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Exhibit 2
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER dated as of June 14,
1999 (this "Agreement") by and among Seminis, Inc., an Illinois corporation
("Seminis Illinois"), and Seminis, Inc., a Delaware corporation and a
wholly-owned subsidiary of Seminis Illinois ("Seminis Delaware" and together
with Seminis Illinois, the "Constituent Corporations").
WHEREAS, the Boards of Directors of Seminis Illinois and Seminis
Delaware desire that Seminis Illinois merge with and into Seminis Delaware
pursuant to the terms and conditions of this Agreement and in accordance with
(i) Section 11.35 of the Illinois Business Corporation Act (the "IBCA"), and
have adopted and approved this Agreement in accordance with Section 11.35 of the
IBCA and (ii) Section 252 of the Delaware General Corporation Law (the "DGCL"),
and have adopted and approved this Agreement in accordance with Section 252 of
the DGCL.
WHEREAS, as of the date of this Agreement, (a) 39,302,886 shares of
Class A Common Stock, par value $.01 per share, of Seminis Illinois ("Seminis
Illinois Class A Common Stock"), (b) 6,771,500 shares of Class B Common Stock,
par value $.01 per share, of Seminis Illinois ("Seminis Illinois Class B Common
Stock"), (c) no shares of Class C Common Stock, par value $.01 per share, of
Seminis Illinois ("Seminis Illinois Class C Common Stock" and together with
Seminis Illinois Class A Common Stock and Seminis Illinois Class B Common Stock,
the "Seminis Illinois Common Stock "), (d) 25,000 shares of Class A Preferred
Stock, par value $.01 per share, of Seminis Illinois ("Seminis Illinois Class A
Preferred Stock"), (e) no shares of Class B Preferred Stock, par value $.01 per
share, of Seminis Illinois ("Seminis Illinois Class B Preferred Stock") and (f)
1,033.80 shares of Class C Preferred Stock, par value $.01 per share, of Seminis
Illinois ("Seminis Illinois Class C Preferred Stock" and together with the
Seminis Illinois Class A Preferred Stock and Seminis Illinois Class B Preferred
Stock, the "Seminis Illinois Preferred Stock") were issued and outstanding;
WHEREAS, as of the date hereof, 100 shares of Class A Common Stock, par
value $.01 per share, of Seminis Delaware (the "Seminis Delaware Class A Common
Stock") were issued and outstanding;
WHEREAS, Seminis Illinois, as the sole stockholder of Seminis Delaware,
has adopted and approved this Agreement in accordance with Section 228 of the
DGCL;
WHEREAS, Seminis Illinois intends to solicit, at its annual meeting of
shareholders (the "Annual Meeting"), the approval of this Agreement by the
holders of Seminis Illinois Common Stock entitled to vote thereon in accordance
with Section 11.20 of the IBCA;
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NOW, THEREFORE, in consideration of the premises and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
Section 1.1. The Merger. Seminis Illinois shall merge with and into
Seminis Delaware (the "Merger"). Seminis Delaware shall be the surviving
corporation in the Merger (the "Surviving Corporation"), and at the Effective
Time (as defined below), the separate existence of Seminis Illinois shall cease.
The corporate existence of Seminis Delaware, with its purposes, powers and
objects, shall continue unaffected and unimpaired by the Merger, and as the
Surviving Corporation it shall succeed to all rights, assets, liabilities and
obligations of Seminis Illinois as and to the extent provided in Section 259 of
the DGCL and Section 11.50 of the IBCA.
Section 1.2. The Effective Time. The Merger shall become effective on
[May 21, 1999] (the "Effective Time").
Section 1.3. Certificate of Incorporation. The Certificate of
Incorporation of Seminis Delaware as in effect immediately prior to the
Effective Time shall become the Certificate of Incorporation of the Surviving
Corporation and shall be the Certificate of Incorporation of Seminis Delaware
until duly amended.
Section 1.4. By-Laws. The By-Laws of the Surviving Corporation shall be
the By-Laws as set forth in Annex A, and shall be the By-Laws of Seminis
Delaware until duly amended.
Section 1.5. Officers and Directors. At the Effective Time, the
directors and officers of Seminis Illinois immediately prior to the Effective
Time shall be and constitute the directors and officers of the Surviving
Corporation until their successors shall have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Surviving Corporation's Certificate of Incorporation and By-Laws.
Section 1.6. Required Approvals. This Agreement is subject to the
adoption and approval of the holders of a majority of all of the outstanding
shares of Seminis Illinois Class A Common Stock entitled to vote thereon at the
Annual Meeting and all of the outstanding shares of Seminis Illinois Class B
Common Stock entitled to vote thereon at the Annual Meeting, each voting as a
separate class ("Seminis Illinois Shareholder Approval").
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ARTICLE II
CONVERSION OF SHARES
Section 2.1. Effect of the Merger on Capital Stock. At the Effective
Time, by virtue of the Merger and without any action on the part of the
Constituent Corporations or the holders of any capital stock thereof:
(a) Cancellation of Certain Capital Stock of Seminis Illinois. Each
share of the (i) Seminis Illinois Common Stock and (ii) Seminis Illinois
Preferred Stock that is owned by Seminis Illinois as treasury stock or by any of
its subsidiaries shall be canceled and cease to exist.
(b) Conversion of Seminis Illinois Common Stock. Excluding shares of
Seminis Illinois Common Stock and Seminis Illinois Preferred Stock canceled
under Section 2.1(a) and Dissenting Shares (as defined below), (i) every share
of Seminis Illinois Class A Common Stock, if any, and Seminis Illinois Class B
Common Stock, if any, shall be converted into the right to receive one-half
share of Class B Common Stock, par value $.01 per share, of the Surviving
Corporation ("Surviving Corporation Class B Common Stock") and (ii) every share
of Seminis Illinois Class C Common Stock, if any, shall be converted into the
right to receive one-half share of Class A Common Stock, par value $.01 per
share, of the Surviving Corporation ("Surviving Corporation Class A Common
Stock").
(c) Conversion of Seminis Illinois Preferred Stock. Excluding shares of
Seminis Illinois Preferred Stock canceled under Section 2.1(a), (i) every share
of Seminis Illinois Class A Preferred Stock, if any, shall be converted into the
right to receive one share of Class A Preferred Stock, par value $.01 per share,
of the Surviving Corporation, (ii) every share of Seminis Illinois Class B
Preferred Stock, if any, shall be converted into the right to receive one share
of Class B Preferred Stock, par value $.01 per share, of the Surviving
Corporation and (iii) every share of Seminis Illinois Class C Preferred Stock,
if any, shall be converted into the right to receive one share of Class C
Preferred Stock, par value $.01 per share, of the Surviving Corporation.
(d) Cancellation of Shares Upon Conversion. Upon the conversion of
Seminis Illinois Common Stock and Seminis Illinois Preferred Stock pursuant to
paragraphs (b) and (c) of this Section 2.1, excluding Dissenting Shares, such
shares shall be canceled and cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, other than the right to receive shares of capital stock of the
Surviving Corporation as provided in paragraphs (b) and (c) above.
(e) Cancellation of Certain Capital Stock of Seminis Delaware. Each
share of Seminis Delaware Class A Common Stock that is issued and outstanding
immediately prior to the Effective Time shall be canceled and cease to exist.
(f) Dissenting Shares. Notwithstanding any provision of this Agreement
to the contrary, each outstanding share of Seminis Illinois Common Stock, the
holder of which has not voted in favor of the Merger, has perfected such
holder's right to an appraisal of such holder's shares in accordance with the
applicable provisions of the IBCA and has not effectively
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withdrawn or lost such right to appraisal (a "Dissenting Share"), shall not be
converted into or represent a right to receive shares of the capital stock of
the Surviving Corporation pursuant to Section 2.1(b), but the holder thereof
shall be entitled only to such rights as are granted by the applicable
provisions of the IBCA; provided, however, that any Dissenting Share held by a
person at the Effective Time who shall, after the Effective Time, withdraw the
demand for appraisal or lose the right of appraisal, in either case pursuant to
the IBCA, shall be deemed to be converted into, as of the Effective Time, the
right to receive shares of capital stock of the Surviving Corporation pursuant
to Section 2.1(b).
(g) Stock Option Plan. Subject to the terms and conditions of the
Seminis, Inc. 1998 Stock Option Plan, or any successor plan thereto (the "Stock
Option Plan"), and the stock option agreements executed pursuant thereto (the
"Stock Options"), the Stock Option Plan and each option to purchase Seminis
Illinois Class C Common Stock granted thereunder that is outstanding at the
Effective Time shall be assumed by Seminis Delaware and continued in accordance
with their respective terms and each such option shall become a right to
purchase the number of shares of Surviving Corporation Class A Common Stock as
the holder of such Stock Option would have been entitled to receive pursuant to
the Merger had such holder exercised such option in full immediately prior to
the Effective Time, at a price per share equal to (x) the aggregate exercise
price for the shares of Seminis Illinois Class C Common Stock subject to such
Stock Option divided by (y) the number of full shares of Surviving Corporation
Class A Common Stock deemed purchasable as a result of this provision pursuant
to such Stock Option; provided, however, that, in the case of any Stock Option
to which Section 421 of the Code applies by reason of its qualification under
any of Sections 422-424 of the Code, the option exercise price, the number of
shares purchasable pursuant to such option and the terms and conditions of
exercise of such option shall be determined in order to comply with Section
425(a) of the Code. As soon as practicable after the Effective Time, the
Surviving Corporation shall deliver to the participants in the Stock Option Plan
appropriate notices setting forth such participants' rights pursuant thereto and
take all corporate action necessary to reserve for issuance a sufficient number
of shares of Surviving Corporation Class A Common Stock for delivery under the
Stock Option Plan as adjusted in accordance with this Section.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. (a) Representations and Warranties. Each party hereby
represents and warrants to the other that such party: (i) is a corporation duly
organized and in good standing in its jurisdiction of incorporation; (ii) has
obtained the approval of its board of directors to execute and deliver this
Agreement and effect the Merger; and (iii) has full power and authority to
execute, deliver and perform this Agreement.
(b) Seminis Illinois, as sole stockholder of Seminis Delaware, hereby
represents and warrants that it has adopted and approved this Agreement in
accordance with the DGCL.
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ARTICLE IV
COVENANTS
Section 4.1. Delaware Certificate of Incorporation. Seminis Delaware
covenants and agrees that prior to the Effective Time, it and its officers and
directors will take all necessary actions to file with the Secretary of State of
the State of Delaware the Amended and Restated Certificate of Incorporation
substantially in the form as set forth in Annex B.
Section 4.2 Certificates of Designations. Seminis Delaware covenants
and agrees that prior to the Effective Time, it and its officers and directors
will take all necessary actions to file with the Secretary of State of the State
of Delaware the Certificates of Designations as set forth in Annex C.
Section 4.3 Illinois Articles of Merger. Each of the parties hereto
covenant and agree that prior to the Effective Time, each shall execute and
cause to be filed Articles of Merger (the "Articles of Merger") with the
Secretary of State of the State of Illinois pursuant to Section 11.25 of the
IBCA.
ARTICLE V
CLOSING CONDITIONS
Section 5.1. Conditions to Each Party's Obligations to Effect the
Merger. The consummation of the Merger and the other transactions provided
herein is subject to the fulfillment, prior to the Effective Time, of the
following conditions:
(a) Shareholder Approval. Seminis Illinois Shareholder Approval shall
have been obtained.
(b) Illinois Certificate of Merger. The Secretary of State of the State
of Illinois shall have issued a Certificate of Merger pursuant to Section 11.40
of the IBCA.
(c) Bank Consents. Seminis Illinois shall have obtained all required
consents under any loan or financing agreement among Seminis Illinois and its
commercial bank lenders.
ARTICLE VI
TERMINATION; AMENDMENTS
Section 6.1. Termination. This Agreement may be terminated and the
Merger abandoned at any time prior to the filing of the Articles of Merger by
mutual consent of the Board of Directors of the parties hereto.
Section 6.2. Amendments. At any time prior to the filing of the
Articles of Merger , the parties hereto may, by written agreement, amend, modify
or supplement any provision of this Agreement.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Further Assurances. The parties hereto each agree to
execute such documents and instruments and to take whatever action may be
necessary or desirable to consummate the Merger.
Section 7.2. Governing Law. Except to the extent that the IBCA or the
DGCL is mandatorily applicable to the Merger and the rights of the stockholders
of the Constituent Corporations, this Agreement shall be construed under and in
accordance with the laws of the State of New York applicable to contracts to be
fully performed in such State, without giving effect to choice of law principles
except Section 5-1401 of the New York General Obligations Law.
Section 7.3. Binding Effect; Successors and Assigns. This Agreement may
not be assigned by any party without the written consent of all other parties;
this Agreement shall be binding upon and inure to the benefit of the respective
successors and permitted assigns of the parties hereto.
Section 7.4. Counterparts. This Agreement may be executed in separate
counterparts, each of which, when so executed, shall be deemed to be an
original, and such counterparts when taken together shall constitute but one and
the same instrument.
Section 7.5. Merger Agreement. A copy of this Agreement is on file at
the principal place of business of Seminis Delaware, c/o Seminis, Inc., 0000
Xxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 and will be furnished by
Seminis Delaware, on request and without cost, to any shareholder of any
Constituent Corporation.
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IN WITNESS WHEREOF, Seminis Illinois and Seminis Delaware have caused
this Agreement to be signed by their respective officers thereunto duly
authorized as of the day first above written.
SEMINIS, INC.
(Seminis Illinois)
By:___________________________________________
Name:
Title:
SEMINIS, INC.
(Seminis Delaware)
By:___________________________________________
Name:
Title:
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