EXECUTION COPY
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CONTRIBUTION AGREEMENT
dated as of May 30, 2003
by and among
SEMINIS ACQUISITION LLC,
SAVIA, S.A. DE C.V.,
BANCA AFIRME, S.A., INSTITUCION DE BANCA MULTIPLE,
AFIRME GRUPO FINANCIERO, AS TRUSTEE, UNDER
THE IRREVOCABLE ADMINISTRATION AND PAYMENT TRUST NUMBER 167-5
(FIDEICOMISO IRREVOCABLE DE ADMINISTRACION Y PAGO NUMERO 167-5)
CONJUNTO ADMINISTRATIVO INTEGRAL, S.A. DE C.V.,
DESARROLLO CONSOLIDADO DE NEGOCIOS, S.A. DE C.V.,
EMPRIMA, S.A. DE C.V.,
PARK FINANCIAL GROUP, LTD (BVI),
ALFONSO ROMO GARZA,
AND
CERTAIN MEMBERS OF SEMINIS
AND SAVIA MANAGEMENT
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TABLE OF CONTENTS
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ARTICLE I CERTAIN DEFINITIONS...................................................................... 3
ARTICLE II THE CONTRIBUTION......................................................................... 8
Section 2.1. The Closing......................................................................... 8
Section 2.2. Contribution........................................................................ 8
Section 2.3. Delivery of Contribution Shares..................................................... 8
Section 2.4. Distribution of Parent Assets....................................................... 9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT................................................. 9
Section 3.1 Organization........................................................................ 9
Section 3.2. Authority........................................................................... 9
Section 3.3. Consents and Approvals; No Violations............................................... 10
Section 3.4. Membership Interests................................................................ 10
Section 3.5. Capitalization...................................................................... 10
Section 3.6. Brokers............................................................................. 11
Section 3.7. Acknowledgment...................................................................... 11
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS, MR. ROMO, EMPRIMA AND MEXICAN
SPC...................................................................................... 11
Section 4.1. Representations and Warranties with Respect to the Contribution Shares.............. 11
Section 4.2. Representations and Warranties of Savia............................................. 14
Section 4.3. Representations and Warranties with Respect to the Restructurings................... 15
ARTICLE V COVENANTS................................................................................ 16
Section 5.1. Pre-Closing Conduct................................................................. 16
Section 5.2. Further Assurances.................................................................. 17
Section 5.3. Notification of Certain Matters..................................................... 17
Section 5.4. Public Announcements................................................................ 17
Section 5.5. Additional Agreements, Reasonable Best Efforts...................................... 18
ARTICLE VI CONDITIONS TO CONSUMMATION OF THE CONTRIBUTION........................................... 19
ARTICLE VII TERMINATION; AMENDMENT; WAIVER........................................................... 19
Section 7.1. Termination......................................................................... 19
Section 7.2. Effect of Termination............................................................... 19
Section 7.3. Fees and Expenses................................................................... 19
Section 7.4. Amendment........................................................................... 19
Section 7.5. Waiver.............................................................................. 20
Section 7.6. Survival............................................................................ 20
Section 7.7. Indemnification by Management Contributors.......................................... 20
Section 7.8. Sole Remedy......................................................................... 20
ARTICLE VIII MISCELLANEOUS............................................................................ 21
Section 8.1. Entire Agreement; Assignment........................................................ 21
Section 8.2. Severability........................................................................ 21
Section 8.3. Notices............................................................................. 21
Section 8.4. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial........................ 23
Section 8.5. Specific Performance................................................................ 24
Section 8.6. Interpretation...................................................................... 24
Section 8.7. Parties in Interest................................................................. 24
Section 8.8. Counterparts........................................................................ 25
Exhibit A Management Contributors
Exhibit B Form of Stock Purchase Agreement for Additional Purchasers
Exhibit C Amended and Restated Limited Liability
Company Agreement of Seminis Acquisition LLC
Exhibit D Legal Opinion of Milbank, Tweed, Hadley & McCloy LLP
Exhibit E Legal Opinion of Mancera Ernst & Young
Contributors Disclosure Schedule
Parent Disclosure Schedule
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT, dated as of May 30, 2003 (this
"Agreement"), is made by and among SEMINIS ACQUISITION LLC, a Delaware limited
liability company ("Parent"), SAVIA, S.A. DE C.V., a corporation (sociedad
anonima de capital variable) organized under the laws of the United Mexican
States ("Savia"), BANCA AFIRME, S.A., INSTITUCION DE BANCA MULTIPLE, AFIRME
GRUPO FINANCIERO, AS TRUSTEE, UNDER THE IRREVOCABLE ADMINISTRATION AND PAYMENT
TRUST number 167-5 (FIDEICOMISO IRREVOCABLE DE ADMINISTRACION Y PAGO NUMERO
167-5), a trust created under the laws of the United Mexican States ("ARG
Trust"), CONJUNTO ADMINISTRATIVO INTEGRAL, S.A. DE C.V., a corporation (sociedad
anonima de capital variable) organized under the laws of the United Mexican
States ("CAI"), DESARROLLO CONSOLIDADO DE NEGOCIOS, S.A. DE C.V., a corporation
(sociedad anonima de capital variable) organized under the laws of the United
Mexican States ("Mexican SPC"), EMPRIMA, S.A. DE C.V., a corporation (sociedad
anonima de capital variable) organized under the laws of the United Mexican
States ("Emprima"), PARK FINANCIAL GROUP, LTD (BVI) a British Virgin Islands
Company ("Park"), ALFONSO ROMO GARZA, an individual and a citizen of the United
Mexican States ("Mr. Romo") and CERTAIN MEMBERS OF SEMINIS, INC. AND SAVIA
MANAGEMENT as listed on Exhibit A hereto ("Management Contributors," and
together with Savia, the ARG Trust, CAI, and Park, the "Contributors").
WHEREAS, Parent, Seminis Merger Corp., a Delaware corporation
("Merger Sub"), and Seminis, Inc., a Delaware corporation (the "Company"), have
entered into an Agreement and Plan of Merger (the "Merger Agreement") of even
date herewith, pursuant to which Merger Sub will merge with and into the Company
(the "Merger") on the terms and subject to the conditions set forth therein with
the Company as the surviving corporation in the Merger;
WHEREAS, (i) Savia owns, as of the date hereof, and will own,
immediately prior to the Closing, (A) Class C Redeemable PIK Preferred Stock,
par value, $.01 per share, exchangeable into 37,669,480 shares of Class A Common
Stock, par value $.01 per share of the Company (the "Class A Common Stock") (the
"Exchange" (as defined in the Merger Agreement) is contemplated to occur after
the date hereof and prior to the Closing), and (B) 40,615,619 shares of Class B
Common Stock, par value $.01 per share of the Company (the "Class B Common
Stock," together with the Class A Common Stock, the "Old Company Common Stock")
(the 37,669,480 shares of Class A Common Stock and the 40,615,619 shares of
Class B Common Stock, taken together, the "Savia Old Company Shares"), (ii) the
ARG Trust owns, as of the date hereof, and will own, as of the Closing Date,
2,157,361 shares of Class A Common Stock and 2,207,896 shares of Class B Common
Stock (the "ARG Trust Old Company Shares"), (iii) CAI owns, as of the date
hereof, and will own, as of the Closing Date, 42,000 shares of Class A Common
Stock (the "CAI Old Company Shares"), (iv) Park owns, as of the date hereof, and
will own, as of the Closing Date, 1,000,000 shares of Class A Common Stock (the
"Park Old Company Shares"), and (v) each of the Management Contributors owns, as
of the date hereof, and will own, as of the Closing Date, the shares of Old
Company Common Stock set forth on Exhibit A (with respect to each such
Management Contributor, the "Management Old Company Shares," together with the
Savia Old Company Shares, the ARG Trust Old Company
Shares, the CAI Old Company Shares and the Park Old Company Shares, the
"Contribution Shares");
WHEREAS, on the terms and subject to the conditions contained
herein, Parent desires to acquire and (i) Savia desires to contribute its right,
title and interest in and to the Savia Old Company Shares, (ii) the ARG Trust
desires to contribute its right, title and interest in and to the ARG Trust Old
Company Shares that it will own as of the Closing Date, (iii) CAI desires to
contribute its right, title and interest in and to the CAI Old Company Shares,
(iv) Park desires to contribute its right, title and interest in and to the Park
Old Company Shares, and (v) each of the Management Contributors desires to
contribute his right, title and interest in and to his Management Old Company
Shares in exchange for membership interests in Parent (collectively, the
"Contribution");
WHEREAS, immediately prior to the time that the Merger becomes
effective under the DGCL (the "Effective Time"), Parent will own the
Contribution Shares;
WHEREAS, as of the date hereof, Merger Sub has authority to
issue (i) 1,000 shares of common stock, par value $.01 per share (the "MS Common
Stock"), 1,000 of which shares of MS Common Stock are issued and outstanding,
and (ii) 1,000 shares of preferred stock, par value $.01 per share (the "MS
Preferred Stock"), none of which shares is issued or outstanding;
WHEREAS, immediately prior to the Effective Time, Merger Sub
shall have authority to issue (i) 100,000,000 shares of MS Common Stock,
84,377,861 of which shares shall be issued and outstanding, and (ii) 1,000
shares of MS Preferred Stock, none of which shares shall be issued or
outstanding;
WHEREAS, Parent owns all of the outstanding shares of MS
Common Stock on the date hereof and will own all of the outstanding shares of MS
Common Stock immediately prior to the Effective Time;
WHEREAS, pursuant to the Merger, each share of Old Company
Common Stock owned by Parent will be cancelled and each share of MS Common Stock
will be converted into one share of common stock, par value $.01 per share of
the surviving corporation in the Merger (the "New Company Common Stock");
WHEREAS, after the Merger, on the terms and subject to the
conditions in the Stock Purchase Agreement, (i) FPSH will purchase the FPSH Sale
Shares (as defined in the Stock Purchase Agreement), (ii) the Company will
purchase 6,411,953 shares of New Company Common Stock owned by Parent and (iii)
if the ARG Option (as defined in the Stock Purchase Agreement) is exercised, the
ARG Trust will purchase 900,737 shares of New Company Common Stock owned by
Parent (collectively, the "Stock Purchase");
WHEREAS, after the closing of the Stock Purchase and the Debt
Financing (as defined in the Stock Purchase Agreement), Parent shall be
liquidated pursuant to the terms of the LLC Agreement and in such liquidation,
Parent will distribute (i) the Cash Distribution to Savia, (ii) if the ARG
Option is exercised, the right to receive the ARG Purchase Price (as defined in
the Stock Purchase Agreement) to Savia, (iii) such additional amount (the
"Additional Purchase
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Amount"), if any, to Savia, equal to (A) the aggregate number of shares of New
Company Common Stock purchased by the Additional Purchasers, multiplied by (B)
$3.40, (iv) 4,365,257 shares of New Company Common Stock to the ARG Trust, (v)
42,000 shares of New Company Common Stock to CAI, (vi) 1,000,000 shares of New
Company Common Stock to Park, (vii) an aggregate of 685,505 shares of New
Company Common Stock to the Management Contributors as set forth on Exhibit A
hereto, and (viii) all remaining assets, including shares not purchased pursuant
to the ARG Option, if any, to Savia;
WHEREAS, Parent, Mr. Romo and the Contributors desire to make
certain representations, warranties, covenants and agreements in connection with
the transactions described herein;
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, the parties
hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Additional Purchase Amount" shall have the meaning set forth
in the recitals.
"Additional Purchaser" shall mean any Person that agrees
pursuant to the form of agreement attached hereto as Exhibit B, between the date
hereof and the Closing Date, to purchase, and that purchases, on the Closing
Date, shares of New Company Common Stock from Parent, provided, however, that
the Additional Purchasers shall be comprised exclusively of bondholders of, and
derivatives holders who are now creditors of, Pulsar Internacional, S.A. de C.V.
with such bondholders entitled to purchase a maximum of 6,429,150 shares of New
Company Common Stock from Parent and such derivatives holders entitled to
purchase a maximum of 6,525,328 shares of New Company Common Stock from Parent.
"Additional Sale Shares" means the aggregate number of shares
of New Company Common Stock, if any, purchased by the Additional Purchasers,
provided, however, that in no event shall the aggregate number of Additional
Sale Shares exceed 12,954,478 shares of New Company Common Stock.
"Affiliate" means any Person that directly, or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the applicable Person.
"Agreement" shall have the meaning set forth in the preamble.
"ARG Option" shall have the meaning set forth in the recitals.
"ARG Purchase Price" shall have the meaning set forth in the
recitals.
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"ARG Trust" shall have the meaning set forth in the recitals.
"ARG Trust Old Company Shares" shall have the meaning set
forth in the recitals.
"CAI" shall have the meaning set forth in the preamble.
"CAI Old Company Shares" shall have the meaning set forth in
the recitals.
"Cash Distribution" shall mean an amount equal to (i)
$263,106,832 MINUS (ii) the product of the aggregate number of Additional Sale
Shares multiplied by $3.40.
"Class A Common Stock" shall have the meaning set forth in the
recitals.
"Class B Common Stock" shall have the meaning set forth in the
recitals.
"Closing" shall have the meaning set forth in Section 2.1.
"Closing Date" shall have the meaning set forth in Section
2.1.
"Company" shall have the meaning set forth in the recitals.
"Company Material Adverse Effect" means any event, change,
circumstance, effect or state of facts that is or is reasonably expected to be
materially adverse to (a) the business, results of operations, condition
(financial or otherwise), assets or liabilities of the Company and its
Subsidiaries, taken as a whole, or (b) the ability of the Company to consummate
any of the transactions contemplated by this Agreement and the Related
Agreements (other than the Indemnification Agreement), except to the extent that
such adverse effect results from (i) general economic conditions or changes
therein, (ii) financial or securities market fluctuations or conditions, (iii)
changes in, or events or conditions affecting, the industries or businesses in
which the Company and its Subsidiaries operate, or (iv) the announcement of the
transactions contemplated by the Merger Agreement or the Letter of Intent (as
defined in the Merger Agreement).
"Company Securities" shall have the meaning set forth in
Section 3.5.
"Contribution" shall have the meaning set forth in the
recitals.
"Contribution Shares" shall have the meaning set forth in the
recitals.
"Contributor Disclosure Schedule" means the schedule of
disclosures delivered by the Contributors to Parent together with the execution
of this Agreement.
"Contributor Material Adverse Effect" shall have the meaning
set forth in Section 4.1.
"Contributors" shall have the meaning set forth in the
preamble.
"Debt Financing" shall have the meaning set forth in the
Merger Agreement.
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"DGCL" means the General Corporation Law of the State of
Delaware.
"Effective Time" shall have the meaning set forth in the
recitals.
"Emprima" shall have the meaning set forth in the preamble.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"FPSH" means Fox Paine Seminis Holdings, LLC.
"FPSH Sale Shares" means (i) 70,972,409 shares of New Company
Common Stock minus (ii) the Additional Sale Shares.
"Governmental Entity" means any federal, state, local or
foreign court or tribunal or administrative, governmental or regulatory body,
agency or authority.
"Indebtedness" of any Person means (a) all obligations of such
Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices, and excluding
ordinary operating leases), (b) any other obligations of such Person that are
evidenced by a note, bond, debenture or similar instrument, (c) all obligations
under conditional sale or other title retention agreements relating to property
purchased, (d) capital lease or sale-leaseback obligations, (e) all liabilities
secured by any Lien on any property (other than ordinary operating leases), and
(f) any guarantee or assumption of any of the foregoing in clauses (a) through
(e) above or guaranty of minimum equity or capital or any make-whole or similar
obligation or any other guarantee of indebtedness of a third party.
"Indemnification Agreement" shall mean the Indemnification
Agreement, of even date herewith, by and among FPSH, the ARG Trust, Mexican SPC,
Desarrollo Empresarial Regiomontano, S.A. de C.V., Emprima, Park, Savia, Mr.
Romo and Parent.
"Lien" means, with respect to any asset (including any
security), any security interests, liens, claims, charges, title defects,
deficiencies or exceptions, mortgages, pledges, easements, encroachments,
restrictions on use, rights-of-way, rights of first refusal, options,
conditional sales or other title retention agreements, covenants, conditions or
other similar restrictions (including restrictions on transfer) or other
encumbrances of any nature whatsoever in respect of such asset.
"LLC Agreement" shall have the meaning set forth in Section
2.3(b).
"Management Contributors" shall have the meaning set forth in
the preamble.
"Management Old Company Shares" shall have the meaning set
forth in the recitals.
"Membership Interests" shall have the meaning set forth in
Section 2.3(b).
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"Merger" shall have the meaning set forth in the recitals.
"Merger Agreement" shall have the meaning set forth in the
recitals.
"Merger Sub" shall have the meaning set forth in the recitals.
"Mexican SPC" shall have the meaning set forth in the
preamble.
"Mr. Romo" shall have the meaning set forth in the preamble.
"MS Common Stock" shall have the meaning set forth in the
recitals.
"MS Preferred Stock" shall have the meaning set forth in the
recitals.
"New Company Common Stock" shall have the meaning set forth in
the recitals.
"Old Company Common Stock" shall have the meaning set forth in
the recitals.
"Parent" shall have the meaning set forth in the preamble.
"Parent Disclosure Schedule" means the schedule of disclosures
delivered by Parent to the Contributors together with the execution of this
Agreement.
"Parent Material Adverse Effect" means any event, change,
circumstance, effect or state of facts that is or is reasonably expected to be
materially adverse to the ability of Parent or Merger Sub to consummate the
transactions contemplated by this Agreement or the Related Agreements.
"Park" shall have the meaning set forth in the preamble.
"Park Old Company Shares" shall have the meaning set forth in
the recitals.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or "group" (as defined in the Exchange Act).
"Pre-Closing Restructuring Steps" shall mean the items
specified under the heading "Pre-Closing Restructuring Steps" in Section 4.3(c)
of the Contributor Disclosure Schedule.
"Post-Closing Restructuring Steps" shall mean the items
specified under the heading "Post-Closing Restructuring Steps" in Section 4.3(c)
of the Contributor Disclosure Schedule.
"Related Agreements" means the Merger Agreement, the Voting
Agreement, the Stock Purchase Agreement and the Indemnification Agreement.
"Related Transactions" shall mean the transactions
contemplated by the Related Agreements.
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"Restructuring Steps" shall mean the items set forth in
Section 4.3(c) of the Contributor Disclosure Schedule.
"Romo Entities" shall mean Mr. Romo, Alejandro Garza Laguerra,
Savia, the ARG Trust, Pulsar Internacional, S.A. de C.V., CAI, Desarrollo
Empresarial Regiomontano, S.A. de C.V., Mexican SPC, Emprima, Impulsora, S.A. de
C.V., Park, Servasa, S.A. de C.V. and each of their respective Affiliates, not
including the Company and its Subsidiaries.
"Romo Entity Consents" shall have the meaning set forth in
Section 4.3(c).
"Romo Entity Matters" means (a) any Indebtedness of any Romo
Entity or any liabilities related thereto, (b) any restructuring or settlement
of any Indebtedness or equity or assets of any Romo Entity or any liabilities
related thereto, (c) any sale, transfer, pledge, assignment, encumbrance or
other disposition by any Romo Entity of any shares of Company Common Stock or
New Company Common Stock or any equity securities of Savia, (d) the
Restructuring Steps (including the making and consummation of offers to purchase
shares of New Company Common Stock to Persons (other than the Management
Contributors) pursuant to any written or oral communications with, or consent
solicitations of, such Persons), and (e) any other transactions contemplated by
this Agreement.
"Savia" shall have the meaning set forth in the preamble.
"Savia Expenses" means all out-of-pocket fees and expenses
actually and reasonably incurred by Savia or on its behalf in connection with
any of the transactions contemplated by this Agreement and the Related
Agreements (including fees and expenses of accountants and legal counsel);
provided, however, that "Savia Expenses" shall not include (a) any financing
charges, (b) any charges related to any Romo Entity Matters (other than the fees
and expenses of its US counsel relating solely to the transactions contemplated
by this Agreement and the Related Agreements), or (c) the fees and expenses of
any financial advisors or investment bankers of the Romo Entities (including
Grupo Financiero Atlantico or any of its Affiliates).
"Savia Old Company Shares" shall have the meaning set forth in
the recitals.
"Stock Purchase" shall have the meaning set forth in the
recitals.
"Stock Purchase Agreement" shall mean the Stock Purchase
Agreement by and among FPSH, the ARG Trust, Parent and Merger Sub of even date
herewith.
"Stockholders' Agreement" means the Stockholders' Agreement,
to be entered into at Closing, by and among the Company and the Persons to be
listed on the signature pages thereto.
"Subsidiary" means, with respect to any Person, any other
Person, whether incorporated or unincorporated or domestic or foreign to the
United States of which (a) such first Person or any other Subsidiary of such
first Person is a general partner (excluding such partnerships where such first
Person or any Subsidiary of such first Person does not have a majority of the
voting interest in such partnership) or (b) at least a majority of the
securities or other interests
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having by their terms ordinary voting power to elect a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization is, directly or indirectly, owned or
controlled by such first Person or by any one or more of its Subsidiaries, or
by such first Person and one or more of its Subsidiaries.
"Voting Agreement" means the voting agreement, of even date
herewith, among FPSH and the other Persons party thereto pursuant to which,
among other things, each Person (other than FPSH) party thereto agrees to vote
all shares of Old Company Common Stock beneficially owned by such Person in
favor of the Merger.
ARTICLE II
THE CONTRIBUTION
Section 2.1 The Closing. The closing of the Contribution (the
"Closing") will be held at the offices of Wachtell, Lipton, Rosen & Katz, 51
West 52nd Street, New York, New York, at 10:00 a.m. New York City time (or such
other place as the parties hereto may agree) on the first business day after
satisfaction or waiver of the conditions set forth in Article VI (other than
those conditions that are to be satisfied on the Closing Date, but subject to
the satisfaction or waiver of such other conditions on the Closing Date) (the
"Closing Date").
Section 2.2 Contribution. Subject to the terms and conditions
set forth herein, at the Closing, (a) Savia shall contribute to Parent all of
Savia's right, title and interests in the Savia Old Company Shares, free and
clear of any Lien, (b) the ARG Trust shall contribute to Parent all of its
right, title and interests in the ARG Trust Old Company Shares, free and clear
of any Lien, (c) CAI shall contribute to Parent all of CAI's right, title and
interests in the CAI Old Company Shares, free and clear of any Lien, (d) Park
shall contribute to Parent all of Park's right, title and interests in the Park
Old Company Shares, free and clear of any Lien, and (e) each of the Management
Contributors shall contribute to Parent all of his right, title and interests in
his Management Old Company Shares, free and clear of any Lien.
Section 2.3 Delivery of Contribution Shares.
(a) At the Closing, (i) Savia shall deliver or cause to
be delivered to Parent one or more stock certificates representing in the
aggregate the Savia Old Company Shares, (ii) the ARG Trust shall deliver or
cause to be delivered to Parent one or more stock certificates representing in
the aggregate the ARG Trust Old Company Shares, (iii) CAI shall deliver or cause
to be delivered to Parent one or more stock certificates representing in the
aggregate the CAI Old Company Shares, (iv) Park shall deliver or cause to be
delivered to Parent one or more stock certificates representing in the aggregate
the Park Old Company Shares, and (v) each of the Management Contributors shall
deliver or cause to be delivered to Parent one or more stock certificates
representing in the aggregate his Management Old Company Shares, in each case
duly endorsed in blank for transfer or accompanied by duly executed stock powers
and all applicable stock transfer stamps and other instruments requisite to
proper transfer, all in proper form.
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(b) At the Closing, each of the Contributors and Parent
shall enter into the Amended and Restated Limited Liability Agreement of Parent
(the "LLC Agreement") substantially identical to the form set forth on Exhibit
C, which shall provide that each of the Contributors shall have a membership
interest representing such member's proportionate percentage ownership in Parent
as set forth in the LLC Agreement.
Section 2.4 Distribution of Parent Assets. Immediately after the
closing of the Merger, the Stock Purchase and the Debt Financing, Parent shall
distribute (a) all of Parent's rights, title and interests in (i) 4,365,257
shares of New Company Common Stock to the ARG Trust, (ii) 42,000 shares of New
Company Common Stock to CAI, (iii) 1,000,000 shares of New Company Common Stock
to Park, and (iv) an aggregate of 685,505 shares of New Company Common Stock to
the Management Contributors as set forth on Exhibit A hereto, and (b) to Savia
(i) by wire transfer of immediately available funds (to the account designated
by Savia in writing not less than three days prior to the closing of the Merger)
an amount equal to the Cash Distribution, (ii) if the ARG Option is exercised,
the right to receive the ARG Purchase Price, (iii) the Additional Purchase
Amount, if any, and (iv) all remaining assets, including shares of New Company
Common Stock, if any. After such distribution, Parent shall be dissolved in
accordance with the terms of the LLC Agreement and the provisions of the
Delaware Limited Liability Company Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Contributors as follows:
Section 3.1 Organization. Parent is duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate or similar power and authority to own, lease and operate
its properties and to carry on its business as now being conducted, except where
the failure to be in good standing or to have such corporate or similar power
and authority would not, in the aggregate, have a Parent Material Adverse
Effect. Parent was formed solely for the purpose of engaging in the transactions
contemplated by this Agreement, the Merger Agreement and the Stock Purchase
Agreement. Other than Parent's 100% ownership interest in Merger Sub, on the
date hereof, Parent does not own any equity, debt or similar interest in any
Person. Parent has delivered to the Contributors accurate and complete copies of
the certificate of formation and other governing documents, as currently in
effect, of Parent. Parent has not engaged in any activities, owned any assets or
been subject to any liabilities, except as is necessary to effect the Merger,
the Contribution, the Stock Purchase and the other transactions contemplated by
the Related Agreements.
Section 3.2 Authority. Parent has all necessary power and
authority to execute and deliver this Agreement and any Related Agreement to
which it is a party and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and any Related Agreement
to which it is a party and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by the sole member of
Parent and no other corporate or similar proceedings on the part of Parent is
necessary to
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authorize this Agreement or any Related Agreement to which it is a party or to
consummate the transactions contemplated hereby or thereby. This Agreement and
any Related Agreement to which it is a party have been duly and validly executed
and delivered by Parent and, assuming due and valid authorization, execution and
delivery by the other parties hereto or thereto, constitute the valid, legal and
binding agreements of Parent, enforceable against Parent in accordance with
their terms.
Section 3.3 Consents and Approvals; No Violations. Except as set
forth on Section 3.3 of the Parent Disclosure Schedule, no filing with or notice
to, and no permit, authorization, consent or approval of, any Governmental
Entity or any other Person is necessary for the execution and delivery by Parent
of this Agreement or the consummation by Parent of the transactions contemplated
by this Agreement or the Related Agreements except where the failure to obtain
such permits, authorizations, consents or approvals or to make such filings or
give such notice would not have a Parent Material Adverse Effect. Except as set
forth in Section 3.3 of the Parent Disclosure Schedule, neither the execution,
delivery and performance of this Agreement by Parent, nor the consummation by
Parent of the transactions contemplated by this Agreement and the Related
Agreements will (a) conflict with or result in any breach of any provision of
the certificate of formation of Parent or the LLC Agreement, (b) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration, or result in the creation of a Lien on any
property or asset of Parent, or trigger any rights of first refusal) under, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to which
Parent is a party or by which its respective properties or assets may be bound,
or (c) violate any order, writ, injunction, decree, law, statute, rule or
regulation applicable to Parent or its respective properties or assets, except
in the case of (b) or (c) above for violations, breaches, defaults or other
occurrences that would not, individually or in the aggregate, have a Parent
Material Adverse Effect or a Company Material Adverse Effect.
Section 3.4 Membership Interests.
(a) On the Closing Date, the Membership Interests to be
issued pursuant to the transactions contemplated hereby will be duly authorized
and validly issued, fully paid and nonassessable and Parent will transfer to
each of the Contributors good and valid title to such Contributor's Membership
Interests free and clear of any Lien.
(b) The shares of New Company Common Stock to be
distributed pursuant Section 2.4 hereof will be duly authorized and validly
issued, fully paid and non-assessable and Parent will transfer to each of the
Contributors good and valid title to such shares of New Company Common Stock
free and clear of any Lien.
Section 3.5 Capitalization. Immediately following the Effective
Time and immediately prior to the closing of the Stock Purchase, the authorized
capital stock of the Company shall consist of (i) 200,000,000 shares of New
Company Common Stock, 84,377,861 shares of which shall be issued and outstanding
and owned exclusively by Parent, and (ii) 5,000,000 shares of Company Preferred
Stock, (A) 25,000 shares of which shall be designated as shares of Company Class
A Preferred Stock, none of which shall be issued or outstanding, and (B) 25,000
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shares of which shall be designated as shares of Company Class B Preferred
Stock, 25,000 shares of which shall be issued and outstanding. Except (w) as set
forth in the preceding sentence, (x) the options to purchase shares of New
Company Common Stock granted under the Amended and Restated Seminis, Inc. 1998
Stock Option Plan which are or become Retained Options (as defined in the Merger
Agreement) in accordance with any agreements among Parent, FPSH and any
individual owning such Retained Options (as defined in the Merger Agreement),
(y) as contemplated by this Agreement, and (z) as provided in the employment
agreements and letter agreements set forth in Section 3.5 of the Parent
Disclosure Schedule, immediately following the Effective Time and immediately
prior to the closing of the Stock Purchase, there will be no outstanding (i)
shares of capital stock or other voting securities of the Company, (ii)
securities of the Company convertible into or exchangeable for shares of capital
stock or voting securities of the Company, (iii) options or other rights to
acquire from the Company, or obligations of the Company to issue or sell, any
capital stock, voting securities or securities convertible into or exchangeable
for capital stock or voting securities of the Company, or (iv) equity
equivalents, interests in the ownership or earnings of the Company or other
similar rights (collectively, "Company Securities"). Other than pursuant to this
Agreement and the Related Agreements (including the Stockholders' Agreement to
be executed at the closing of the Stock Purchase), there are no outstanding
obligations of the Company to repurchase, redeem or otherwise acquire any
Company Securities.
Section 3.6 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Parent.
Section 3.7 Acknowledgment. Parent hereby acknowledges that (i)
FPSH is relying upon the representations, warranties and covenants of Parent
contained in this Agreement in connection with FPSH entering into the Stock
Purchase Agreement, and (ii) FPSH shall be entitled to rely upon and enforce
such representations, warranties and covenants as provided in this Agreement and
in the Indemnification Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS, MR. ROMO,
EMPRIMA AND MEXICAN SPC
Section 4.1 Representations and Warranties with Respect to the
Contribution Shares. Each of the Contributors, Emprima, Mexican SPC and Mr.
Romo, severally and not jointly, hereby represents and warrants to Parent with
respect to itself or himself as set forth below:
(a) Organization. Other than as set forth in Section
4.1(a) of the Contributor Disclosure Schedule with respect to the good standing
of CAI, such Contributor (other than the Management Contributors) and Mexican
SPC is duly organized, validly existing and in good standing under the laws of
its respective jurisdiction of incorporation or formation and has all requisite
corporate or similar power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, except where the
failure to be in good standing or
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to have such corporate or similar power and authority would not have a
Contributor Material Adverse Effect. The ARG Trust is duly created under the
laws of the United Mexican States and has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be in good standing or to have such
corporate or similar power and authority would not have a Contributor Material
Adverse Effect. The term "Contributor Material Adverse Effect" means any event,
change, circumstance or effect that is or is reasonably expected to be
materially adverse to the ability of such Contributor (or in the case of Mr.
Romo, Emprima, or Mexican SPC, such Person) to consummate the transactions
contemplated by this Agreement.
(b) Authority. Such Contributor, Mr. Romo, Emprima and
Mexican SPC has all necessary power and authority to execute and deliver this
Agreement and any Related Agreement to which it is a party and to consummate the
transactions contemplated hereby or thereby. The execution and delivery of this
Agreement and any Related Agreement to which it is a party and the consummation
of the transactions contemplated hereby or thereby have been duly and validly
authorized by the board of directors (or other governing body) and stockholders
or beneficiaries, if necessary, of such Contributor (other than the ARG Trust
and the Management Contributors) and Mexican SPC and the technical committee of
the ARG Trust, and except as set forth in Section 4.1(b) of the Contributor
Disclosure Schedule, no other corporate or similar proceedings on the part of
such Contributor, Mr. Romo, Emprima or Mexican SPC is necessary to authorize
this Agreement or any Related Agreement to which it is a party or to consummate
the transactions contemplated hereby or thereby. This Agreement and any Related
Agreement to which it is a party have been duly and validly executed and
delivered by such Contributor, Mr. Romo, Emprima and Mexican SPC and, assuming
due and valid authorization, execution and delivery by the other parties hereto
and thereto, constitute valid, legal and binding agreements of such Contributor,
Mr. Romo, Emprima and Mexican SPC, enforceable against such Contributor, Mr.
Romo, Emprima and Mexican SPC in accordance with their terms.
(c) Consents and Approvals; No Violations. Except as set
forth in Section 4.1(c) or (d) of the Contributor Disclosure Schedule, no filing
with or notice to, and no permit, authorization, consent or approval of, any
Governmental Entity or any other Person is necessary for the execution and
delivery by such Contributor, Mr. Romo, Emprima or Mexican SPC of this Agreement
or any Related Agreement to which it is a party or the consummation by such
Contributor, Mr. Romo, Emprima or Mexican SPC of the transactions contemplated
by this Agreement, the Related Agreements or the Restructuring Steps, except
where the failure to obtain such permits, authorizations, consents or approvals
or to make such filings or give such notice would not have a Contributor
Material Adverse Effect or a Company Material Adverse Effect. Except as set
forth in Section 4.1(c) of the Contributor Disclosure Schedule, neither the
execution, delivery and performance of this Agreement or any Related Agreement
to which it is a party by such Contributor, Mr. Romo, Emprima or Mexican SPC,
nor the consummation by such Contributor, Mr. Romo, Emprima or Mexican SPC of
the transactions contemplated by this Agreement, the Related Agreements or the
Restructuring Steps will (i) conflict with or result in any breach of any
provision of the governing documents of such Contributor, Emprima or Mexican
SPC, (ii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration, or result in the creation
of a Lien on any property or asset of such Contributor, Mr. Romo, Emprima or
Mexican SPC, or trigger any rights of first refusal) under, any of the
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terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which such
Contributor, Mr. Romo, Emprima or Mexican SPC is a party or by which such
Contributor, Mr. Romo, Emprima or Mexican SPC or its respective properties or
assets may be bound, or (iii) violate any order, writ, injunction, decree, law,
statute, rule or regulation applicable to such Contributor, Mr. Romo, Emprima or
Mexican SPC or its respective properties or assets, except in the case of (ii)
or (iii) above for violations, breaches, defaults or other occurrences that
would not, individually or in the aggregate, have a Contributor Material Adverse
Effect or a Company Material Adverse Effect.
(d) Ownership of Stock. Subject to the consents set forth
in Sections 4.1(b) and 4.1(c) and except as set forth in Section 4.1(d) of the
Contributor Disclosure Schedule, (i) Savia is and at all times through the
Closing will be the owner, beneficially and of record, of the Savia Old Company
Shares, free and clear of any Lien and will transfer to Parent good and valid
title to such Savia Old Company Shares free and clear of any Lien, (ii) (A) the
ARG Trust is and at all times will be the owner beneficially and of record of
the ARG Trust Old Company Shares, free and clear of any Lien and will transfer
to Parent good and valid title to such ARG Trust Old Company Shares free and
clear of any Lien, (iii) CAI is and at all times through the Closing will be the
owner, beneficially and of record, of the CAI Old Company Shares, free and clear
of any Lien and will transfer to Parent good and valid title to such CAI Old
Company Shares free and clear of any Lien, (iv) Park is and at all times through
the Closing will be the owner, beneficially and of record, of the Park Old
Company Shares, free and clear of any Lien, and will transfer to Parent good and
valid title to such Park Old Company Shares free and clear of any Lien, and (v)
each of the Management Contributors is and at all times through the Closing will
be the owner, beneficially and of record, of his Management Old Company Shares,
free and clear of any Lien and will transfer to Parent good and valid title to
such Management Old Company Shares, free and clear of any Lien.
(e) Purchase for Investment. The Membership Interests to
be acquired by each Contributor will be acquired for its or his own account for
the purpose of investment. Such Contributor will refrain from transferring or
otherwise disposing of any of the Membership Interests, or any interest therein
other than pursuant to this Agreement.
(f) Accredited Investor. Such Contributor acknowledges
that it or he (i) has such knowledge and experience in business and financial
matters with respect to investments in securities to enable it or him to
understand and evaluate the risks of such investment and form an investment
decision with respect thereto and is able to bear the risk of such investment
for an indefinite period and to afford a complete loss thereof, (ii) is an
"accredited investor" as defined in Rule 501 of Regulation D under the
Securities Act of 1933, as amended and (iii) has had the opportunity to (x) ask
such questions as it or he has deemed necessary of, and to receive answers from,
representatives of Parent concerning the terms of its purchase of the Membership
Interests contemplated hereby and the merits and risks of investing in such
securities and (y) to obtain such additional information which Parent possesses
or can acquire without unreasonable effort or expense.
(g) Brokers. Other than Grupo Financiero Atlantico, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection
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with the transactions contemplated by this Agreement or the Related Agreements
based upon arrangements made by or on behalf of each of the Contributors or any
Romo Entity.
(h) Acknowledgment. Each of the Contributors, Mexican
SPC, Emprima and Mr. Romo hereby acknowledges that (i) FPSH is relying upon the
representations, warranties and covenants of each of such Contributors, Mexican
SPC, Emprima and Mr. Romo contained in this Agreement in connection with FPSH
entering into the Stock Purchase Agreement and (ii) FPSH shall be entitled to
rely upon and enforce such representations, warranties and covenants as provided
in this Agreement and in the Indemnification Agreement.
Section 4.2 Representations and Warranties of Savia. Savia hereby
represents and warrants to Parent as follows:
(a) Completeness of Assets. For purposes of this Section
4.2, Subsidiaries of Savia shall not include the Company and its Subsidiaries.
(i) Except as disclosed in Section 4.2(a)(i) of
the Contributor Disclosure Schedule, neither Savia nor any of its Subsidiaries
owns any asset, property or right, tangible or intangible, that is used in, or
for the benefit of, the business conducted by the Company and its Subsidiaries.
(ii) Except as disclosed in the Company SEC
Documents (as defined in the Merger Agreement) or in Section 4.2(a)(ii) of the
Contributor Disclosure Schedule, (x) neither Savia nor any of its Subsidiaries
provides or causes or permits to be provided and, since September 30, 1999,
neither Savia nor any of its Subsidiaries has provided or caused or permitted to
be provided, to the Company or any of its Subsidiaries, any assets, loans,
advances, services or facilities and (y) neither the Company nor any of its
Subsidiaries provides or causes to be provided to Savia or any of its
Subsidiaries any assets, loans, advances, services or facilities, and, since
September 30, 1999, neither the Company nor any of its Subsidiaries has provided
or caused to be provided, to Savia or any of its Subsidiaries, any assets,
loans, advances, services or facilities.
(iii) Except as disclosed in the Company SEC
Documents (as defined in the Merger Agreement) or in Section 4.2(a)(iii) of the
Contributor Disclosure Schedule, (x) neither the Company nor any of its
Subsidiaries purchases from or sells to, and, since September 30, 1999, neither
the Company nor any of its Subsidiaries has purchased from or sold to, Savia or
any of its Subsidiaries, goods or services, (y) neither the Company nor any of
its Subsidiaries, jointly with Savia and any of its Subsidiaries, purchases or
sells goods and services, and, since September 30, 1999, neither the Company nor
any of its Subsidiaries, jointly with Savia or any of its Subsidiaries, has
purchased or sold goods or services and (z) neither the Company nor any of its
Subsidiaries has, and, since September 30, 1999, neither the Company nor any of
its Subsidiaries has had, any other significant business relationship with Savia
or any of its Subsidiaries.
(b) No Undisclosed Liabilities. Except as disclosed in
Section 4.2(b) of the Contributor Disclosure Schedule, neither Savia nor any of
its Subsidiaries (excluding the Company and its Subsidiaries) has, or has
incurred or has permitted to be incurred any liabilities
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or obligations of any nature, whether or not absolute, accrued, contingent or
otherwise, that have become or may become liabilities of the Company or any of
its Subsidiaries. Except as disclosed in Section 4.3(b) of the Contributor
Disclosure Schedule, neither the Company, nor its Subsidiaries, is responsible
for any liabilities or obligations of any nature, whether or not absolute,
accrued, contingent or otherwise, of Savia or any of its Subsidiaries.
Section 4.3 Representations and Warranties with Respect to the
Restructurings. Mr. Romo, Mexican SPC, Emprima, and Park, jointly and severally,
hereby represent and warrant to Parent:
(a) Completeness of Assets.
(i) Except as disclosed in Section 4.3(a)(i) of
the Contributor Disclosure Schedule, none of the Romo Entities owns any asset,
property or right, tangible or intangible, that is used in, or for the benefit
of, the business conducted by the Company and its Subsidiaries.
(ii) Except as disclosed in the Company SEC
Documents (as defined in the Merger Agreement) or in Section 4.3(a)(ii) of the
Contributor Disclosure Schedule, (x) no Romo Entity provides or causes to be
provided and, since September 30, 1999, no Romo Entity has provided or caused to
be provided, to the Company or any of its Subsidiaries, any assets, loans,
advances, services or facilities and (y) neither the Company nor any of its
Subsidiaries provides or causes to be provided to any Romo Entity any assets,
loans, advances, services or facilities, and, since September 30, 1999, neither
the Company nor any of its Subsidiaries has provided or caused to be provided,
to any Romo Entity, any assets, loans, advances, services or facilities.
(iii) Except as disclosed in the Company SEC
Documents (as defined in the Merger Agreement) or in Section 4.3(a)(iii) of the
Contributor Disclosure Schedule, (x) neither the Company nor any of its
Subsidiaries purchases from or sells to, and, since September 30, 1999, neither
the Company nor any of its Subsidiaries has purchased from or sold to, any Romo
Entity, goods or services, (y) neither the Company nor any of its Subsidiaries,
jointly with any Romo Entity, purchases or sells goods and services, and, since
September 30, 1999, neither the Company nor any of its Subsidiaries, jointly
with any Romo Entity, has purchased or sold goods or services and (z) neither
the Company nor any of its Subsidiaries has, and, since September 30, 1999,
neither the Company nor any of its Subsidiaries has had, any other significant
business relationship with any Romo Entity.
(b) No Undisclosed Liabilities. Except as disclosed in
Section 4.3(b) of the Contributor Disclosure Schedule, none of the Romo Entities
has, or has incurred any liabilities or obligations of any nature, whether or
not absolute, accrued, contingent or otherwise, that have become or may become
liabilities of the Company or any of its Subsidiaries. Except as disclosed in
Section 4.3(b) of the Contributor Disclosure Schedule, neither the Company, nor
its Subsidiaries, is responsible for any liabilities or obligations of any
nature, whether or not absolute, accrued, contingent or otherwise, of any Romo
Entity.
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(c) Romo Entity Matters.
(i) The Romo Entities have obtained the written
consents and/or amendments set forth in Section 4.3(c) of the Contributor
Disclosure Schedule (the "Romo Entity Consents"). True and complete copies of
the Romo Entity Consents have been provided to FPSH. Except as set forth in
Section 4.3(c) of the Contributor Disclosure Schedule, other than the Romo
Entity Consents, no filing with or notice to, and no permit, authorization,
consent or approval of, any Governmental Entity or any other Person is necessary
for the consummation by any Romo Entity of the transactions contemplated by this
Agreement, the Related Agreements or the Restructuring Steps, except where the
failure to obtain such permits, authorizations, consents or approvals or to make
such filings or give such notice would not have a Contributor Material Adverse
Effect or a Company Material Adverse Effect.
(ii) Except as set forth in Section 4.3(c) of the
Contributor Disclosure Schedule, the consummation by any Romo Entity of the
transactions contemplated by this Agreement, the Related Agreements or the
Restructuring Steps will not (A) conflict with or result in any breach of any
provision of the governing documents of any Romo Entity, (B) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration, or result in the creation of a Lien on any
property or asset of any Romo Entity, or trigger any rights of first refusal)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or obligation
to which any Romo Entity is a party or by which any Romo Entity or its
respective properties or assets may be bound, or (C) violate any order, writ,
injunction, decree, law, statute, rule or regulation applicable to such Romo
Entity or its properties or assets, except in the case of (B) or (C) above for
violations, breaches, defaults or other occurrences that would not, individually
or in the aggregate, have a Contributor Material Adverse Effect or a Company
Material Adverse Effect.
(d) Restructuring Steps. To the extent necessary, the
applicable Romo Entities have entered into valid, legal and binding agreements
providing for the Restructuring Steps.
(e) Legal Opinions. Attached hereto as Exhibit D and
Exhibit E are true and complete copies of written opinions dated the date hereof
from Milbank, Tweed, Hadley & McCloy LLP and Mancera Ernst & Young.
ARTICLE V
COVENANTS
Section 5.1 Pre-Closing Conduct. Each party hereby covenants and
agrees that it shall not take any action that would make any of such party's
representations or warranties contained in this Agreement or the Related
Agreements untrue or incorrect as of the date hereof or the Closing Date or
would result in any of the conditions set forth in Article VI not being
satisfied. Moreover, each of Mr. Romo and Savia hereby covenants and agrees that
it shall not approve
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any action that will result in the Company violating the Merger Agreement or any
Related Agreement and will take all actions to cause the Romo Entities to take
such actions necessary to consummate the transactions contemplated by this
Agreement and the Related Agreements.
Section 5.2 Further Assurances.
(a) Parent shall use its best efforts to implement the
provisions of this Agreement, and, for such purpose, at the request of any of
the Contributors, will, at or after the Closing, promptly execute and deliver,
or cause to be so executed and delivered, such documents to any of the
Contributors and take such further action as any of the Contributors may deem
reasonably necessary or desirable to facilitate or better evidence the
consummation of the transactions contemplated hereby.
(b) Each of Savia and Mr. Romo shall use its best efforts
to implement the provisions of this Agreement, and, for such purpose, at the
request of Parent, will, at or after the Closing, promptly execute and deliver,
or cause to be so executed and delivered, such documents to Parent, and to take
such further action as Parent may deem reasonably necessary or desirable to
facilitate or better evidence the consummation of the transactions contemplated
hereby, including such action as is required to rectify any breach of the
representations contained in Section 4.2 and Section 4.3(a) and (b) of this
Agreement. Without limiting the foregoing, to the extent that any contract or
agreement to which any Romo Entity is a party, is used in, or for the benefit
of, the business conducted by the Company and its Subsidiaries, and is not
assignable without the consent of another party, (i) Savia and Mr. Romo shall
use reasonable best efforts to obtain the consent of such other party to the
assignment of any such contract or agreement to the Company in all cases in
which such consent is or may be required for such assignment, and (ii) if such
consent shall not be obtained, Savia and Mr. Romo shall cause the Romo Entities
to cooperate to put into place a reasonable arrangement designed to provide for
the Company the benefits intended to be assigned to the Company or one of its
Subsidiaries under the relevant contract or agreement, including enforcement at
the cost and for the account of the Company or one of its Subsidiaries of any
rights of any Romo Entity against the other party thereto arising out of the
breach or cancellation thereof by such other party or otherwise.
Section 5.3 Notification of Certain Matters. The parties hereto
shall give prompt notice to one another of (i) the occurrence or nonoccurrence
of any event the occurrence or nonoccurrence of which would be likely to cause
(A) any representation or warranty contained in this Agreement or the Related
Agreements to be untrue or inaccurate, or (B) any covenant, condition or
agreement contained in this Agreement or the Related Agreements not to be
complied with or satisfied, and (ii) any failure of any party hereto to comply
with or satisfy any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement or the Related Agreements; provided,
however, that the delivery of any notice pursuant to this Section 5.3 shall not
affect the representations, warranties or covenants of the parties hereto or
limit or otherwise affect the remedies available to any party hereunder.
Section 5.4 Public Announcements. Parent and the Contributors, as
the case may be, will consult with each other before issuing any press release
or otherwise making any public statements with respect to this Agreement, the
Related Agreements or the other transactions contemplated hereby or thereby, and
shall not issue any such press release or make any such
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public statement without the prior consent of the other parties hereto (which
consent shall not be unreasonably withheld or delayed), except as may be
required by applicable law or by obligations pursuant to any listing agreement
with any national securities exchange or national market system to which Parent,
the Contributors or their Affiliates is a party. The parties hereto have agreed
on the text of the joint press release by which announcement of the execution of
this Agreement will be made.
Section 5.5 Additional Agreements, Reasonable Best Efforts.
(a) Prior to the Closing Date, upon the terms and subject
to the conditions of this Agreement, each of Parent, Emprima, Mexican SPC, Mr.
Romo and the Contributors agrees to use its reasonable best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under any applicable laws, rules or regulations
to consummate and make effective as promptly as practicable the Contribution and
the Related Transactions and the other transactions contemplated by this
Agreement and the Related Agreements, including, but not limited to, (i) the
preparation and filing of all forms, registrations and notices required to be
filed to consummate the Contribution and the Related Transactions and the other
transactions contemplated hereby and thereby and the taking of such actions as
are necessary to obtain any requisite approvals, consents, orders, exemptions or
waivers by any third party, including any Governmental Entity, and (ii) the
satisfaction of the conditions to the consummation of the Contribution and the
Related Transactions. In addition, no party hereto shall take any action after
the date hereof that would reasonably be expected to materially delay the
obtaining of, or result in not obtaining, any permission, approval or consent
from any Governmental Entity necessary to be obtained prior to the consummation
of the Contribution and the Related Transactions.
(b) Prior to the Effective Time, each party shall
promptly consult with the other parties hereto with respect to, provide any
necessary information with respect to and provide the other (or its counsel)
copies of, all filings made by such party with any Governmental Entity or any
other information supplied by such party to a Governmental Entity in connection
with this Agreement, the Related Agreements and the transactions contemplated
hereby and thereby. Each party hereto shall promptly inform the other of any
communication from any Governmental Entity regarding the Contribution or any of
the Related Transactions. If any party hereto or Affiliate thereof receives a
request for additional information or documentary material from any such
Governmental Entity with respect to the Contribution or the Related
Transactions, then such party will endeavor in good faith to make, or cause to
be made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.
(c) Each of Emprima, the ARG Trust, CAI, Park, Mr. Romo,
Mexican SPC and the Management Contributors hereby covenants, and if the ARG
Option is not exercised, Savia covenants, that upon the consummation of the
transactions contemplated by this Agreement, the Merger Agreement and the Stock
Purchase Agreement, each such party shall execute the Stockholders' Agreement.
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ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE CONTRIBUTION
The obligation of Parent, on the one hand, and the Contributors and Mr.
Romo, on the other hand, to consummate the Contribution is subject to (a) the
satisfaction or waiver of the conditions to the Merger set forth in Sections
7.1(b) and 7.2 (other than Section 7.2(c)) of the Merger Agreement, (b) the
Pre-Closing Restructuring Steps having occurred and (c) the Post-Closing
Restructuring Steps occurring substantially concurrently with the Closing;
provided, however, that no party hereto shall have the right to assert the
nonfulfillment of the condition set forth in clause (b) or clause (c) as a basis
for failing to consummate the Contribution, if (x) the non-occurrence of any
Restructuring Step is the result of a breach by any Romo Entity, or (y) any of
Parent, the Contributors or Mr. Romo shall have failed to use its reasonable
best efforts to cause the Restructuring Steps to have occurred.
ARTICLE VII
TERMINATION; AMENDMENT; WAIVER
Section 7.1 Termination. This Agreement may be terminated by any
party hereto and the Contribution may be abandoned at any time prior to the
Closing if the Merger Agreement is terminated in accordance with its terms.
Section 7.2 Effect of Termination. In the event of the
termination and abandonment of this Agreement pursuant to Section 7.1, written
notice thereof shall forthwith be given to the other party or parties, and this
Agreement shall forthwith become void and have no effect, without any liability
on the part of any party hereto or its Affiliates, directors, officers or
stockholders, other than the provisions of this Section 7.2 and Section 7.3(a)
of this Agreement; provided, however, that nothing contained in this Section
7.2, shall relieve any party from liability for any breach of this Agreement.
Section 7.3 Fees and Expenses.
(a) If the transactions contemplated by this Agreement
are not consummated for any reason, all costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such
expenses.
(b) If the transactions contemplated by this Agreement
and the Related Agreements are consummated, on the Closing Date, Parent shall
cause the Company to pay to Savia by wire transfer of immediately available
funds (to the account or accounts designated by Savia in writing not less than
one business day prior to Closing) all Savia Expenses; provided, however, that
the Savia Expenses shall not exceed $3.5 million.
Section 7.4 Amendment. This Agreement may be amended at any time
with the prior written consent of FPSH by an instrument in writing signed by
each party hereto; provided, however, that any amendment that would prevent or
delay the Closing shall also require the written consent of the Special
Committee (as defined in the Merger Agreement), such consent not to be
unreasonably withheld or delayed.
-19-
Section 7.5 Waiver. Subject to the prior written consent of FPSH,
at any time prior to the Effective Time, any party hereto may (a) extend the
time for the performance of any of the obligations or other acts of the other
party, (b) waive any inaccuracies in the representations and warranties of the
other party contained herein or in any document, certificate or writing
delivered pursuant hereto, or (c) waive compliance by the other party with any
of the agreements or conditions contained herein; provided, however, that in the
case of clauses (a) and (c), that any extension or waiver that would prevent or
delay the Closing shall also require the written consent of the Special
Committee (as defined in the Merger Agreement), such consent not to be
unreasonably withheld or delayed. Any agreement on the part of any party hereto
to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of any party
hereto to assert any of its rights hereunder shall not constitute a waiver of
such rights.
Section 7.6 Survival. The parties hereto hereby acknowledge that
indemnification of FPSH with respect to breaches of representations, warranties
and covenants contained in this Agreement shall be made pursuant to the
Indemnification Agreement and that the representations and warranties in this
Agreement shall survive as provided in this Section 7.6 for such purpose. The
representations and warranties in this Agreement shall survive until the
two-year anniversary of the Closing; provided, however, that the representations
and warranties contained in Section 4.1(d) of this Agreement shall survive
indefinitely. Any covenants or agreements contained herein or made pursuant
hereto that by their terms are to be performed prior to the Closing Date, shall
not survive beyond the Closing Date. Any covenants or agreements contained
herein or made pursuant hereto that by their terms are to be performed in whole
or in part after the Closing Date, shall survive until fully discharged.
Section 7.7 Indemnification by Management Contributors. Each of
the Management Contributors shall, severally and not jointly, indemnify the
Company and hold it harmless from and against any loss, liability, claim, cost,
damage or expense (including reasonable legal fees and expenses) suffered or
incurred by the Company to the extent arising from any breach or inaccuracy of
any representation or warranty made by such Management Contributor pursuant to
Section 4.1 or the nonfulfillment by such Management Contributor of any covenant
or agreement of such Management Contributor under this Agreement. For purposes
of this Section 7.7, the Company shall be a third party beneficiary of this
Agreement.
Section 7.8 Sole Remedy. Except as otherwise provided in Section
7.7, after the Closing, and conditioned thereupon, to the extent permitted by
law, the indemnities set forth in the Indemnification Agreement shall be the
exclusive remedies of the parties hereto and their respective officers,
directors, employees, agents and Affiliates for any misrepresentation, breach of
warranty or nonfulfillment or failure to be performed of any covenant or
agreement contained in this Agreement, and the parties shall not be entitled to
rescission of this Agreement or to any further indemnification rights or claims
of any nature whatsoever in respect thereof, all of which the parties hereto
hereby waive.
-20-
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Entire Agreement; Assignment. This Agreement and the
Related Agreements (including the schedules and Exhibits hereto and thereto)
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties hereto with respect
to the subject matter hereof. This Agreement shall not be assigned by operation
of law or otherwise.
Section 8.2 Severability. If any provision of this Agreement, or
the application thereof to any Person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other Persons or circumstances shall not be affected thereby, and
to such end, the provisions of this Agreement are agreed to be severable. Upon
such determination that any provision is invalid or unenforceable, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties hereto as closely as possible in a mutually
acceptable manner.
Section 8.3 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing (including by facsimile with
written confirmation thereof) and unless otherwise expressly provided herein,
shall be delivered during normal business hours by hand, by Federal Express or
other nationally recognized overnight commercial delivery service, or by
facsimile notice, confirmation of receipt received, addressed as follows, or to
such other address as may be hereafter notified by the respective parties
hereto:
(a) If to Parent:
c/o Savia, S.A. de C.V.
Ave. Roble No. 565 Ote. - Piso 4
Colonia Valle Del Campestre
Garza Garcia, N.L. 66265
Mexico
Attention: Bernardo Jimenez Barrera
Facsimile: 011-52-818-399-5606
With a copy, which will not constitute notice, to:
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, New York 10005
Attention: Howard S. Kelberg, Esq.
Facsimile: 212-822-5530
With a copy, which will not constitute notice, to:
Fox Paine & Company, LLC
950 Tower Lane, Suite 1950
-21-
Foster City, California 94404
Attention: W. Dexter Paine, III
Facsimile: 650-525-1396
With a copy, which will not constitute notice, to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Mitchell S. Presser, Esq.
Facsimile: 212-403-2000
With copies, which will not constitute notice, to:
Seminis, Inc.
2700 Camino del Sol
Oxnard, California 93030-7967
Attention: Chairman of the Special Committee
of the Board of Directors
Facsimile: 805-918-2530
Seminis, Inc.
2700 Camino del Sol
Oxnard, California 93030-7967
Attention: General Counsel
Facsimile: 805-918-2530
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attention: Peter A. Atkins, Esq.
David J. Friedman, Esq.
Facsimile: 212-735-2000
(b) If to the Contributors, Mr. Romo, Mexican SPC or
Emprima:
Savia, S.A. de C.V.
Ave. Roble No. 565 Ote. - Piso 4
Colonia Valle Del Campestre
Garza Garcia, N.L. 66265
Mexico
Attention: Bernardo Jimenez Barrera
Facsimile: 011-52-818-399-5606
With a copy, which will not constitute notice, to:
Fox Paine & Company, LLC
950 Tower Lane, Suite 1950
-22-
Foster City, California 94404
Attention: W. Dexter Paine, III
Facsimile: 650-525-1396
With a copy, which will not constitute notice, to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Mitchell S. Presser, Esq.
Facsimile: 212-403-2000
With a copy, which will not constitute notice, to:
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, New York 10005
Attention: Howard S. Kelberg, Esq.
Facsimile: 212-822-5530
With copies, which will not constitute notice, to:
Seminis, Inc.
2700 Camino del Sol
Oxnard, California 93030-7967
Attention: Chairman of the Special Committee
of the Board of Directors
Facsimile: 805-918-2530
Seminis, Inc.
2700 Camino del Sol
Oxnard, California 93030-7967
Attention: General Counsel
Facsimile: 805-918-2530
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attention: Peter A. Atkins, Esq.
David J. Friedman, Esq.
Facsimile: 212-735-2000
Section 8.4 Governing Law; Consent to Jurisdiction; Waiver of
Jury Trial.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of law thereof.
-23-
(b) The parties hereto hereby agree and consent to be
subject to the exclusive jurisdiction of the courts of the State of Delaware
sitting in the County of New Castle and the United States District Court for the
State of Delaware in any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the Contribution. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by law, (i) any objection that it may now or
hereafter have to laying venue of any suit, action or proceeding brought in such
courts, and (ii) any claim that any suit, action or proceeding brought in such
courts has been brought in an inconvenient forum.
(c) Each of the Contributors, Mr. Romo, Emprima and
Mexican SPC irrevocably appoints CT Corporation Systems, which currently
maintains an office at 2711 Centerville Road, Suite 400, Wilmington, Delaware,
19808, as its agent to receive service of process or other legal summons for
purposes of any such action or proceeding. So long as any party hereto has any
obligation under this Agreement, it will maintain a duly appointed agent in the
State of Delaware for the service of such process or summons, and if it fails to
maintain such an agent, any such process or summons may be served by mailing a
copy thereof by registered mail, or a form of mail substantially equivalent
thereto, addressed to it at its address as provided for notices hereunder.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF.
Section 8.5 Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled, without posting a bond or similar indemnity, to an injunction or
injunctions to prevent breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in any federal court located in
the State of Delaware or any Delaware state court, in addition to any other
remedy to which they are entitled at law or in equity.
Section 8.6 Interpretation. When a reference is made in this
Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be
to an Article or Section of or Exhibit or Schedule to this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation."
Section 8.7 Parties in Interest.
(a) Subject to Section 8.7(b), this Agreement shall be
binding upon and inure solely to the benefit of each party hereto and its
successors and permitted assigns, and except as provided in Section 7.4, 7.5 and
Section 7.7, nothing in this Agreement, express or implied, is
-24-
intended to or shall confer upon any other Person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
(b) Notwithstanding anything to the contrary contained
herein, (i) FPSH shall be a third party beneficiary of this Agreement and shall
have the right to enforce any right under this Agreement exercisable by Parent,
the Contributors, Mr. Romo, Emprima or Mexican SPC to the extent such right is
not enforced by Parent, the Contributors, Mr. Romo, Mexican SPC or Emprima (ii)
any representations, warranties or covenants made by Parent, any Contributor,
Mr. Romo, Emprima or Mexican SPC shall be deemed made to (and, with respect to
covenants, shall be enforceable (to the extent such right is not enforced by any
Contributor, Mr. Romo, the ARG Trust, Mexican SPC or Parent) by FPSH, (iii) any
notice under this Agreement given (or required to be given) to Parent, any
Contributor, Mr. Romo, the ARG Trust or Mexican SPC shall be simultaneously
given to FPSH and to the Special Committee (as defined in the Merger Agreement),
and (iv) anything under this Agreement that must be approved by or acceptable to
Parent, any Contributor, Mr. Romo, the ARG Trust or Mexican SPC must also be
approved or accepted by FPSH. The parties hereto acknowledge that the Company
would not have entered into the Merger Agreement had the parties hereto not
entered into this Agreement.
Section 8.8 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
-25-
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the day and year first above
written.
SEMINIS ACQUISITION LLC
By: /s/ Bernardo Jimenez
---------------------------------
Name: Bernardo Jimenez
Title: President
SAVIA, S.A. DE C.V.
By: /s/ Bernardo Jimenez
---------------------------------
Name: Bernardo Jimenez
Title: Attorney in Fact
BANCA AFIRME, S.A., INSTITUCION DE
BANCA MULTIPLE, AFIRME GRUPO
FINANCIERO, AS TRUSTEE, UNDER THE
IRREVOCABLE ADMINISTRATION AND
PAYMENT TRUST number 167-5
(FIDEICOMISO IRREVOCABLE DE
ADMINISTRACION Y PAGO NUMERO 167-5)
By: /s/ Adrian J. Lozano
---------------------------------
Name: Adrian J. Lozano
Title: Delegado Fiduciario
By: /s/ Beatriz Garza L
---------------------------------
Name: Beatriz Garza L.
Title: Delegado Fiduciario
CONJUNTO ADMINISTRATIVO INTEGRAL,
S.A. DE C.V.
By: /s/ Carlos G. Mahuad
---------------------------------
Name: Carlos G. Mahuad
Title: Attorney in Fact
By: /s/ Heriberto S. Muzza
---------------------------------
Name: Heriberto S. Muzza
Title: Attorney in Fact
[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT]
DESARROLLO CONSOLIDADO DE
NEGOCIOS, S.A. DE C.V.
By: /s/ Gustavo Adolfo Romo Garza
---------------------------------
Name: Gustavo Adolfo Romo Garza
Title: Attorney in Fact
EMPRIMA, S.A. DE C.V.
By: /s/ Carlos G. Mahuad
---------------------------------
Name: Carlos G. Mahuad
Title: Attorney in Fact
By: /s/ Heriberto S. Muzza
---------------------------------
Name: Heriberto S. Muzza
Title: Attorney in Fact
PARK FINANCIAL GROUP
By: /s/ Bernardo Jimenez
---------------------------------
Name: Bernardo Jimenez
Title: Authorized Officer
[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT]
By: /s/ Alfonso Romo Garza
---------------------------------
Name: Alfonso Romo Garza
By: /s/ Bruno Ferrari
---------------------------------
Name: Bruno Ferrari
By: /s/ Gaspar Alvarez
---------------------------------
Name: Gaspar Alvarez
By: /s/ Charles Edward Green
---------------------------------
Name: Charles Edward Green
By: /s/ Franco Campana
---------------------------------
Name: Franco Campana
By: /s/ Jean Pierre Posa
---------------------------------
Name: Jean Pierre Posa
By: /s/ Luis Maiz
---------------------------------
Name: Luis Maiz
By: /s/ Mateo Mazal Beja
---------------------------------
Name: Mateo Mazal Beja
By: /s/ Bernardo Jimenez
---------------------------------
Name: Bernardo Jimenez
By: /s/ Adrian Rodriguez
---------------------------------
Name: Adrian Rodriguez
[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT]