Exhibit (d)(18)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of September 29, 2003 (this
"Agreement"), is made by and among Seminis Merger Corp., a Delaware corporation
(the "Company"), G. Xxxx Xxxx, the G. Xxxx Xxxx Family Foundation, G. Xxxxxx
Xxxx, Xxxxxxxx X. Xxxx, G. Xxxxxx Xxxx Marital Trust and Xxxxxx Xxxxxxx Ball GST
Exempt Trust UAD 12/21/92 (each a "Seller" and collectively the "Sellers").
WHEREAS, at the Effective Time of the Merger (each as defined
below), the Company shall merge with and into Seminis, Inc. ("Seminis")and the
separate corporate existence of the Company shall thereupon cease, Seminis will
be the surviving corporation in the Merger and after the Effective Time of the
Merger, all references to the Company in this Agreement shall be to Seminis,
Inc.;
WHEREAS, each Seller is an owner of shares of Class B Redeemable
Preferred Stock (the "Class B Preferred Stock") of Seminis as set forth on
Exhibit A hereto (the "Sale Shares"), and each Seller desires to sell and the
Company desires to purchase each Seller's right, title and interest in and to
the Sale Shares (the "Stock Purchase") in exchange for $950.00 per share of
Class B Preferred Stock and an aggregate purchase price of $23,750,000 for all
the Sale Shares;
WHEREAS, in connection with the closing of the Merger, the Company
is required to pay to each Seller an amount equal to all accrued and unpaid
dividends on the Class B Preferred Stock as of the payment date (determined in
accordance with the certificate of designations of the Class B Preferred Stock)
immediately preceding the closing date of the Merger (as defined below); and
WHEREAS, in connection with this Agreement, the Company shall pay
all accrued and unpaid dividends on the Class B Preferred Stock from such last
payment date through the Closing Date (as defined below);
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereto agree
as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the respective
meanings set forth below:
"Agreement" shall have the meaning set forth in the preamble.
"Class B Preferred Stock" shall have the meaning set forth in the
recitals.
"Closing" shall have the meaning set forth in Section 2.1.
"Closing Date" shall have the meaning set forth in Section 2.1.
"Company" shall have the meaning set forth in the preamble.
"Effective Time" shall mean the time the Merger becomes effective, which
will be either the time the certificate of merger with respect to the Merger is
duly filed with the Secretary of State of Delaware or at such a later date and
time as the parties shall agree and as shall be specified in such certificate of
merger.
"Governmental Entity" means any federal, state, local or foreign court or
tribunal or administrative, governmental or regulatory body, agency or
authority.
"Lien" means any security interests, liens, claims, charges, title
defects, deficiencies or exceptions, mortgages, pledges, rights of first
refusal, options, conditional sales or other title retention agreements,
covenants, conditions or other similar restrictions (including restrictions on
transfer) or other encumbrances of any nature whatsoever (other than
restrictions imposed generally by state and federal securities laws with respect
to unregistered securities).
"Merger" shall mean the merger of the Company with and into Seminis, with
Seminis, as the surviving corporation, as provided in the Merger Agreement (as
defined below).
"Merger Agreement" means the Agreement and Plan of Merger, dated as of May
30, 2003, as amended, by and among Seminis Acquisition LLC, the Company and
Seminis.
"Sale Shares" shall have the meaning set forth in the recitals.
"Seller" and "Sellers" shall each have the meaning set forth in the
preamble.
"Stock Purchase" shall have the meaning set forth in the recitals.
ARTICLE II
THE STOCK PURCHASE
Section 2.1. The Closing. The closing of the Stock Purchase (the
"Closing") will be held at the offices of Milbank, Tweed, Xxxxxx & XxXxxx LLP, 1
Chase Manhattan Plaza, New York, New York, at 10:00 a.m. New York City time (or
such other place as the parties hereto may agree) on the closing date of the
Merger (the "Closing Date") after satisfaction or waiver of the conditions set
forth in Article V.
Section 2.2. Purchase and Sale. Subject to the terms and conditions
set forth herein, at the Closing, each Seller shall sell to the Company all of
such Seller's right, title and interest in and to the Sale Shares as set forth
opposite such Seller's name on Exhibit A, free and clear of any Lien; including
without limitation, any rights of Sellers to accrued but unpaid dividends as of
the Closing Date. The Company agrees that in the event of overpayment of the
accrued but unpaid dividends, it will not seek reimbursement thereof from the
Sellers.
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Section 2.3. Delivery of Sale Shares. At the Closing, each Seller
shall deliver or cause to be delivered to the Company:
(a) one or more stock certificates representing in the aggregate
such Seller's shares of Class B Preferred Stock as set forth on Exhibit A, duly
endorsed in blank for transfer or accompanied by duly executed stock powers and
all applicable stock transfer stamps and other instruments requisite for proper
transfer, all in proper form; and
(b) upon receipt of the cash payments as set forth in Section 2.4,
each Seller agrees that (i) all accrued and unpaid dividends through the Closing
Date have been fully satisfied as part of the delivery of the Sale Shares and
(ii) Seller shall have no other right with respect to the Sale Shares other than
the right to receive the payments contemplated by this Agreement.
Section 2.4. Payment. At the Closing, the Company shall pay to each
Seller by wire transfer of immediately available funds (to the account
designated by each Seller in writing not less than three days prior to Closing):
(a) $950.00 for each share of Class B Preferred Stock owned by each
Seller (as set forth on Exhibit A hereto);
(b) in connection with the Merger, but separately from the Stock
Purchase hereunder, all accrued and unpaid dividends on the Class B Preferred
Stock as of the payment date (determined in accordance with the certificate of
designations of the Class B Preferred Stock) immediately preceding the closing
date of the Merger (as set forth on Exhibit B hereto); and
(c) in connection with this Agreement, all accrued and unpaid
dividends on the Class B Preferred Stock from such last payment date through the
Closing Date (as set forth on Exhibit B hereto).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller, severally and not jointly, hereby represents and warrants to
the Company as follows:
Section 3.1. Authority. Each Seller has all necessary power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by each Seller, who is not an individual, and no other
proceeding or approval on the part of any Seller is necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by each Seller and, assuming
due and valid authorization, execution and delivery by the Company, constitutes
the valid, legal and binding obligation of each Seller, enforceable against each
Seller in accordance with its terms, except as enforceability may be restricted,
limited or delayed by applicable bankruptcy,
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insolvency, fraudulent conveyance, or other laws affecting creditor's rights
generally, and except as enforceability is subject to general principles of
equity.
Section 3.2. Ownership of Stock. On the date hereof and as of the
Closing Date, each Seller is the owner, beneficially and of record, of the
shares as set forth on Exhibit A, free and clear of any Lien and will transfer
to the Company good and valid title to such shares free and clear of any Lien.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Company hereby represents and warrants to each Seller as follows:
Section 4.1. Organization, Good Standing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
Section 4.2. Authorization. The Company has the corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. All actions on the part of the Company necessary for the
authorization, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been or will be taken
prior to the Closing Date, and this Agreement constitutes the legal, valid and
binding obligation of the Company, enforceable against it in accordance with its
terms, except as enforceability may be restricted, limited or delayed by
applicable bankruptcy, insolvency, fraudulent conveyance, or other laws
affecting creditor's rights generally, and except as enforceability is subject
to general principles of equity.
ARTICLE V
CONDITIONS TO CONSUMMATION OF THE STOCK PURCHASE
Section 5.1. Conditions to Performance by Sellers. The obligation of
each Seller to consummate the Stock Purchase is subject to the satisfaction (or
waiver) at or prior to the Closing Date of each of the following conditions:
(a) Accuracy of Representations and Warranties. The representations
and warranties made by the Company herein shall be true and correct in all
respects on the date hereof and on the Closing Date.
(b) Closing of the Merger. The closing of the Merger shall occur
substantially concurrently with the Closing.
(c) Statutes; Court Orders. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated, issued or enforced by any Governmental Entity that prohibits,
restrains, enjoins, precludes or restricts the consummation of the Stock
Purchase or the Merger.
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Section 5.2. Conditions to Performance by the Company. The
obligation of the Company to consummate the Stock Purchase is subject to the
satisfaction (or waiver) at or prior to the Closing Date of each of the
following conditions:
(a) Accuracy of Representations and Warranties. The representations
and warranties made by each Seller herein shall be true and correct in all
respects on the date hereof and on the Closing Date.
(b) Closing of the Merger. The closing of the Merger shall occur
substantially concurrently with the Closing.
(c) Statutes; Court Orders. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated, issued or enforced by any Governmental Entity that prohibits,
restrains, enjoins, precludes or restricts the consummation of the Stock
Purchase or the Merger.
ARTICLE VI
TERMINATION; AMENDMENT; WAIVER
Section 6.1. Termination. This Agreement may be terminated and the
Stock Purchase may be abandoned at any time prior to the Closing:
(a) if the Merger Agreement is terminated; or
(b) by mutual written consent of the Company and Sellers; or
(c) by the Company or Sellers, if any Governmental Entity shall have
enacted, entered, promulgated, issued or enforced a final statute, rule,
regulation, executive order, decree, ruling or injunction (which statute, rule,
regulation, executive order, decree, ruling or injunction the Company shall use
its reasonable best efforts to reverse, overturn or lift and each Seller shall
use reasonable best efforts to assist the Company to reverse, overturn or lift)
or taken any other final action restraining, enjoining or otherwise prohibiting
the Stock Purchase or the Merger and such order, decree, ruling or other action
is or shall have become final.
Section 6.2. Effect of Termination. In the event of the termination
and abandonment of this Agreement pursuant to Section 6.1, written notice
thereof shall forthwith be given to the other party or parties specifying the
provision hereof pursuant to which such termination is made, and this Agreement
shall forthwith become void and have no effect, without any liability on the
part of any party hereto or its affiliates, directors, officers or stockholders;
provided, however, that nothing contained in this Section 6.2, shall relieve any
party from liability for any willful and material breach of this Agreement.
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Section 6.3. Fees and Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such
expenses.
Section 6.4. Amendment; Waiver. No amendment, waiver, change,
modification or discharge of any provision of this Agreement shall in any event
be effective unless the same shall be in writing and signed by all parties
hereto.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Entire Agreement; Assignment. This Agreement (including
Exhibit A hereto) and the Certificate of Designations with respect to the Class
B Preferred Stock constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, between the parties hereto with
respect to the subject matter hereof. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, legal representatives, successors and assigns.
Section 7.2. Severability. If any provision of this Agreement, or
the application thereof to any person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances shall not be affected thereby, and
to such end, the provisions of this Agreement are agreed to be severable. Upon
such determination that any provision is invalid or unenforceable, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties hereto as closely as possible in a mutually
acceptable manner.
Section 7.3. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing (including by facsimile with
written confirmation thereof) and unless otherwise expressly provided herein,
shall be delivered during normal business hours by hand, by Federal Express or
other nationally recognized overnight commercial delivery service, or by
facsimile notice, confirmation of receipt received, addressed as follows, or to
such other address as may be hereafter notified by the respective parties
hereto:
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(a) If to the Sellers:
To: Mr. G. Xxxx Xxxx
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Facsimile:
With a copy, which will not constitute notice, to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Facsimile: 312-853-7036
To: Xx. X. Xxxxxx Ball
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile:
With a copy, which will not constitute notice, to:
Sugar, Friedberg & Felsenthal
00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: 312-372-7951
To: Xxxxxxxx X. Xxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile:
With a copy, which will not constitute notice, to:
Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx XxXxxxxxxx, Esq.
Facsimile: 000-000-0000
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To: G. Xxxxxx Xxxx Marital Trust
00X000 Xxxxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Facsimile:
With a copy, which will not constitute notice, to:
Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx XxXxxxxxxx, Esq.
Facsimile: 000-000-0000
To: Xxxxxx Xxxxxxx Ball GST Exempt
Trust UAD 12/21/92
c/o Xxxx Xxxxxxxx Xxxx
000 Xxxx Xxxx
Xxxx Xxxxx, XX 00000
Facsimile:
With a copy, which will not constitute notice, to:
XxXxxxxxx Will & Emory
000 Xxxx Xxxxxx
Xxxxxxx, XX
00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
(b) If to the Company:
To: Seminis Merger Corp.
0000 Xxxxxx xxx Xxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: 000-000-0000
With a copy, which will not constitute notice, to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
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Section 7.4. Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the principles of
conflicts of law thereof.
(b) The parties hereto hereby agree and consent to be subject to the
exclusive jurisdiction of the courts of the State of Delaware sitting in the
County of New Castle and the United States District Court for the State of
Delaware in any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Agreement or
the Stock Purchase. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by law, (i) any objection that it may now or hereafter have to
laying venue of any suit, action or proceeding brought in such courts, and (ii)
any claim that any suit, action or proceeding brought in such courts has been
brought in an inconvenient forum.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS
OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF.
Section 7.5. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled, without posting a bond or similar indemnity, to an injunction or
injunctions to prevent breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in any federal court located in
the State of Delaware or any Delaware state court, in addition to any other
remedy to which they are entitled at law or in equity.
Section 7.6. Interpretation. When a reference is made in this
Agreement to Articles, Sections or Exhibits, such reference shall be to an
Article, Section or Exhibit of this Agreement unless otherwise indicated. The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include," "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation."
Section 7.7. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
Section 7.8 Delivery by Facsimile. This Agreement, to the extent
signed and delivered by means of a facsimile machine, shall be treated in all
manner and respects as an original agreement or instrument and shall be
considered to have the same binding legal effect as if it were the original
signed version thereof delivered in person. At the request of any party, each
other party shall reexecute original forms thereof and deliver them to all other
parties. No party shall raise the use of a facsimile machine to deliver a
signature or the fact that any signature or agreement or instrument was
transmitted or communicated through the use of a facsimile
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machine as a defense to the formation or enforceability of a contract and each
such party forever waives any such defense.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed on its behalf as of the day and year first above written.
SEMINIS MERGER CORP.
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: President
G. XXXX XXXX
/s/ G. Xxxx Xxxx
----------------------------------------------
G. XXXXXX XXXX
/s/ G. Xxxxxx Xxxx
----------------------------------------------
XXXXXXXX X. XXXX
/s/ Xxxxxxxx X. Xxxx
----------------------------------------------
G. XXXXXX XXXX MARITAL TRUST
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Trustee
XXXXXX XXXXXXX BALL GST EXEMPT TRUST UAD
12/21/92
By: /s/ Xxxx Xxxxxxxx Xxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx Xxxx
Title: Trustee
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
G. XXXX XXXX FAMILY FOUNDATION
/s/ G. Xxxx Xxxx
-----------------------------------------
Name: G. Xxxx Xxxx
Title: President
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
EXHIBIT A
SEMINIS, INC.
CLASS B REDEEMABLE PREFERRED STOCK
As of September 17, 2003
NAME OF STOCKHOLDER CERTIFICATE NUMBER NUMBER OF SHARES PURCHASE PRICE
Xx. X. Xxxxxx Ball PR.B 3 12,000 $11,400,000
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxxx X. Xxxx PR.B 6 580 $551,000
00X000 Xxxxxxx Xxxx Xxxxx
Xxxxx, XX 00000
G. Xxxxxx Xxxx Marital Trust PR.B 7 1,932 $1,835,400
00X000 Xxxxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Xxxxxx Xxxxxxx Ball GST Exempt PR.B 8 30 $28,500
Trust UAD 12/21/92
c/o Xxxx Xxxxxxxx Xxxx
000 Xxxx Xxxx
Xxxx Xxxxx, XX 00000
Mr. G. Xxxx Xxxx PR.B 9 5,229 $4,967,550
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
G. Xxxx Xxxx Family Foundation PR.B 10 5,229 $4,967,550
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
TOTAL FOR PREFERRED STOCKHOLDERS 25,000 23,750,000
EXHIBIT B
Seminis Inc.
Preferred B Ball Dividends Payable
Facts:
1) Principle US$25,000,000.
2) Dividend accrue at 8% per annum.
3) Cash dividend paid through June 2000.
Dividend Distribution Date
---------------------------------------------------------------------------
July 2000 - July 2001 - July 2002 - July 2003 -
Shares June 2001 June 2002 June 2003 Sept 29, 2003 Total
------ --------- --------- --------- ------------- -----
Mr. G. Xxxx Xxxx 5,229 418,320.00 418,320.00 418,320.00 103,418.00 1,358,378.00
G. Xxxx Xxxx Family Foundation 5,229 418,320.00 418,320.00 418,320.00 103,418.00 1,358,378.00
Xx. X. Xxxxxx Ball 12,000 960,000.01 960,000.01 960,000.01 237,333.30 3,117,333.33
Xxxxxxxx X. Xxxx 580 46,400.00 46,400.00 46,400.00 11,471.11 150,671.11
G. Xxxxxx Xxxx Marital Trust 1,932 154,560.00 154,560.00 154,560.00 38,210.67 501,890.67
Xxxxxx Xxxxxxx Ball GST
Exempt Trust UAD 30 2,399.99 2,399.99 2,399.99 593.36 7,793.33
------ ------------ ------------ ------------ ---------- ------------
Total Preferred B Dividends Payable 25,000 2,000,000.00 2,000,000.00 2,000,000.00 494,444.44 6,494,444.44
------ ------------ ------------ ------------ ---------- ------------
Verification total 2,000,000.00 2,000,000.00 2,000,000.00 494,444.44 6,494,444.44
Dividend/year=25,000,000 X .08 $2,000,000.00
Dividend/quarter $500,000.00
Dividend/month $166,666.67
Dividend for 2 months $333,333.33
Dividend from September
1 - 29 (29 days) $161,111.11
Dividend per share/month $6.67
Dividend per share/quarter $20.00
Dividend per share/day $0.2222
** In the event that the Closing occurs after September 29, 2003, the dividend
amount per share will increase by $0.2222 per day.
