EXHIBIT 4.4
[DATE]
FORM OF EXCHANGE AGENT AGREEMENT
Wells Fargo Bank, National Association
MAC E2818-176
17th Floor
707 Wilshire Blvd.
Los Angeles, CA 90017-3501
Attn: Ms. Jeanie Mar
Ladies and Gentlemen:
Seminis Vegetable Seeds, Inc., a company incorporated under the laws of
California (the "Company"), Seminis, Inc., a company incorporated under the laws
of Delaware (the "Parent"), Petoseed International, Inc., a company incorporated
under the laws of California ("Petoseed"), PGI Alfalfa, Inc., a company
incorporated under the laws of Iowa ("PGI") and Baxter Seed Co., Inc., a company
incorporated under the laws of Texas ("Baxter", and together with the Parent,
Petoseed and PGI, the "Guarantors") propose to make an offer (the "Exchange
Offer") to exchange all of their outstanding original 10 1/4% Senior
Subordinated Notes due 2013 issued on January 23, 2004 and related guarantees
(the "Old Notes") for their new 10 1/4% Senior Subordinated Notes due 2013 and
related guarantees (the "New Notes"). The terms and conditions of the Exchange
Offer as currently contemplated are set forth in a prospectus, dated _______,
2004 (the "Prospectus"), proposed to be distributed to all record holders of the
Old Notes. The Old Notes and the New Notes are collectively referred to herein
as the "Notes".
The Company and the Guarantors hereby appoint Wells Fargo Bank, National
Association, to act as exchange agent (the "Exchange Agent") in connection with
the Exchange Offer. References hereinafter to "you" shall refer to Wells Fargo
Bank, National Association.
The Exchange Offer is expected to be commenced by the Company and the
Guarantors on or about ______, 2004. The Letter of Transmittal accompanying the
Prospectus (or in the case of book-entry securities, the Automated Tender Offer
Program ("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to
be used by the holders of the Old Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Old Notes
tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
______, 2004 or on such subsequent date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you before 9:00 a.m.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and
not to accept for exchange any Old Notes not theretofore accepted for exchange,
upon the occurrence of any of the conditions of the Exchange Offer specified in
the Prospectus under the caption "The Exchange Offer -- Conditions to the
Exchange Offer." The Company will give oral (promptly confirmed in writing) or
written notice of any amendment, termination or nonacceptance to you as promptly
as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer" or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to each of the Old
Notes at The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Notes by causing the Book-Entry Transfer Facility to transfer such Old Notes
into your account for such Old Notes in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility) and any other documents delivered or mailed to you
by or for holders of the Old Notes to ascertain whether: (i) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein; and (ii) the Old
Notes have otherwise been properly tendered. In each case where the Letter of
Transmittal or any other document has been improperly completed or executed or
any of the certificates for Old Notes are not in proper form for transfer or
some other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be reasonably necessary
or advisable to cause such irregularity to be corrected.
4. With the approval of the Chief Executive Officer, any Executive Senior
Vice President or any Vice President of the Company or any other party
designated in writing by such an officer (such approval, if given orally, to be
promptly confirmed in writing), you are authorized to waive any irregularities
in connection with any tender of Old Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer
- -- Procedures for Tendering Your Original Notes", and Old Notes shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old Notes which the
Chief Executive
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Officer, any Executive Senior Vice President or any Vice President of the
Company, or any other party designated in writing by such an officer, shall
approve as having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, shall be promptly confirmed in
writing).
6. You shall advise the Company with respect to any Old Notes received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more names
only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Notes,
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the registrar for split-up and return any untendered Old Notes to the holder (or
such other person as may be designated in the Letter of Transmittal) as promptly
as practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be promptly
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Notes properly tendered and you, on behalf of the Company, will exchange
such Old Notes for New Notes and cause such Old Notes to be cancelled. Delivery
of New Notes will be made on behalf of the Company by you at the rate of $1,000
principal amount of New Notes for each $1,000 principal amount of the
corresponding series of Old Notes tendered promptly after notice (such notice,
if given orally, to be promptly confirmed in writing) of acceptance of said Old
Notes by the Company; provided, however, that in all cases, Old Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Old Notes (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or manually signed facsimile thereof) with
any required signature guarantees and any other required documents. You shall
issue New Notes only in denominations of $1,000 or any integral multiple
thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
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10. The Company shall not be required to exchange any Old Notes tendered
if any of the conditions set forth in the Exchange Offer are not met. Notice of
any decision by the Company not to exchange any Old Notes tendered shall be
given (if given orally, to be promptly confirmed in writing) by the Company to
you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"The Exchange Offer -- Conditions to the Exchange Offer" or otherwise, you shall
as soon as practicable after the expiration or termination of the Exchange Offer
return those certificates for unaccepted Old Notes (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All certificates for reissued Old Notes, unaccepted Old Notes or New
Notes shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless the
same constitutes your own gross negligence, willful misconduct or bad faith;
(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing
between you and the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Old Notes represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability, unless you shall have
been furnished with indemnity satisfactory to you;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and believed by you to be genuine
and to have been signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request, document,
agreement, certificate
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or other instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith believe to be
genuine or to have been signed or presented by the proper person or persons;
(g) may conclusively rely on and shall be protected in acting in
good faith upon written or oral instructions from any authorized officer of the
Company;
(h) may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you hereunder in
good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market value
or decline or appreciation in market value of any Old Notes;
provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
15. You shall take such action as may from time to time be requested by
the Company (and such other action as you may deem appropriate) to furnish
copies of the Prospectus, Letter of Transmittal and Notice of Guaranteed
Delivery (as defined in the Prospectus), or such other forms as may be approved
from time to time by the Company, to all persons requesting such documents and
to accept and comply with telephone requests for information relating to the
Exchange Offer, provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange Offer. The Company
will furnish you with copies of such documents on your request. All other
requests for information relating to the Exchange Offer shall be directed to the
Company, Attention: Gaspar Alvarez, Vice President, Finance and Worldwide
Corporate Comptroller and Attention: Patrick Turner, Treasurer.
16. You shall advise the Company by facsimile transmission, Attention:
Gaspar Alvarez, Vice President, Finance and Worldwide Corporate Comptroller, at
facsimile number (805) 918-2553, Attention: Patrick Turner, Treasurer at
facsimile number (805) 918-2242 and Attention: Juliet L. Ream, General Counsel,
at facsimile number (805) 918-2530, and such other person or persons as the
Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date if requested) up to and including the Expiration
Date, as to the number of Old Notes which have been tendered pursuant to the
Exchange Offer and the items received by you pursuant to this Agreement,
separately reporting and giving cumulative totals as to items properly received
and items improperly received. In addition, you will also inform, and cooperate
in making available to, the Company or any such other person or persons upon
oral request made from time to time prior to the Expiration Date of such other
information as they may reasonably request. Such cooperation shall include,
without limitation, the granting by you to the Company and such person as the
Company may request of access to those persons on your staff who are responsible
for receiving tenders, in order to ensure that immediately prior to the
Expiration Date the Company shall have received information in sufficient detail
to enable it to
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decide whether to extend the Exchange Offer. You shall prepare a final list of
all persons whose tenders were accepted, the aggregate principal amount of Old
Notes tendered and the aggregate principal amount of Old Notes accepted, and you
shall deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and, after the expiration of the Exchange Offer,
the time, of receipt thereof and shall be preserved by you for a period of time
at least equal to the period of time you preserve other records pertaining to
the transfer of securities. You shall dispose of unused Letters of Transmittal
and other surplus materials by returning them to the Company.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent.
20. The Company covenants and agrees to fully indemnify and hold you
harmless against any and all loss, liability, cost or expense, including
attorneys' fees and expenses, incurred without gross negligence, willful
misconduct or bad faith on your part, arising out of or in connection with any
act, omission, delay or refusal made by you in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction or
other instrument or document believed by you to be valid, genuine and
sufficient, and in accepting any tender or effecting any transfer of Old Notes
believed by you in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Old Notes. In no case
shall the Company be liable under this indemnity with respect to any claim
against you unless the Company shall be notified by you, by letter or cable or
by facsimile which is confirmed by letter, of the written assertion of a claim
against you or of any other action commenced against you, promptly after you
shall have received any such written assertion or notice of commencement of
action. The Company shall be entitled to participate at its own expense in the
defense of any such claim or other action and, if the Company so elects, the
Company shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company shall assume the defense of any such suit, the
Company shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you, so long as the Company shall retain counsel
reasonably satisfactory to you to defend such suit; provided, that the Company
shall not be entitled to assume the defense of any such action if the named
parties to such action include both you and the Company and representation of
both parties by the same legal counsel would, in the written opinion of your
counsel, be inappropriate due to actual or potential conflicting interests
between you and the Company. You understand and agree that the Company shall not
be liable under this paragraph for the fees and expenses of more than one legal
counsel for you. The provisions of this section shall survive the termination of
this Agreement.
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21. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, the Guarantors or any of their subsidiaries or affiliates pursuant to
any loan or credit agreement with you or for compensation owed to you hereunder.
22. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing tax identification
numbers, and shall file any appropriate reports with the Internal Revenue
Service.
23. You shall deliver or cause to be delivered, in a timely manner to each
governmental authority to which any transfer taxes are payable in respect of the
exchange of Old Notes and, upon receipt of a written approval from the Company,
shall deliver or cause to be delivered, in a timely manner to each governmental
authority to which any transfer taxes are payable in respect of the exchange of
Old Notes, your check in the amount of all transfer taxes so payable, and the
Company shall reimburse you for the amount of any and all transfer taxes payable
in respect of the exchange of Old Notes; provided, however, that you shall
reimburse the Company for amounts refunded to you in respect of your payment of
any such transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles.
25. This Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successor and assigns of each of the
parties hereto. Nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. Without limitation of the
foregoing, the parties hereto expressly agree that no holder of Old Notes or New
Notes shall have any right, benefit or remedy of any nature whatsoever under, or
by reason of, this Agreement.
26. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
27. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
28. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
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29. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Seminis Vegetable Seeds, Inc.
2700 Camino del Sol
Oxnard, CA 93030
Facsimile: (805) 918-2530
Attention: Chief Legal Counsel
with copies to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, NY 10005
Facsimile: (212) 822-5530
Attention: Howard Kelberg
If to the Exchange Agent:
Wells Fargo Bank, National Association
MAC E2818-176
17th Floor
707 Wilshire Blvd.
Los Angeles, CA 90017-3501
Facsimile: (213) 614-3355
Attention: Ms. Jeanie Mar
30. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 18, 19, 20, 21 and 24 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for Securities, funds or property then held by you as
Exchange Agent under this Agreement.
31. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
SEMINIS VEGETABLE SEEDS, INC.
By:
---------------------------
Name:
Title:
SEMINIS, INC.
By:
---------------------------
Name:
Title:
PETOSEED INTERNATIONAL, INC.
By:
---------------------------
Name:
Title:
PGI ALFALFA, INC.
By:
---------------------------
Name:
Title:
BAXTER SEED CO., INC.
By:
---------------------------
Name:
Title:
Accepted as of the date
first above written:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Exchange Agent
By:
---------------------------
Name:
Title:
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