EXECUTION COPY
This AMENDED AND RESTATED EXCHANGE AGREEMENT (amending and
restating in its entirety the Exchange Agreement, dated as of July 1, 2002 (the
"Old Exchange Agreement")) dated as of May 30, 2003 (this "Agreement") is made
and entered into by and between Seminis, Inc., a Delaware corporation
("Seminis"), and Savia, S.A. de C.V., a Mexican corporation ("Savia").
WHEREAS, Seminis and Savia have not completed the transactions
contemplated under the Old Exchange Agreement, and Seminis and Savia have agreed
to amend and restate the Old Exchange Agreement;
WHEREAS, on July 2, 2002, Savia (a) owned 12,018 shares of
Class C Redeemable PIK Preferred Stock, par value $.01 per share, of Seminis
(the "Class C Preferred Stock") with a liquidation value of $120,181,364 and (b)
had contributed to Seminis $46,695,372 of additional capital contributions,
including accrued in kind obligations thereon ( the "APIC");
WHEREAS, by resolution of the Board of Directors of Seminis,
on July 16, 2002, the APIC was determined to have the legal and economic rights
equivalent in all respects to the Class C Preferred Stock;
WHEREAS, in accordance with such resolution, on December 31,
2002, Seminis issued 4,669.5372 additional shares of Class C Preferred Stock
(the "Additional Shares") to evidence the interests previously reflected as
APIC;
WHEREAS, the interest accrued on the APIC between January 1,
2001 until December 31, 2002 has been treated as a cash obligation of Seminis
(the "Cash Obligation");
WHEREAS, Seminis has entered into an Agreement and Plan of
Merger by and among Seminis, Seminis Acquisition LLC and Seminis Merger Corp.
(the "Merger Agreement"), pursuant to which Seminis Merger Corp. will merge with
and into Seminis (the "Merger") with Seminis as the surviving corporation in the
Merger and in connection thereunder, Seminis desires to recapitalize (a) all of
the issued and outstanding shares of Class C Preferred Stock, (b) the accrued
and unpaid dividends on the Class C Preferred Stock through the date of the
Exchange (as defined below), other than $15,000,000 of such accrued and unpaid
dividends, to be paid by the Cash Payment (as defined below), (the "Dividends"),
and (c) the Cash Obligation;
WHEREAS, Savia has agreed, in connection with the Merger and
related transactions, to exchange all of the issued and outstanding shares of
Class C Preferred Stock, the Cash Obligation and the Dividends for 37,669,480
shares of Class A Common Stock, par value $.01 per share, of Seminis (the "Class
A Common Stock") and a payment equal to (i) $15,000,000 plus (ii) Interest from
July 1, 2002 until the date of payment minus (iii) $3,000,000 (the "Cash
Payment").
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
EXCHANGE AND CLOSING
1.01 Exchange. Savia and Seminis hereby agree to exchange all
of the right, title and interest of Savia in and to 16,688 shares of Class C
Preferred Stock, the Cash Obligation and the Dividends, and any other rights or
claims with respect to any of the foregoing through the effective time of the
Merger, for 37,669,480 shares of Class A Common Stock (the "Seminis Shares") and
the Cash Payment (the "Exchange"), on the terms and subject to the conditions
set forth in Section 2.01.
1.02 Closing. The Closing will take place at the offices of
Seminis, 2700 Camino del Sol, Oxnard, California 93030, or at such other place
as Seminis and Savia mutually agree, immediately prior to the Merger.
ARTICLE II
EXCHANGE OF SHARES AND PAYMENTS
2.01 Exchange of Shares.
(a) At the Closing, Seminis will deliver to Savia a
certificate or certificates representing the Seminis Shares, registered
in the name of Savia, and
(b) At the Closing, Savia will assign and transfer to
Seminis all of Savia's right, title and interest in and to 16,688
shares of Class C Preferred Stock, the Cash Obligation and the
Dividends by delivering to Seminis (i) a certificate or certificates
representing the 16,688 shares of Class C Preferred Stock, in genuine
and unaltered form, duly endorsed in blank or accompanied by duly
executed stock powers endorsed in blank, with requisite stock transfer
tax stamps, if any, attached, and (ii) an acknowledgement that the Cash
Obligation, the Dividends and any other rights or claims with respect
to the Class C Preferred Stock, Cash Obligation or Dividends through
the effective time of the Merger have been fully satisfied as part of
the delivery of the Seminis Shares.
2.02 Payment of Cash Payment. At the Closing, Seminis will
pay to Savia the Cash Payment.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SAVIA
Savia hereby represents and warrants to Seminis as follows:
3.01 Organization of Savia. Savia is a corporation duly
organized, validly existing and in good standing under the laws of the United
Mexican States. Savia has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby, including, without limitation,
to own, hold, exchange and transfer the 16,688 shares of Class C Preferred
Stock, the Cash Obligation and the Dividends.
3.02 Title to Class C Preferred Stock. Savia owns 16,688
shares of Class C Preferred Stock, beneficially and of record, free and clear of
all liens, except for the lien under the Pledge and Security Agreement dated as
of June 27, 2001 between Savia and JP Morgan Chase Bank (formerly known as The
Chase Manhattan Bank), as collateral agent (the "Pledge Agreement"). At or prior
to the Closing, Savia will provide to Seminis a copy of all documentation
evidencing the release of the 16,688 shares of Class C Preferred Stock from the
lien pursuant to the Pledge Agreement, and upon such release, Savia shall have
the right to transfer the 16,688 shares of Class C Preferred Stock free and
clear of all liens. The delivery of a certificate or certificates at the Closing
representing the shares of Class C Preferred Stock in the manner provided in
Section 2.01(b) will transfer to Seminis good and valid title to the shares of
Class C Preferred Stock, free and clear of all liens. Upon the Closing, Seminis
shall acquire all of Savia's right, title and interest in and to the Cash
Obligation and Dividends free and clear of all liens.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SEMINIS
Seminis hereby represents and warrants to Savia as follows:
4.01 Organization. Seminis is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Seminis has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby.
4.02 Class A Common Stock. Upon issuance and delivery of the
Seminis Shares in accordance with this Agreement, the Seminis Shares will be
duly authorized, validly issued, fully paid and nonassessable.
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ARTICLE V
COVENANTS OF SAVIA
Savia covenants and agrees with Seminis that, at all times
from and after the date hereof until the Closing, Savia will not sell, dispose,
or otherwise transfer, or incur any lien or other interest on, the 16,688 shares
of Class C Preferred Stock, the Cash Obligation or the Dividends, other than
pursuant to the Pledge Agreement. Savia will comply with all covenants and
provisions of this Article V, except to the extent Seminis may otherwise consent
in writing.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF SEMINIS AND SAVIA
The obligations of Seminis hereunder to deliver the Seminis
Shares and the Cash Payment and the obligations of Savia hereunder to exchange
the 16,688 shares of Class C Preferred Stock, the Cash Obligation and the
Dividends are subject to the consummation of the Merger. Such conditions may be
waived in whole or in part by Seminis and Savia.
ARTICLE VII
TERMINATION
7.01 Termination. This Agreement may be terminated, and the
transactions contemplated herein may be abandoned:
(a) at any time before the Closing, by mutual written
agreement of Savia, Seminis and Fox Paine Seminis Holdings, LLC
("FPSH");
(b) at any time, by either party upon termination of the
Merger Agreement; or
(c) by either party, if the Closing has not occurred on
or before the six-month anniversary of the date hereof.
7.02 Effect of Termination. If this Agreement is validly
terminated pursuant to Section 7.01, this Agreement will forthwith become null
and void, and there will be no liability or obligation on the part of Savia or
Seminis (or any of their respective officers, directors, employees, agents or
other representatives or affiliates) pursuant hereto.
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ARTICLE VIII
DEFINITIONS
8.01 Definitions. As used in this Agreement, the following
defined terms have the meanings indicated below:
"Closing" means the closing of the transactions contemplated
by Article II.
"Interest" means a rate of interest of 10% per year,
compounded quarterly.
ARTICLE IX
MISCELLANEOUS
9.01 Notices. All notices and other communications in
connection with this Agreement must be in writing and given by hand delivery,
airmail (postage prepaid) or telex or facsimile transmission, in each case
addressed as specified below or in any subsequent notice from the intended
recipient to the party sending the notice. Such notices and communications will
be effective upon delivery if delivered by hand, upon receipt if sent by mail,
upon transmission with answerback confirmed if sent by telex or upon receipt if
sent by facsimile transmission.
If to Seminis, to:
Seminis, Inc.
2700 Camino del Sol
Oxnard, California 93030
Facsimile No.: 805-918-2553
Attn: Enrique Osorio
With copies to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Facsimile No.: 212-735-2000
Attn: Peter A. Atkins, Esq.
David J. Friedman, Esq.
If to Savia, to:
Savia, S.A. de C.V.
Rio Sena No. 500 Pte.
Col. Del Valle
Entre Humberto Lobo y Tamesis
San Pedro Garza Garcia, Nuevo Leon 66220
Mexico
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Facsimile No.: 011 528181735508
Attn: Francisco Garza
With copies to:
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
Facsimile No.: 212-822-5530
Attn: Howard S. Kelberg, Esq.
Fox Paine & Company, LLC
950 Tower Lane, Suite 1150
Foster City, California 94404
Facsimile No.: 650-525-1396
Attn: W. Dexter Paine, III
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Facsimile No. 212-403-2000
Attn: Mitchell S. Presser, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
9.02 Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
9.03 Expenses. Except as otherwise expressly provided in this
Agreement (including, without limitation, as provided in Section 7.02), whether
or not the transactions contemplated hereby are consummated, each party will pay
its own costs and expenses.
9.04 Waiver. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the
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party waiving such term or condition. No waiver by any party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to be
or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement or
by law or otherwise afforded, will be cumulative and not alternative.
9.05 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto provided, however, that any amendment that would prevent, delay or
alter the terms of the Merger, shall require the written consent of FPSH (such
consent not to be unreasonably withheld or delayed).
9.06 Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
9.07 Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (a) such provision will be
fully severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
and (c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
9.08 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to a
contract executed and performed in the State of Delaware, without giving effect
to the conflicts of laws principles thereof.
9.09 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first written above.
SAVIA, S.A. DE C.V.
/s/ Bernardo Jimenez
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Name: Bernardo Jimenez
Title: Attorney in Fact
SEMINIS, INC.
/s/ Gaspar Alvarez
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Name: Gaspar Alvarez
Title: VPWW Corporate Comptroller
/s/ Enrique Osorio
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Name: Enrique Osorio
Title: Treasurer Vice President