EXHIBIT 2.5
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. Institution de Banca Multiple, Afirme
Grupo Financiero, as Trustee, under the Administration Trust
Number 243-4 (Fideicomiso De Administracion) 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
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:
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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) l,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 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
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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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IN WITNESS WHEREOF the parties hereto have caused this Amendment
to the Contribution Agreement to be executed by their duly authorized officers.
SEMINIS ACQUISITION LLC
By: /s/ Bernardo Jimenez
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Name: Bernardo Jimenez
Title: Attorney-in-Fact
SAVIA, S.A. DE C.V.
By: /s/ Bernardo Jimenez
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Name: Bernardo Jimenez
Title: Attorney-in-Fact
BANCA AFIRME, S.A., INSTITUCION DE BANCA
MULTIPLE, AFlRME GRUPO FINANCIERO, AS
TRUSTEE, UNDER THE IRREVOCABLE
ADMINISTRATION AND PAYMENT TRUST NUMBER
167-5 (FIDEICOMISO IRREVOCABLE DE
ADMINISTRACION Y PAGO NUMERO 167-5)
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT AMENDMENT]
IN WITNESS WHEREOF the parties hereto have caused this Amendment
to the Contribution Agreement to be executed by their duly authorized officers.
SEMINIS ACQUISITION LLC
By:
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Name:
Title:
SAVIA, S.A. DE C.V.
By: /s/ Heriberto S. Muzza
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Name: Heriberto S. Muzza
Title: Attorney-In-Fact
By: /s/ Jose Luis Martinez
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Name: Jose Luis Martinez
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/ Ricardo J. Gil
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Name: Ricardo J. Gil
Title: Delegado Fiduciario
By: /s/ Beatriz Garzal
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Name: Beatriz Garzal
Title: Delegado Fiduciario
[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT AMENDMENT]
CONJUNTO ADMINISTRATIVO INTEGRAL, S.A. DE
C.V.
By: /s/ Heriberto S. Muzza
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Name: Heriberto S. Muzza
Title: Attorney-in-Fact
By: /s/ [Signature]
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Name: [Authorized Signatory]
Title: Attorney-in-Fact
DESARROLLO CONSOLIDADO DE NEGOCIOS, S.A.
DE C.V.
By: /s/ Gustavo Romo Garza
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Name: Gustavo Romo Garza
Title: Attorney-in-Fact
EMPRIMA, S.A. DE C.V.
By: /s/ Heriberto S. Muzza
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Name: Heriberto S. Muzza
Title: Attorney-in-Fact
By: /s/ [Signature]
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Name: [Authorized Signatory]
Title: Attorney-in-Fact
[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT AMENDMENT]
PARK FINANCIAL GROUP LTD
By: /s/ Bernardo Jimenez
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Name: Bernardo Jimenez
Title: Authorized Officer
ALFONSO ROMO GARZA
/s/ Alfonso Romo Garza
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BRUNO FERRARI
/s/ Bruno Ferrari
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GASPAR ALVAREZ
/s/ Gaspar Alvarez
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CHARLES EDWARD GREEN
/s/ Charles Edward Green
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FRANCO CAMPANA
/s/ Franco Campana
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JEAN PIERRE POSA
/s/ Jean Pierre Posa
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LUIS MAIZ
/s/ Luis Maiz
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MATEO MAZAL BEJA
/s/ Mateo Mazal Beja
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[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT AMENDMENT]
BERNARDO JIMENEZ
/s/ Bernardo Jimenez
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ADRIAN RODRIGUEZ
/s/ Adrian Rodriguez
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[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT AMENDMENT]