-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VlqU+57vM5u3qRPZdwieHjcLiTTDvbTtQGuwi6dkSWx2A4bn4CEvEzEMGijGIS18 brwWRM3PTL75G/M4t7CJ0w== 0000950123-03-009117.txt : 20030808 0000950123-03-009117.hdr.sgml : 20030808 20030808105559 ACCESSION NUMBER: 0000950123-03-009117 CONFORMED SUBMISSION TYPE: SC 13E3/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20030808 GROUP MEMBERS: ADRIAN RODRIGUEZ MACEDO GROUP MEMBERS: ALFONSO ROMO GARZA GROUP MEMBERS: BANCA AFIRME SA INSTITUCION DE BANCA MULTIPLE GROUP MEMBERS: BERNARDO JIMENEZ BARRERA GROUP MEMBERS: BRUNO FERRARI GROUP MEMBERS: CONJUNTO ADMINISTRATIVO INTEGRAL SA DE CV GROUP MEMBERS: DESARROLLO CONSOLIDADO DE NEGOCIOS SA DE CV GROUP MEMBERS: EMPRIMA SA DE CV GROUP MEMBERS: GASPAR ALVAREZ MARTINEZ GROUP MEMBERS: MATEO MAZAL BEJA GROUP MEMBERS: PARK FINANCIAL GROUP LTD GROUP MEMBERS: SAVIA SA DE CV GROUP MEMBERS: SEMINIS ACQUISITION LLC GROUP MEMBERS: SEMINIS MERGER CORP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SEMINIS INC CENTRAL INDEX KEY: 0001078259 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 360769130 STATE OF INCORPORATION: IL FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13E3/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56663 FILM NUMBER: 03830459 BUSINESS ADDRESS: STREET 1: 1905 LIRIO AVENUE CITY: SATICOY STATE: CA ZIP: 93004-4206 MAIL ADDRESS: STREET 1: 1905 LIRIO AVENUE CITY: SATICOY STATE: CA ZIP: 93004-4206 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SEMINIS INC CENTRAL INDEX KEY: 0001078259 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 360769130 STATE OF INCORPORATION: IL FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13E3/A BUSINESS ADDRESS: STREET 1: 1905 LIRIO AVENUE CITY: SATICOY STATE: CA ZIP: 93004-4206 MAIL ADDRESS: STREET 1: 1905 LIRIO AVENUE CITY: SATICOY STATE: CA ZIP: 93004-4206 SC 13E3/A 1 y87686a2sc13e3za.txt AMENDMENT NO. 2 TO SCHEDULE 13E-3 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 - -------------------------------------------------------------------------------- Amendment No. 2 SCHEDULE 13E-3 (RULE 13e-3 100) RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934 Seminis, Inc. - -------------------------------------------------------------------------------- (Name of the Issuer) Seminis, Inc. Savia, S.A. de C.V. Seminis Acquisition LLC Seminis Merger Corp. Conjunto Administrativo Integral, S.A. de C.V. Desarrollo Consolidado de Negocios, S.A. de C.V. Emprima, S.A. de C.V. Park Financial Group Ltd. Banca Afirme, S.A., Institucion de Banca Multiple Afirme Grupo Financiero Alfonso Romo Garza Mateo Mazal Beja Bernardo Jimenez Barrera Adrian Rodriguez Macedo Bruno Ferrari Gaspar Alvarez Martinez - -------------------------------------------------------------------------------- (Name of Person(s) Filing Statement) Class A Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 816658108 - -------------------------------------------------------------------------------- (CUSIP Number of Class of Securities) Juliet Ream, Esq. General Counsel Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Telephone Number: (805) 647-1572 WITH A COPY TO: Howard S. Kelberg, Esq. David J. Friedman, Esq. Milbank, Tweed, Hadley & McCloy LLP Skadden, Arps, Slate, Meagher & Flom LLP One Chase Manhattan Plaza Four Times Square New York, New York 10005 New York, New York 10036
- -------------------------------------------------------------------------------- (Name, Address, and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of the Persons Filing Statement) This statement is filed in connection with (check the appropriate box): a.[x] The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. b.[ ] The filing of a registration statement under the Securities Act of 1933. c.[ ] A tender offer. d.[ ] None of the above. Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: [ ] Check the following box if the filing is a final amendment reporting the results of the transaction: [ ] Calculation of Filing Fee
Transaction Valuation Amount of Filing Fee $71,369,505 $5,774.00
[X] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $5,774.00 Filing Party: Seminis, Inc. Form or Registration No.: Schedule 14A Date Filed: June 27, 2003 2 INTRODUCTION This Amendment No. 2 to the Rule 13E-3 Transaction Statement on Schedule 13E-3, first filed on June 27, 2003 (this "Schedule 13E-3"), is being filed by: (1) Seminis, Inc., a Delaware corporation (the "Company" or "Seminis"); (2) Savia, S.A. de C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States; (3) Seminis Acquisition LLC, a Delaware limited liability company; (4) Seminis Merger Corp., a Delaware corporation; (5) Conjunto Administrativo Integral, S.A. de C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States; (6) Desarrollo Consolidado de Negocios, S.A. de C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States; (7) Emprima, S.A. de C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States; (8) Park Financial Group Ltd., a British Virgin Islands international business company; (9) Banca Afirme, S.A., Institucion de Banca Multiple, Afirme Grupo Financiero, as trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable Administracion y Pago Numero 167-5), a trust formed under the laws of the United Mexican States; (10) Alfonso Romo Garza; (11) Mateo Mazal Beja; (12) Bernardo Jimenez Barrera; (13) Adrian Rodriguez Macedo; (14) Bruno Ferrari; and (15) Gaspar Alvarez Martinez. The preceding persons are collectively referred to herein as the "Filing Persons," and individually as a "Filing Person." This Schedule 13E-3 relates to the agreement and plan of merger, dated as of May 30, 2003 (the "Merger Agreement"), by and among the Company, Seminis Acquisition LLC and Seminis Merger Corp. If the Merger Agreement and Merger (as defined below) are adopted and approved by the Seminis stockholders and the other conditions to the closing of the Merger are satisfied or waived, Seminis Merger Corp. will merge with and into the Company (the "Merger"), with the Company continuing as the surviving corporation. In the Merger, the outstanding shares of the Company's Class A common stock, par value $0.01 per share, and the Company's Class B common stock, par value $0.01 per share (collectively, the "Common Stock"), other than those shares held by Seminis Acquisition LLC, Seminis Merger Corp. and Seminis and dissenting stockholders who perfect their appraisal rights under Delaware law with respect to shares of the Common Stock, will be converted, without any action on the part of the stockholders, into the right to receive $3.78 in cash per share. Options will be treated as described more fully in the Proxy Statement (as defined below). Any shares of the Common Stock held by the Company or Seminis Acquisition LLC will be cancelled without payment being made therefor. Each share of Seminis Merger Corp. outstanding will be converted into one share of newly-issued Seminis common stock pursuant to the Merger Agreement. Concurrently with the filing of this Schedule 13E-3, the Company is filing with the U.S. Securities and Exchange Commission amendment no. 2 to its proxy statement (the "Proxy Statement") under Regulation 14A of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), relating to the special meeting of stockholders of the Company at which the stockholders of the Company will consider and vote upon, among other things, a proposal to adopt and approve the Merger Agreement and the Merger. A copy of the Proxy Statement is attached hereto as Exhibit (a)(3). A copy of the Merger Agreement is attached as Appendix A to the Proxy Statement. All references in this Schedule 13E-3 to Items numbered 1001 through 1016 are references to Items set forth in Regulation M-A under the Exchange Act ("Regulation M-A"). The cross reference sheet below is being supplied pursuant to General Instruction F to Schedule 13E-3 and shows the location in the Proxy Statement of the information required to be included in response to the items of this Schedule 13E-3. The information set forth in the Proxy Statement, including all appendices thereto, is hereby expressly incorporated herein by reference, and the responses to each item in this Schedule 13E-3 are qualified in their entirety by the information contained in the Proxy Statement, including the appendices thereto. All information in, or incorporated by reference in, this Schedule 13E-3 concerning the Company has been supplied by the Company. The information contained in this Schedule 13E-3 and/or the Proxy Statement concerning each Filing Person other than the Company has been supplied by each such Filing Person and no other Filing Person, including the Company, takes responsibility for the accuracy of any information not supplied by such Filing Person. Capitalized terms used but not defined in this Schedule 13E-3 shall have the meanings given to them in the Proxy Statement. 3 Item 1. Summary Term Sheet. Regulation M-A Item 1001 Summary Term Sheet. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Item 2. Subject Company Information. Regulation M-A Item 1002 (a) Name and Address. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Transaction Participants Seminis Business Description -- Company Overview (b) Securities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Information Concerning the Special Meeting -- Record Date and Quorum Requirement Common Stock Market Price and Dividend Information (c) Trading Market and Price. The information set forth in the Proxy Statement under the caption "Common Stock Market Price and Dividend Information" is incorporated herein by reference. (d) Dividends. The information set forth in the Proxy Statement under the caption "Common Stock Market Price and Dividend Information" is incorporated herein by reference. (e) Prior Public Offerings. Not applicable. (f) Prior Stock Purchases. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Information Regarding Seminis Common Stock Transactions -- Purchases by Seminis Information Regarding Seminis Common Stock Transactions -- Transactions by Seminis Acquisition, Seminis Merger Corp., Mr. Romo, Savia, Mexican SPC and the Continuing Stockholders Item 3. Identity and Background of Filing Person. Regulation M-A Item 1003 (a) Name and Address. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Current Executive Officers and Directors of Seminis Information About the Transaction Participants (b) Business and Background of Entities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Information About the Transaction Participants 4 (c) Business and Background of Natural Persons. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Current Executive Officers and Directors of Seminis Information About the Transaction Participants Item 4. Terms of the Transaction. Regulation M-A Item 1004 (a)(1) Material Terms. Tender Offers. Not applicable. (a)(2) Material Terms. Mergers or Similar Transactions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Information Concerning the Special Meeting Special Factors -- Structure of the Transaction Special Factors -- Purposes of the Merger and Related Transactions; Certain Effects of the Merger and Related Transactions Special Factors -- Background of the Merger and Related Transactions Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Post-Closing Arrangements Among Fox Paine, Mr. Romo and the Continuing Stockholders Special Factors -- Material U.S. Federal Income Tax Consequences The Merger Agreement (c) Different Terms. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Information Concerning the Special Meeting -- Voting Agreement Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Post-Closing Arrangements Among Fox Paine, Mr. Romo and the Continuing Stockholders The Contribution Agreement The Merger Agreement The Voting Agreement The Stock Purchase Agreement (d) Appraisal Rights. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary -- Appraisal Rights Special Factors -- Appraisal Rights of Stockholders Appendix D (e) Provisions for Unaffiliated Security Holders. The Filing Persons have made no provisions in connection with this transaction to grant unaffiliated security holders access to the respective corporate files of any of the Filing Persons or to obtain counsel or appraisal services at the expense of the Filing Persons. (f) Eligibility for Listing or Trading. Not applicable. 5 Item 5. Past Contacts, Transactions, Negotiations and Agreements. Regulation M-A Item 1005 (a) Transactions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Special Factors -- Structure of the Transaction Special Factors -- Background of the Merger and Related Transactions Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Information About the Transaction Participants -- Past Contacts, Transactions, Negotiations and Agreements (b) Significant Corporate Events. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Special Factors -- Background of the Merger and Related Transactions Special Factors -- Interests of Certain Persons in the Merger and Related Transactions (c) Negotiations or Contacts. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Special Factors -- Background of the Merger and Related Transactions (e) Agreements Involving the Subject Company's Securities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Information Concerning the Special Meeting -- Voting Agreement Special Factors -- Structure of the Transaction Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Post-Closing Arrangements Among Fox Paine, Mr. Romo and the Continuing Stockholders The Contribution Agreement The Merger Agreement The Voting Agreement The Stock Purchase Agreement Item 6. Purposes of the Transaction and Plans or Proposals. Regulation M-A Item 1006 (b) Use of Securities Acquired. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Special Factors -- Purposes of the Merger and Related Transactions; Certain Effects of the Merger and Related Transactions Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Post-Closing Arrangements Among Fox Paine, Mr. Romo and the 6 Continuing Stockholders The Contribution Agreement The Merger Agreement The Stock Purchase Agreement (c)(1)-(8) Plans. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Special Factors -- Purposes of the Merger and Related Transactions; Certain Effects of the Merger and Related Transactions Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Post-Closing Arrangements Among Fox Paine, Mr. Romo and the Continuing Stockholders Special Factors -- Plans for Seminis Following the Merger and Related Transactions Financing for the Merger and Related Transactions The Merger Agreement Item 7. Purposes, Alternatives, Reasons and Effects. Regulation M-A Item 1013 (a) Purposes. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Special Factors -- Purposes of the Merger and Related Transactions; Certain Effects of the Merger and Related Transactions Special Factors -- Background of the Merger and Related Transactions Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Post-Closing Arrangements Among Fox Paine, Mr. Romo and the Continuing Stockholders Special Factors -- Savia and Related Affiliate Restructurings (b) Alternatives. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Special Factors -- Purposes of the Merger and Related Transactions; Certain Effects of the Merger and Related Transactions Special Factors -- Background of the Merger and Related Transactions Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal (c) Reasons. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Special Factors -- Structure of the Transactions Special Factors -- Purposes of the Merger and Related Transactions; Certain Effects of the Merger and Related Transactions Special Factors -- Background of the Merger and Related Transactions Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal 7 Special Factors -- Opinion of Financial Advisor to the Special Committee Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Post-Closing Arrangements Among Fox Paine, Mr. Romo and the Continuing Stockholders Special Factors -- Savia and Related Affiliate Restructurings (d) Effects. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Special Factors -- Purposes of the Merger and Related Transactions; Certain Effects of the Merger and Related Transactions Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Post-Closing Arrangements Among Fox Paine, Mr. Romo and the Continuing Stockholders Special Factors -- Material U.S. Federal Income Tax Consequences Item 8. Fairness of the Transaction. Regulation M-A Item 1014 (a) Fairness. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Special Factors -- Background of the Merger and Related Transactions Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal Special Factors -- Opinion of Financial Advisor to the Special Committee Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Appraisal Rights of Stockholders (b) Factors Considered in Determining Fairness. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary Special Factors -- Structure of the Transaction Special Factors -- Purposes of the Merger and Related Transactions; Certain Effects of the Merger and Related Transactions Special Factors -- Background of the Merger and Related Transactions Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal Special Factors -- Opinion of Financial Advisor to the Special Committee Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Post-Closing Arrangements Among Fox Paine, Mr. Romo and the Continuing Stockholders Special Factors -- Appraisal Rights of Stockholders 8 (c) Approval of Security Holders. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Vote Required Information Concerning the Special Meeting -- Vote Required (d) Unaffiliated Representative. The information set forth in the Proxy Statement under the caption "Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal" is incorporated herein by reference. (e) Approval of Directors. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Recommendations of the Seminis Board of Directors and the Special Committee Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal (f) Other Offers. Not applicable. Item 9. Reports, Opinions, Appraisals and Negotiations. Regulation M-A Item 1015 (a) Report, Opinion or Appraisal. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Fairness Opinion of Merrill Lynch, Pierce, Fenner & Smith Incorporated Special Factors -- Background of the Merger and Related Transactions Special Factors -- Opinion of Financial Advisor to the Special Committee Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Special Factors -- Certain Financial Projections Appendix C (b) Preparer and Summary of the Report, Opinion or Appraisal. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Fairness Opinion of Merrill Lynch, Pierce, Fenner & Smith Incorporated Special Factors -- Background of the Merger and Related Transactions Special Factors -- Opinion of Financial Advisor to the Special Committee Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Special Factors -- Certain Financial Projections Appendix C Item 10. Source and Amounts of Funds or Other Consideration. Regulation M-A Item 1007 (a) Source of Funds. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Financing Financing for the Merger and Related Transactions The Merger Agreement (b) Conditions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: 9 Financing for the Merger and Related Transactions The Merger Agreement (c) Expenses. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Financing Information Concerning the Special Meeting -- Proxy Solicitation Special Factors -- Fees and Expenses Financing for the Merger and Related Transactions -- Requirements (d) Borrowed Funds. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Financing Financing for the Merger and Related Transactions The Merger Agreement Item 11. Interest in Securities of the Subject Company. Regulation M-A Item 1008 (a) Securities Ownership. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Security Ownership of Certain Beneficial Owners and Management (b) Securities Transactions. The information set forth in the Proxy Statement under the caption "Information Regarding Seminis Common Stock Transactions" is incorporated herein by reference. Item 12. The Solicitation or Recommendation. Regulation M-A Item 1012 (d) Intent to Tender or Vote in a Going-Private Transaction. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary -- Voting Agreement Summary -- Interests of Certain Persons in the Merger and Related Transactions Information Concerning the Special Meeting Special Factors -- Purposes of the Merger and Related Transactions; Certain Effects of the Merger and Related Transactions Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Special Factors -- Interests of Certain Persons in the Merger and Related Transactions The Voting Agreement (e) Recommendations of Others. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Questions and Answers About the Merger and Related Transactions Summary -- Recommendations of the Seminis Board of Directors and the Special Committee Special Factors -- Recommendations of the Special Committee and the Board of 10 Directors; Reasons for Recommending the Approval of the Transaction Proposal Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Item 13. Financial Statements. Regulation M-A Item 1010 (a) Financial Information. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Seminis Selected Historical Consolidated Financial Data Appendix F (b) Pro Forma Information. Not applicable. Item 14. Persons/Assets, Retained, Employed, Compensated or Used. Regulation M-A Item 1009 (a) Solicitations or Recommendations. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Recommendations of the Seminis Board of Directors and the Special Committee Summary -- Fairness Opinion of Merrill Lynch, Pierce, Fenner & Smith Incorporated Summary -- Interests of Certain Persons in the Merger and Related Transactions Information Concerning the Special Meeting -- Proxy Solicitation Special Factors -- Recommendations of the Special Committee and the Board of Directors; Reasons for Recommending the Approval of the Transaction Proposal Special Factors -- Opinion of Financial Advisor to the Special Committee Special Factors -- Position of Savia, Mr. Romo and the Continuing Stockholders Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Appendix C (b) Employees and Corporate Assets. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary -- Interests of Certain Persons in the Merger and Related Transactions Special Factors -- Background of the Merger and Related Transactions Special Factors -- Interests of Certain Persons in the Merger and Related Transactions Information Concerning the Special Meeting -- Proxy Solicitation Item 15. Additional Information. Regulation M-A Item 1011 (b) Other Material Information. The entirety of the Proxy Statement, including all appendices thereto, is incorporated herein by reference. 11 Item 16. Exhibits. Regulation M-A Item 1016 (a)(1) Press Release issued by Seminis, Inc., Savia, S.A. de C.V. and Fox Paine & Company, LLC, dated June 2, 2003.* (a)(2) Memorandum to employees of Seminis from Alfonso Romo, dated June 2, 2003.* (a)(3) Proxy Statement, incorporated herein by reference to the Proxy Statement, filed with the U.S. Securities and Exchange Commission by Seminis, Inc. on August 8, 2003. (c)(1) Fairness Opinion of Merrill Lynch, Pierce, Fenner & Smith Incorporated, dated May 30, 2003, incorporated herein by reference to Appendix C to the Proxy Statement. (c)(2) Presentation of Merrill Lynch, Pierce, Fenner & Smith Incorporated to the Special Committee of the Board of Directors, dated May 30, 2003.* (c)(3) Valuation Report of Casa de Bolsa Banorte, S.A. de C.V., Grupo Financiero Banorte to Savia, S.A. de C.V. dated April 24, 2003, as translated by Savia, S.A. de C.V.* (c)(4) Presentation of Casa de Bolsa Banorte, S.A. de C.V., Grupo Financiero Banorte to Savia, S.A. de C.V., dated April, 2003, as translated by Savia, S.A. de C.V.* (d)(1) Agreement and Plan of Merger, dated as of May 30, 2003, by and among Seminis, Inc., Seminis Acquisition LLC and Seminis Merger Corp., incorporated herein by reference to Appendix A to the Proxy Statement. (d)(2) Amended and Restated Exchange Agreement, dated as of May 30, 2003, between Seminis, Inc. and Savia, S.A. de C.V.* (d)(3) Voting Agreement, dated as of May 30, 2003, among Savia, S.A. de C.V., Banca Afirme, S.A., Institucion de Banca Multiple, Afirme Grupo Financiero, as trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable Administracion y Pago Numero 167-5), Conjunto Administrativo Integral, S.A. de C.V., Park Financial Group, Ltd (BVI), Fox Paine Seminis Holdings, LLC, Seminis Acquisition LLC, Emprima, S.A. de C.V. and Alfonso Romo Garza, incorporated herein by reference to Appendix B to the Proxy Statement. (d)(4) Contribution Agreement, dated as of May 30, 2003, among Seminis Acquisition LLC, Savia, S.A. de C.V., Banca Afirme, S.A., Institucion de Banca Multiple, Afirme Grupo Financiero, as trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable Administracion y Pago Numero 167-5), Conjunto Administrativo Integral, S.A. de C.V., Desarrollo Consolidado de Negocios, S.A. de C.V., Park Financial Group, Ltd (BVI), Emprima, S.A. de C.V. and Alfonso Romo Garza and certain members of Seminis and Savia Management.* (d)(5) Stock Purchase Agreement, dated as of May 30, 2003, among Seminis Acquisition LLC, Seminis Merger Corp., Fox Paine Seminis Holdings, LLC and Banca Afirme, S.A., Institucion de Banca Multiple, Afirme Grupo Financiero, as trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable Administracion y Pago Numero 167-5).* (d)(6) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Alfonso Romo Garza.* 12 (d)(7) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Bernardo Jimenez.* (d)(8) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Mateo Mazal Beja.* (d)(9) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Gaspar Alvarez.* (d)(10) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and C. Edward Green.* (d)(11) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Jose Manuel Madero Garza.* (d)(12) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Bruno Ferrari Garcia de Alba (the "Ferrari Employment Agreement").* (d)(13) Amendment, dated August 7, 2003, to the Ferrari Employment Agreement, by and between Seminis Merger Corp. and Bruno Ferrari Garcia de Alba. (d)(14) Letter Agreement, dated July 31, 2003, by and among Seminis, Inc., Seminis Acquisition LLC, Seminis Merger Corp. and Fox Paine Seminis Holdings, LLC. (f) Section 262 of the Delaware General Corporation Law, incorporated herein by reference to Appendix D to the Proxy Statement. (g) Not applicable. 99.1 Power of Attorney of Park Financial Group Ltd. 99.2 Power of Attorney of Banca Afirme, S.A., Institucion de Banca Multiple, Afirme Grupo Financiero, as trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable Administracion y Pago Numero 167-5). * Previously filed on June 27, 2003. 13 SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. August 8, 2003 SEMINIS, INC. /s/ Gaspar Alvarez By: ____________________________ Gaspar Alvarez Vice President /s/ Enrique Osorio By: ____________________________ Enrique Osorio Vice President SAVIA, S.A. DE C.V. /s/ Bernardo Jimenez Barrera By: ____________________________ Bernardo Jimenez Barrera Chief Financial Officer /s/ Heriberto Muzza By: ____________________________ Heriberto Muzza Attorney-in-Fact SEMINIS ACQUISITION LLC /s/ Bernardo Jimenez Barrera By: ____________________________ Bernardo Jimenez Barrera Authorized Officer SEMINIS MERGER CORP. /s/ Bernardo Jimenez Barrera By: ____________________________ Bernardo Jimenez Barrera President CONJUNTO ADMINISTRATIVO INTEGRAL, S.A. DE C.V. By: /s/ Carlos G. Mahuad ____________________________ Carlos G. Mahuad President By: /s/ Heriberto S. Muzza ____________________________ Heriberto S. Muzza Attorney-in-Fact EMPRIMA, S.A. DE C.V. By: /s/ Carlos G. Mahuad ____________________________ Carlos G. Mahuad President 14 By: /s/ Heriberto S. Muzza ____________________________ Heriberto S. Muzza Attorney-in-Fact PARK FINANCIAL GROUP LTD. By: /s/ Bernardo Jimenez Barrera ____________________________ Bernardo Jimenez Barrera Attorney-in-Fact DESARROLLO CONSOLIDADO DE NEGOCIOS, S.A. DE C.V. By: /s/ Gustavo Romo Garza ____________________________ Gustavo Romo Garza Director BANCA AFIRME, S.A., INSTITUCION DE BANCA MULTIPLE, AFIRME GRUPO FINANCIERO, AS TRUSTEE, UNDER THE IRREVOCABLE ADMINISTRATION AND PAYMENT TRUST NUMBER 167-5 (FIDEICOMISO IRREVOCABLE ADMINISTRACION Y PAGO NUMERO 167-5) By: /s/ Bernardo Jimenez Barrera ____________________________ Bernardo Jimenez Barrera Attorney-in-Fact By: /s/ Alejandro Sanchez Mujica ____________________________ Alejandro Sanchez Mujica Attorney-in-Fact ALFONSO ROMO GARZA /s/ Alfonso Romo Garza ____________________________ MATEO MAZAL BEJA /s/ Mateo Mazal Beja ____________________________ BERNARDO JIMENEZ BARRERA /s/ Bernardo Jimenez Barrera ____________________________ ADRIAN RODRIGUEZ MACEDO /s/ Adrian Rodriguez Macedo ____________________________ BRUNO FERRARI /s/ Bruno Ferrari ____________________________ GASPAR ALVAREZ MARTINEZ /s/ Gaspar Alvarez Martinez ____________________________ 15 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - ------ ----------- (a)(1) Press Release issued by Seminis, Inc., Savia, S.A. de C.V. and Fox Paine & Company, LLC, dated June 2, 2003.* (a)(2) Memorandum to employees of Seminis from Alfonso Romo, dated June 2, 2003.* (a)(3) Proxy Statement, incorporated herein by reference to the Proxy Statement, filed with the U.S. Securities and Exchange Commission by Seminis, Inc. on August 8, 2003. (c)(1) Fairness Opinion of Merrill Lynch, Pierce, Fenner & Smith Incorporated, dated May 30, 2003, incorporated herein by reference to Appendix C to the Proxy Statement. (c)(2) Presentation of Merrill Lynch, Pierce, Fenner & Smith Incorporated to the Special Committee of the Board of Directors, dated May 30, 2003.* (c)(3) Valuation Report of Casa de Bolsa Banorte, S.A. de C.V., Grupo Financiero Banorte to Savia, S.A. de C.V. dated April 24, 2003, as translated by Savia, S.A. de C.V.* (c)(4) Presentation of Casa de Bolsa Banorte, S.A. de C.V., Grupo Financiero Banorte to Savia, S.A. de C.V., dated April 24, 2003, as translated by Savia, S.A. de C.V.* (d)(1) Agreement and Plan of Merger, dated as of May 30, 2003, by and among Seminis, Inc., Seminis Acquisition LLC and Seminis Merger Corp., incorporated herein by reference to Appendix A to the Proxy Statement. (d)(2) Amended and Restated Exchange Agreement, dated as of May 30, 2003, between Seminis, Inc. and Savia, S.A. de C.V.* (d)(3) Voting Agreement, dated as of May 30, 2003, among Savia, S.A. de C.V., Banca Afirme, S.A., Institucion de Banca Multiple, Afirme Grupo Financiero, as trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable Administracion y Pago Numero 167-5), Conjunto Administrativo Integral, S.A. de C.V., Park Financial Group, Ltd (BVI), Fox Paine Seminis Holdings, LLC, Seminis Acquisition LLC, Emprima, S.A. de C.V. and Alfonso Romo Garza, incorporated herein by reference to Appendix B to the Proxy Statement. (d)(4) Contribution Agreement, dated as of May 30, 2003, among Seminis Acquisition LLC, Savia, S.A. de C.V., Banca Afirme, S.A., Institucion de Banca Multiple, Afirme Grupo Financiero, as trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable Administracion y Pago Numero 167-5), Conjunto Administrativo Integral, S.A. de C.V., Desarrollo Consolidado de Negocios, S.A. de C.V., Park Financial Group, Ltd (BVI), Emprima, S.A. de C.V. and Alfonso Romo Garza and certain members of Seminis and Savia Management.* (d)(5) Stock Purchase Agreement, dated as of May 30, 2003, among Seminis Acquisition LLC, Seminis Merger Corp., Fox Paine Seminis Holdings, LLC and Banca Afirme, S.A., Institucion de Banca Multiple, Afirme Grupo Financiero, as trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable Administracion y Pago Numero 167-5).* (d)(6) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Alfonso Romo Garza.* (d)(7) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Bernardo Jimenez.*
16 (d)(8) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Mateo Mazal Beja.* (d)(9) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Gaspar Alvarez.* (d)(10) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and C. Edward Green.* (d)(11) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Jose Manuel Madero Garza.* (d)(12) Employment Agreement, dated May 30, 2003, by and between Seminis Merger Corp. and Bruno Ferrari Garcia de Alba (the "Ferrari Employment Agreement").* (d)(13) Amendment, dated August 7, 2003, to Ferrari Employment Agreement, by and between Seminis Merger Corp. and Bruno Ferrari Garcia de Alba. (d)(14) Letter Agreement, dated July 31, 2003, by and among Seminis, Inc., Seminis Acquisition LLC, Seminis Merger Corp. and Fox Paine Seminis Holdings, LLC. (f) Section 262 of the Delaware General Corporation Law, incorporated herein by reference to Appendix D to the Proxy Statement. 99.1 Power of Attorney of Park Financial Group Ltd. 99.2 Power of Attorney of Banca Afirme, S.A., Institucion de Banca Multiple, Afirme Grupo Financiero, as trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable Administracion y Pago Numero 167-5). * Previously filed on June 27, 2003.
17 EX-99.D.13 3 y87686a2exv99wdw13.txt AMENDMENT TO EMPLOYMENT AGREEMENT Exhibit(d)(13) AMENDMENT AMENDMENT (the "Amendment"), dated August 7, 2003, to the Employment Agreement (the "Agreement"), made May 30, 2003, by and between Seminis Merger Corp., a Delaware corporation ("Seminis Merger Corp.") and Bruno Ferrari Garcia de Alba (the "Executive"). WHEREAS, the parties hereto have entered into the Agreement, pursuant to which Executive will serve as the Executive Senior Vice President - World Wide Commercial of Seminis, Inc. on the terms set forth in the Agreement; WHEREAS, the parties hereto have mutually agreed to amend the Agreement as set forth below; NOW, THEREFORE, in consideration of the foregoing and the premises, representations, warranties and agreements contained in the Agreement, the parties hereto agree as follows: FIRST: The introductory clause to Section 6.1(a) of the Agreement is hereby amended and restated in its entirety as follows: "If, prior to the Termination Date, during the Term, Executive's employment is terminated (A) by the Company other than for Cause (as defined in Section 6.2(b) hereof), (B) as a result of Executive's death or as a result of Executive's Permanent Disability (as defined in Section 6.1(d) hereof), or (C) by Executive for Good Reason (as defined in Section 6.1(c) hereof), Executive shall receive:" SECOND: This Amendment shall be construed and enforced in accordance with the laws of the state of California without regard to its laws or regulations relating to choice of law. THIRD: This Agreement may be executed in two or more counterparts, each of which shall be considered an original, but all of which together shall constitute the same instrument. IN WITNESS WHEREOF, as of the date first above written, Seminis Merger Corp. has caused this Amendment to be executed on its behalf by a duly authorized officer and Executive has hereunto set Executive's hand. SEMINIS MERGER CORP. By: /s/ Bernardo Jimenez ---------------------------------- Name: Bernardo Jimenez Title: President BRUNO FERRARI GARCIA DE ALBA /s/ Bruno Ferrari Garcia de Alba ----------------------------------- EX-99.D.14 4 y87686a2exv99wdw14.txt LETTER AGREEMENT Exhibit (d)(14) Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030 July 31, 2003 Seminis Acquisition LLC Seminis Merger Corp. c/o Savia, S.A. de C.V. Ave. Roble 565 Ote. - Piso 4 Colonia Valle del Campestre 66265 Garza Garcia, N.L. Mexico Attention: Bernardo Jimenez Barrera Re: Insurance Policy Dear Bernardo: Reference is made to the Agreement and Plan of Merger, dated as of May 30, 2003 (the "Merger Agreement"), by and among Seminis, Inc. (the "Company"), a Delaware corporation, Seminis Acquisition LLC ("Parent"), a Delaware limited liability company, and Seminis Merger Corp. ("Merger Sub"), a Delaware corporation and a wholly owned subsidiary of Parent. Unless otherwise defined herein, capitalized terms shall have the meanings set forth in the Merger Agreement. The Company intends to enter into an insurance policy and accept and pay for a binder thereon, a copy of which is set forth in Schedule I hereto (the "Policy"). This letter shall constitute the acknowledgement and agreement of all parties to the Merger Agreement that, upon the effectiveness of the Policy, (i) the Merger Agreement is hereby amended to delete Section 6.8(d) and (ii) the Surviving Corporation's obligation with respect to obtaining directors' and officers' and corporate liability insurance as set forth in Section 6.8(c) of the Merger Agreement shall be deemed to be satisfied. This letter shall also constitute a waiver under Section 6.3(m) of the Merger Agreement, to the extent such a waiver is required under the Merger Agreement for the Company to enter into the Policy. The Company hereby affirms that it has received the written approval of the Special Committee to enter into the Policy and execute this letter. Sincerely yours, SEMINIS, INC. By: /s/ Enrique Osorio ------------------------------------ Name: Enrique Osorio Title: Vice President ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST WRITTEN ABOVE: SEMINIS ACQUISITION LLC By: /s/ Bernardo Jimenez Barrera - ------------------------------------ Name: Bernardo Jimenez Barrera Title: Authorized Officer SEMINIS MERGER CORP. By: /s/ Bernardo Jimenez Barrera - ------------------------------------ Name: Bernardo Jimenez Barrera Title: President FOX PAINE SEMINIS HOLDINGS, LLC By: Fox Paine & Company, LLC, as sole member By: /s/ Kevin Schwartz - ------------------------------------ Name: Kevin Schwartz Title: Vice President cc: David J. Friedman, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Howard S. Kelberg, Esq. Milbank, Tweed, Hadley & McCloy LLP W. Dexter Paine, III Fox Paine & Company, LLC Mitchell S. Presser, Esq. Wachtell, Lipton, Rosen & Katz EX-99.1 5 y87686a2exv99w1.txt POWER OF ATTORNEY SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that the undersigned, PARK FINANCIAL GROUP LTD., an International Business Company existing and operating under the laws of the British Virgin Islands (the "Company"), and having its registered office at Citco Building, Wickhams Cay, P.O. Box 662, Road Town, Tortola, British Virgin Islands, does hereby constitute and appoint: MR. BERNARDO JIMENEZ BARRERA domiciled at Av. Roble 565 Ote., Valle del Campestre, Garza Garcia, Nuevo Leon 66265, Mexico, as its true and lawful Attorney-in-Fact, with full powers to represent the Company, in relation to the Company's shareholding in Seminis, Inc., a Delaware corporation ("Seminis"), and in such capacity to negotiate the final terms of, execute and deliver in the name and on behalf of the Company all documents, and to take all other actions, that he in his discretion deems necessary or appropriate as the Company's representative, including but not limited to the execution and delivery of a Contribution Agreement, an Indemnity Agreement, a Stockholders Agreement, and an Escrow Agreement and to sign any and all papers and documents and to do any and all things on behalf of the Company as may be deemed necessary or desirable in connection to the transaction presently scheduled to be signed on the 30th day of May 2003. IN WITNESS WHEREOF, PARK FINANCIAL GROUP LTD. has caused this Special Power of Attorney to be duly executed this 29th day of May 2003. PARK FINANCIAL GROUP LTD. /s/ Nina van den Berg /s/ Marina Cristiani -------------------------------------- Tortola Corporation Company Limited Director Witness: /s/ Helene S. Cohen ------------------------ [SEAL] EX-99.2 6 y87686a2exv99w2.txt POWER OF ATTORNEY [A seal and a text that says Notary Public No. 12 Fernando Mendez Zorrilla Title-holder Monterrey, N.L.] FERNANDO MENDEZ ZORRILLA FERNANDO MENDEZ LOPEZ Notary Public Title-Holder Notary Public Substitute NOTARY PUBLIC NO. 12 Padre Mier 562 Ote. Monterrey, N.L. CP6000 Tel: 8344-5893 8344-0182 8345-4358 [A seal and a text that says Notary Public No. 12 Fernando Mendez Zorrilla Title-holder Monterrey, N.L.] BOOK 80 (EIGHTY) FOLIO (015928) NUMBER (24,917) DEED NUMBER TWENTY FOUR THOUSAND NINE HUNDRED SEVENTEEN - IN MONTERREY, NUEVO LEON, UNITED MEXICAN STATES, on the day 30 (Thirty) of July, year 2003 (two thousand and three). I, FERNANDO MENDEZ ZORRILLA, Notary Public Number 12 (Twelve), with jurisdiction in the First Notarial and Registry District in the State of Nuevo Leon, CERTIFY: That ADRIAN JORGE LOZANO LOZANO and RICARDO JAVIER GIL CHAVEZNAVA appear before me in their capacity as Trust Delegates and General Attorneys of BANCA AFIRME, SOCIEDAD ANONIMA, INSTITUCION DE BANCA MULTIPLE, AFIRME GRUPO FINANCIERO, to whom I certify to know personally, and I consider they have legal capacity, and ability to grant the legal act concerned, without proof of the contrary, and they DECLARED::_______________ [An incomplete That appear, in the name and in representation of the seal and text] Corporation mentioned before, for the grant of this Deed, in order to confer in favor of BERNARDO JIMENEZ BARRERA and ALEJANDRO FRANCISCO SANCHEZ MUJICA, the GENERAL POWERS OF ATTORNEY AND AUTHORITY, that are contained subsequently in this instrument. - ---------------------------------DECLARATIONS----------------------------------- UNIQUE - ADRIAN JORGE LOZANO LOZANO and RICARDO JAVIER GIL CHAVEZNAVA declare that:___________________________________________________________________________ 1.- That they appear by virtue of:____________________________________________ 1.1.- The IRREVOCABLE ADMINISTRATION AND PAYMENT TRUST AGREEMENT (hereinafter the "IRREVOCABLE ADMINISTRATION AND PAYMENT TRUST") identified in its registry with number 167-5 (One hundred and sixty seven, hyphen, five), same that: (i) was executed on April 8 (eight) 2002 (Two thousand two); (ii) was ratified before me FERNANDO MENDEZ ZORRILLA, Notary Public Number 12 (twelve), with jurisdiction in the First Notarial and Registry District in the State of Nuevo Leon, under the Act out of Protocol number 125,931 (one hundred and twenty five thousand nine hundred thirty one) dated April 8 (Eight) 2002 (Two thousand two), and; (iii) was executed by its represented BANCA AFIRME, SOCIEDAD ANONIMA, INSTITUCION DE BANCA MULTIPLE, AFIRME GRUPO FINANCIERO in its capacity as TRUSTEE, and ALFONSO CARLOS ROMO GARZA in his capacity of SETTLOR, and ______________________________ 1.2.- The instructions received by the TECHNICAL COMMITTEE of the "IRREVOCABLE ADMINISTRATION AND PAYMENT TRUST" dated July 29 (twenty nine) 2003 (two thousand three), same that I, the Notary Public: (i) certify to have them in front of me, and (ii) a copy of which were added to the Appendix of this Deed under letter "A".__________________________________ Deed No. 24,917 Page 1 (Here, a seal) [SEAL OF LEGAL TRANSLATOR] {A Seal and a text that says Notary Public No. 12 Fernando Mendez Zorrilla Title-holder Monterrey, N.L.} 2. - Their represented has not revoked, limited or modified, in any way, the General Powers and Authority they are invested with at the moment to sign this Instrument, and --- 3. - They appear for the grant and signature of this Instrument, in order to confer, in the name and on behalf of their represented, the General Power and Authority that are subsequently contained in this Instrument. ----------------- BASED ON THE ABOVE DECLARATIONS, the appearing persons grant the following: - --------------------------------CLAUSES--------------------------------------- FIRST. - In this act, ADRIAN JORGE LOZANO LOZANO, and RICARDO JAVIER GIL CHAVEZNAVA, in the name and on behalf of BANCA AFIRME, SOCIEDAD ANONIMA INSTITUCION DE BANCA MULTIPLE, AFIRME GRUPO FINANCIERO confer in favor of BERNARDO JIMENEZ BARRERA and ALEJANDRO FRANCISCO SANCHEZ MUJICA, SPECIAL POWER OF ATTORNEY, as to its object, but general as to the authority granted, for ACTS OF ADMINISTRATION, based upon the third and fourth paragraphs of Article (2448) two thousand four hundred and forty eight of the Civil Code of the State of Nuevo Leon, as well as on the second and fourth paragraphs of Article (2554) two thousand five hundred and fifty four of [An the Federal Civil Code, and its correlatives articles in the Incompleted Civil Codes of the States of the Mexican Republic and of the seal Federal District in order that regarding the Shares of the and Capital Stock of Seminis, Inc, and its Successors ("Seminis") text] that are or will be part of the patrimony of the "IRREVOCABLE ADMINISTRATION AND PAYMENT TRUST", to carry out all and each of the transactions related to the merger, sale and privatization of Seminis before the Securities and Exchange Commission of the United States of America (hereinafter the "SEC" for its acronyms in English), as well as to sign all the applications, to submit all the information and documentation, to reply to all the requirements made by the SEC, and in general, to carry out all of the acts required by the SEC, in relation to the mentioned transactions, as well as regarding the Shareholders Meeting that in regards with such transactions, will be held by Seminis----------- The previous Special Power for Acts of Administration could be individually exercised by the Authorized Representatives herein designated, but without authorization to delegate their Powers.- SECOND. - BERNARDO JIMENEZ BARRERA and ALEJANDRO FRANCISCO SANCHEZ MUJICA, are compelled to submit a report concerning their exercise of this power of attorney before the Institution denominated "BANCA AFIRME", SOCIEDAD ANONIMA, INSTITUCION DE BANCA MULTIPLE, AFIRME GRUPO FINANCIERO, in compliance with Article 2463 (two thousand four hundred sixty three) of the Civil Code of the State of Nuevo Leon, from their acceptance, expressed or implied of this mandate. - ------------------------------------------------------------------------------ - -----------------------------LEGAL CAPACITY----------------------------------- Mr. ADRIAN JORGE LOZANO LOZANO and RICARDO JAVIER GIL CHAVEZNAVA, proved THEIR LEGAL CAPACITY which authorizes their appearance in representation of BANCA AFIRME, SOCIEDAD ANONIMA, INSTITUCION DE BANCA MULTIPLE, AFIRME GRUPO FINANCIERO, with the following documents: 1).- GRANT OF POWERS OF ATTORNEY AND RIGHTS - By Deed number 4,264 (Four thousand two hundred and sixty four), dated May 2 (two) 2002 (two thousand two): (i) Granted before Notary Public number 27 (Twenty seven) in the City of Monterrey, Nuevo Leon, whose Title-holder is Eduardo Arechavaleta Medina; (ii) Deed that demonstrates the formal registration of the Act of the General Ordinary Assembly of Shareholders of BANCA AFIRME, SOCIEDAD ANONIMA, INSTITUCION DE BANCA MULTIPLE, AFIRME GROUPO FINANCIERO, celebrated the 18 (eighteen) day of April 2002. Page 2 Here, a signature [LEGAL TRANSLATOR SEAL] (Two thousand two), at 12:30 (twelve thirty a.m.), by virtue of such Society conferred to the persons that make the appearance, the Powers of Attorney and General Rights related subsequently in this Instrument, and; (ii) whose first testimony is registered in the Public Registry of Property and Commerce of the First District Heading of the State of Nuevo Leon, domiciled in the City of Monterrey, Nuevo Leon, under number 4044 (Four thousand and forty four), Volume 3 (Three), Book First, Public Registry of Commerce, First District, on May 6 (Six) 2002 (two thousand two)----------------------------------------------- SEAL: [SEAL OF LEGAL TRANSLATOR] I, the undersigned, Rebeca Portugal Vargas, as official translator and interpreter of the English Language, authorized by the Superior Court of Justice of the State of Nuevo Leon, Mexico, autorizacion 664/2003, dated January 31, 2003 CERTIFY That the preceding document is, in my understanding, a correct translation from Spanish to English. Monterrey, Nuevo Leon, January 24, 2003. /s/ Rebeca Portugal Vargas Rebeca Portugal Vargas -----END PRIVACY-ENHANCED MESSAGE-----