UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13E-3
(RULE 13e-100)
TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES
EXCHANGE ACT OF 1934 AND RULE 13e-3 THEREUNDER
RULE 13e-3 TRANSACTION STATEMENT
(Pursuant to Section 13(e) of the
Securities Exchange Act of 1934)
(Amendment No. 3)
(Final Amendment)
Seminis, Inc.
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(Name of the Issuer)
Seminis, Inc.
Savia, S.A. de C.V.
Seminis Acquisition LLC
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.
Banca Afirme, S.A., Institucion de Banca Multiple Afirme Grupo Financiero
Alfonso Romo Garza
Mateo Mazal Beja
Bernardo Jimenez Barrera
Adrian Rodriguez Macedo
Bruno Ferrari
Gaspar Alvarez Martinez
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(Name of Person(s) Filing Statement)
Class A Common Stock, par value $0.01 per share
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(Title of Class of Securities)
816658108
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(CUSIP Number of Class of Securities)
Juliet Ream, Esq.
General Counsel
Seminis, Inc.
2700 Camino del Sol
Oxnard, California 93030-7967
Telephone Number: (805) 647-1572
WITH A COPY TO:
Howard S. Kelberg, Esq. David J. Friedman, Esq.
Milbank, Tweed, Hadley & McCloy LLP Skadden, Arps, Slate, Meagher & Flom LLP
One Chase Manhattan Plaza Four Times Square
New York, New York 10005 New York, New York 10036
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(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices
and Communications on Behalf of the Persons Filing Statement)
This statement is filed in connection with (check the appropriate box):
a.[X] The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b.[ ] The filing of a registration statement under the Securities Act of
1933.
c.[ ] A tender offer.
d.[ ] None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: [ ]
Check the following box if the filing is a final amendment reporting the
results of the transaction: [X]
Calculation of Filing Fee
Transaction Valuation Amount of Filing Fee
$71,369,505 $5,774.00
[X] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: $5,774.00 Filing Party: Seminis, Inc.
Form or Registration No.: Schedule 14A Date Filed: June 27, 2003
INTRODUCTION
This Amendment No. 3 to the Rule 13e-3 Transaction Statement on Schedule
13E-3 (this "Final Amendment") is being filed by: (1) Seminis, Inc., a Delaware
corporation (the "Company" or "Seminis"); (2) Savia, S.A. de C.V., a corporation
(sociedad anonima de capital variable) organized under the laws of the United
Mexican States; (3) Seminis Acquisition LLC, a Delaware limited liability
company; (4) 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"); (5) 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; (6) Emprima, S.A. de C.V., a corporation (sociedad
anonima de capital variable) organized under the laws of the United Mexican
States; (7) Park Financial Group Ltd., a British Virgin Islands international
business company; (8) 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 Administracion y Pago Numero 167-5),
a trust formed under the laws of the United Mexican States (the "ARG Trust");
(9) Alfonso Romo Garza; (10) Mateo Mazal Beja; (11) Bernardo Jimenez Barrera;
(12) Adrian Rodriguez Macedo; (13) Bruno Ferrari; and (14) Gaspar Alvarez
Martinez. The preceding persons are collectively referred to herein as the
"Filing Persons," and individually as a "Filing Person."
This Final Amendment amends and supplements the Rule 13e-3 Transaction
Statement on Schedule 13E-3 and amendment nos. 1 and 2 thereto (as so amended by
amendment nos. 1 and 2, the "Schedule 13E-3"), filed by the Filing Persons and
Seminis Merger Corp. on June 27, 2003, July 30, 2003, and August 8, 2003,
respectively, and relates to the merger of Seminis Merger Corp., a Delaware
corporation and wholly owned subsidiary of Seminis Acquisition LLC, with and
into the Company (the "Merger") pursuant to an agreement and plan of merger,
dated as of May 30, 2003, as amended (the "Merger Agreement"), by and among the
Company, Seminis Acquisition LLC and Seminis Merger Corp. Seminis Merger Corp.
is no longer a Filing Person because it was merged with and into the Company,
with the Company as the surviving corporation.
This Final Amendment is being filed pursuant to Rule 13e-3(d)(3)
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), to report the results of the Rule 13e-3 transaction described herein. The
Merger became effective on September 29, 2003.
As a result of the Merger, the outstanding shares of the Company's Class A
common stock, par value $0.01 per share, and the Company's Class B common stock,
par value $0.01 per share (collectively, the "Common Stock"), other than those
shares held by Seminis Acquisition LLC, Seminis Merger Corp. or the Company,
were converted into the right to receive $3.78 in cash per share. Options to
purchase shares of the Common Stock were treated in connection with the Merger
in the manner described more fully in the Proxy Statement (as defined below). In
connection with the Merger, there were no dissenting stockholders who perfected
their appraisal rights under Delaware law with respect to shares of the Common
Stock.
Shares of the Common Stock held by the Company or Seminis Acquisition LLC
were cancelled without payment being made therefor, and each share of Seminis
Merger Corp. outstanding at the effective time of the Merger was converted into
one share of newly-issued Seminis common stock.
On August 8, 2003, the Company filed with the U.S. Securities and Exchange
Commission (the "SEC") amendment no. 2 to its proxy statement (the "Proxy
Statement") under Regulation 14A of the Exchange Act, relating to the special
meeting of stockholders of the Company held on September 5, 2003, at which the
stockholders of the Company considered and voted upon a proposal to adopt and
approve the Merger Agreement and the Merger.
A copy of the Proxy Statement is incorporated by reference to Exhibit
(a)(3). A copy of the Merger Agreement is attached as Appendix A to the Proxy
Statement. All references in this Final Amendment to Items numbered 1001 through
1016 are references to Items set forth in Regulation M-A under the Exchange Act
("Regulation M-A"). The information set forth in the Proxy Statement, including
all appendices thereto, is hereby expressly incorporated herein by reference,
and the responses to each item in this Final Amendment are qualified in their
entirety by the information contained in the Proxy Statement, including the
appendices thereto.
All information in, or incorporated by reference in, this Final Amendment,
the Schedule 13E-3 and/or the Proxy Statement concerning the Company has been
supplied by the Company. The information contained in this Final Amendment, the
Schedule 13E-3 and/or the Proxy Statement concerning Seminis Merger Corp. or
each Filing Person other than the Company has been supplied by Seminis Merger
Corp. or each such Filing Person, as the case may be, and no other person,
including the Company and Seminis Merger Corp., takes responsibility for the
accuracy of any information not supplied by such person. Capitalized terms used
but not defined in this Final Amendment shall have the meanings given to them in
the Proxy Statement.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
Regulation M-A
Item 1005
Item 5 is hereby amended and supplemented by adding the following:
(b) Significant Corporate Events. At a special meeting of the Company's
stockholders held on September 5, 2003, holders of shares of the
Common Stock representing a majority of the voting power of the
outstanding shares of the Common Stock entitled to vote, voting
together as a single class, voted to approve and adopt the Merger
Agreement and Merger. A certificate of merger was filed with the
Secretary of State of the State of Delaware and the Merger became
effective on September 29, 2003. Registered holders of shares of the
Common Stock at the effective time of the Merger are being sent a
letter of transmittal instructing them on the procedures for
surrendering their stock certificates and receiving payment for
their shares of the Common Stock.
On September 29, 2003, as a result of the Merger, the shares of
Seminis Class A common stock were delisted from The Nasdaq National
Market pursuant to a written request to The Nasdaq Stock Market,
Inc. from the Company and became eligible for termination of
registration under Rules 12g-4 and 12h-3 of the Exchange Act.
Accordingly, on September 30, 2003, the Company filed a
Certification and Notice of Termination of Registration on Form 15
with the SEC.
(e) Agreements Involving the Subject Company's Securities. As of
September 29, 2003, Seminis Merger Corp. entered into a stock
purchase agreement with the holders of the outstanding shares of the
Company's Class B Mandatorily Redeemable Preferred Stock, par value
$0.01 per share, providing for the purchase and cancellation of all
such outstanding shares concurrent with the Merger for an aggregate
of $23.75 million ($1.25 million less than the aggregate liquidation
preference of the Company's Class B Mandatorily Redeemable Preferred
Stock). Pursuant to the terms of the Merger Agreement, the Company,
in connection with and immediately prior to the Merger, paid to the
holders of the outstanding shares of the Company's Class B
Mandatorily Redeemable Preferred Stock all accrued and unpaid
dividends on such shares as of the dividend payment date immediately
preceding the closing of the Merger, which, at the time of the
Merger, were in an aggregate amount of $6.0 million. The stock
purchase agreement also provided for the payment concurrent with the
Merger to the holders of the outstanding shares of the Company's
Class B Mandatorily Redeemable Preferred Stock of all accrued and
unpaid dividends on such shares from the last dividend payment date
through the closing of the Merger, which were in an aggregate amount
of approximately $0.5 million. The stock purchase agreement is
attached hereto as Exhibit (d)(18).
Item 10. Source and Amounts of Funds or Other Consideration.
Regulation M-A
Item 1007
Item 10 is hereby amended and supplemented by adding the following:
On September 29, 2003, in connection with the Merger and related
transactions, Seminis Vegetable Seeds, Inc., a wholly-owned
subsidiary of Seminis, as the borrower, entered into a credit
agreement (the "Credit Agreement") with Citicorp North America,
Inc., as Administrative Agent, providing for a $250.0 million senior
secured credit facility. The Credit Agreement is attached hereto as
Exhibit (b)(1).
On September 29, 2003, in connection with the Merger and related
transactions, Seminis Vegetable Seeds, Inc., as the borrower,
completed the sale of $190.0 million aggregate principal amount of
10-1/4% senior subordinated notes due October 1, 2013. The indenture
governing the terms of the notes is attached hereto as Exhibit
(b)(2).
On September 29, 2003, in connection with the Merger and related
transactions, Seminis issued and sold an aggregate of $50.0 million
of Class C PIK Preferred Stock (the "Class C PIK Preferred Stock")
to two institutional investors. The Class C PIK Preferred Stock has
an aggregate liquidation preference of $50.0 million and matures on
October 1, 2014. Holders of shares of the Class C PIK Preferred
Stock are entitled to receive paid in kind dividends (or in the sole
discretion of Seminis, cash dividends) at the annual rate of 12.0%
of the liquidation preference per share, compounded quarterly;
provided that after the occurrence of, and during the continuance
of, specified events of default, holders of shares of the Class C
PIK Preferred Stock would be entitled to receive paid in kind
dividends (or in the sole discretion of Seminis, cash dividends) at
the annual rate of 14.0% of the liquidation preference per share,
compounded quarterly. Seminis is entitled to redeem the Class C PIK
Preferred Stock beginning October 1, 2006 and may redeem the Class C
PIK Preferred Stock at any time following the occurrence of a change
of control of Seminis, in each case, at specified prices. Upon the
occurrence of a change of control, certain events of bankruptcy or
the acceleration and satisfaction of certain material indebtedness
of Seminis, the holders of the Class C PIK Preferred Stock are
entitled to put their shares of Class C PIK Preferred Stock to
Seminis at specified prices. The Class C PIK Preferred Stock
contains restrictions on the ability of Seminis and its subsidiaries
to incur indebtedness, enter into transactions with affiliates and
make certain types of dividends and payments.
The sale of the Class C PIK Preferred Stock reduced, on a
dollar-for-dollar basis, the investment by Fox Paine & Company, LLC
and its affiliates in Seminis and reduced the total number of shares
of newly-issued Seminis common stock that would have been
outstanding following completion of the Merger and related
transactions by 14,705,882.
In connection with the sale of the Class C PIK Preferred Stock,
Seminis issued warrants to purchase an aggregate of 3,726,049 shares
of newly-issued Seminis common stock. The warrants are immediately
exercisable and have an exercise price of $0.01 per share.
Item 11. Interest in Securities of the Subject Company.
Regulation M-A
Item 1008
Item 11 is hereby amended and supplemented by adding the following:
(a) Securities Ownership. Immediately after the Merger and the
transactions contemplated by the Merger Agreement: (1) the ARG Trust
owned 900,737 shares of newly-issued Seminis common stock,
representing approximately 1.4% of the outstanding shares of
newly-issued Seminis common stock; (2) CAI owned 42,000 shares of
newly-issued Seminis common stock, representing less than 1.0% of
the outstanding shares of newly-issued Seminis common stock; (3)
Emprima owned 4,365,257 shares of newly-issued Seminis common stock,
representing approximately 6.8% of the outstanding shares of
newly-issued Seminis common stock; (4) Park owned 1,000,000 shares
of newly-issued Seminis common stock, representing approximately
1.6% of the outstanding shares of newly-issued Seminis common stock;
(5) Gaspar Alvarez Martinez owned 36,103 shares of newly-issued
Seminis common stock, representing less than 1.0% of the outstanding
shares of newly-issued Seminis common stock; (6) Bruno Ferrari owned
1,010,047 shares of newly-issued Seminis common stock, representing
approximately 1.6% of the outstanding shares of newly-issued Seminis
common stock; (7) Mateo Mazal Beja owned 53,000 shares of
newly-issued Seminis common stock, representing less than 1.0% of
the outstanding shares of newly-issued Seminis common stock; (8)
Bernardo Jimenez Barrera owned 8,000 shares of newly-issued Seminis
common stock, representing less than 1.0% of the outstanding shares
of newly-issued Seminis common stock; and (9) Adrian Rodriguez
Macedo owned 18,378 shares of newly-issued Seminis common stock,
representing less than 1.0% of the outstanding shares of
newly-issued Seminis common stock.
Item 15. Additional Information.
Regulation M-A
Item 1011
Item 15 is hereby amended and supplemented by adding the following:
(b) Other Material Information. The parties to the five purported class
action lawsuits relating to the Rule 13e-3 transaction described in
this Final Amendment, the Schedule 13E-3 and the Proxy Statement
have reached an agreement in principle providing for the settlement,
subject to court approval and other conditions, of the litigation.
The proposed settlement does not affect the terms of the Rule 13e-3
transaction described in this Final Amendment, the Schedule 13E-3 or
the Proxy Statement.
Item 16. Exhibits.
Regulation M-A
Item 1016
(a)(1) Press Release issued by Seminis, Inc., Savia, S.A. de C.V.
and Fox Paine & Company, LLC, dated June 2, 2003.*
(a)(2) Memorandum to employees of Seminis from Alfonso Romo, dated
June 2, 2003.*
(a)(3) Proxy Statement, incorporated herein by reference to the
Proxy Statement, filed with the U.S. Securities and Exchange
Commission by Seminis, Inc. on August 8, 2003.
(a)(4) Press Release issued by Seminis, Inc., dated September 8,
2003.
(a)(5) Press Release issued by Seminis, Inc., Savia, S.A. de C.V.
and Fox Paine & Company, LLC, dated September 29, 2003.
(b)(1) Credit Agreement, dated as of September 29, 2003, among
Seminis Vegetable Seeds, Inc., as Borrower, Seminis, Inc., as
Parent Guarantor, the Lenders named therein and Citicorp
North America, Inc., as Administrative Agent.
(b)(2) Indenture, dated as of September 29, 2003, by and among,
Seminis Vegetable Seeds, Inc., the Guarantors named therein,
and Wells Fargo Bank, National Association, as Trustee.
(c)(1) Fairness Opinion of Merrill Lynch, Pierce, Fenner & Smith
Incorporated, dated May 30, 2003, incorporated herein by
reference to Appendix C to the Proxy Statement.
(c)(2) Presentation of Merrill Lynch, Pierce, Fenner & Smith
Incorporated to the Special Committee of the Board of
Directors, dated May 30, 2003.*
(c)(3) Valuation Report of Casa de Bolsa Banorte, S.A. de C.V.,
Grupo Financiero Banorte to Savia, S.A. de C.V. dated April,
2003, as translated by Savia, S.A. de C.V.*
(c)(4) Presentation of Casa de Bolsa Banorte, S.A. de C.V., Grupo
Financiero Banorte to Savia, S.A. de C.V., dated April, 2003,
as translated by Savia, S.A. de C.V.*
(d)(1) Agreement and Plan of Merger, dated as of May 30, 2003, by
and among Seminis, Inc., Seminis Acquisition LLC and Seminis
Merger Corp., incorporated herein by reference to Appendix A
to the Proxy Statement.
(d)(2) Amended and Restated Exchange Agreement, dated as of May 30,
2003, between Seminis, Inc. and Savia, S.A. de C.V.*
(d)(3) Voting Agreement, dated as of May 30, 2003, among 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 Administracion y Pago Numero 167-5), Conjunto
Administrativo Integral, S.A. de C.V., Park Financial Group,
Ltd (BVI), Fox Paine Seminis Holdings, LLC, Seminis
Acquisition LLC, Emprima, S.A. de C.V. and Alfonso Romo
Garza, incorporated herein by reference to Appendix B to the
Proxy Statement.
(d)(4) Contribution Agreement, dated as of May 30, 2003, 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 Administracion y
Pago Numero 167-5), Conjunto Administrativo Integral, S.A. de
C.V., Desarrollo Consolidado de Negocios, S.A. de C.V., Park
Financial Group, Ltd (BVI), Emprima, S.A. de C.V. and Alfonso
Romo Garza and certain members of Seminis and Savia
Management.*
(d)(5) Stock Purchase Agreement, dated as of May 30, 2003, among
Seminis Acquisition LLC, Seminis Merger Corp., Fox Paine
Seminis Holdings, LLC and 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 Administracion y Pago Numero
167-5).*
(d)(6) Employment Agreement, dated May 30, 2003, by and between
Seminis Merger Corp. and Alfonso Romo Garza.*
(d)(7) Employment Agreement, dated May 30, 2003, by and between
Seminis Merger Corp. and Bernardo Jimenez.*
(d)(8) Employment Agreement, dated May 30, 2003, by and between
Seminis Merger Corp. and Mateo Mazal Beja.*
(d)(9) Employment Agreement, dated May 30, 2003, by and between
Seminis Merger Corp. and Gaspar Alvarez.*
(d)(10)Employment Agreement, dated May 30, 2003, by and between
Seminis Merger Corp. and C. Edward Green.*
(d)(11)Employment Agreement, dated May 30, 2003, by and between
Seminis Merger Corp. and Jose Manuel Madero Garza.*
(d)(12)Employment Agreement, dated May 30, 2003, by and between
Seminis Merger Corp. and Bruno Ferrari Garcia de Alba (the
"Ferrari Employment Agreement").*
(d)(13)Amendment, dated August 7, 2003, to the Ferrari Employment
Agreement, by and between Seminis Merger Corp. and Bruno
Ferrari Garcia de Alba.**
(d)(14)Letter Agreement, dated July 31, 2003, by and among Seminis,
Inc., Seminis Acquisition LLC, Seminis Merger Corp. and Fox
Paine Seminis Holdings, LLC.**
(d)(15)Amendment, dated September 29, 2003, to the Contribution
Agreement 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 Administracion y Pago Numero 167-5), Conjunto
Administrativo Integral, S.A. de C.V., Desarrollo Consolidado
de Negocios, S.A. de C.V., Park Financial Group, Ltd (BVI),
Emprima, S.A. de C.V. and Alfonso Romo Garza and certain
members of Seminis and Savia Management.
(d)(16)Amendment, dated September 29, 2003, to the Stock Purchase
Agreement among Seminis Acquisition LLC, Seminis Merger
Corp., Fox Paine Seminis Holdings, LLC and 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 Administracion y
Pago Numero 167-5).
(d)(17)Amendment, dated September 24, 2003, to the Employment
Agreement by and between Seminis Merger Corp. and Gaspar
Alvarez.
(d)(18)Stock Purchase Agreement, dated as of September 29, 2003, by
and among Seminis Merger Corp., G. Carl Ball, the G. Carl
Ball Family Foundation, G. Dexter Ball, Margaret D. Ball, G.
Victor Ball Marital Trust and Vivian Elledge Ball GST Exempt
Trust UAD 12/21/92.
(f) Section 262 of the Delaware General Corporation Law,
incorporated herein by reference to Appendix D to the Proxy
Statement.
(g) Not applicable.
99.1 Power of Attorney of Park Financial Group Ltd.**
99.2 Power of Attorney of 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 Administracion y Pago Numero
167-5).**
* Previously filed on June 27, 2003.
** Previously filed on August 8, 2003.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
October 8, 2003
SEMINIS, INC.
By: /s/ Gaspar Alvarez
-------------------------------
Gaspar Alvarez
Vice President
By: /s/ Enrique Osorio
-------------------------------
Enrique Osorio
Vice President
SAVIA, S.A. DE C.V.
By: /s/ Bernardo Jimenez Barrera
-------------------------------
Bernardo Jimenez Barrera
Chief Financial Officer
By: /s/ Heriberto Muzza
-------------------------------
Heriberto Muzza
Attorney-in-Fact
SEMINIS ACQUISITION LLC
By: /s/ Bernardo Jimenez Barrera
-------------------------------
Bernardo Jimenez Barrera
Authorized Officer
CONJUNTO ADMINISTRATIVO
INTEGRAL, S.A. DE C.V.
By: /s/ Carlos G. Mahuad
-------------------------
Carlos G. Mahuad
President
By: /s/ Heriberto S. Muzza
-------------------------
Heriberto S. Muzza
Attorney-in-Fact
EMPRIMA, S.A. DE C.V.
By: /s/ Carlos G. Mahuad
-------------------------
Carlos G. Mahuad
President
By: /s/ Heriberto S. Muzza
-------------------------
Heriberto S. Muzza
Attorney-in-Fact
PARK FINANCIAL GROUP LTD.
By: /s/ Bernardo Jimenez Barrera
-------------------------------
Bernardo Jimenez Barrera
Attorney-in-Fact
DESARROLLO CONSOLIDADO
DE NEGOCIOS, S.A. DE C.V.
By: /s/ Gustavo Romo Garza
-------------------------
Gustavo Romo Garza
Director
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
ADMINISTRACION Y PAGO NUMERO
167-5)
By: /s/ Bernardo Jimenez Barrera
-------------------------------
Bernardo Jimenez Barrera
Attorney-in-Fact
By: /s/ Alejandro Sanchez Mujica
-------------------------------
Alejandro Sanchez Mujica
Attorney-in-Fact
ALFONSO ROMO GARZA
/s/ Alfonso Romo Garza
-------------------------------
MATEO MAZAL BEJA
/s/ Mateo Mazal Beja
-------------------------------
BERNARDO JIMENEZ BARRERA
/s/ Bernardo Jimenez Barrera
-------------------------------
ADRIAN RODRIGUEZ MACEDO
/s/ Adrian Rodriguez Macedo
-------------------------------
BRUNO FERRARI
/s/ Bruno Ferrari
-------------------------------
GASPAR ALVAREZ MARTINEZ
/s/ Gaspar Alvarez Martinez
-------------------------------
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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(a)(1) Press Release issued by Seminis, Inc., Savia, S.A. de C.V. and Fox
Paine & Company, LLC, dated June 2, 2003.*
(a)(2) Memorandum to employees of Seminis from Alfonso Romo, dated June 2,
2003.*
(a)(3) Proxy Statement, incorporated herein by reference to the Proxy
Statement, filed with the U.S. Securities and Exchange Commission by
Seminis, Inc. on August 8, 2003.
(a)(4) Press Release issued by Seminis, Inc., dated September 8, 2003.
(a)(5) Press Release issued by Seminis, Inc., Savia, S.A. de C.V. and Fox
Paine & Company, LLC, dated September 29, 2003.
(b)(1) Credit Agreement, dated as of September 29, 2003, among Seminis
Vegetable Seeds, Inc., as Borrower, Seminis, Inc., as Parent
Guarantor, the Lenders named therein and Citicorp North America,
Inc., as Administrative Agent.
(b)(2) Indenture, dated as of September 29, 2003, by and among, Seminis
Vegetable Seeds, Inc., the Guarantors named therein, and Wells Fargo
Bank, National Association, as Trustee.
(c)(1) Fairness Opinion of Merrill Lynch, Pierce, Fenner & Smith
Incorporated, dated May 30, 2003, incorporated herein by reference
to Appendix C to the Proxy Statement.
(c)(2) Presentation of Merrill Lynch, Pierce, Fenner & Smith Incorporated
to the Special Committee of the Board of Directors, dated May 30,
2003.*
(c)(3) Valuation Report of Casa de Bolsa Banorte, S.A. de C.V., Grupo
Financiero Banorte to Savia, S.A. de C.V. dated April 24, 2003, as
translated by Savia, S.A. de C.V.*
(c)(4) Presentation of Casa de Bolsa Banorte, S.A. de C.V., Grupo
Financiero Banorte to Savia, S.A. de C.V., dated April 24, 2003, as
translated by Savia, S.A. de C.V.*
(d)(1) Agreement and Plan of Merger, dated as of May 30, 2003, by and among
Seminis, Inc., Seminis Acquisition LLC and Seminis Merger Corp.,
incorporated herein by reference to Appendix A to the Proxy
Statement.
(d)(2) Amended and Restated Exchange Agreement, dated as of May 30, 2003,
between Seminis, Inc. and Savia, S.A. de C.V.*
(d)(3) Voting Agreement, dated as of May 30, 2003, among 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
Administracion y Pago Numero 167-5), Conjunto Administrativo
Integral, S.A. de C.V., Park Financial Group, Ltd (BVI), Fox Paine
Seminis Holdings, LLC, Seminis Acquisition LLC, Emprima, S.A. de
C.V. and Alfonso Romo Garza, incorporated herein by reference to
Appendix B to the Proxy Statement.
(d)(4) Contribution Agreement, dated as of May 30, 2003, 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 Administracion y Pago Numero 167-5),
Conjunto Administrativo Integral, S.A. de C.V., Desarrollo
Consolidado de Negocios, S.A. de C.V., Park Financial Group, Ltd
(BVI), Emprima, S.A. de C.V. and Alfonso Romo Garza and certain
members of Seminis and Savia Management.*
(d)(5) Stock Purchase Agreement, dated as of May 30, 2003, among Seminis
Acquisition LLC, Seminis Merger Corp., Fox Paine Seminis Holdings,
LLC and 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
Administracion y Pago Numero 167-5).*
(d)(6) Employment Agreement, dated May 30, 2003, by and between Seminis
Merger Corp. and Alfonso Romo Garza.*
(d)(7) Employment Agreement, dated May 30, 2003, by and between Seminis
Merger Corp. and Bernardo Jimenez.*
(d)(8) Employment Agreement, dated May 30, 2003, by and between Seminis
Merger Corp. and Mateo Mazal Beja.*
(d)(9) Employment Agreement, dated May 30, 2003, by and between Seminis
Merger Corp. and Gaspar Alvarez.*
(d)(10) Employment Agreement, dated May 30, 2003, by and between Seminis
Merger Corp. and C. Edward Green.*
(d)(11) Employment Agreement, dated May 30, 2003, by and between Seminis
Merger Corp. and Jose Manuel Madero Garza.*
(d)(12) Employment Agreement, dated May 30, 2003, by and between Seminis
Merger Corp. and Bruno Ferrari Garcia de Alba (the "Ferrari
Employment Agreement").*
(d)(13) Amendment, dated August 7, 2003, to the Ferrari Employment
Agreement, by and between Seminis Merger Corp. and Bruno Ferrari
Garcia de Alba.**
(d)(14) Letter Agreement, dated July 31, 2003, by and among Seminis, Inc.,
Seminis Acquisition LLC, Seminis Merger Corp. and Fox Paine Seminis
Holdings, LLC.**
(d)(15) Amendment, dated September 29, 2003, to the Contribution Agreement
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 Administracion y Pago Numero
167-5), Conjunto Administrativo Integral, S.A. de C.V., Desarrollo
Consolidado de Negocios, S.A. de C.V., Park Financial Group, Ltd
(BVI), Emprima, S.A. de C.V. and Alfonso Romo Garza and certain
members of Seminis and Savia Management.
(d)(16) Amendment, dated September 29, 2003, to the Stock Purchase Agreement
among Seminis Acquisition LLC, Seminis Merger Corp., Fox Paine
Seminis Holdings, LLC and
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 Administracion y
Pago Numero 167-5).
(d)(17) Amendment, dated September 24, 2003, to the Employment Agreement by
and between Seminis Merger Corp. and Gaspar Alvarez.
(d)(18) Stock Purchase Agreement, dated as of September 29, 2003, by and
among Seminis Merger Corp., G. Carl Ball, the G. Carl Ball Family
Foundation, G. Dexter Ball, Margaret D. Ball, G. Victor Ball Marital
Trust and Vivian Elledge Ball GST Exempt Trust UAD 12/21/92.
(f) Section 262 of the Delaware General Corporation Law, incorporated
herein by reference to Appendix D to the Proxy Statement.
(g) Not applicable.
99.1 Power of Attorney of Park Financial Group Ltd.**
99.2 Power of Attorney of 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 Administracion y Pago Numero 167-5).**
* Previously filed on June 27, 2003.
** Previously filed on August 8, 2003.