST FISCAL YEAR
Individual Grants Potential Realizable ------------------------------------------------------- Value at Assumed Number of Percent Annual Rates Securities of Total of Stock Price Underlying Options Appreciation for Options Granted to Exercise or Option Term($)(3) Granted Employees in Base Price Expiration --------------------- (#)(1) Fiscal Year(%) ($)(2) Date 5% 10% ------ -------------- ----------- ---------- -- --- Roger H. Salquist 100,000 13.0 7.50 8/18/04 471,670 1,195,310 Roderick N. Stacey - -- -- -- -- -- Danilo Lopez 100,000 13.0 7.50 10/11/04 471,670 1,195,310 Andrew M. Baum 10,000 1.3 7.50 11/16/04 47,167 119,531 15,000 2.0 7.50 6/26/05 70,751 179,297 Vic C. Knauf -- -- -- -- -- -- - -------------------------- (1) Newly granted options have terms of ten years and become exercisable incrementally in equal monthly amounts over a period of five years from the date of grant. The committee that administers the stock option plan may, with the consent of the option holder, modify the terms (including price) of outstanding options. (2) The exercise price may be paid in cash or by delivery of already-owned shares, subject to certain conditions. (3) At assumed rates of appreciation of 5% and 10%, compounded annually, the Common Stock would appreciate in value 63% and 159%, respectively, over a ten-year period. These mandated computations do not represent the Company's estimate or projection of future Common Stock prices.
OPTION EXERCISES AND FISCAL YEAR-END VALUES The following table shows stock options exercised by the named executive officers in the Summary Compensation Table during fiscal 1995, the aggregate value of gains on the dates of exercise, the number of shares covered by both exercisable and non-exercisable stock options as of fiscal year-end, and the year-end values for such options. -6- 7 AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION VALUES
Number of Securities Underlying Unexercised Value of Unexercised Options at In-the-Money Options Fiscal Year-End(#) at Fiscal Year-End($)(1) Shares ------------------ ------------------------ Acquired On Value Exercise(#) Realized($)(1) Exercisable Unexercisable Exercisable Unexercisable ----------- -------------- ----------- ------------- ----------- ------------- Roger H. Salquist 10,000 28,750 172,262 122,500 176,786 -- Roderick N. Stacey -- -- 48,595 219,405 14,250 -- Danilo Lopez -- -- 11,667 88,333 -- -- Andrew M. Baum 10,000 26,250 27,874 32,126 1,563 -- Vic C. Knauf -- -- 37,448 38,831 938 -- - ----------------------- (1) Value is based on market value of the Common Stock at exercise date (for value realized), or at year end (for value of unexercised options), minus the option exercise price.
-7- 8 ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT -------------------------------------------------------------- The following table sets forth certain information with respect to the beneficial ownership of Common Stock of the Company as of August 31, 1995 by each director, by each currently serving executive officer shown in the Summary Compensation Table (see "Executive Compensation"), by all directors and executive officers as a group and by each person known by the Company to be a beneficial owner of more than 5% of the shares outstanding. -8- 9
Shares Approximate Name and Address of Beneficially Percent Beneficial Owner Owned(1) Owned(2) ------------------ ------------ ----------- Travelers Group Inc. 3,179,179 10.5 and Affiliates 388 Greenwich Street, New York, NY 10013(3) Roger H. Salquist 216,691 * Roderick N. Stacey 69,507 * Donald L. Baeder 15,750 * Robert E. Baker 13,250 * Warren R. Haug -- -- Donald Helinski 41,750 * Howard D. Palefsky 11,750 * Carl V. Stinnett 24,750 * Allen J. Vangelos 12,750 * Andrew M. Baum 61,017 * Danilo Lopez 18,334 * Vic C. Knauf 47,067 * All executive officers and directors as a group (13 persons) 570,067 1.9 - ---------------------- * Less than 1%. (1) The Company believes that all beneficial owners named in the table have sole voting and investment power with respect to the shares they beneficially own. The shares shown in the table to be beneficially owned include any shares that the person has the right to acquire within 60 days of August 31, 1995 by exercise of any stock option for which the Company has knowledge. The shares subject to such options are as follows: Mr. Salquist: 182,263; Mr. Stacey: 69,507; Mr. Baker: 12,750; Mr. Baeder: 15,750; Dr. Helinski: 13,750; Mr. Lopez: 18,334; Mr. Palefsky: 11,750; Mr. Stinnett: 23,750; Mr. Vangelos: 12,750; Mr. Baum: 30,516; Dr. Knauf: 35,810; all executive officers and directors as a group: 455,970. (2) Percent of the 30,250,408 outstanding shares of Common Stock, counting as outstanding for each named person all shares issuable to such person on exercise of options that are included in the first column. (3) Based on Form 13G filed on October 10, 1995 with respect to holdings on September 30, 1995. Includes 1,650,509 shares owned by Smith Barney, Inc. and 1,528,670 shares owned by Smith Barney Holdings, Inc.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS ---------------------------------------------- During the fiscal year ended June 30, 1995, the Company recognized revenues of approximately $600,000 from product development projects under contracts with The Procter & Gamble Company. Warren R. Haug, a director of Calgene, is a Vice President of Procter & Gamble. Under the terms of indemnification agreements with each of Calgene's directors and executive officers, the Company is obligated to indemnify them against certain claims and expenses for which they might be held liable in connection with past or future service to the Company. In addition, Calgene's Certificate of Incorporation provides that, to the extent permitted by the Delaware General Corporation Law, its directors shall not be liable for monetary damages for breach of fiduciary duty as a director. -9- 10 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities and Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized. CALGENE, INC. By: /s/ Michael Motroni ------------------------------ Vice President, Finance (Principal Financial and Accounting Officer) Dated: October 30, 1995 -10- 11 INDEX TO EXHIBITS
Exhibits -------- Page ---- 3.1A Restated By-Laws of Registrant, as amended............................. (M) 3.2A Certificate of Incorporation, as amended............................... (M) 10.1A 1981 Stock Option Plan, as amended..................................... (B) 10.1B 1991 Stock Option Plan................................................. (J) 10.1C 1991 Stock Option Plan, as amended..................................... (I) *10.12 Partnership Agreement dated January 31, 1986 between Registrant and Rhone-Poulenc Agrochimie, together with Research Agreement dated March 15, 1984 and Amendment thereto dated January 31, 1985...... (A) *10.12A Amendment One to the Partnership Agreement dated January 31, 1986 between Registrant and Rhone-Poulenc Agrochimie dated September 30, 1989..................................................... (B) *10.12B License Agreement between Registrant and Rhone-Poulenc Agrochimie dated October 1, 1989....................................... (B) *10.13 Agreements dated March 21, 1985 between Registrant and Roussel- Uclaf S.A.............................................................. (A) *10.13A Agreement dated April 1, 1988 between Registrant and Roussel-Uclaf S.A. which amend the Agreements dated March 21, 1985 between Registrant and Roussel-Uclaf S.A....................................... (B) *10.14 Agreement dated August 1, 1984 and Agreement dated August 26, 1985 amending the prior Agreement between Registrant and Campbell Soup Company.................................................. (A) *10.14A Tomato Research Agreement 1988 to 1990 between Campbell Soup Company and Registrant effective as of August 1, 1988 which supersedes the Agreements of August 1, 1984 and August 26, 1985 between Campbell Soup Company and the Registrant....................... (B) *10.15 Agreement dated March 20, 1986 between Registrant and The Procter and Gamble Company..................................................... (A) 10.16 Commercial Lease dated August 17, 1987, as amended, covering property located at 1910 and 1920 Fifth Street, Davis, California...... (C) 10.17 Commercial Lease dated August 31, 1983, as amended, covering property located at 1970 Fifth Street, Davis, California............... (A) 10.19 Commercial Lease dated August 22, 1983, as amended, covering property in Yolo County................................................ (A)
-11- 12 10.29 Commercial Lease dated May 21, 1987, as amended, covering property located at 1950 Fifth Street, Davis, California............... (C) 10.32 Form of Directors and Officers Indemnification Agreement............... (C) 10.37 401(k) Tax Deferred Investment Plan.................................... (D) *10.77 Amendment to Agreement dated June 2, 1986, between Registrant and Ciba-Geigy Limited, dated June 5, 1989............................. (F) 10.78 1989 Employee Stock Purchase Plan...................................... (G) 10.79 Joint Venture and Partnership Agreement by and between Kirin Brewery Co. Ltd. and Registrant dated March 14, 1990................... (G) 10.80 Secured Revolving Credit Agreement Among Registrant and Harris Trust and Savings Bank and Caisse Nationale De Credit Agricole Dated April 26, 1990................................................... (G) 10.80A First Amendment to Secured Revolving Credit Agreement and Secured Revolving Credit Note Among Registrant and Harris Trust and Savings Bank dated January 31, 1992................................ (E) 10.80B Second Amendment to Secured Revolving Credit Agreement and Secured Revolving Credit Note Among Registrant and Harris Trust and Savings Bank Dated January 31, 1993................................ (I) 10.80C Third Amendment to Secured Revolving Credit Agreement Among Registrant and Harris Trust and Savings Bank Dated August 26, 1993................................................................... 10.80D Fourth Amendment to Secured Revolving Credit Agreement and Secured Revolving Credit Note Among Registrant and Harris Trust and Savings Bank Dated February 25, 1994............................... 10.80E Fifth Amendment to Secured Revolving Credit Agreement and Secured Revolving Credit Note Among Registrant and Harris Trust and Savings Bank Dated March 15, 1995.................................. 10.80F Sixth Amendment to Secured Revolving Credit Agreement and Waiver Among Registrant and Harris Trust and Savings Bank Dated August 8, 1995......................................................... *10.83 License Agreement between Registrant and Campbell Soup Company dated August 9, 1991................................................... (J) 10.84 Letter of Intent with Monsanto Company................................. (L) 22.1 Subsidiaries of Registrant............................................. (I) 23.1 Consent of Independent Auditors........................................ (M) 23.2 Consent of Independent Auditors Regarding S-3 Registration Statement..............................................................
-12- 13 27 Article 5 of Financial Data Schedule for Fiscal Year Ended June 30, 1995.......................................................... (M) ------------------------------ (A) Incorporated by reference to Registrant's Form S-1 Registration No. 33-5921 (B) Incorporated by reference to Registrant's Form 10-K dated September 30, 1989 (C) Incorporated by reference to Registrant's Form 10-K dated September 30, 1987 (D) Incorporated by reference to Registrant's Form 10-K dated September 30, 1988 (E) Incorporated by reference to Registrant's Form 10-K dated June 30, 1992 (F) Incorporated by reference to Registrant's Form S-1 Registration No. 33-29822 (G) Incorporated by reference to Registrant's Form 10-K dated June 30, 1990 (H) Incorporated by reference to Registrant's Form 10-Q dated March 31, 1994 (I) Incorporated by reference to Registrant's Form 10-K dated June 30, 1993, as amended (J) Incorporated by reference to Registrant's Form 10-K dated June 30, 1991 (K) Agreement intentionally omitted in reliance upon 5 U.S.C. ss552(b)(3) and 35 U.S.C. ss135(c) (L) Incorporated by reference to Registrant's Form 8-K dated June 28, 1995 (M) Exhibit previously filed with Registrant's Form 10-K/A dated June 30, 1995, which this Form 10-KA amends * Confidential treatment of certain portions of these documents has been granted
-13- EX-10.80C 2 3RD AMENDMENT TO SECURED REVOLVING CREDIT AGMT 1 CALGENE, INC. THIRD AMENDMENT TO SECURED REVOLVING CREDIT AGREEMENT Harris Trust and Savings Bank Chicago, Illinois Ladies and Gentlemen: Reference is hereby made to that certain Secured Revolving Credit Agreement dated as of April 26, 1990, as amended (the "Credit Agreement") originally among the undersigned, CALGENE, INC., a Delaware corporation (the "Company"), Harris Trust and Savings Bank (the "Bank") and Caisse Nationale de Credit Agricole, acting through its Grand Cayman Branch ("Credit Agricole") and Harris Trust and Savings Bank as agent thereunder (the "Agent" ). All defined terms used herein shall have the same meaning as in the Credit Agreement unless otherwise defined herein. The Bank has extended a $10,000,000 revolving credit facility to the Company on the terms and conditions set forth in the Credit Agreement. The Company and the Bank now wish to amend the form of Borrowing Base Certificate attached to the Credit Agreement to reflect the addition of Calgene Fresh, Inc. as a Guarantor Subsidiary, all in the manner and on the terms and conditions set forth in this Amendment. SECTION 1. AMENDMENTS. Upon satisfaction of all the conditions precedent set forth in Section 2 hereof, the Credit Agreement shall be amended as follows: Section 1.1 Exhibit D attached to the Credit Agreement shall be replaced with Exhibit D attached hereto. SECTION 2. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject to the satisfaction of all of the following conditions precedent: Section 2.1. The Company and the Bank shall have executed this Amendment (such execution may be in several counterparts and the several parties hereto may execute on separate counterparts). Section 2.2. Each of the representations and warranties set forth in Section 5 of the Credit Agreement shall be true and correct. Section 2.3. The Company shall be in full compliance with all of the terms and conditions of the Credit Agreement and no Event of Default or Potential Default shall have occurred and be continuing thereunder or shall result after giving effect to this Amendment. 2 Section 2.4. All legal matters incident to the execution and delivery hereof and the instruments and documents contemplated hereby shall be satisfactory to the Bank. Section 2.5. The Bank shall have received copies (executed or certified as may be appropriate) of (a) a Qualified Credit Agreement between the Company and Calgene Fresh, Inc., a _________________ corporation ("Cal-Fresh"), (b) a Qualified Promissory Note of CalFresh payable to the order of the Company and endorsed in blank by the Company, (c) a Qualified Security Agreement from Cal-Fresh to the Company, (d) a Pledge Agreement from the Company to the Agent, (e) such financing statements as the Agent may request, (f) all legal documents or proceedings taken in connection with the execution and delivery of this Amendment, all other instruments and documents contemplated hereby and, (g) an opinion of Downey, Brand, Seymour & Rohwer, counsel to the Company, in the form attached hereto as Exhibit A. 3. REPRESENTATIONS. In order to induce the Bank to execute and deliver this Amendment, the Company hereby represents to the Bank that as of the date hereof, each of the representations and warranties set forth in Section 5 of the Credit Agreement are and shall be and remain true and correct (except that the representations contained in Section 5.2 shall be deemed to refer to the most recent financial statements of the Company delivered to the Bank) and the Company is in full compliance with all of the terms and conditions of the Credit Agreement and no Default or Event of Default has occurred and is continuing thereunder or shall result after giving effect to this Amendment. 4. MISCELLANEOUS. Section 4.1. The Company has heretofore executed and delivered to the Agent that certain Security Agreement Re: Inventory and Receivables and various separate Pledge and Security Agreements, each dated as of April 26, 1990 (the "Security Documents") and the Company hereby agrees that notwithstanding the execution and delivery of this Amendment, the Security Documents shall be and remain in full force and effect and that any rights and remedies of the Agent thereunder, obligations of the Company thereunder and any liens and security interests created or provided for thereunder shall be and remain in full force and effect and shall not be affected, impaired or discharged thereby. Nothing herein contained shall in any manner affect or impair the priority of the liens and security interests created and provided for by the Security Documents as to the indebtedness which would be secured thereby prior to giving effect to this Amendment. Section 4.2. The Company agrees to pay on demand all costs and expenses of or incurred by the Bank in connection with the negotiation, preparation, execution and delivery of this Amendment, including the fees and expenses of counsel for the Bank. Section 4 3. Except as specifically amended herein the Credit Agreement and the Note shall continue in full force and effect in accordance with their original terms. Reference to this specific Amendment need not be made in any note, document, letter, certificate, the Credit Agreement itself, the Note, or any communication issued or made pursuant to or with respect to the Credit Agreement or the Note, any reference to the Credit Agreement or Note being sufficient to refer to the Credit Agreement as amended hereby. -2- 3 Section 4.4. This Amendment may be executed in any number of counterparts, and by the different parties on different counterparts. all of which taken together shall constitute one and the same agreement. Any of the parties hereto may execute this Amendment by signing any such counterpart and each of such counterparts shall for all purposes be deemed to be an original. This Amendment shall be governed by the internal laws of the State of Illinois. Dated as of August 26,1993. CALGENE, INC. By /c/ Mike Motroni ------------------------- Its Vice President, Finance -3- 4 Accepted as of the date last written above. HARRIS TRUST AND SAVINGS BANK By /c/ Pamela M. Greanias ------------------------- Its Vice President -4- EX-10.80D 3 4TH AMENDMENT TO SECURED REVOLVING CREDIT AGMT 1 CALGENE, INC. FOURTH AMENDMENT TO SECURED REVOLVING CREDIT AGREEMENT AND SECURED REVOLVING CREDIT NOTE Harris Trust and Savings Bank Chicago, Illinois Ladies and Gentlemen: Reference is hereby made to that certain Secured Revolving Credit Agreement dated as of April 26, 1990, as amended (the "Credit Agreement") originally among the undersigned, CALGENE, INC., a Delaware corporation (the "Company"), Harris Trust and Savings Bank (the "Bank") and Caisse Nationale de Credit Agricole, acting through its Grand Cayman Branch ("Credit Agricole") and Harris Trust and Savings Bank as agent thereunder (the "Agent" ). All defined terms used herein shall have the same meaning as in the Credit Agreement unless otherwise defined herein. The Bank has extended a $10,000,000 revolving credit facility to the Company on the terms and conditions set forth in the Credit Agreement. Credit Agricole has assigned to Harris, and Harris has assumed all of Credit Agricole's rights and obligations under the Credit Agreement. The Company and Harris now wish to extend the termination date of the Credit Agreement to January 31, 1995, amend Harris Trust and Savings Bank's commitment under the Credit Agreement to $ 13,000,000, and amend certain terms of the Credit Agreement, all in the manner and on the terms and conditions set forth in this Amendment. SECTION 1. AMENDMENTS. Upon satisfaction of all the conditions precedent set forth in Section 2 hereof, the Credit Agreement shall be amended as follows: Section 1.1 Harris Trust and Savings Bank's commitment shall be $13,000,000, the Bank's Commitment shall hereby be increased to $13,000,000 and the Termination Date of the Credit Agreement shall be extended to January 31, 1995. Section 1.2 Section l.l(a) of the Credit Agreement shall be amended in its entirety to read as follows: "Section 1.1. Amount and Term. (a) The maximum aggregate principal amount of all Loans outstanding under the Revolving Credit at any one time outstanding plus the amount available for drawing under all outstanding L/C's, the face amount of all outstanding B/A's and the aggregate principal amount of all unpaid Reimbursement Obligations (each as hereinafter defined) shall not exceed the lesser of (i) the Banks' Commitments (as hereinafter defined) in effect from time to time during the term of this Agreement or (ii) the then Borrowing Base as determined on the basis of the most recent Borrowing Base Certificate, and shall be available to the Company, and may be availed of by the Company from time to time, be repaid (subject to the restrictions on prepayment set forth herein) and used again, during 2 the period from the date hereof to and including January 31, 1995 (the "Termination Date" ). (b) The respective maximum aggregate principal amounts of the Revolving Credit at any one time outstanding which each Bank by its acceptance hereof severally agrees to make available to the Company are as follows (collectively, the "Banks' Commitments" and individually, a "Bank's Commitment"): Harris Trust and Savings Bank $13,000,000 100% Total $13.000,000 100%
All Loans under the Revolving Credit shall be made from each Bank in proportion to its respective Bank's Commitment as above set forth. Each Domestic Rate Loan shall be in an amount not less than $100,000 or such greater amount which is an integral multiple of $50,000 and each Eurodollar Loan shall be in an amount not less than $1,000,000 or such greater amount which is an integral multiple of $100,000." Section 1.3. Section 4.6(i) of the Credit Agreement shall be amended by replacing the figure "75%" appearing therein with the figure "80%". Section 1.4. Section 4.6(ii) shall be amended by replacing the figure "75%" with the figure "70%". Section 1.5. Section 4.6(iv) of the Credit Agreement shall be amended by replacing the figure "50%" with the figure "60%". Section 1.6. Section 7.4(b) of the Credit Agreement shall be amended by replacing the figure "90" appearing in the second line therein with the figure "120". Section 1.7. Section 7.4(f) of the Credit Agreement shall be amended by replacing the phrase "20 business days" appearing therein with the phrase "45 days." Section 1.8. Section 7.5 of the Credit Agreement shall be amended by inserting the phrase "and its Subsidiaries" after the word "Company" appearing in line 4 thereof. Section 1.9. Section 7.10 of the Credit Agreement shall be amended by replacing the phrase "2 to 1" appearing therein with the phrase "1.5 to l". Section 1.10. Section 7.11 of the Credit Agreement shall be amended by replacing the figure "$12,000,000" appearing therein with the figure "$10,000,000". Section 1.11. Section 7.17(j) shall be amended by replacing the phrase "one year" appearing therein with the phrase "two years". Section 1.12. Section 7.18(c) of the Credit Agreement shall be amended by adding before the semi-colon at the end thereof the phrase "and to the sale of any or all of the Company's interest in Osmotica Foods, Inc.". -2- 3 Section 1.13. Section 7.23 of the Credit Agreement shall be amended to read as follows: "Intentionally Omitted." Section 1.14. Exhibit A to the Credit Agreement and the Revolving Note of the Company payable to the order of Harris Trust and Savings Bank (the "Note") shall each be amended by deleting the date "January 31, 1994" appearing twice in the first paragraph therein and inserting in lieu thereof the date "January 31, 1995", by deleting the phrase "Ten Million Dollars ($10,000,000)" appearing in the first paragraph therein and inserting in lieu thereof the phrase "Thirteen Million Dollars ($13,000,000)". Section 1.15. Exhibit D to the Credit Agreement shall be replaced by Exhibit D attached hereto. Section 1.16. Harris Trust and Savings Bank shall type the following legend on its Note: "This Note has been amended pursuant to the terms of a Fourth Amendment to Secured Revolving Credit Agreement and Secured Revolving Credit Note dated as of February 25, 1994, including an increase in the principal amount and an extension of the maturity date hereof, to which reference is hereby made for a statement of terms thereof." SECTION 2. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject to the satisfaction of all of the following conditions precedent: Section 2.1. The Company and the Bank shall have executed this Amendment (such execution may be in several counterparts and the several parties hereto may execute on separate counterparts). Section 2.2. Each of the representations and warranties set forth in Section 5 of the Credit Agreement shall be true and correct. Section 2.3. The Company shall be in full compliance with all of the terms and conditions of the Credit Agreement and no Event of Default or Potential Default shall have occurred and be continuing thereunder or shall result after giving effect to this Amendment. Section 2.4. All legal matters incident to the execution and delivery hereof and the instruments and documents contemplated hereby shall be satisfactory to the Bank. Section 2.5. The Bank shall have received copies (executed or certified as may be appropriate) of all legal documents or proceedings taken in connection with the execution and delivery of this Amendment, all other instruments and documents contemplated hereby and an opinion of Downey, Brand, Seymour & Rohwer, counsel to the Company, in the form attached hereto as Exhibit A. 3. REPRESENTATIONS. -3- 4 In order to induce the Bank to execute and deliver this Amendment, the Company hereby represents to the Bank that as of the date hereof, each of the representations and warranties set forth in Section 5 of the Credit Agreement are and shall be and remain true and correct (except that the representations contained in Section 5.2 shall be deemed to refer to the most recent financial statements of the Company delivered to the Bank) and the Company is in full compliance with all of the terms and conditions of the Credit Agreement and no Default or Event of Default has occurred and is continuing thereunder or shall result after giving effect to this Amendment. 4. MISCELLANEOUS. Section 4.1. The Company has heretofore executed and delivered to the Agent that certain Security Agreement Re: Inventory and Receivables and various separate Pledge and Security Agreements, each dated as of April 26, 1990 (the "Security Documents" ) and the Company hereby agrees that notwithstanding the execution and delivery of this Amendment, the Security Documents shall be and remain in full force and effect and that any rights and remedies of the Agent thereunder, obligations of the Company thereunder and any liens and security interests created or provided for thereunder shall be and remain in full force and effect and shall not be affected, impaired or discharged thereby. Nothing herein contained shall in any manner affect or impair the priority of the liens and security interests created and provided for by the Security Documents as to the indebtedness which would be secured thereby prior to giving effect to this Amendment. Section 4.2. The Company agrees to pay on demand all costs and expenses of or incurred by the Bank in connection with the negotiation, preparation, execution and delivery of this Amendment, including the fees and expenses of counsel for the Bank. Section 4.3. Except as specifically amended herein the Credit Agreement and the Note shall continue in full force and effect in accordance with their original terms. Reference to this specific Amendment need not be made in any note, document, letter, certificate, the Credit Agreement itself, the Note, or any communication issued or made pursuant to or with respect to the Credit Agreement or the Note, any reference to the Credit Agreement or Note being sufficient to refer to the Credit Agreement as amended hereby. Section 4.4. This Amendment may be executed in any number of counterparts, and by the different parties on different counterparts, all of which taken together shall constitute one and the same agreement. Any of the parties hereto may execute this Amendment by signing any such counterpart and each of such counterparts shall for all purposes be deemed to be an original. This Amendment shall be governed by the internal laws of the State of Illinois. Dated as of February 25, 1994. CALGENE, INC. By /c/ Mike Motroni ------------------------- Its Vice President, Finance -4- 5 Accepted as of the date last written above. HARRIS TRUST AND SAVINGS BANK By /c/ Pamela M. Greanias ------------------------- Its Vice President -5- EX-10.80E 4 5TH AMENDMENT TO SECURED REVOLVING CREDIT AGMT 1 CALGENE, INC. FIFTH AMENDMENT TO SECURED REVOLVING CREDIT AGREEMENT AND SECURED REVOLVING CREDIT NOTE Harris Trust and Savings Bank Chicago, Illinois Ladies and Gentlemen: Reference is hereby made to that certain Secured Revolving Credit Agreement dated as of April 26, 1990, as amended (the "Credit Agreement") originally among the undersigned, CALGENE, INC., a Delaware corporation (the "Company"), Harris Trust and Savings Bank (the "Bank") and Caisse Nationale de Credit Agricole, acting through its Grand Cayman Branch ("Credit Agricole") and Harris Trust and Savings Bank as agent thereunder (the "Agent"). All defined terms used herein shall have the same meaning as in the Credit Agreement unless otherwise defined herein. The Bank has extended a revolving credit facility to the Company on the terms and conditions set forth in the Credit Agreement. Credit Agricole has assigned to Harris, and Harris has assumed all of Credit Agricole's rights and obligations under the Credit Agreement. The Company and Harris now wish to extend the termination date of the Credit Agreement to January 31, 1996, and amend certain terms of the Credit Agreement, all in the manner and on the terms and conditions set forth in this Amendment. SECTION 1. AMENDMENTS. Upon satisfaction of all the conditions precedent set forth in Section 2 hereof, the Credit Agreement shall be amended as follows: Section 1.1. The Termination Date of the Credit Agreement shall be extended to January 31, 1996. Section 1.2. Section 1.1(a) of the Credit Agreement shall be amended by replacing the date "January 31, 1995" appearing therein with the date "January 31, 1996". Section 1.3. Sections 1.5 and 1.6 of the Credit Agreement shall be amended to read as follows: "Section 1.5. Letters of Credit. Subject to all the terms and conditions hereof, satisfaction of all conditions precedent to borrowing under this Agreement and so long as no Potential Default or Event of Default is in existence, at the Company's request Harris may in its discretion issue letters of credit (an "L/C" and collectively the "L/C's") for the account of the Company and one or more Qualified Subsidiaries subject to availability under the Revolving Credit, and the Banks hereby agree to participate therein as more fully described in Section 1.8 hereof. Each L/C shall be issued pursuant to an Application for Letter of Credit (the "L/C Agreement" ) in the form of Exhibit C hereto. The L/C's shall consist of documentary 2 trade letters of credit or standby letters of credit in an aggregate face amount not to exceed $5,000,000. Each documentary trade L/C shall have an expiry date not more than 180 days from the date of issuance thereof (but in no event later than the Termination Date) and each standby letter of credit shall have an expiry date no later than the Termination Date. The amount available under each L/C issued pursuant hereto shall be deducted from the credit otherwise available under the Revolving Credit. In consideration of the issuance of L/C's the Company agrees to pay Harris a fee in the amount of 1% per annum (computed on the basis of a 360 day year and actual days elapsed) of the face amount for any documentary trade letter of credit issued hereunder, payable on the date of issuance of an L/C hereunder and on the date of each extension, if any, of the expiry date of each L/C. Section 1.6. Reimbursement Obligation. The Company and each Qualified Subsidiary for whose account an L/C is issued hereunder are obligated pursuant to the relevant L/C Agreement, and the Company hereby unconditionally agrees, to pay in immediately available funds to the Agent for the account of Harris the face amount of (i) each B/A created by Harris hereunder not later than 11:00 A.M. (Chicago Time) on the maturity date of such B/A, and (ii) each draft drawn and presented under an L/C issued by Harris hereunder (the obligation of the Company under this Section 1.6 with respect to any B/A or L/C is a "Reimbursement Obligation" ). If at any time the Company or a Qualified Subsidiary fails to pay any Reimbursement Obligation when due, the Company shall be deemed to have automatically requested a Domestic Rate Loan from the Banks hereunder, as of the maturity date of such Reimbursement Obligation, the proceeds of which Loan shall be used to repay such Reimbursement Obligation. Such Loan shall only be made if no Potential Default or Event of Default shall exist and upon approval by the Banks, and shall be subject to availability under the Revolving Credit. If such Loan is not made by the Banks for any reason, the unpaid amount of such Reimbursement Obligation shall be due and payable to Harris upon demand and shall bear interest at the rate of interest specified in Section 1.3(c) hereof. " Section 1.4. Section 1.8 of the Credit Agreement shall be amended to read as follows: "Section 1.8. Participation in B/A's and L/C's. Each of the Banks will acquire a risk participation in each B/A upon the creation thereof and in each L/C upon the issuance thereof, provided that, which respect to the Noble-Bear L/C, Credit Agricole will be deemed to have acquired a risk participation therein upon the execution and delivery hereof by the Company and the Banks. In the event any Reimbursement Obligation is not immediately paid pursuant to the relevant L/C Agreement and Section 1.6 hereof, each Bank will pay to Harris funds in an amount equal to such Bank's ratable share of the unpaid amount of such Reimbursement Obligation (based upon its proportionate share relative to its percentage of the Revolving Credit (as set forth in Section 1.1 hereof)). At the election of the Banks, such funding by the Banks of the unpaid Reimbursement Obligations shall be treated as additional Loans to the Company hereunder - -2- 3 rather than a purchase of participations by the Banks in the related B/A's and L/C's held by Harris. The availability of funds to the Company under the Revolving Credit shall be reduced in an amount equal to any such B/A or L/C which shall be treated as an additional Domestic Rate Loan for purposes of determining the amount of credit available hereunder. The obligation of the Banks to Harris under this Section 1.8 shall be absolute and unconditional and shall not be affected or impaired by any Event of Default or Potential Default which may then be continuing hereunder. Harris shall notify each Bank by telephone of its proportionate share relative to its percentage of the total Banks' Commitments set forth in Section 1.1 hereof (a "Commitment Percentage") of such unpaid Reimbursement Obligation. If such notice has been given to each Bank by 12:00 Noon, Chicago time, each Bank agrees to put Harris in immediately available and freely transferable funds on the same Business Day. Funds shall be so made available at the account designated by Harris in such notice to the Banks. Upon the election by the Banks to treat such funding as additional Loans hereunder and payment by each Bank, such Loans shall bear interest in accordance with Section 1.3(a) hereof. Harris shall share with each Bank on a pro rata basis relative to its Commitment Percentage a portion of any B/A commission and any L/C commission fee payable by the Company and any Qualified Subsidiary. Any such fee shall be promptly remitted to the Banks when and as received by Harris." Section 1.5. Section 4.6(iv) of the Credit Agreement shall be amended to read as follows: " (iv) 60% of the value of Net Eligible Inventory of the Company and all other Qualified Subsidiaries except Calgene Fresh, Inc.;". Section 1.6. Section 7.8 of the Credit Agreement shall be amended to read as follows: "Section 7.8. Net Working Capital. The Company will maintain at all times Net Working Capital in an amount not less than (a) $10,000,000 at all times during each of two periods (which may not be consecutive) of up to 60 consecutive days in each year, selected by the Company, and (b) $13,000,000 at all other times." Section 1.7. Section 7.10 of the Credit Agreement shall be amended to read as follows: "Section 7.10. Current Ratio. The Company will at all times maintain the ratio of current assets of the Company and its Subsidiaries to the current liabilities of the Company and its Subsidiaries (each determined in accordance with general accepted accounting principles, consistently applied) of not less than (a) 1.3 to 1 at all times during each of two periods (which may not be consecutive) of up to 60 consecutive days in each year, selected by the Company, and (b) 1.5 to 1 at all other times. Section 1.8. Exhibit A to the Credit Agreement and the Revolving Note of the Company payable to the order of Harris Trust and Savings Bank (the "Note") shall each be amended by -3- 4 deleting the date "January 31, 1995" appearing twice in the first paragraph therein and inserting in lieu thereof the date "January 31, 1996". Section 1.9. Exhibit D to the Credit Agreement shall be replaced by Exhibit D attached hereto. Section 1.10. Harris Trust and Savings Bank shall type the following legend on its Note: "This Note has been amended pursuant to the terms of a Fifth Amendment to Secured Revolving Credit Agreement and Secured Revolving Credit Note dated as of , 1995, including an extension of the maturity date hereof, to which reference is hereby made for a statement of terms thereof." SECTION 2. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject to the satisfaction of all of the following conditions precedent: Section 2.1. The Company and the Bank shall have executed this Amendment (such execution may be in several counterparts and the several parties hereto may execute on separate counterparts). Section 2.2. Each of the representations and warranties set forth in Section 5 of the Credit Agreement shall be true and correct. Section 2.3. The Company shall be in full compliance with all of the terms and conditions of the Credit Agreement and no Event of Default or Potential Default shall have occurred and be continuing thereunder or shall result after giving effect to this Amendment. Section 2.4. All legal matters incident to the execution and delivery hereof and the instruments and documents contemplated hereby shall be satisfactory to the Bank. Section 2.5. The Bank shall have received copies (executed or certified as may be appropriate) of all legal documents or proceedings taken in connection with the execution and delivery of this Amendment, all other instruments and documents contemplated hereby and an opinion of Downey, Brand, Seymour & Rohwer, counsel to the Company, in the form attached hereto as Exhibit A. SECTION 3. REPRESENTATIONS . In order to induce the Bank to execute and deliver this Amendment, the Company hereby represents to the Bank that as of the date hereof, each of the representations and warranties set forth in Section 5 of the Credit Agreement are and shall be and remain true and correct (except that the representations contained in Section 5.2 shall be deemed to refer to the most recent financial statements of the Company delivered to the Bank) and the Company is in full compliance with all of the terms and conditions of the Credit Agreement and no Default or Event of Default has occurred and is continuing thereunder or shall result after giving effect to this Amendment. SECTION 4. MISCELLANEOUS. -4- 5 Section 4.1. The Company has heretofore executed and delivered to the Agent that certain Security Agreement Re: Inventory and Receivables and various separate Pledge and Security Agreements, each dated as of April 26, 1990 (the "Security Documents") and the Company hereby agrees that notwithstanding the execution and delivery of this Amendment, the Security Documents shall be and remain in full force and effect and that any rights and remedies of the Agent thereunder, obligations of the Company thereunder and any liens and security interests created or provided for thereunder shall be and remain in full force and effect and shall not be affected, impaired or discharged thereby. Nothing herein contained shall in any manner affect or impair the priority of the liens and security interests created and provided for by the Security Documents as to the indebtedness which would be secured thereby prior to giving effect to this Amendment. Section 4.2. The Company agrees to pay on demand all costs and expenses of or incurred by the Bank in connection with the negotiation, preparation, execution and delivery of this Amendment, including the fees and expenses of counsel for the Bank. Section 4.3. Except as specifically amended herein the Credit Agreement and the Note shall continue in full force and effect in accordance with their original terms. Reference to this specific Amendment need not be made in any note, document, letter, certificate, the Credit Agreement itself, the Note, or any communication issued or made pursuant to or with respect to the Credit Agreement or the Note, any reference to the Credit Agreement or Note being sufficient to refer to the Credit Agreement as amended hereby. Section 4.4. This Amendment may be executed in any number of counterparts, and by the different parties on different counterparts, all of which taken together shall constitute one and the same agreement. Any of the parties hereto may execute this Amendment by signing any such counterpart and each of such counterparts shall for all purposes be deemed to be an original. This Amendment shall be governed by the internal laws of the State of Illinois. Dated as of March 15, 1995. CALGENE, INC. By /c/ Mike Motroni ------------------------- Its Vice President -5- 6 Accepted as of the date last written above. HARRIS TRUST AND SAVINGS BANK By /c/ Pamela M. Greanias ------------------------- Its Vice President -6- EX-10.80F 5 6TH AMENDMENT TO SECURED REVOLVING CREDIT AGMT 1 CALGENE, INC. SIXTH AMENDMENT TO SECURED REVOLVING CREDIT AGREEMENT AND WAIVER Harris Trust and Savings Bank Chicago, Illinois Ladies and Gentlemen: Reference is hereby made to that certain Secured Revolving Credit Agreement dated as of April 26, 1990, as amended (the "Credit Agreement") originally among the undersigned, CALGENE, INC., a Delaware corporation (the "Company"), Harris Trust and Savings Bank (the "Bank") and Caisse Nationale de Credit Agricole, acting through its Grand Cayman Branch ("Credit Agricole") and Harris Trust and Savings Bank as agent thereunder (the "Agent"). All defined terms used herein shall have the same meaning as in the Credit Agreement unless otherwise defined herein. The Bank has extended a revolving credit facility to the Company on the terms and conditions set forth in the Credit Agreement. Credit Agricole has assigned to Harris, and Harris has assumed all of Credit Agricole's rights and obligations under the Credit Agreement. The Company and Harris now wish to amend certain terms of the Credit Agreement, all in the manner and on the terms and conditions set forth in this Amendment. SECTION 1. AMENDMENTS. Upon satisfaction of all the conditions precedent set forth in Section 3 hereof, the Credit Agreement shall be amended as follows: Section 1.1. Section 7.9 of the Credit Agreement shall be amended to read as follows: "Section 7.9. Tangible Net Worth. The Company will at all times maintain the sum of its Tangible Net Worth and the aggregate outstanding principal amount of all of its subordinated debt (being indebtedness for borrowed money of the Company that is subject and subordinate in right of payment to the prior payment in full of all of the Company's indebtedness, obligations and liabilities to the Agent and the Banks under the Loan Documents) in an amount not less than $24,500,000." 2. WAIVER. Upon satisfaction of the conditions precedent set forth in Section 3 hereof: Section 2.1. The Banks hereby waive non-compliance by the Company with Sections 7.8, 7.9 and 7.10 of the Credit Agreement during the period from May 1, 1995 through the effective date of this Amendment. 2 Section 2.2. The waiver contained in Section 2.1 of this Amendment is limited to matters set forth in that Section, and the Company agrees that it remains obligated to comply with the terms of the Credit Agreement and the other Loan Documents, including Sections 7.8, 7.9 and 7.10 of the Credit Agreement, and that the Banks shall not be obligated in the future to waive any provision of the Credit Agreement or the other Loan Documents. SECTION 3. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject to the satisfaction of all of the following conditions precedent: Section 3.1. The Company and the Banks shall have executed this Amendment (such execution may be in several counterparts and the several parties hereto may execute on separate counterparts). Section 3.2. Each of the representations and warranties set forth in Section 5 of the Credit Agreement shall be true and correct. Section 3.3. The Company shall be in full compliance with all of the terms and conditions of the Credit Agreement and no Event of Default or Potential Default shall have occurred and be continuing thereunder or shall result after giving effect to this Amendment, except in each case for any non-compliance, Event of Default or Potential Default that is cured by the waiver contained in Section 2.1 of this Amendment. 4. REPRESENTATIONS. In order to induce the Bank to execute and deliver this Amendment, the Company hereby represents to the Bank that as of the date hereof, each of the representations and warranties set forth in Section 5 of the Credit Agreement are and shall be and remain true and correct (except that the representations contained in Section 5.2 shall be deemed to refer to the most recent financial statements of the Company delivered to the Bank) and the Company is in full compliance with all of the terms and conditions of the Credit Agreement and no Default or Event of Default has occurred and is continuing thereunder or shall result after giving effect to this Amendment, except in each case for any non-compliance, Event of Default or Potential Default that is cured by the waiver contained in Section 2.1 of this Amendment. 5. MISCELLANEOUS. Section 5.1. The Company has heretofore executed and delivered to the Agent that certain Security Agreement Re: Inventory and Receivables and various separate Pledge and Security Agreements, each dated as of April 26, 1990 (the "Security Documents") and the Company hereby agrees that notwithstanding the execution and delivery of this Amendment, the Security Documents shall be and remain in full force and effect and that any rights and remedies of the Agent thereunder, obligations of the Company thereunder and any liens and security interests created or provided for thereunder shall be and remain in full force and effect and shall not be affected, impaired or discharged thereby. Nothing herein contained shall in any manner affect or impair the priority of the liens and security interests created and provided for by the Security Documents as to the indebtedness which would be secured thereby prior to giving effect to this Amendment. -2- 3 Section 5.2. The Company agrees to pay on demand all costs and expenses of or incurred by the Bank in connection with the negotiation, preparation, execution and delivery of this Amendment, including the fees and expenses of counsel for the Bank. Section 5.3. Except as specifically amended herein the Credit Agreement and the Note shall continue in full force and effect in accordance with their original terms. Reference to this specific Amendment need not be made in any note, document, letter, certificate, the Credit Agreement itself, the Note, or any communication issued or made pursuant to or with respect to the Credit Agreement or the Note, any reference to the Credit Agreement or Note being sufficient to refer to the Credit Agreement as amended hereby. Section 5.4. This Amendment may be executed in any number of counterparts, and by the different parties on different counterparts, all of which taken together shall constitute one and the same agreement. Any of the parties hereto may execute this Amendment by signing any such counterpart and each of such counterparts shall for all purposes be deemed to be an original. This Amendment shall be governed by the internal laws of the State of Illinois. Dated as of August 8, 1995. CALGENE, INC. By /c/ Mike Motroni ------------------------- Its Vice President, Finance -3- 4 Accepted as of the date last written above. HARRIS TRUST AND SAVINGS BANK By /c/ Pamela M. Greanias ------------------------- Its Vice President -4- EX-23.2 6 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement listed below of our report dated August 18, 1995, with respect to the consolidated financial statements and schedules of Calgene, Inc. included in the Annual Report (Form 10-K) for the year ended June 30, 1995: Form S-8 Nos. 33-10308, 33-20670, and 33-32975 pertaining to the 1981 Stock Option Plan of Calgene, Inc. For S-8 No. 33-34203 pertaining to the 1990 Employee Stock Purchase Plan of Calgene, Inc. Form S-8 Nos. 33-79232, 33-44146 and 33-85392 pertaining to the 1991 Stock Option Plan of Calgene, Inc. Form S-3 No. 33-79000 ERNST & YOUNG, LLP Sacramento, California September 26, 1995 -----END PRIVACY-ENHANCED MESSAGE-----