Exhibit (d)(15)
AMENDMENT
THIS AMENDMENT (this "Amendment"), dated as of September 29, 2003, 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, 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 to the Contribution Agreement (as defined below) (the
"Management Contributors," and together with Savia, the ARG Trust, CAI, and
Park, the "Contributors"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Contribution
Agreement, dated as of May 30, 2003, made by and among Parent, Savia, the ARG
Trust, CAI, Mexican SPC, Emprima, Park, Mr. Romo and the Management Contributors
(the "Contribution Agreement").
WHEREAS, in accordance with Section 7.4 of the Contribution Agreement, the
parties hereto wish to amend the terms of the Contribution Agreement as set
forth below;
NOW, THEREFORE, in consideration of the foregoing and the premises,
representations, warranties and agreements contained in the Contribution
Agreement, the parties hereto agree as follows:
FIRST: The penultimate "WHEREAS" recital shall be amended and restated in
its entirety as follows:
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) the right to receive the
"Purchase Price" (as such term is defined in the Gonzalez Stock Purchase
Agreement) in accordance with the terms of the Gonzalez Stock Purchase
Agreement to Savia, (iv) the right to receive the "Purchase Price" (as
such term is defined in the Bondholder SPC Stock Purchase Agreement) in
accordance with the terms of the Bondholder
SPC Stock Purchase Agreement to Savia, (v) 4,365,257 shares of
New Company Common Stock to the ARG Trust, (vi) 42,000 shares of New
Company Common Stock to CAI, (vii) 1,000,000 shares of New Company Common
Stock to Park, (viii) an aggregate of 685,505 shares of New Company Common
Stock to the Management Contributors as set forth on Exhibit A hereto, and
(ix) all remaining assets, including shares not purchased pursuant to the
ARG Option, if any, to Savia;
SECOND: The defined term "Additional Purchaser" set forth in Article I of
the Contribution Agreement shall be deleted in its entirety.
THIRD: The defined term "Additional Purchase Amount" set forth in Article
I of the Contribution Agreement shall be deleted in its entirety.
FOURTH: The defined term "Additional Sale Shares" set forth in Article I
of the Contribution Agreement shall be deleted in its entirety.
FIFTH: The defined term "Cash Distribution" set forth in Article I of the
Contribution Agreement shall be amended and restated in its entirety as follows:
"Cash Distribution" shall mean an amount equal to $235,035,136.
SIXTH: The defined term "FPSH Sale Shares" set forth in Article I of the
Contribution Agreement shall be amended and restated in its entirety as follows:
"FPSH Sale Shares" shall mean (i) 62,716,028 shares of New Company Common
Stock MINUS (ii) the PS Plug Number.
SEVENTH: The following new defined terms shall be added to Article I of
the Contribution Agreement:
"Bondholder SPC Stock Purchase Agreement" shall mean the Stock Purchase
Agreement, dated as of September 28, 2003, by and between Banca Afirme,
S.A. Institucion de Banca Multiple, Afirme Grupo Financiero, as Trustee,
under the Administration Trust Number 243-4 (Fideicomiso De Adminstracion)
and Parent.
"Gonzalez Stock Purchase Agreement" shall mean the Stock Purchase
Agreement, dated as of September 28, 2003, by and between Marcela Gonzalez
and Parent.
"PS Plug Number" shall mean a number of shares of New Company Common Stock
equal to the quotient of (i) the aggregate cash purchase prices actually
received by the Company pursuant to the Subscription Agreements, DIVIDED
BY (ii) $3.40.
"Subscription Agreements" shall mean (a) the Class C PIK Preferred Stock
and Warrant Subscription Agreement, dated as of September 28, 2003, by and
between Merger Sub and The Northwestern Mutual Life Insurance Company and
(b) the Class C PIK Preferred Stock and Warrant Subscription Agreement,
dated as of September 28, 2003, by and among Merger Sub, Stichting
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Pensioenfonds Abp and Stichting Pensioenfonds Voor De Gezondheid,
Geestelijke En Maatschappelijke Belangen.
EIGHTH: References in the Contribution Agreement to "6,411,953" shall be
replaced by a number equal to 6,411,953 PLUS the PS Plug Number.
NINTH: Section 2.4 of the Contribution Agreement shall be amended and
restated in its entirety as follows:
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 right to receive the "Purchase
Price" (as such term is defined in the Gonzalez Stock Purchase Agreement)
in accordance with the terms of the Gonzalez Stock Purchase Agreement,
(iv) the right to receive the "Purchase Price" (as such term is defined in
the Bondholder SPC Stock Purchase Agreement) in accordance with the terms
of the Bondholder SPC Stock Purchase Agreement to Savia, and (v) 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.
TENTH: Section 3.5 of the Contribution Agreement shall be amended and
restated in its entirety as follows:
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 shares of which shall be designated as
shares of Company Class B Preferred Stock, 25,000 shares of which may be
issued and outstanding. Except (v) as set forth in the preceding sentence,
(w) 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), (x) as
contemplated by this Agreement, (y) as provided in the employment
agreements and letter agreements set forth in Section 3.5 of the Parent
Disclosure Schedule and (z) as contemplated by the Subscription
Agreements, 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
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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.
ELEVENTH: The contribution by Adrian Rodriguez of 18,375 shares of Old
Company Common Stock shall be deemed to be a contribution of 18,378 shares of
Old Company Common Stock for all purposes of the Contribution Agreement and the
Stock Purchase Agreement.
TWELFTH: References in the Contribution Agreement to the Stock Purchase
Agreement shall mean the Stock Purchase Agreement, as amended in accordance with
the amendment, of even date herewith, entered into between FPSH and Parent.
THIRTEENTH: This Amendment shall be construed and enforced in accordance
with the laws of the state of Delaware applicable to contracts made and to be
performed wholly within such state.
FOURTEENTH: This Amendment may be executed in two or more counterparts,
each of which shall be considered an original, but all of which together shall
constitute the same instrument.
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