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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
DATED AS OF OCTOBER 1, 1995
BY AND AMONG
SEMINIS, INC.
AND
THE SHAREHOLDERS OF SEMINIS, INC. SIGNATORY HERETO
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of October 1, 1995
(the "Agreement") among Seminis, Inc. (formerly Geo. X. Xxxx, Inc.), an Illinois
corporation (the "Company"), and the shareholders of the Company signatory
hereto, whose names are set forth on the Schedule of Shareholders (each, a
"Shareholder" and, collectively, the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Shareholders, the Company and Seminis, Inc., a
Delaware corporation ("Seminis Delaware"), have entered into an Agreement and
Plan of Merger dated as of August 31, 1995 (the "Merger Agreement"), pursuant to
which the parties thereto have agreed, among other things, that Seminis Delaware
shall be merged with and into the Company, with the Company surviving such
merger and the outstanding shares of capital stock of Seminis Delaware and the
Company being converted into new shares of capital stock of the Company, all
upon the terms and conditions set forth in the Merger Agreement; and
WHEREAS, the Company and the Shareholders have entered into a
Shareholders Agreement of even date herewith (the "Shareholders Agreement")
pursuant to which the parties thereto have agreed, among other things, to
transfer their Shares only as permitted in the Shareholders Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Definitions. The following capitalized terms have the
following meanings:
Ball Shareholders: The Shareholders who are designated as such
on the Schedule of Shareholders.
Class A Common Stock: The Company's Class A Common Stock, par
value $.01 per share.
Class B Common Stock: The Company's Class B Common Stock, par
value $.01 per share.
Code: The Internal Revenue Code of 1986, as amended.
Commission: The United States Securities and Exchange
Commission or any other United States Federal agency administering the
Securities Act.
Common Stock: The Class A Common Stock and the Class B Common
Stock.
Exchange Act: The Securities Exchange Act of 1934 and the
rules and regulations of the Commission thereunder, as in effect from
time to time.
Exempt Transfer: A Transfer of shares of Common Stock (i) by a
Ball Shareholder (a) to another Ball Shareholder, to ELM or to any
Affiliate of ELM, (b) to a
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member of such Ball Shareholder's Family Group, (c) to a trust for the
sole benefit of such Ball Shareholder or such Ball Shareholder's Family
Group, (d) by will to a member of such Ball Shareholder's Family Group,
(e) pursuant to laws of descent and distribution to a member of such
Ball Shareholder's Family Group, (f) to any charitable foundation or
other organization qualified under Section 501(c)(3) of the Code and
(g) to the Company pursuant to Article Fourth of the Articles of
Incorporation and (ii) by ELM (a) to any Affiliate of ELM and (b) to
any Person in connection with such Person's capital contribution
pursuant to Section 6 of the Shareholders Agreement.
Family Group: With respect to any Ball Shareholder, such Ball
Shareholder's spouse, siblings, parents, grandparents and descendants,
whether natural or adopted.
Initial Public Offering: The closing of the last of one or
more firm commitment underwritten public offering(s) of Class A Common
Stock registered with the Commission under the Securities Act in which
(i) the net cumulative proceeds received by the Company and the
Shareholders is at least $100,000,000 and (ii) the Ball Shareholders
have the opportunity to sell shares of Class A Common Stock in such
offering(s) representing 30% (or such (a) lesser percentage of the
aggregate number of shares of Class A Common Stock included in such
offering(s) as is represented by the aggregate number of the shares of
Common Stock then held by the Ball Shareholders or (b) greater
percentage of the aggregate number of shares of Class A Common Stock
included in such offering(s) as is consented to by the Company in its
sole discretion) of the aggregate number of shares of Class A Common
Stock sold in such offering(s).
NASD: The National Association of Securities Dealers, Inc. and
any successor organization.
Person: An individual, corporation, partnership, association,
joint-stock company, trust where the interests of the beneficiaries are
evidenced by a security, unincorporated organization, estate,
governmental or political subdivision thereof or governmental agency.
Qualified Demand Shareholders: The Ball Shareholders which
hold, individually or in the aggregate, at least 3,333 shares of Common
Stock, and who demand registration of at least 3,333 shares of the
Registrable Securities them. In the event of any change in Common Stock
or Registrable Securities by reason of stock dividends, stock splits,
reverse stock splits, mergers, recapitalizations, combinations,
exchanges of shares or the like, such numbers of Common Stock or
Registrable Securities shall be adjusted appropriately to reflect such
change in the Registrable Securities.
Qualified Piggyback Shareholders: The Shareholders which hold,
individually or in the aggregate, at least 333 shares of Common Stock,
and who demand registration of at least 333 shares of the Registrable
Securities held by them. In the event of any change in Common Stock or
Registrable Securities by reason of stock dividends, stock splits,
reverse stock splits, mergers, recapitalizations, combinations,
exchanges of shares or the like, such numbers of Common Stock or
Registrable Securities shall be adjusted appropriately to reflect such
change in the Common Stock or Registrable Securities.
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Registrable Securities: Shares of Class A Common Stock which
(i) are (A) received pursuant to the Merger Agreement, (B) received
pursuant to a conversion of shares of Class B Common Stock (1) received
pursuant to the Merger Agreement or (2) received with respect to the
shares of Class B Common Stock referred to in clause (1) by way of a
stock dividend or stock split, or in connection with a combination of
shares, recapitalization, merger, consolidation or similar transaction,
as provided by Article Fourth of the Articles of Incorporation, and (C)
received with respect to the shares of Class A Common Stock referred to
in clauses (A) and (B) by way of a stock dividend or stock split, or in
connection with a combination of shares, recapitalization, merger,
consolidation or similar transaction, and (ii) have not at any time
been Transferred except pursuant to an Exempt Transfer.
Registration Date: The fifth anniversary of the date hereof.
Registration Statement: A registration statement provided for
in Section 6 of the Securities Act under which securities are
registered under the Securities Act, together with any preliminary,
final or summary prospectus contained therein, any amendment or
supplement thereto, and any document incorporated by reference therein.
Securities Act: The Securities Act of 1933 and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
Valuation of the Company: The aggregate value of the Company's
outstanding Common Stock, based upon the value of the Company as a
going concern (without discount for illiquidity) and assuming that any
control premium applies proportionately to all shareholders as
determined by two independent investment banking firms, one selected by
ELM and one selected by the Qualified Demand Shareholders which
requested such Demand Registration. If such investment banking firms
cannot agree on such valuation within 20 days, they shall jointly
select an independent investment banking firm which independent
investment banking firm shall make a determination within 20 days
following its appointment. If such third appraisal falls within the
range of the first two appraisals, the value determined by the third
appraisal shall be used. If such third appraisal falls outside of the
range of the first two appraisals, the average of the first two
appraisals shall be used.
Valuation Price per Share: The Valuation of the Company
divided by the aggregate number of shares of Common Stock outstanding.
Capitalized terms used herein and not defined herein have the meanings as
defined in the Shareholders Agreement. Terms defined in the Exchange Act or the
Securities Act and not otherwise defined herein have the meanings herein as
therein defined. References to any Shareholder, Ball Shareholder or ELM shall be
deemed to include such Person's successors pursuant to an Exempt Transfer;
provided, however, that no successor of a Ball Shareholder pursuant to clause
(i)(f) of the definition of Exempt Transfer shall be deemed to be a Ball
Shareholder.
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2. Demand Registration.
(a) Right to Demand. If an Initial Public Offering has not
been consummated on or prior to the Registration Date, then the Qualified Demand
Shareholders may on the Registration Date (or within five Business Days
thereafter), by written notice to the Company, request that the Company effect
the registration under the Securities Act of all or part (subject to the minimum
number of shares provided in the definition of Qualified Demand Shareholder) of
such Qualified Demand Shareholders' Registrable Securities (a "Demand
Registration").
If ELM has not purchased the Registrable Securities requested
to be registered by the Qualified Demand Shareholders as provided in Subsection
2(d), the Company shall promptly give written notice of such Demand Registration
to all other Shareholders, and thereupon shall use its best efforts to effect
the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been
requested to register by such Qualified Demand Shareholders, and
(ii) all other Registrable Securities which the Company has
been requested to register by the other Shareholders, by written
request given to the Company within 30 days after the giving of such
written notice by the Company,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered. All offerings pursuant to a Demand Registration
shall be underwritten offerings.
(b) Selection of Underwriters. The underwriters of any
offering pursuant to a Demand Registration shall be one or more
nationally-recognized investment banking firms selected by the Qualified Demand
Shareholders which requested such Demand Registration, subject, however, to the
Company's approval, which will not be unreasonably withheld.
(c) Priority in Demand Registrations. If the managing
underwriter advises the Company that, in its opinion, the number of Registrable
Securities requested to be included in a Demand Registration exceeds what can be
sold in such offering within a price range acceptable to the Qualified Demand
Shareholders which requested such Demand Registration, then the Company will
include in such Demand Registration the number of Registrable Securities
requested to be included in such Demand Registration which the Company is so
advised can be sold in such offering, pro rata among the holders thereof
requesting such registration on the basis of the number of Registrable
Securities requested to be included by such holders; provided that the Company
will include in any Demand Registration, prior to the inclusion of any
Registrable Securities which are not held by the Qualified Demand Shareholders
which requested such Demand Registration, the number of Registrable Securities
which are held by the Qualified Demand Shareholders which requested such Demand
Registration which the Company is so advised can be sold in such offering, pro
rata among such Qualified Demand Shareholders.
(d) Right of First Refusal. The Company shall, within five
Business Days after receipt of notice from the Qualified Demand Shareholders,
give ELM written notice of any requested Demand Registration, including the
names of the Qualified Demand Shareholders which requested such Demand
Registration and the number of Registrable Securities requested to be
registered. Thereupon, ELM shall have the right, exercisable by written notice
to the
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Company and the Qualified Demand Shareholders which requested such Demand
Registration within 15 days of the Company's notice, to request that the
Valuation Price per Share be determined and to delay for a period not to exceed
90 days any Demand Registration until such determination is made. At such time
as the Valuation Price per Share has been determined, ELM shall have the right,
exercisable by written notice to the Company and the Qualified Demand
Shareholders which requested such Demand Registration within 90 days of the date
of determination of the Valuation Price per Share, to elect to purchase, and the
Qualified Demand Shareholders agree to sell, on a date specified by ELM in such
notice (which date shall be not more than 150 days from the date of such
notice), the Registrable Securities which the Qualified Demand Shareholders have
requested to be included in such Demand Registration, at a price per share equal
to the Valuation Price per Share. On such purchase date specified by ELM, the
Qualified Demand Shareholders shall deliver to ELM the certificates representing
the Registrable Securities sold, duly endorsed or accompanied by a duly executed
stock power, against payment therefor, and ELM shall purchase, and acquire good
and valid title to, such Registrable Securities. Each Qualified Demand
Shareholder which sells Registrable Securities to ELM pursuant to this
Subsection 2(d) represents and warrants to ELM that ELM shall, pursuant to such
sale, acquire good and valid title to such Registrable Securities, free and
clear of any liens, charges, encumbrances or restrictions of any nature
whatsoever.
(e) Additional Demand Registration. If the Company effects the
registration of less than all of the Registrable Securities owned by the Ball
Shareholders pursuant to the Demand Registration pursuant to Subsection 2(a) (or
ELM purchases less than all of the Registrable Securities owned by the Ball
Shareholders in lieu of such registration pursuant to Subsection 2(d)), the
Qualified Demand Shareholders may, at any time after six months have elapsed
since the effective date of such Demand Registration (or the date of such
purchase by ELM) and prior to the eighth anniversary of the date hereof, request
a second Demand Registration if at such time an Initial Public Offering has not
been consummated. Any such Demand Registration shall be requested, effected and
in all other respects be in accordance with the terms of the first Demand
Registration.
(f) Restrictions on Demand Registrations. The Company may
postpone for up to six months the filing or the effectiveness of a Registration
Statement for a Demand Registration, whether pursuant to Subsection 2(a) or
2(e), if the Company's Board of Directors determines that such Demand
Registration might reasonably be expected to have an adverse effect on any
proposal or plan by the Company or any of its subsidiaries to engage in any
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or similar transaction. In such event, the
Qualified Demand Shareholders will be entitled to withdraw their request for the
Demand Registration. If the request for the Demand Registration is so withdrawn,
the Qualified Demand Shareholders shall have the right to request an additional
Demand Registration pursuant to Subsection 2(a) or 2(e), as the case may be, and
the time of any such postponement shall be added to the time within which a
request for a Demand Registration must be made pursuant to such Subsections.
(g) Effective Registration Statement. A Demand Registration
pursuant to this Section 2 shall not be deemed to have been effected (i) unless
a Registration Statement with respect thereto has become effective, (ii) if
after it has become effective, such Demand Registration is interfered with by
any stop order, injunction or other order or requirement of the
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Commission or other governmental agency or court for any reason, or (iii) if the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such Demand Registration are not
satisfied, other than by reason of some act or omission by the selling Ball
Shareholders.
3. Piggyback Registration.
(a) Right to Piggyback. Beginning on the date hereof and
continuing until the fifth anniversary of an Initial Public Offering, if the
Company at any time proposes to register any of its Class A Common Stock under
the Securities Act (other than registrations on Form S-4 or S-8 or the
equivalent thereof) with respect to an underwritten public offering solely for
its own account and the form of Registration Statement to be used may be used
for the registration of Registrable Securities, the Company will give prompt
written notice to all Shareholders of its intent to do so. Within 30 days after
receipt of such notice, the Qualified Piggyback Shareholders may by written
notice to the Company request the registration by the Company under the
Securities Act of Registrable Securities in connection with such proposed
registration by the Company under the Securities Act of its Class A Common Stock
(a "Piggyback Registration"). Such written notice to the Company shall specify
the Registrable Securities intended to be disposed of by such Qualified
Piggyback Shareholders. Upon receipt of such request, the Company will use its
best efforts to register under the Securities Act all Registrable Securities
which the Company has been so requested to register, to the extent requisite to
permit the disposition of the Registrable Securities so to be registered;
provided, however, that if at any time after giving notice of its intent to
register Class A Common Stock and before the effective date of the Registration
Statement filed in connection with such Piggyback Registration, the Company
determines for any reason not to register or to delay registration of such Class
A Common Stock, the Company may, at its election, give notice of such
determination to the Qualified Piggyback Shareholders, and, thereupon, (i) in
the case of a determination not to register, the Company shall be relieved of
its obligation to register any Registrable Securities in connection with such
Piggyback Registration (but not from its obligation to pay registration expenses
pursuant to Section 5 hereof), and (ii) in the case of a determination to delay
registering, the Company may delay registering any Registrable Securities for
the same period as the delay in registering such Class A Common Stock. The
Qualified Piggyback Shareholders shall be entitled to request not more than four
Piggyback Registrations.
(b) Selection of Underwriters. The underwriters of any
offering pursuant to a Piggyback Registration shall be one or more
nationally-recognized investment banking firms selected by the Company.
(c) Priority in Piggyback Registrations. If the managing
underwriter informs the Company in writing of its judgment that including the
Registrable Securities in the Piggyback Registration creates a substantial risk
that the proceeds or price per unit to be received from such offering might be
reduced or that the number of Registrable Securities to be registered is too
large to be reasonably sold, then the Company will include in such Piggyback
Registration, to the extent of the number which the Company is so advised can be
sold in such offering: first, all Class A Common Stock proposed by the Company
to be sold for its own account; and second, such Registrable Securities
requested to be included in such Piggyback Registration pro rata on the basis of
the number of shares of such Registrable Securities so proposed to be sold and
so
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requested to be included; provided, however, that in any public offering
constituting an Initial Public Offering, the number of Registrable Securities
owned by the Ball Shareholders included in such Piggyback Registration shall not
be reduced to a number less than 30% (or such lesser percentage of the aggregate
number of shares of Common Stock included in such offering as is represented by
the aggregate number of shares of Common Stock then held by the Ball
Shareholders) of the aggregate number of shares of Class A Common Stock the
Company is so advised can be sold in such offering.
4. Registration Procedures.
(a) Company Covenants. Whenever the Company is hereunder
required to use its best efforts to effect the registration under the Securities
Act of any Registrable Securities as provided in Section 2 or 3, the Company
will:
(i) prepare and file with the Commission the requisite
Registration Statement to effect such registration and thereafter use
its best efforts to cause such Registration Statement to become
effective, provided that the Company may discontinue any registration
of its securities which are not Registrable Securities (and, under the
circumstances specified in Subsection 3(a), its securities which are
Registrable Securities) at any time prior to the effective date of the
Registration Statement relating thereto;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such Registration Statement until such securities have been
disposed of by the sellers thereof set forth in such Registration
Statement;
(iii) furnish to each seller of Registrable Securities covered
by such Registration Statement such number of conformed copies of the
Registration Statement, and of each amendment and supplement thereto,
such number of copies of the prospectus contained in such Registration
Statement and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities
Act, and such other documents as such seller may reasonably request;
(iv) use its best efforts to register or qualify all
securities covered by such Registration Statement under such other
securities or blue sky laws of United States jurisdictions as each
seller thereof shall reasonably request, to keep such registration or
qualification in effect for so long as the Registration Statement
remains in effect, and to take any other action which may be reasonably
necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such
seller, except that the Company shall not for any such purpose be
required to (a) qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not be obligated to be
so qualified but for the requirements of this subsection; (b) subject
itself to taxation in any such jurisdiction; or (c) consent to general
service of process in any such jurisdiction;
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(v) use its best efforts to cause all Registrable Securities
covered by such Registration Statement to be registered with or
approved by such other governmental agencies or authorities of United
States jurisdictions as may be necessary to enable the seller thereof
to consummate the disposition of such Registrable Securities;
(vi) furnish to each seller of Securities a signed
counterpart, addressed to such seller and the underwriters, of:
(x) an opinion of counsel for the Company dated the
effective date of the Registration Statement (and dated the
closing date under the underwriting agreement), reasonably
satisfactory in form and substance to such seller, and
(y) a "comfort letter" dated the effective date of
the Registration Statement (and dated the date of the closing
under the underwriting agreement), signed by the independent
public accountants who have certified the Company's financial
statements included in such Registration Statement,
covering substantially the same matters with respect to such
Registration Statement and, in the case of the "comfort letter," with
respect to events subsequent to the date of such financial statements,
as are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in underwritten
public offerings of securities, and, in the case of the legal opinion,
such other legal matters, and, in the case of the "comfort letter,"
such other financial matters, as such seller or the underwriter may
reasonably request;
(vii) at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, notify each seller
of Registrable Securities covered by such Registration Statement
promptly after the Company discovers that the prospectus included in
such Registration Statement as then in effect includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made, and at the request of any such seller promptly prepare and
furnish to such seller a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made;
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission;
(ix) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration
Statement from and after a date not later than the effective date of
such Registration Statement; and
(x) use its best efforts to list or cause to be quoted all
Registrable Securities covered by such Registration Statement on any
securities exchange on which or in any market in which similar
securities issued by the Company are then listed or quoted.
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The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish the Company such
information regarding such seller and the distribution of such securities as the
Company may reasonably request for the purpose of effecting such registration.
Any Person participating in any Demand Registration or Piggyback Registration
must (a) agree to sell their securities on the basis provided in the
underwriting agreement and (b) complete and execute all documents required under
this Agreement, the Shareholders Agreement or the underwriting agreement.
Each holder of Registrable Securities agrees that upon receipt
of any notice from the Company of the happening of any event of the kind
described in subparagraph (vii) of this Subsection 4(a), such holder will
discontinue immediately such holder's disposition of securities pursuant to the
Registration Statement until such holder receives copies of the supplemented or
amended prospectus contemplated by such subparagraph (vii) and, if so directed
by the Company, will deliver to the Company all copies, other than permanent
file copies, then in such holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice.
(b) Underwriting Agreements. The Company will enter into an
underwriting agreement with the underwriters for any offering pursuant to a
Demand Registration or Piggyback Registration if requested by the underwriters
so to do. The underwriting agreement will contain such representations and
warranties by the Company and such other terms as are generally prevailing at
such time in underwriting agreements. The holders of Registrable Securities to
be distributed by the underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations, warranties, and other agreements by the Company to and for the
benefit of the underwriters also be made to and for the benefit of such holders
of Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such holders of Registrable Securities. No
holder of Registrable Securities shall be required to make representations or
warranties to, or agreements with, the Company or the underwriters other than
representations, warranties or agreements regarding such holder, such holder's
Registrable Securities, such holder's intended method of distribution, any
representations required by law and any other customary representations.
(c) Holdback Agreements. (i) Each Shareholder agrees by
acquisition of shares of Common Stock not to effect any public sale or
distribution of any equity securities of the Company during the seven days prior
to and the 180 days after any Initial Public Offering, Demand Registration or
Piggyback Registration has become effective, except as part of such Initial
Public Offering, Demand Registration or Piggyback Registration, as the case may
be, unless the managing underwriter of the Initial Public Offering, Demand
Registration or Piggyback Registration otherwise agrees to such sale or
distribution.
(ii) The Company agrees not to effect any public
sale or distribution of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities during the seven days
prior to and the 180 days after any Demand Registration or Piggyback
Registration has become effective, except as part of such Demand Registration or
Piggyback Registration, as the case may be, and except pursuant to registrations
on Form X-0, X-0 or any successor or similar forms thereto.
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(d) Preparation; Reasonable Investigation. In connection with
the preparation and filing of each Registration Statement under the Securities
Act pursuant to this Agreement, the Company will give the holders of Registrable
Securities to be registered under such Registration Statement, the underwriters
and their respective counsel and accountants, the opportunity to participate in
preparing the Registration Statement. The Company will also give each of such
Persons such access to its books and records and opportunities to discuss the
business of the Company with the Company's officers and independent public
accountants who have certified the Company's financial statements as shall, in
the opinion of such holders' and such underwriters' respective counsel, be
necessary to conduct a reasonable investigation within the meaning of the
Securities Act.
(e) Rule 144. If the Company files a Registration Statement
pursuant to the Securities Act or Section 12 of the Exchange Act, the Company
will also file the reports required to be filed by it under the Securities Act
and the Exchange Act to enable the Shareholders to sell their Registrable
Securities without registration under the Securities Act and within the
exemptions provided under the Securities Act by Rule 144 or any similar rule or
regulation hereafter adopted by the Commission.
5. Registration Expenses. The Company will bear all expenses
incident to the Company's compliance with this Agreement, including, without
limitation, registration, filing and NASD fees, securities and blue sky
compliance fees and expenses, word processing expenses, duplicating expenses,
printing expenses, engraving expenses, messenger and delivery expenses, Company
general and administrative expenses, Company counsel and accountants fees and
disbursements, special audit costs, financial statement and reconstruction
costs, comfort letter costs, underwriter fees and disbursements customarily paid
by issuers or sellers of securities (including fees paid to a "qualified
independent underwriter" required by the rules of the NASD in connection with a
distribution), "road show" expenses and allocations and the expense for other
Persons retained by the Company, but excluding (x) fees and disbursements of the
Shareholders' counsel, and (y) discounts, commissions or fees of underwriters,
selling brokers, dealer managers, sales agents or similar securities industry
professionals relating to the distribution of Registrable Securities and
applicable transfer taxes, if any, which shall be borne by the sellers of the
Registrable Securities being registered in all cases.
6. Indemnification.
(a) Indemnification by the Company. In the event of any Demand
Registration or Piggyback Registration of any Registrable Securities under the
Securities Act, the Company shall, and hereby does, indemnify and hold harmless
each seller of any Registrable Securities covered by the Registration Statement
with respect thereto, such seller's partners, directors and officers, each
underwriter (including any "qualified independent underwriter" required by the
rules of the NASD) of the offering or sale of such securities, and each Person
who controls such seller or underwriter within the meaning of the Securities
Act, against any uninsured losses, claims, damages or liabilities to which such
seller, partner, director, officer, underwriter or controlling Person, as the
case may be, may become subject under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of material fact contained
in the Registration Statement
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under which such Registrable Securities were sold or an omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse each such indemnified Person for expenses reasonably incurred by it in
connection with defending such loss, claim, damage, liability, action or
proceeding; provided that the Company shall not be liable in any such case for
any losses, claims, damages, liabilities (or actions or proceedings in respect
thereof) or expenses which arise out of or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission made by the Company in
such Registration Statement in reliance upon information furnished to the
Company in writing by such Person for inclusion in the Registration Statement;
and provided further that the Company shall not be liable to and does not
indemnify any underwriter in the offering or sale of Registrable Securities, or
any Person who controls an underwriter within the meaning of the Securities Act,
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of such Person's
failure to send or give a copy of the final prospectus, as the same may be
supplemented or amended, to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Person, if such statement or omission
was prospectus. This indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of an indemnified party, and shall
survive the transfer of such Registrable Securities by the seller thereof.
(b) Indemnification by the Sellers. The Company may require,
as a condition to including any Registrable Securities in any Registration
Statement, that the Company receive an undertaking satisfactory to it from the
prospective seller of such Registrable Securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in subsection
(a) of this Section 6) the Company, its directors, its officers, and each other
Person who controls the Company within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged omission
from such Registration Statement, if such statement or alleged statement or
omission or alleged omission was made in reliance upon information furnished to
the Company in writing by such seller for inclusion in the Registration
Statement. The prospective sellers' obligation to indemnify will be several, not
joint and several, among such sellers. This indemnity shall remain in full force
and effect, regardless of any investigation made by or on behalf of the Company,
its directors, officers or controlling Persons, and shall survive the transfer
of such Registrable Securities by the seller thereof.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Subsection 6(a) or (b), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party,
give written notice to the latter of the commencement of such action. The
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 6, except to the extent that the indemnifying party
is materially prejudiced by the failure to give such notice. In case any such
action is brought against an indemnified party, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified
party and the indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to such indemnified party of its
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election so to assume the defense thereof, the indemnifying party shall not be
liable for any settlement made by the indemnified party without the indemnifying
party's consent (which consent will not be unreasonably withheld) or for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 6 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any Federal or state law or regulation of any governmental
authority other than the Securities Act.
(e) Indemnification Payments. The indemnification required by
this Section 6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) Contribution. If the indemnification provided for in this
Agreement is for any reason unavailable or insufficient to indemnify an
indemnified party under Subsection 6(a), (b) or (d) hereof in respect of any
loss, claim, damage or liability, or any action in respect thereof, or referred
to therein, then each indemnifying party shall, in lieu of indemnifying such
party, contribute to the amount payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect thereof, in a
proportion which reflects: (i) the relative benefits received on the one hand by
the Company and on the other hand by the holders of the Registrable Securities
included in the offering; (ii) the relative fault with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, on the one hand of the Company and on the other hand of the
holders of the Registrable Securities included in the offering; and (iii) any
other relevant equitable considerations.
The relative benefits received shall be deemed to be in the
same proportion which the sum of the total subscription price paid to the
Company in respect of the Registrable Securities plus the total net proceeds
from the offering of the securities (before deducting expenses) received by the
Company bears to the amount by which the total net proceeds from the offering of
the securities (before deducting expenses) received by the holders of the
Registrable Securities with respect to such offering exceeds the subscription
price paid to the Company in respect of the Registrable Securities, and in each
case, the net proceeds received from such offering shall be determined as set
forth on the table of the cover page of the prospectus.
The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the holders of the Registrable Securities; the
intent of the parties; the parties' relative knowledge; the parties' access to
information; and the parties' opportunity to correct or prevent such statement
or omission. The Company and the Shareholders agree that it would not be just
and equitable if contribution
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pursuant to this Section 6 is determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to herein.
The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability, or action in respect thereof, referred
to in this Subsection 6(f) shall be deemed to include, for purposes of this
Subsection 6(f), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim. No person guilty of "fraudulent misrepresentation" within the meaning of
Section 11 of the Securities Act shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended or
waived by consent of the Company, ELM and the Shareholder Representative. Each
Shareholder shall be bound by any consent authorized by this Subsection 7(a),
whether or not any certificates representing shares of Common Stock shall have
been marked to indicate such consent.
(b) Nominees for Beneficial Owners. If Registrable Securities
are held by a nominee for the beneficial owner thereof, the beneficial owner
thereof may, at its election, be treated as the holder of such Registrable
Securities for purposes of (i) any action by holders of Registrable Securities
pursuant to this Agreement and (ii) any determination of number of Registrable
Securities held by any holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances of such beneficial owner's ownership of such
Registrable Securities.
(c) Notices. All consents, notices and other communications
provided for hereunder shall be in writing and sent in the manner provided in
the Shareholders Agreement. Communications to a Shareholder must be addressed to
such Shareholder in the manner set forth in the Shareholders Agreement or at
such other address as such Shareholder communicates to the Company, or to the
address of the last holder of such security who has communicated an address to
the Company. Communications to the Company must be addressed to the Company in
the manner set forth in the Shareholders Agreement.
(d) Assignment. This Agreement is personal to the parties
hereto and not assignable and may not be enforced by any subsequent holder of
securities of the Company; provided, however, that (i) this Agreement shall be
assignable to, and shall bind and inure to the benefit of, each Transferee of
shares of Common Stock pursuant to an Exempt Transfer (other than pursuant to
clause (i)(f) of the definition thereof) and (ii) this Agreement shall bind and,
solely with respect to Section 3 hereof, inure to the benefit of, each
Transferee of shares of Common Stock other than pursuant to an Exempt Transfer
or pursuant to clause (i)(f) of the definition thereof.
(e) Descriptive Headings. The descriptive headings of the
sections and paragraphs of this Agreement are for reference only and shall not
limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by, and
construed and
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enforced in accordance with, the internal laws of the State of New York.
(g) Termination. This Agreement shall terminate and be of no
further force or effect on the earlier to occur of the eighth anniversary of the
date hereof and the fifth anniversary of the date of consummation of an Initial
Public Offering; provided, however, that Sections 1 and 6 shall not be so
terminated but shall survive without limitation.
(h) Submission to Jurisdiction; Service of Process.
(i) Each of the parties hereto irrevocably submits to the
jurisdiction of the Supreme Court of the State of New York, County of New York,
the U.S. District Court for the Southern District of New York and any appellate
court or body thereto (collectively, the "New York Courts"), over any suit,
action or proceeding arising out of or relating to this Agreement. In addition,
each party hereto irrevocably submits to the jurisdiction of the state and
federal courts located in the jurisdiction in which such party has been
organized or is domiciled in connection with any such suit, action or proceeding
that may be brought against such party as a defendant. Each party hereto
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding brought in any such court and any claim that any such suit, action
or proceeding brought in such court has been brought in an inconvenient forum,
and further agrees that a final judgment in any such suit, action or proceeding
brought in such court shall be conclusive and binding upon such party.
(ii) Each party hereto hereby irrevocably appoints CT
Corporation System, having offices on the date hereof at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Process Agent"), as its authorized agent to accept
and acknowledge on its behalf service of any and all process which may be served
in any suit, action or proceeding of the nature referred to above in any New
York Court. Such designation and appointment shall be irrevocable until the
termination of this Agreement in accordance with the terms hereof. Each party
hereto covenants and agrees that it shall take any and all reasonable action,
including the execution and filing of any and all documents, that may be
necessary to continue the foregoing designations and appointments in full force
and effect and to cause the Process Agent to continue to act in such capacity.
If the Process Agent shall desire to cease so to act, each party hereto
covenants and agrees that prior to the Process Agent ceasing so to act it shall
irrevocably designate and appoint without delay another such agent in such
jurisdiction satisfactory to the Company, ELM and the Shareholder
Representative.
(iii) Each party hereto consents to process being served in
any suit, action or proceeding of the nature referred to in paragraph (ii) of
this Section by serving a copy thereof upon the Process Agent. Without prejudice
to the foregoing, each party hereto agrees that to the extent lawful and
possible, written notice of said service upon the Process Agent shall also be
mailed by registered or certified airmail, postage prepaid, return receipt
requested, to any party, as applicable, at its address provided in Section 7(c)
hereof or to any other address of which such party, as applicable, shall have
given written notice to the Company. If said service upon the Process Agent
shall not be possible or shall otherwise be impractical after reasonable efforts
to effect the same, each party hereto consents to process being served in any
suit, action or proceeding of the nature referred to in paragraph (ii) of this
Section by the mailing of a copy
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thereof by registered or certified airmail, postage prepaid, return receipt
requested, to the address of such party, as applicable, provided in Section 7(c)
hereof or to any other address of which such party shall have given written
notice to the Company, which service shall be effective 14 days after deposit in
the mail. Each party hereto irrevocably waives, to the fullest extent permitted
by law, all claim of error by reason of any such service and each party hereto
agrees that such service (A) shall be deemed in every respect effective service
of process upon such party, as applicable, in any such suit, action or
proceeding and (B) shall to the fullest extent permitted by law, be taken and
held to be valid personal service upon and personal delivery to such party, as
applicable.
(i) Counterparts. This Agreement may be executed in any number
of counterparts. Each counterpart is an original, but all counterparts shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first above written.
SEMINIS, INC.
By:______________________________
Name:
Title:
EMPRESAS LA MODERNA, S.A. DE C.V.
By:______________________________
Name:
Title:
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BALL SHAREHOLDERS:
By :______________________________
G. Xxxx Xxxx
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BALL SHAREHOLDERS:
By :______________________________
Xxxxxx X. Xxxx, Xx.
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20
BALL SHAREHOLDERS:
By :______________________________
G. Xxxxxx Xxxx
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21
BALL SHAREHOLDERS:
By :______________________________
G. Xxxxxx Xxxx, Custodian
for Xxxxx X. Xxxx
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22
BALL SHAREHOLDERS:
By :______________________________
G. Xxxxxx Xxxx, Custodian
for Xxxxxxxxx X. Xxxx
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23
BALL SHAREHOLDERS:
By :______________________________
G. Xxxxxx Xxxx
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24
BALL SHAREHOLDERS:
By :______________________________
G. Xxxxxx Xxxx 1989 Family Trust
24
25
BALL SHAREHOLDERS:
By :______________________________
Xxxxxxxx X. Xxxx
25
26
BALL SHAREHOLDERS:
By :______________________________
Xxxxxx X. Xxxx
26
27
BALL SHAREHOLDERS:
By :______________________________
Xxxxxx X. Xxxxxxx, Xx.
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28
BALL SHAREHOLDERS:
By :______________________________
Xxxx X. Xxxxxxxx
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29
BALL SHAREHOLDERS:
By :______________________________
Xxxxxx X. Xxxxxxx,
Custodian for Xxxxxxxx
Xxxxxx Xxxxxxx
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30
BALL SHAREHOLDERS:
By :______________________________
Xxxxxx X. Xxxxxxx
Custodian for
Xxxxx Xxxxx Hewlett
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31
BALL SHAREHOLDERS:
By :______________________________
Xxxxxx X. Xxxxxxx,
Custodian for
Xxxxxxxxx X. Xxxxx
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32
BALL SHAREHOLDERS:
By :______________________________
Xxxxxxx Family Trust
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33
BALL SHAREHOLDERS:
By :______________________________
Xxxxxxxxxxx X. Xxxxx
TRUST NO. 2
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BALL SHAREHOLDERS:
By :______________________________
Xxxxxxxxx X. Xxxxx
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35
BALL SHAREHOLDERS:
By :______________________________
Xxxxxxxxx X. Xxxxx
TRUST NO. 2
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36
BALL SHAREHOLDERS:
By :______________________________
Xxxxxxxx Xxxxxxx Xxxx Xxxxx
Custodian for
Xxxxx Xxxxx Hewlett
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37
BALL SHAREHOLDERS:
By :______________________________
Xxxxxxxx Xxxxxxx Xxxx Xxxxx
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38
BALL SHAREHOLDERS:
By :______________________________
Xxxxxxxx Xxxxxxx Xxxx Xxxxx
Custodian for
Xxxxxxxx Xxxxxx Xxxxxxx
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BALL SHAREHOLDERS:
By :______________________________
Xxxxxxxx Xxxxxxx Xxxx Xxxxx
Custodian for
Xxxx Xxx Xxxxxxx
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SCHEDULE OF SHAREHOLDERS
EMPRESAS LA MODERNA, S.A. DE C.V.
G. Xxxx Xxxx
Xxxxxx X. Xxxx, Xx.
G. Xxxxxx Xxxx
G. Xxxxxx Xxxx, Custodian for Xxxxx X. Xxxx
G. Xxxxxx Xxxx, Custodian for Xxxxxxxxx X. Xxxx
G. Xxxxxx Xxxx
G. Xxxxxx Xxxx 1989 Family Trust
Xxxxxxxx X. Xxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx, Custodian for Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxx, Custodian for Xxxxx Xxxxx Hewlett
Xxxxxx X. Xxxxxxx, Custodian for Xxxxxxxxx X. Xxxxx
Xxxxxxx Family Trust
Xxxxxxxxx X. Xxxxx
Xxxxxxxxxxx X. Xxxxx Trust No. 2
Xxxxxxxxx X. Xxxxx Trust No. 2
Xxxxxxxx Xxxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxxxx Xxxx Xxxxx, Custodian for Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxx Xxxx Xxxxx, Custodian for Xxxxx Xxxxx Hewlett
Xxxxxxxx Xxxxxxx Xxxx Xxxxx, Custodian for Xxxx Xxx Xxxxxxx
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