8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

Current Report
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 4, 2003

SEMINIS, INC.

(Exact name of Registrant as specified in its charter)

Delaware	000-26519	36-0769130
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

2700 Camino del Sol, Oxnard, California	93030-7967
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code:            (805) 642-1572

Not Applicable

(Former name or former address, if changed since last report.)

TABLE OF CONTENTS

	Item 5. Other Events and Required FD Disclosure.
	Item 7. Financial Statements and Exhibits.
SIGNATURE
EXHIBIT INDEX
Exhibit 2.1
Exhibit 2.2
Exhibit 99.1
Exhibit 99.2
Exhibit 99.3
Exhibit 99.4

Item 5. Other Events and Required FD Disclosure.

                    On June 2, 2003, Seminis, Inc. (“Seminis”) announced that it has entered into a definitive agreement and plan of merger (the “Merger Agreement”), dated as of May 30, 2003, with Seminis Acquisition LLC (“Parent”) and Seminis Merger Corp. (“Merger Sub”), both affiliates of Savia, S.A. de C.V. (“Savia”), pursuant to which Merger Sub will merge with and into Seminis (the “Merger”) and Parent will acquire all the issued and outstanding shares of common stock of Seminis. Public holders of approximately 15.8 million Seminis shares will receive cash consideration of $3.78 per share in the Merger. Immediately following the Merger, Parent will, pursuant to a stock purchase agreement (the “Stock Purchase Agreement”), sell to certain investment funds managed by Fox Paine & Company, LLC, a San Francisco-based private equity firm, approximately 75% of the Seminis common shares following completion of the transactions, for $3.40 per share in cash. Certain entities affiliated with Alfonso Romo Garza, Seminis’ and Savia’s Chairman and Chief Executive Officer, will receive, pursuant to two agreements to be executed at the closing of the Merger, co-investment rights to purchase, subject to certain conditions, up to 34% of Seminis following the Merger. Seminis stockholders representing more than 85% of the currently outstanding voting power of Seminis have entered into a voting agreement (the “Voting Agreement”) to vote in favor of the Merger.

                    As part of the transaction, immediately prior to the consummation of the Merger and pursuant to an amended and restated exchange agreement (the “Amended and Restated Exchange Agreement”), Savia will exchange its Seminis Class C preferred shares for approximately 37.7 million shares of Seminis common stock, after which the total number of outstanding Seminis common shares will be approximately 101.7 million.

                    The preceding is qualified in its entirety by reference to the Merger Agreement, Stock Purchase Agreement, Voting Agreement, Amended and Restated Exchange Agreement, Contribution Agreement and press release, each of which is incorporated by reference herein and made a part hereof, is filed with this Current Report on Form 8-K as Exhibit 2.1, Exhibit 2.2, Exhibit 99.1, Exhibit 99.2, Exhibit 99.3 and Exhibit 99.4, respectively.

Item 7. Financial Statements and Exhibits.

(c)      Exhibits.
Exhibit 2.1	Agreement and Plan of Merger by and among Seminis, Inc., Seminis Acquisition LLC and Seminis Merger Corp., dated as of May 30, 2003.
Exhibit 2.2	Stock Purchase Agreement by and among Fox Paine Seminis Holdings, LLC, Banca Afirme, S.A., Institución de Banca Multiple, Afirme Grupo Financiero, as Trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable de Administración y Pago Número 167-5), Seminis Acquisition LLC and Seminis Merger Corp., dated as of May 30, 2003.

Exhibit 99.1	Voting Agreement by and among Savia, S.A. de C.V., Banca Afirme, S.A., Institución de Banca Multiple, Afirme Grupo Financiero, as Trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable de Administración y Pago Número 167-5), Conjunto Administrativo Integral, S.A. de C.V., Emprima, S.A. de C.V., Park Financial Group, Ltd (BVI), Seminis Acquisition LLC, Alfonso Romo Garza and Fox Paine Seminis Holdings, LLC, dated as of May 30, 2003.
Exhibit 99.2	Amended and Restated Exchange Agreement by and between Seminis, Inc. and Savia, S.A. de C.V., dated as of May 30, 2003.
Exhibit 99.3	Contribution Agreement by and among Seminis Acquisition LLC, Savia, S.A. de C.V., Banca Afirme, S.A., Institución de Banca Multiple, Afirme Grupo Financiero, as Trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable de Administración y Pago Número 167-5), 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 (BVI), Alfonso Romo Garza and Certain Members of Seminis and Savia Management, dated as of May 30, 2003.
Exhibit 99.4	Press Release, issued by Seminis, Inc. and Savia, S.A. de C.V. on June 2, 2003.

SIGNATURE

                    Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

		SEMINIS, INC.
Date:	June 4, 2003	By:	/s/ Gaspar Alvarez Martinez
			Name:   Gaspar Alvarez Martinez
			Title:     Vice President and Worldwide
			Corporate Comptroller

EXHIBIT INDEX

Exhibit
No.	Description
2.1	Agreement and Plan of Merger by and among Seminis, Inc., Seminis Acquisition LLC and Seminis Merger Corp., dated as of May 30, 2003.
2.2	Stock Purchase Agreement by and among Fox Paine Seminis Holdings, LLC, Banca Afirme, S.A., Institución de Banca Multiple, Afirme Grupo Financiero, as Trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable de Administración y Pago Número 167-5), Seminis Acquisition LLC and Seminis Merger Corp., dated as of May 30, 2003.
99.1	Voting Agreement by and among Savia, S.A. de C.V., Banca Afirme, S.A., Institución de Banca Multiple, Afirme Grupo Financiero, as Trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable de Administración y Pago Número 167-5), Conjunto Administrativo Integral, S.A. de C.V., Emprima, S.A. de C.V., Park Financial Group, Ltd (BVI), Seminis Acquisition LLC, Alfonso Romo Garza and Fox Paine Seminis Holdings, LLC, dated as of May 30, 2003.
99.2	Amended and Restated Exchange Agreement by and between Seminis, Inc. and Savia, S.A. de C.V., dated as of May 30, 2003.
99.3	Contribution Agreement by and among Seminis Acquisition LLC, Savia, S.A. de C.V., Banca Afirme, S.A., Institución de Banca Multiple, Afirme Grupo Financiero, as Trustee, under the Irrevocable Administration and Payment Trust Number 167-5 (Fideicomiso Irrevocable de Administración y Pago Número 167-5), 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 (BVI), Alfonso Romo Garza and Certain Members of Seminis and Savia Management, dated as of May 30, 2003.
99.4	Press Release issued by Seminis, Inc. and Savia, S.A. de C.V. on June 2, 2003.

EX-2.1 3 v90668exv2w1.txt EXHIBIT 2.1 Exhibit 2.1 EXECUTION COPY AGREEMENT AND PLAN OF MERGER dated as of May 30, 2003 by and among SEMINIS ACQUISITION LLC, SEMINIS MERGER CORP., and SEMINIS, INC. TABLE OF CONTENTS

Page ---- ARTICLE I CERTAIN DEFINITIONS 3 ARTICLE II THE EXCHANGE AND THE DIVIDEND 10 Section 2.1. The Exchange 10 Section 2.2. The Company Class B Preferred Stock Dividend 11 Section 2.3. Withholding Taxes 11 ARTICLE III THE MERGER 11 Section 3.1. The Merger 11 Section 3.2. Effective Time 11 Section 3.3. Effects of the Merger 12 Section 3.4. Certificate of Incorporation and Bylaws 12 Section 3.5. Directors 12 Section 3.6. Officers 12 Section 3.7. Subsequent Actions 12 Section 3.8. Effect on the Capital Stock 12 Section 3.9. Dissenting Shares 13 Section 3.10. List of Other Equity Awards; Treatment of Other Equity Awards 14 Section 3.11. Payment for Shares 15 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY 17 Section 4.1. Organization and Qualification; Subsidiaries 17 Section 4.2. Capitalization of the Company and its Subsidiaries 17 Section 4.3. Authority Relative to this Agreement 19 Section 4.4. SEC Reports; Financial Statements 20 Section 4.5. Proxy Statement 21 Section 4.6. Consents and Approvals, No Violations 21 Section 4.7. No Default 22 Section 4.8. No Undisclosed Liabilities; Absence of Changes 22 Section 4.9. Compliance with Applicable Law 22 Section 4.10. Employee Benefit Matters 23 Section 4.11. Labor Matters 25 Section 4.12. Intellectual Property 26 Section 4.13. Taxes 27 Section 4.14. Absence of Litigation 28 Section 4.15. Material Contracts 29 Section 4.16. Insurance 31 Section 4.17. Environmental Laws and Regulations 31 Section 4.18. Title to Properties; Encumbrances 32 Section 4.19. Tangible Personal Property; Sufficiency of Assets 34 Section 4.20. Affiliate Transactions 34 Section 4.21. Suppliers and Customers 35

Page ---- Section 4.22. Information in Financing Documents 35 Section 4.23. State Takeover Statute Inapplicable 35 Section 4.24. Brokers 35 Section 4.25. Opinion of Financial Advisor 35 Section 4.26. Company Information 35 ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 36 Section 5.1. Organization 36 Section 5.2. Authority Relative to this Agreement 36 Section 5.3. Consents and Approvals; No Violations 36 Section 5.4. Capitalization 37 Section 5.5. Proxy Statement; Information 37 Section 5.6. Brokers 38 Section 5.7. Financing 38 Section 5.8. Ownership of Shares 39 Section 5.9. Parent/FPSH Agreements 39 Section 5.10. Parent Information 39 ARTICLE VI COVENANTS 39 Section 6.1. Stockholders Meeting 39 Section 6.2. Proxy Statement 39 Section 6.3. Conduct of Business of the Company 40 Section 6.4. Notification of Certain Matters 43 Section 6.5. Access to Information 43 Section 6.6. Additional Agreements, Commercially Reasonable Efforts 44 Section 6.7. Public Announcements 46 Section 6.8. Indemnification 46 Section 6.9. Contributions to Parent 48 Section 6.10. No Solicitation 48 Section 6.11. Resignation of Directors 50 Section 6.12. Solvency Opinion 50 Section 6.13. Related Agreements 51 Section 6.14. Exchange Agreement 51 Section 6.15. Privilege 51 Section 6.16. Employee Matters 51 Section 6.17. Merger Sub Charter Amendment 51 ARTICLE VII CONDITIONS TO CONSUMMATION OF THE MERGER 52 Section 7.1. Conditions to the Merger 52 Section 7.2. Conditions to Each Party's Obligations to Effect the Merger 54 ARTICLE VIII TERMINATION; AMENDMENT; WAIVER 54 Section 8.1. Termination 54 Section 8.2. Effect of Termination 55 Section 8.3. Fees and Expenses 56 Section 8.4. Amendment 57 Section 8.5. Waiver 57

Page ---- ARTICLE IX MISCELLANEOUS 57 Section 9.1. Nonsurvival of Representations and Warranties 57 Section 9.2. Entire Agreement; Assignment 57 Section 9.3. Severability 58 Section 9.4. Notices 58 Section 9.5. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial 59 Section 9.6. Specific Performance 60 Section 9.7. Interpretation 60 Section 9.8. Parties in Interest 60 Section 9.9. Performance by Others 60 Section 9.10. Counterparts 61 EXHIBIT A - Certificate of Merger EXHIBIT B - Stock Purchase Agreement EXHIBIT C - Contribution Agreement EXHIBIT D - Financing Commitment Letters EXHIBIT E - Shares of Company Common Stock to be Contributed to Parent EXHIBIT F - Equity Commitment Letter EXHIBIT G - Foreign Investment in Real Property Tax Act Affidavits EXHIBIT H - By-laws of Merger Sub Company Disclosure Schedule Parent Disclosure Schedule

AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER, dated as of May 30, 2003 (this "Agreement"), is made by and among Seminis Acquisition LLC, a Delaware limited liability company ("Parent"), Seminis Merger Corp., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and Seminis, Inc., a Delaware corporation (the "Company"). WHEREAS, the Company has authority to issue 288,000,000 shares of capital stock consisting of: (1) 278,000,000 shares of common stock, par value $.01 per share (the "Company Common Stock"), of which (a) 211,000,000 shares are designated Class A Common Stock, par value $.01 per share (the "Company Class A Common Stock"), 18,978,291 of which were outstanding as of April 29, 2003 and (b) 67,000,000 shares are designated Class B Common Stock, par value $.01 per share (the "Company Class B Common Stock"), 45,142,508 of which were outstanding as of April 29, 2003, and (2) 10,000,000 shares of preferred stock, par value $.01 per share (the "Company Preferred Stock"), of which (a) 25,000 shares are designated Class A Redeemable Preferred Stock, par value $.01 per share (the "Company Class A Preferred Stock"), none of which are outstanding, (b) 25,000 shares are designated Class B Redeemable Preferred Stock, par value $.01 per share (the "Company Class B Preferred Stock"), 25,000 of which were outstanding as of April 29, 2003 and (c) 16,688 shares are designated Class C Redeemable PIK Preferred Stock, par value $.01 per share (the "Company Class C Preferred Stock"), 16,688 of which were outstanding as of April 29, 2003; WHEREAS, each share of Company Class A Common Stock is entitled to one vote per share and each share of Company Class B Common Stock is entitled to three votes per share; WHEREAS, Parent and its Affiliates own an aggregate of 3,199,361 shares of Company Class A Common Stock and 42,823,515 shares of Company Class B Common Stock as of the date hereof, and Parent and its Affiliates will own an aggregate of 41,554,346 shares of Company Class A Common Stock and 42,823,515 shares of Company Class B Common Stock as of the Closing Date; WHEREAS, Affiliates of Parent have proposed to the board of directors of the Company (the "Company Board") a transaction pursuant to which Parent would, among other things, acquire the outstanding shares of Company Common Stock not owned by Parent or its Affiliates; WHEREAS, the Company Board has established a special committee of the Company Board comprised solely of directors unaffiliated with Parent or its Affiliates (the "Special Committee") to consider such proposal and make a recommendation to the Company Board with respect thereto; WHEREAS, the Special Committee and the Company Board, based on the recommendation of the Special Committee, (a) have determined that the merger of Merger Sub with and into the Company, with the Company as the surviving corporation (the "Merger"), upon the terms and subject to the conditions set forth in this Agreement, is advisable, fair to and in the best interests of the Company's stockholders (other than Parent and its Affiliates), and (b) have approved (i) this Agreement and the Merger, pursuant to which each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (except for shares of Company Common Stock owned, directly or indirectly by Parent, Merger Sub or the Company, and except for any shares of Company Common Stock as to which appraisal rights are exercised and perfected pursuant to applicable law) will be converted into the right to receive $3.78 in cash (the "Per Share Amount"), and (ii) the Related Agreements and the Related Transactions; WHEREAS, the Special Committee and the Company Board, based on the recommendation of the Special Committee, have resolved to recommend that the Company's stockholders approve and adopt this Agreement and the Merger; WHEREAS, immediately following the Merger, pursuant to the Stock Purchase Agreement, of even date herewith, among Fox Paine Seminis Holdings, LLC ("FPSH"), 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 de Administracion y Pago Numero 167-5) (the "ARG Trust"), Parent and Merger Sub (the "Stock Purchase Agreement"), FPSH will purchase shares of common stock, par value $.01 per share, of the Surviving Corporation (the "New Company Common Stock") from Parent on the terms and conditions set forth in the Stock Purchase Agreement (the "Stock Purchase"); WHEREAS, as a condition and inducement to FPSH's willingness to enter into the Stock Purchase Agreement and consummate the transactions contemplated thereby, FPSH has required certain Persons to enter into a voting agreement, of even date herewith (the "Voting Agreement"), pursuant to which, among other things, and subject to the terms and conditions therein, each Person (other than FPSH) party to the Voting Agreement agrees to vote, or cause to be voted, all shares of Company Common Stock beneficially owned by such stockholder in favor of the Merger; WHEREAS, the members of Parent (including the managing member) and the board of directors of Merger Sub have determined that this Agreement and the Merger are advisable, fair to and in the best interests of their respective company and members or corporation and stockholders (as applicable) and have approved this Agreement and the Merger; and WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger; NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the parties agree as follows: -2- ARTICLE I CERTAIN DEFINITIONS As used in this Agreement, the following terms shall have the respective meanings set forth below: "Affiliate" of a specified Person means a Person who, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such specified Person; provided that as used in this Agreement with respect to Parent, the term "Affiliate" or "Affiliates" means Affiliates of Parent, including Savia, Merger Sub and their respective Affiliates, other than the Company and its Subsidiaries. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting shares, by contract or otherwise. "Agreement" shall have the meaning set forth in the preamble. "Acquisition Agreement" shall have the meaning set forth in Section 6.10(e). "ARG Trust" shall have the meaning set forth in the recitals. "Award List" shall have the meaning set forth in Section 3.10(a). "Award Cancellation Time" means the time that is immediately prior to the Effective Time. "Benefit Plans" shall have the meaning set forth in Section 4.10(a). "Certificate of Merger" shall have the meaning set forth in Section 3.2. "Certificate" shall have the meaning set forth in Section 3.8(d). "Closing" shall have the meaning set forth in Section 3.2. "Closing Date" shall have the meaning set forth in Section 3.2. "Code" means the Internal Revenue Code of 1986, as amended. "Company" shall have the meaning set forth in the preamble. "Company 2002 10-K" shall have the meaning set forth in Section 4.15(a). "Company Balance Sheet" means the audited balance sheet for the period ended September 30, 2002, contained in the Company's Form 10-K for the period ended September 30, 2002, filed with the SEC on January 14, 2003. "Company Board" shall have the meaning set forth in the recitals. -3- "Company Class A Common Stock" shall have the meaning set forth in the recitals. "Company Class A Preferred Stock" shall have the meaning set forth in the recitals. "Company Class B Common Stock" shall have the meaning set forth in the recitals. "Company Class B Preferred Stock" shall have the meaning set forth in the recitals. "Company Class C Preferred Stock" shall have the meaning set forth in the recitals. "Company Common Stock" shall have the meaning set forth in the recitals. "Company Competing Transaction" means any recapitalization, merger, consolidation or other business combination involving the Company, or direct or indirect acquisition of shares of Company Common Stock representing 15% or more of the voting power of the Company (except for transactions contemplated by the Exchange Agreement or any amendment thereto) or any material portion of the assets (except for acquisitions of assets in the ordinary course of business consistent with past practice) of the Company and its Subsidiaries, or any combination of the foregoing. "Company Credit Agreement" means the Credit Agreement among the Company, Seminis Vegetable Seeds, Inc., SVS Holland B.V., as borrowers, and Harris Trust and Savings Bank, individually and as administrative agent, and Bank of Montreal, Chicago Branch, individually and as syndication agent, and the lenders from time to time parties thereto, dated as of June 28, 1999, as amended through the date hereof. "Company Disclosure Schedule" means the schedule of disclosures delivered by the Company to Parent and Merger Sub concurrent with the execution of this Agreement. "Company Germplasm" means the germplasm actively used in the breeding or research programs of the Company and its Subsidiaries. "Company Intellectual Property" means the intellectual property rights used in the conduct of the business of the Company or its Subsidiaries, including all patents and patent applications, trademarks, trademark registrations and applications, domain names, copyrights and copyright registrations and applications, computer programs, technology, know-how, trade secrets, proprietary processes, inventions, service marks, original works of authorship and formulae, together with the goodwill associated with the foregoing. "Company's Knowledge" means the actual knowledge, after reasonable inquiry, of Eugenio Najera, Bruno Ferrari, C. Edward Green, Jose Manuel Madero, Gaspar Alvarez, Oscar Velasco, Salvador Alanis, Cristobal Cardenas, Enrique Osorio, Franco Campana, Jean Pierre Posa, Juliet Ream, Patrick Turner, Steve Witt, and, with respect to seedmen's claims only, Pieter Vandenberg. "Company Material Adverse Effect" means any event, change, circumstance, effect or state of facts that is or is reasonably expected to be materially adverse to (a) the business, results of operations, condition (financial or otherwise), assets or liabilities of the Company and its -4- Subsidiaries, taken as a whole, or (b) the ability of the Company to consummate any of the transactions contemplated by this Agreement and the Related Agreements, including the Merger and the Related Transactions, except to the extent that such adverse effect results from (i) general economic conditions or changes therein, (ii) financial or securities market fluctuations or conditions, (iii) changes in, or events or conditions affecting, the industries or businesses in which the Company and its Subsidiaries operate, or (iv) the announcement of the transactions contemplated by this Agreement or the Letter of Intent. "Company Permits" shall have the meaning set forth in Section 4.9. "Company Preferred Stock" shall have the meaning set forth in the recitals. "Company PVP Certificates" shall have the meaning set forth in Section 4.12(a). "Company SEC Documents " shall have the meaning set forth in Section 4.4(a). "Company Securities" shall have the meaning set forth in Section 4.2(a). "Company Stock Plans" shall have the meaning set forth in Section 3.10(a). "Company Stockholder Approval" means the vote of a majority of the voting power of the Company Common Stock (voting together as a single class) for the approval and adoption of this Agreement and the Merger. "Company Termination Fee" shall have the meaning set forth in Section 8.3(a). "Compensation Payment" shall have the meaning set forth in Section 4.10(d). "Confidentiality Agreement" shall have the meaning set forth in Section 6.5(a). "Contribution Agreement" means the Contribution Agreement of even date herewith among Parent, the Contributors (as defined therein), ARG Trust, Mexican SPC (as defined therein) and Mr. Alfonso Romo Garza, providing for the contribution of shares of Company Common Stock to Parent. "Controlled Group Liability" shall have the meaning set forth in Section 4.10(f). "Debt Financing" shall have the meaning set forth in Section 5.7(b). "DGCL" means the General Corporation Law of the State of Delaware. "Disinterested Stockholder Approval" shall have the meaning set forth in Section 6.10(C). "Dissenting Shares" shall have the meaning set forth in Section 3.9. "Effective Time" shall have the meaning set forth in Section 3.2. "Employees" shall have the meaning set forth in Section 4.10(h). -5- "Employment Agreements" shall have the meaning set forth in Section 4.10(h). "Environmental Claim" shall have the meaning set forth in Section 4.17(a). "Environmental Laws" means all applicable statutes, laws, ordinances, codes, common law, licenses, permits, rules, regulations, orders, demands, approvals, authorizations and similar items of any Governmental Entity relating to pollution or Hazardous Substances or protection of human health or the environment (including ambient air, surface water, ground water, land surface or subsurface strata) or emissions, discharges, releases, disposal or handling of any pollutants or Hazardous Substances. "ERISA" shall have the meaning set forth in Section 4.10(a). "ERISA Affiliate" shall have the meaning set forth in Section 4.10(c). "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "Exchange Agreement" shall have the meaning set forth in Section 2.1. "Existing Policy" shall have the meaning set forth in Section 6.8(c). "Financial Statements" shall have the meaning set forth in Section 4.4(a). "Financing Commitment Letters" shall have the meaning set forth in Section 5.7(b). "Financing Documents" shall have the meaning set forth in Section 4.22. "FPSH" shall have the meaning set forth in the recitals. "FPSH Expenses" means all documented out-of-pocket fees and expenses actually and reasonably incurred by FPSH and its Affiliates or on their behalf in connection with any of the transactions contemplated by this Agreement and the Related Agreements (including fees and expenses payable to financing sources, investment bankers, consultants, counsel to any of the foregoing, accountants and legal counsel). "GAAP" means U.S. generally accepted accounting principles. "Governmental Entity" shall have the meaning set forth in Section 4.6. "Hazardous Substance" means any substance presently listed, defined, designated or classified as hazardous, toxic, radioactive or dangerous, or otherwise regulated, under any Environmental Law, including any toxic waste, pollutant, contaminant, hazardous substance, toxic substance, hazardous waste, special waste, industrial substance or petroleum or any derivative or byproduct thereof, radon, radioactive material, asbestos, or asbestos containing material, urea formaldehyde, foam insulation or polychlorinated biphenyls, lead or lead-based paints or materials. "HMO" shall have the meaning set forth in Section 4.10(c). -6- "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "Indemnified Parties" shall have the meaning set forth in Section 6.8(b). "Indebtedness" of any Person means (a) all obligations of such Person for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices, and excluding ordinary operating leases), (b) any other obligations of such Person that are evidenced by a note, bond, debenture or similar instrument, (c) all obligations under conditional sale or other title retention agreements relating to property purchased, (d) capital lease or sale-leaseback obligations, (e) all liabilities secured by any Lien on any property (other than ordinary operating leases), and (f) any guarantee or assumption of any of the foregoing in clauses (a) through (e) above or guaranty of minimum equity or capital or any make-whole or similar obligation or any other guarantee of indebtedness of a third party. "Insurance Policies" shall have the meaning set forth in Section 4.16. "IRS" means the U.S. Internal Revenue Service. "Key Employee" means any Chief Executive Officer, President, Executive Vice President or Senior Vice President or other employee of the Company or its Subsidiaries whose annual base salary (excluding bonuses and other non-salary compensation) exceeds $100,000. "Leased Real Property" shall have the meaning set forth in Section 4.18(a). "Lenders" shall have the meaning set forth in Section 5.7(b). "Letter of Intent" means the non-binding letter of intent, by and among Fox Paine & Company, LLC, Savia, ARG Trust, Servasa, S.A. de C.V. and Mr. Alfonso Romo, dated December 13, 2002, as amended. "Lien" means, with respect to any asset (including any security), any security interests, liens, claims, charges, title defects, deficiencies or exceptions (including, with respect to Real Property Leases, subleases, assignments, licenses or other agreements granting to any third party any interest in a Real Property Lease or any right to the use or occupancy of any Leased Real Property), mortgages, pledges, easements, encroachments, restrictions on use, rights-of-way, 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 in respect of such asset. "Material Contracts" shall have the meaning set forth in Section 4.15(a). "Merger" shall have the meaning set forth in the recitals. "Merger Consideration" shall have the meaning set forth in Section 3.8(d). "Merger Sub" shall have the meaning set forth in the preamble. -7- "MS Common Stock" means shares of common stock, par value $.01 per share, of Merger Sub. "MS Preferred Stock" means shares of preferred stock, par value $.01 per share, of Merger Sub. "New Company Common Stock" shall have the meaning set forth in the recitals. "NOL Carryforwards" shall have the meaning specified in Section 4.13. "Outside Date" shall mean October 15, 2003, unless the commitment set forth in the Financing Commitment Letters (or in any replacement financing arrangement pursuant to Section 6.6(d)) shall have been extended or obtained until a date beyond October 15, 2003, in which event "Outside Date" shall mean the earlier of (i) the date until which financing commitments have been extended or obtained, and (ii) November 30, 2003. "Owned Real Property" shall have the meaning set forth in Section 4.18(a). "Parent" shall have the meaning set forth in the preamble. "Parent Disclosure Schedule" means the schedule of disclosures delivered by Parent to the Company concurrent with the execution of this Agreement. "Parent Material Adverse Effect" means any event, change, circumstance, effect or state of facts that is or is reasonably expected to be materially adverse to the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement or by the Related Agreements. "Paying Agent" shall have the meaning set forth in Section 3.11(a). "PBGC" means the Pension Benefit Guaranty Corporation. "Permitted Discussions" shall have the meaning set forth in Section 6.10(a). "Permitted Liens" means (a) growers', mechanics', carriers', workers', repairers', materialmen's, warehousemen's, and other similar Liens arising in the ordinary course of the Company's business and either (i) for sums not yet due and payable or (ii) such Liens as are less than $100,000 in amount and are being contested in good faith and by appropriate proceedings, (b) Liens under the Company Credit Agreement, (c) Liens for current Taxes not yet due or payable or being contested in good faith or for supplemental Taxes for which the Company has not received a written notice of assessment, and (d) any other covenants, conditions, restrictions, reservations, rights and non-monetary Liens incurred or suffered in the ordinary course of business and that (i) do not materially detract from the current use of the applicable Real Property and (ii) would not, individually or in the aggregate, have a Company Material Adverse Effect. "Per Share Amount" shall have the meaning set forth in the recitals. -8- "Person" means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or "group" (as defined in the Exchange Act). "Proxy Statement" shall have the meaning set forth in Section 6.2. "Real Property" shall have the meaning set forth in Section 4.18(a). "Real Property Lease" shall mean any contract or agreement to which the Company or any of its Subsidiaries is a party relating to the lease of real property used by the Company or its Subsidiaries requiring annual payments in excess of (or reasonably expected to be in excess of) $100,000. "Record Date" shall mean the date on which holders of Company Common Stock on such date, as reflected on the Company's (or its transfer agent's) books and records, shall be entitled to vote at the Stockholders Meeting, such date determined in accordance with the Company's Bylaws and other applicable requirements. "Related Agreements " shall mean the Voting Agreement, the Contribution Agreement and the Stock Purchase Agreement. "Related Transactions" shall mean the transactions contemplated by the Related Agreements. "Restricted Shares" means shares of restricted stock granted under any Company Stock Plan. "Retained Options" shall have the meaning set forth in Section 3.10(a). "Retained Option Participants" shall have the meaning set forth in Section 3.10(a). "Savia" means Savia, S.A. de C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States. "SEC" means the U.S. Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "Special Committee" shall have the meaning set forth in the recitals. "Stock Option" shall have the meaning set forth in Section 3.10(a). "Stock Purchase" shall have the meaning set forth in the recitals. "Stock Purchase Agreement" shall have the meaning set forth in the recitals. "Stockholders' Agreement" means the Stockholders' Agreement, of even date herewith, by and among Merger Sub and the Persons listed on the signature pages thereto. -9- "Stockholders Meeting" shall have the meaning set forth in Section 6.1. "Subsidiary" means, with respect to any Person, any other Person, whether incorporated or unincorporated or domestic or foreign to the United States, of which (a) such first Person or any other Subsidiary of such first Person is a general partner (excluding such partnerships where such first Person or any Subsidiary of such first Person does not have a majority of the voting interest in such partnership) or (b) at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is, directly or indirectly, owned or controlled by such first Person or by any one or more of its Subsidiaries, or by such first Person and one or more of its Subsidiaries. "Superior Transaction" shall have the meaning set forth in Section 6.10(e). "Surviving Corporation" shall have the meaning set forth in Section 3.1. "Tail Period" shall have the meaning set forth in Section 6.8(c). "Tax Returns" means all reports, returns, information returns, statements, declarations and certifications required to be filed with respect to Taxes. "Taxes" means any income, alternative or add-on minimum tax, gross receipts, sales, use, transfer, gains, ad valorem, franchise, profits, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, environmental or windfall profit tax, custom, duty or other tax, or other like assessment or charge, together with any related interest, penalty, addition to tax or additional amount. "Transmittal Documents" shall have the meaning set forth in Section 3.11(b). "Voting Agreement" shall have the meaning set forth in the recitals. "WARN Act" shall have the meaning set forth in Section 4.11(b). ARTICLE II THE EXCHANGE AND THE DIVIDEND Section 2.1. The Exchange. Immediately prior to the Merger, and pursuant to, and subject to the conditions set forth in, the Amended and Restated Exchange Agreement, dated as of the date hereof, by and between the Company and Savia (the "Exchange Agreement"): the Company will issue to Savia an aggregate of 37,669,480 shares of Company Class A Common Stock and will pay to Savia an amount in cash as determined in accordance with the Exchange Agreement in exchange for (a) all of Savia's right, title and interest in and to 16,688 shares of Company Class C Preferred Stock (all of which shares of Company Class C Preferred Stock shall be surrendered, free and clear of any and all Liens) including the right to accrued but unpaid paid in kind dividends thereon, (b) any right, title or interest in or to any and all accrued and unpaid cash dividends on the Company Class C Preferred Stock, and (c) any right, title or inter- -10- est in or to any and all accrued and unpaid cash obligations on additional paid in capital and any other rights and claims with respect to any of the foregoing through the Effective Time. Section 2.2. The Company Class B Preferred Stock Dividend. Immediately prior to the Merger, the Company shall declare and pay a dividend equal to all accrued and unpaid dividends on the Company Class B Preferred Stock as of the payment date immediately preceding the Closing Date (which, as of April 25, 2003, are in an aggregate amount equal to $5,666,667), which payment shall be made in cash in accordance with the Company's certificate of incorporation and the certificate of designations for the Company Class B Preferred Stock. Section 2.3. Withholding Taxes. The amounts set forth in this Article II or Article III shall be subject to reduction for any applicable federal, state, local or foreign withholding Taxes. To the extent that amounts are so withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such withholding was made. ARTICLE III THE MERGER Section 3.1. The Merger. Subject to the conditions of this Agreement and in accordance with the DGCL, the parties hereto shall consummate the Merger pursuant to which (a) Merger Sub shall merge with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease, (b) the Company shall be the surviving corporation in the Merger (sometimes referred to as the "Surviving Corporation") and shall continue to be governed by the laws of the State of Delaware, and (c) the corporate existence of the Company, with all of its rights, privileges, immunities, powers and franchises, shall continue unaffected by the Merger. Section 3.2. Effective Time. As soon as practicable after the satisfaction or waiver (to the extent permitted by applicable law) of the conditions set forth in Article VII, the parties hereto shall cause a certificate of merger (the "Certificate of Merger") to be executed and filed on the Closing Date (or on such other date as Parent and the Company may agree) with the Secretary of State of the State of Delaware in such form as required by, and executed in accordance with, the relevant provisions of the DGCL. The closing of the Merger (the "Closing") will take place (a) at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York, at 10:00 a.m. New York City time as soon as reasonably practicable (but in any event no later than the third business day) after satisfaction or waiver (to the extent permitted by applicable law) of the conditions set forth in Article VII (other than those conditions that are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted by applicable law) of such other conditions), or (b) at such other place or time and/or such other date as the parties may agree. The date on which the Closing occurs is referred to in this Agreement as the "Closing Date." The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware or at such later date and time as the parties shall agree and as shall be specified in the Certificate of Merger (the time the Merger becomes effective, the "Effective Time"). -11- Section 3.3. Effects of the Merger. The Merger shall have the effects as set forth in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the properties, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation. Section 3.4. Certificate of Incorporation and Bylaws. (a) The certificate of incorporation of the Company in effect immediately prior to the Effective Time, as amended in accordance with the Certificate of Merger attached hereto as Exhibit A, shall be the certificate of incorporation of the Surviving Corporation until amended in accordance with its terms and applicable law. (b) The bylaws of Merger Sub in effect immediately prior to the Effective Time, in the form attached hereto as Exhibit H, shall be the bylaws of the Surviving Corporation until amended in accordance with their terms and applicable law. Section 3.5. Directors. The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until such director's successor is duly elected or appointed and qualified. Section 3.6. Officers. The officers of the Company immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until such officer's successor is duly elected or appointed and qualified. Section 3.7. Subsequent Actions. If, at any time after the Effective Time, the Surviving Corporation shall determine in good faith or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with the Merger or otherwise to carry out this Agreement, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement. Section 3.8. Effect on the Capital Stock. As of the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, Merger Sub or any holder of any shares of Company Common Stock, Company Preferred Stock or any shares of capital stock of Merger Sub: -12- (a) Each share of MS Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one share of New Company Common Stock following the Merger. (b) Each share of Company Common Stock that is owned by Parent or Merger Sub immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and no cash, Company Common Stock or other consideration shall be delivered or deliverable in exchange therefor. (c) Each share of Company Common Stock that is owned by or held in the treasury of the Company immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and no cash, Company Common Stock or other consideration, including the Merger Consideration, shall be delivered or deliverable in exchange therefor. (d) Shares of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any shares to be canceled pursuant to Sections 3.8(b) and 3.8(c) and any Dissenting Shares) held by each stockholder of the Company shall be converted into the right to receive an amount in cash (the "Merger Consideration") equal to the product of (A) the number of shares of Company Common Stock owned by such stockholder immediately prior to the Effective Time, and (B) the Per Share Amount. The Merger Consideration shall be payable to the holder of shares of Company Common Stock, without interest thereon, upon the surrender of the certificate or certificates formerly representing such shares of Company Common Stock (each, a "Certificate") in the manner provided in Section 3.11, less any required with- holding of U.S. federal, state, local or foreign Taxes. From and after the Effective Time, all such shares of Company Common Stock so converted into the Merger Consideration shall no longer be outstanding and shall be deemed to be canceled and retired and shall cease to exist, and each holder of a Certificate or Certificates shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration therefor upon the surrender of such Certificate or Certificates in accordance with Section 3.11 (or, with respect to Dissenting Shares, as provided in Section 3.9). (e) Each share of Company Class B Preferred Stock issued and outstanding or held by the Company as treasury stock immediately prior to the Effective Time shall remain issued and outstanding or held as treasury stock, as the case may be, and shall be unaffected by the Merger. Section 3.9. Dissenting Shares. Anything in this Agreement to the contrary notwithstanding, each share of Company Common Stock or Company Class B Preferred Stock outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of the Merger or consented thereto in writing and who has demanded appraisal for such share of Company Common Stock or Company Class B Preferred Stock in accordance with Section 262 of the DGCL, if such Section 262 of the DGCL provides for appraisal rights for such shares of Company Common Stock or Company Class B Preferred Stock in the Merger ("Dissenting Shares"), shall not: (a) in the case of the Company Common Stock, be converted into or be exchangeable for the right to receive the Merger Consideration; or (b) in the case of the Company Class B Preferred Stock, remain issued and outstanding following the Merger, unless and until such holder of Company Common Stock or Company Class B Preferred Stock, -13- as the case may be, fails to perfect or withdraws or otherwise loses his right to appraisal and payment under the DGCL. If, after the Effective Time, any such holder fails to perfect or withdraws or loses his right to appraisal, such Dissenting Shares shall: (a) in the case of Company Common Stock, thereupon be treated as if such shares had been converted as of the Effective Time into the right to receive the Merger Consideration, if any, to which such holder is entitled, without interest or dividends thereon; and (b) in the case of Company Class B Preferred Stock, remain issued and outstanding and unaffected by the Merger. The Company shall give Parent (a) prompt notice of any demands received by the Company for appraisal of shares of Company Common Stock or Company Class B Preferred Stock, attempted written withdrawals of such demands, and any other instruments served pursuant to the DGCL and received by the Company relating to stockholders' rights to appraisal with respect to the Merger; and (b) the opportunity to direct all negotiations and proceedings with respect to any exercise of such appraisal rights under the DGCL. The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for payment of fair value for capital stock of the Company, offer to settle or settle any such demands or approve any withdrawal of any such demands. Section 3.10. List of Other Equity Awards; Treatment of Other Equity Awards. (a) Section 3.10(a) of the Company Disclosure Schedule contains a true and complete list (the "Award List") of each option to purchase shares of Company Common Stock (a "Stock Option") granted under each employee and director stock incentive or compensation plan, agreement or arrangement (the "Company Stock Plans") outstanding as of the date hereof (along with the exercise prices thereof). Stock Options held by any person permitted by Parent in writing on or after the date hereof to retain his or her Stock Options following the Award Cancellation Time (collectively, the "Retained Option Participants") are referred to as "Retained Options," to the extent such Person agrees to have such Stock Options treated as Retained Options. Parent may require that a Retained Option Participant, as a condition of having the Stock Options held by such Retained Option Participant be treated as Retained Options, agree in writing to be subject to certain restrictions on the transferability of any shares of New Company Common Stock that are acquired after the Effective Time upon the exercise of such Retained Options. (b) At the Award Cancellation Time, each then-outstanding Stock Option (whether vested or unvested), other than any Retained Option, shall be canceled and, in consideration of such cancellation, the Company shall pay to the holder as soon as practicable following the Award Cancellation Time, in full satisfaction of such Stock Option, less any applicable withholding tax, an amount in cash equal to the product of (i) the excess of the Per Share Amount over the exercise price per share of such unexercised Stock Option, if any, and (ii) the number of shares of Company Common Stock subject to such Stock Option. (c) The Company shall (i) take all actions reasonably necessary to cause the actions and effects specified in Section 3.10(b) to occur, (ii) take all actions reasonably necessary, with Parent's assistance, to ensure that, effective as of the Award Cancellation Time, no holder of Stock Options, other than the Retained Option Participants, will have any right to receive any shares of capital stock of the Company or, if applicable, the Surviving Corporation, upon exercise of any Stock Option or any other event, and (iii) provide its reasonable -14- cooperation to Parent in connection with the actions contemplated by this Section 3.10, including seeking, on Parent's behalf, consents from the Retained Option Participants to have their Stock Options treated as Retained Options. Section 3.11. Payment for Shares. (a) Prior to the Effective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as paying agent in connection with the Merger (the "Paying Agent") pursuant to a paying agent agreement providing for the matters set forth in this Section 3.11 and otherwise reasonably satisfactory to the Company. At, or promptly following the Effective Time, Parent shall, or shall cause the Surviving Corporation to, make available to the Paying Agent for the benefit of holders of shares of Company Common Stock, as needed, the aggregate consideration to which such holders of shares of Company Common Stock shall be entitled at the Effective Time pursuant to Section 3.8(d). Such funds shall be invested in time deposits, treasury bills, or money market or other similar instruments as directed by the Surviving Corporation pending payment thereof by the Paying Agent to holders of the shares of Company Common Stock. Earnings from such investments shall be the sole and exclusive property of the Surviving Corporation, and no part thereof shall accrue to the benefit of the holders of shares of Company Common Stock. (b) Promptly after the Effective Time, the Paying Agent shall mail to each record holder, as of the Effective Time, of an outstanding Certificate(s), whose shares of Company Common Stock were converted pursuant to Section 3.8(d) into the right to receive the Merger Consideration (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificate(s) shall pass, only upon proper delivery of the Certificates to the Paying Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as Parent may reasonably specify), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration (together, the "Transmittal Documents"). Upon surrender of a Certificate or Certificates for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal and any other required documents, duly executed, the holder of such Certificate(s) shall be entitled to receive in exchange therefor (as promptly as practicable) the Merger Consideration in respect of all shares of Company Common Stock formerly represented by such surrendered Certificate(s), without any interest thereon, pursuant to Section 3.8(d). The Certificate(s) so surrendered shall forthwith be canceled. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate(s) is registered, it shall be a condition of payment that the Certificate(s) so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, that the signatures on the Certificate(s) or any related stock power shall be properly guaranteed and that the Person requesting such payment shall have established to the satisfaction of Parent that any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate(s) surrendered have been paid or are not applicable. Until surrendered in accordance with the provisions of and as contemplated by this Section 3.11, any Certificate(s) (other than Certificate(s) representing shares of Company Common Stock subject to Sections 3.8(b) and (c) and other than Dissenting Shares) shall be deemed, at any time after the Effective Time, to represent only the right to receive the Merger Consideration in cash without interest as -15- contemplated by this Section 3.11. Upon the surrender of a Certificate(s) in accordance with the terms and instructions contained in the Transmittal Documents, the Surviving Corporation shall cause the Paying Agent to pay to the holder of such Certificate(s) in exchange therefor cash in an amount equal to the Merger Consideration (other than Certificate(s) representing shares of Company Common Stock subject to Sections 3.8(b) and (c) and other than Dissenting Shares). (c) At the Effective Time, the stock transfer books of the Company shall be closed and there shall not be any further registration of transfers of any shares of capital stock thereafter on the records of the Company. If, after the Effective Time, a Certificate (other than those subject to Sections 3.8(b) and (c)) is presented to the Surviving Corporation, it shall be canceled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Section 3.11. No interest shall accrue or be paid on any cash payable upon the surrender of a Certificate. (d) From and after the Effective Time, the holders of Certificates shall cease to have any rights with respect to shares of Company Common Stock represented by such Certificate except as otherwise provided herein or by applicable law. (e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, the Surviving Corporation shall pay or cause to be paid in exchange for such lost, stolen or destroyed Certificate the relevant portion of the Merger Consideration in accordance with Section 3.8(d) for shares of Company Common Stock represented thereby. When authorizing such payment of any portion of the Merger Consideration in exchange therefor, the board of directors of the Surviving Corporation may, in its discretion and as a condition precedent to the payment thereof, require the owner of such lost, stolen or destroyed Certificate to give the Surviving Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Surviving Corporation with respect to the Certificate alleged to have been lost, stolen or destroyed. (f) Promptly following the date that is one year after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any cash (including any interest received with respect thereto), Certificates and other documents in its possession relating to the Merger, that had been made available to the Paying Agent and that have not been disbursed to holders of Certificates, and thereafter such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat or similar laws) only as a general creditor thereof with respect to any portion of the Merger Consideration payable upon due surrender of their Certificates, without any interest thereon. (g) The Merger Consideration paid in the Merger shall be net to the holder of shares of Company Common Stock in cash, subject to reduction only for any applicable federal, state, local or foreign withholding Taxes. To the extent that amounts are so withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such withholding was made. (h) Anything to the contrary in this Section 3.11 notwithstanding, to the fullest extent permitted by law, none of the Paying Agent, Parent or the Surviving Corporation -16- shall be liable to any holder of a Certificate for any amount properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If Certificates are not surrendered prior to two years after the Effective Time, unclaimed funds payable with respect to such Certificates shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as set forth in the Company SEC Documents filed on or prior to the date hereof or in the Company Disclosure Schedule (it being understood that any matter set forth in any section of the Company Disclosure Schedule shall be deemed disclosed with respect to any other section of the Company Disclosure Schedule to the extent such matter is disclosed in a way as to make its relevance to the information called for by such other section reasonably clear on its face), the Company hereby represents and warrants to Parent and Merger Sub as follows: Section 4.1. Organization and Qualification; Subsidiaries. (a) To the Company's Knowledge, each of the Company and its Subsidiaries is a corporation duly organized, validly existing and, if applicable, in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate or other power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its businesses as now being conducted, except where the failure to be in good standing or to have such power, authority and governmental approvals, would not, individually or in the aggregate, have a Company Material Adverse Effect. The Company has heretofore delivered to Parent accurate and complete copies of the certificate of incorporation and bylaws, as currently in effect, of the Company. Section 4.1(a) of the Company Disclosure Schedule sets forth a complete list of the Company's Subsidiaries. (b) To the Company's Knowledge, each of the Company and its Subsidiaries is duly qualified or licensed and, if applicable, in good standing to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except in such jurisdictions where the failure to be so duly qualified or licensed and in good standing would not, individually or in the aggregate, have a Company Material Adverse Effect. (c) The Company does not own, directly or indirectly, any equity (other than equity of its Subsidiaries) or debt (other than debt of its Subsidiaries and other than short-term investments of the Company's working capital in high-grade commercial paper or similar high- grade, short-term instruments) or similar interest in any Person. Section 4.2. Capitalization of the Company and its Subsidiaries. (a) The authorized capital stock of the Company consists of: (i) 278,000,000 shares of Company Common Stock, (A) 211,000,000 shares of which are designated as shares of -17- Company Class A Common Stock and (B) 67,000,000 shares of which are designated as shares of Company Class B Common Stock and (ii) 10,000,000 shares of Company Preferred Stock, (A) 25,000 shares of which are designated as shares of Company Class A Preferred Stock, (B) 25,000 shares of which are designated as shares of Company Class B Preferred Stock and (C) 16,688 shares of which are designated as shares of Company Class C Preferred Stock. As of April 29, 2003, (i) 18,978,291 shares of Company Class A Common Stock were issued and outstanding, (ii) 45,142,508 shares of Company Class B Common Stock were issued and outstanding, (iii) no shares of Company Class A Preferred Stock were issued and outstanding, (iv) 25,000 shares of Company Class B Preferred Stock were issued and outstanding and (v) 16,688 shares of Company Class C Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock and Company Preferred Stock have been validly issued, and are fully paid, nonassessable and free of preemptive rights. As of April 29, 2003, a total of 4,170,854 shares of Company Class A Common Stock were reserved for issuance pursuant to outstanding Stock Options, and no other shares of Company Class A Common Stock are subject to issuance pursuant to Stock Options or awards of Restricted Shares. Immediately prior to the Effective Time, no shares of Company Class A Preferred Stock or Company Class C Preferred Stock will be outstanding and 25,000 shares of Company Class B Preferred Stock will be outstanding. Set forth in Section 4.2(a) of the Company Disclosure Schedule is a complete and accurate list of the Company Stock Plans and the number of shares of Company Common Stock reserved for issuance pursuant to Stock Options outstanding as of April 29, 2003 under each such Company Stock Plan, and no other shares of Company Common Stock are subject to issuance pursuant to such Company Stock Plans. Since April 29, 2003, no shares of capital stock of the Company have been issued other than pursuant to Stock Options set forth on the Award List, and since April 29, 2003, no Stock Options or Restricted Shares have been granted. Except as set forth above, and as contemplated by Section 2.1, there are no outstanding (i) shares of capital stock (including Restricted Shares) or other voting securities of the Company, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, or (iv) equity equivalents, interests in the ownership or earnings of the Company or other similar rights (collectively, "Company Securities"). Other than as contemplated by this Agreement, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. (b) All of the outstanding capital stock of, or other ownership interests in, each Subsidiary of the Company, is owned by the Company, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same, except as may be provided as a matter of law). All such shares have been validly issued, fully paid and nonassessable, and have been issued free of preemptive rights. There are no outstanding securities of the Company or any of its Subsidiaries convertible into or exchangeable for, no options or other rights to acquire from the Company or any of its Subsidiaries, and no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of, any capital stock or other ownership interests in, or any other securities of, any Subsidiary of the Company. There are no outstanding equity equivalents, interests in the ownership or earnings or similar rights of any -18- Subsidiary of the Company. There are no contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any Subsidiary of the Company. (c) The shares of Company Class A Common Stock constitute the only class of equity securities of the Company or any of its Subsidiaries registered or required to be registered under the Exchange Act. No Subsidiary of the Company owns any capital stock in the Company. (d) Other than the Voting Agreement, there are no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries, or to the Company's Knowledge, any of the Company's stockholders, is a party with respect to the voting of the capital stock of the Company or any of its Subsidiaries. (e) To the Company's Knowledge, other than with respect to the Indebtedness set forth in Section 4.2(e) of the Company Disclosure Schedule, there is no Indebtedness of the Company or any of its Subsidiaries existing that contains any material restriction upon, or imposes any material penalty with respect to (i) the prepayment of such Indebtedness, (ii) the incurrence of Indebtedness by the Company or its Subsidiaries, respectively, or (iii) the ability of the Company or its Subsidiaries to grant any of the Liens on its properties or assets contemplated by the Financing Commitment Letters. Section 4.3. Authority Relative to this Agreement. (a) The Company has all the necessary corporate power and authority to execute and deliver this Agreement and, subject to obtaining Company Stockholder Approval (or if applicable, the Disinterested Stockholder Approval), to consummate the transactions contemplated hereby in accordance with the terms hereof. The execution, delivery and performance of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and, except for obtaining the Company Stockholder Approval (or if applicable, the Disinterested Stockholder Approval), no other corporate action or corporate proceeding on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by it of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery by Parent and Merger Sub, constitutes a valid, legal and binding agreement of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (i) any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, affecting creditors' rights generally, and (ii) the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding of law or equity). (b) (i) The Special Committee has been duly authorized and constituted, and (ii) the Special Committee, at a meeting thereof duly called and held on May 30, 2003, (A) determined that this Agreement, the Related Agreements, the Merger and the Related Transactions are fair to and in the best interests of the Company's stockholders (other than Parent and its Affiliates), (B) determined that this Agreement, the Related Agreements, the -19- Merger and the Related Transactions should be approved and declared advisable by the Company Board and (C) resolved to recommend that the Company's stockholders approve and adopt this Agreement and the Merger. (c) The Company Board, at a meeting thereof duly called and held on May 30, 2003, based on the recommendation of the Special Committee, (i) determined that this Agreement, the Related Agreements, the Merger and the Related Transactions are fair to and in the best interests of the Company and its stockholders (other than Parent and its Affiliates), (ii) approved and declared advisable this Agreement and the Merger, and (iii) resolved to recommend that the Company's stockholders approve and adopt this Agreement and the Merger. Section 4.4. SEC Reports; Financial Statements. (a) Since August 1, 2000, the Company has filed with the SEC all forms, reports, schedules, statements and other documents required to be filed by it under the Securities Act and the Exchange Act (any such documents filed since August 1, 2000 and prior to the Closing Date collectively, including all exhibits and schedules thereto and documents incorporated by reference therein, the "Company SEC Documents"). The Company SEC Documents, including any financial statements or schedules included therein, at the time filed, or, in the case of registration statements, on their respective effective dates, (i) complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as the case may be and (ii) did not at the time filed (or, in the case of registration statements, at the time of effectiveness), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. No Subsidiary of the Company is required to file any form, report or other document with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The financial statements included in the Company SEC Documents (the "Financial Statements") (i) have been prepared from, and are in accordance with, the books and records of the Company and its Subsidiaries, (ii) complied on the date of filing and effectiveness thereof in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto on the date of filing and effectiveness thereof, (iii) have been prepared in accordance with GAAP as in effect as of the dates of such financial statements applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and, in the case of unaudited statements, as permitted by the rules and regulations of the SEC during the periods involved), and (iv) fairly present in all material respects the consolidated financial position and the consolidated results of operations and cash flows (and changes in financial position, if any) of the Company and its Subsidiaries as of the times and for the periods referred to therein, except that any Financial Statements that are unaudited, interim financial statements were or are subject to normal and recurring year end adjustments which were not and are not expected, individually or in the aggregate, to be material in amount. The representations and warranties set forth in this Section 4.4(a) are made to the Company's Knowledge. (b) Except as otherwise available via the SEC's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) service, the Company has heretofore made available to Parent, in the form filed with the SEC (including any amendments thereto), (i) its Annual Reports on Form 10-K for each of its two most recently completed fiscal years, (ii) all definitive proxy -20- statements relating to the Company's meetings of stockholders (whether annual or special) held since March 14, 2000, and (iii) all other reports (other than Quarterly Reports on Form 10-Q) or registration statements filed by the Company with the SEC since March 14, 2000. Section 4.5. Proxy Statement. None of the information included in the Proxy Statement will, at the time filed with the SEC, at the time mailed to the Company's stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which such statements are made, not misleading, except that no representation is made by the Company with respect to statements made in or omitted from the Proxy Statement relating to Parent, FPSH or any of their respective Affiliates based on information supplied by Parent, FPSH or any of their respective Affiliates for inclusion or incorporation by reference in the Proxy Statement. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act. Section 4.6. Consents and Approvals, No Violations. To the Company's Knowledge, no filing with or notice to, and no permit, authorization, consent or approval of, any federal, state, local or foreign court or tribunal or administrative, governmental, arbitral or regulatory body, agency or authority (a "Governmental Entity"), is required on the part of the Company or any of its Subsidiaries for the execution, delivery and performance by the Company of this Agreement or the Related Agreements or the consummation by the Company of the transactions contemplated hereby or thereby, except (a) pursuant to the applicable requirements of the Securities Act and the Exchange Act, (b) the filing of the Certificate of Merger pursuant to the DGCL, (c) where the failure to obtain such permits, authorizations, consents or approvals or to make such filings or give such notice would not, individually or in the aggregate, have a Company Material Adverse Effect, and (d) with respect to the Stock Purchase Agreement only, in connection with the requirements of the HSR Act and the rules and regulations in foreign jurisdictions governing antitrust or merger control matters. Neither the execution, delivery and performance of this Agreement or the Related Agreements by the Company, nor the consummation by the Company of the transactions contemplated hereby or thereby will (i) conflict with or result in any breach of any provision of the respective certificate of incorporation or bylaws (or similar governing documents) of the Company or of any its Subsidiaries, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation, alteration or acceleration, or result in the creation of a Lien on any property or asset of the Company or any of its Subsidiaries, or trigger any rights of first refusal) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties, capital stock or assets may be bound or result in the loss or impairment of the Company's or any of its Subsidiary's right to use the Company Intellectual Property, Company PVP Certificates or Company Germplasm, or (iii) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, except in the case of (ii) or (iii) above for violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, have a Company Material Adverse Effect. -21- Section 4.7. No Default. To the Company's Knowledge, none of the Company or any of its Subsidiaries is in default, breach or violation (and no event has occurred that with notice or the lapse of time or both would constitute a default, breach or violation) of any term, condition or provision of (a) its certificate of incorporation or bylaws (or similar governing documents), (b) any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Company or any of its Subsidiaries is now a party or by which any of them or any of their respective properties or assets may be bound or (c) any order, writ, injunction, decree, law, statute, rule or regulation applicable to the Company, any of its Subsidiaries or any of their respective properties or assets, except in the case of (b) or (c) above for violations, breaches or defaults that would not, individually or in the aggregate, have a Company Material Adverse Effect. Section 4.8. No Undisclosed Liabilities; Absence of Changes. (a) Except (i) for liabilities incurred since September 30, 2002 in the ordinary course of business consistent with past practice, or (ii) for liabilities and obligations reasonably required by the Merger or any other transactions contemplated by this Agreement or the Related Agreements, neither the Company nor any of its Subsidiaries has, or has incurred since September 30, 2002, any material liabilities or obligations of any nature, whether or not absolute, accrued, contingent or otherwise, that would be required to be reflected or reserved against on a consolidated balance sheet, or in the notes thereto, of the Company and its Subsidiaries prepared in accordance with GAAP. (b) Other than as reasonably required by this Agreement and the Related Agreements, to the Company's Knowledge, (i) since September 30, 2002 and prior to the date hereof, the Company and its Subsidiaries have conducted their businesses in the ordinary course of business consistent with past practice, and (ii) since December 27, 2002 and prior to the date hereof, the Company has not taken any of the actions set forth in paragraphs (a) through (q) of Section 6.3. (c) Since September 30, 2002, there has not been any Company Material Adverse Effect. Section 4.9. Compliance with Applicable Law. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect: (a) the Company and its Subsidiaries hold all permits, licenses, variances, exemptions, orders and approvals of all Governmental Entities necessary for them to own, lease or operate their properties and assets and to carry on their businesses as now conducted ("Company Permits"); (b) there has not occurred any default under, or violation of, or failure of compliance under, any such Company Permit; (c) the businesses of the Company and its Subsidiaries are not being, and have not been, conducted in violation of any law, ordinance, regulation, order, judgment, injunction, writ or decree of any Governmental Entity; and (d) there is (and during the past two years, there has been) no claim, action, proceeding, review or investigation pending or threatened against the Company or any Subsidiary of the Company or any of their respective products by, on behalf of or before any Governmental Entity. -22- Section 4.10. Employee Benefit Matters. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a complete list of all material employee, consultant or director benefit plans, arrangements or agreements, including any employee welfare benefit plan within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any material bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, termination, indemnity, employment, change of control or fringe benefit plan, program, arrangement or agreement that provides benefits to any current or former employee or director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof or with respect to which the Company or any of its Subsidiaries could have a material liability (collectively, the "Benefit Plans"). The Company has made available to Parent for each Benefit Plan, if applicable, true and complete copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plan, a description thereof) and any amendment thereto, (ii) the most recent summary plan description (or similar document), (iii) the most recent Annual Reports (Form 5500 Series) and accompanying schedules, if any, (iv) the most recent actuarial report, and (v) the most recent determination letter from the IRS (if applicable). (b) Section 4.10(b) of the Company Disclosure Schedule contains a complete and accurate list of all Key Employees, setting forth their respective names, current positions, salaries and target bonuses. (c) (i) Each Benefit Plan has been maintained and administered in material compliance with its terms and with all applicable laws including ERISA and the Code; (ii) each Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and has been determined by the IRS to be so qualified, and, to the Company's Knowledge, no event has occurred that could reasonably be expected to adversely affect the qualified status of such Benefit Plan; (iii) neither the Company nor any of its Subsidiaries has incurred or is reasonably likely to incur any material liability or penalty under Sections 4975 or 4976 of the Code or Sections 409 or 502(i) of ERISA; (iv) there are no pending, or to the Company's Knowledge threatened, claims against or otherwise involving any of the Benefit Plans (other than routine claims for benefits); (v) no Benefit Plan is under audit or investigation by the IRS, the Department of Labor or the PBGC, and no such audit or investigation is pending or, to the Company's Knowledge, threatened; (vi) all contributions or other payments required to be made, as well as all required filings with Governmental Entities required to be made, as of the date of this Agreement to or pursuant to the Benefit Plans with respect to the Company or any of its Subsidiaries have been made; (vii) neither the Company nor any entity under "common control" with the Company within the meaning of Sections 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA (an "ERISA Affiliate") has at any time contributed to, or been required to contribute to, any "pension plan" (as defined in Section 3(2) of ERISA) that is subject to Title IV of ERISA or Section 412 of the Code, including any "multi-employer plan" (as defined in Sections 3(37) and 4001(a)(3) of ERISA); (viii) none of the Company and its Subsidiaries nor any ERISA Affiliates has incurred any "withdrawal liability" (as defined in Part I of Subtitle E of Title IV of ERISA) that has not been satisfied in full; (ix) neither the Company nor any of its Subsidiaries has any obligation for retiree health or life benefits, other than benefits mandated by applicable law; (x) the Company or its Subsidiaries may amend or terminate any of the Benefit -23- Plans without incurring any material liability thereunder; (xi) all amounts of deferred compensation benefits under any Benefit Plan have been properly accrued on the Financial Statements of the Company and its Subsidiaries to the extent required under GAAP; and (xii) each Benefit Plan which is an "employee welfare benefit plan" within the meaning of Section 3(1) of ERISA is either insured pursuant to a contract of insurance whereby the insurance company bears any risk of loss with respect to such claims or covered under a contract with a health maintenance organization (an "HMO") pursuant to which the HMO bears the liability for such claims. (d) The consummation of the transactions contemplated by this Agreement and the Related Agreements will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan, trust, or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, officer, consultant or director of the Company or any Subsidiary, or (ii) result in the triggering or imposition of any restrictions or limitations on the right of the Company or Parent to amend or terminate any Benefit Plan and receive the full amount of any excess assets remaining or resulting from such amendment or termination, subject to applicable taxes. No payment or benefit which has been made or will or may be made by the Company, any of its Subsidiaries, Parent or any of its Affiliates with respect to any employee, officer or director of the Company or its Subsidiaries (a "Compensation Payment") will be characterized as an "excess parachute payment," within the meaning of Section 280G(b)(1) of the Code, no amount of any Compensation Payment or benefit will fail to be deductible by the Company by reason of Section 162(m) of the Code, and no deduction that the Company has taken on any previously filed Tax return would reasonably be expected to be challenged as non-deductible pursuant to Section 162(m) of the Code. (e) No Benefit Plan is or has been subject to Title IV or Section 302 of ERISA or Sections 412 or 4971 of the Code. (f) There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability of the Company or any of its Subsidiaries following the Closing. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries, nor any of their respective ERISA Affiliates, has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA. "Controlled Group Liability" means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code, (iv) as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, and (v) under corresponding or similar provisions of foreign laws or regulations, other than such liabilities that, in each case, arise solely out of, or relate solely to, the Benefit Plans listed in Section 4.10(a) of the Disclosure Schedule. (g) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, all Benefit Plans subject to the laws of any jurisdiction outside of the United States (i) have been maintained in accordance with such laws and all applicable requirements, (ii) if they are intended to qualify for special tax treatment, meet all requirements for such -24- treatment, and (iii) if they are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions. (h) The Company acknowledges that Merger Sub has entered into certain employment-related agreements (the "Employment Agreements"), dated as of the date hereof, with the employees listed on Schedule 4.10(h) (the "Employees"), which are intended to supersede the Employees' existing employment agreements at the Effective Time. The Company confirms and acknowledges that (i) the Special Committee has been apprised of the material terms of the Employment Agreements and, by approving this Agreement, has authorized the Company to consent to permit the Employees to enter into the Employment Agreements (which the Company hereby does) and (ii) by entering into the Employment Agreements and performing their obligations thereunder, no Employee will be deemed to be in violation of his employment agreement listed on Schedule 4.10(h), and that neither Parent nor Merger Sub shall be deemed to be interfering with any contractual rights of the Company or the Company's relationship with the Employees. Section 4.11. Labor Matters. (a) (i) There is no labor strike, dispute, slowdown, stoppage or lockout of any material nature pending, or, to the Company's Knowledge, threatened against or affecting the Company or any of its Subsidiaries and during the immediately preceding three years there has not been any such action. (ii) Section 4.11(a)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list of all collective bargaining or similar agreements with any labor organization, or work rules or practices agreed to with any labor organization or employee association by the Company or any of its Subsidiaries. (iii) There are no material complaints, lawsuits or other proceedings pending or, to the Company's Knowledge, threatened in any forum by or on behalf of any present or former employee, consultant, officer or director of the Company or any of its Subsidiaries, any applicant for employment or classes of the foregoing alleging breach by the Company or its Subsidiaries of any express or implied contract of employment, any laws governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with the employment relationship. (b) The Company and its Subsidiaries and each member of their respective business enterprises has complied with the Worker Adjustment and Retraining Notification Act (the "WARN Act") and any similar state, local or foreign law or regulation, as applicable. There has not occurred a "mass layoff" (as defined in the WARN Act) affecting any site of employment or facility of the Company or its Subsidiaries during the 90-day period prior to the date of this Agreement. (c) Section 4.11(c) of the Company Disclosure Schedule sets forth a complete and accurate list of all collective bargaining or similar agreements which were in place as of September 30, 2002, but have since been materially modified, renewed, renegotiated or superceded by one or more of the collective bargaining or similar agreements set forth in Section 4.11(a)(ii) -25- of the Company Disclosure Schedule, none of which has resulted in a material increase in cost on an annual basis to the Company or its Subsidiaries under such modified, renewed, renegotiated or superseding agreement. Section 4.12. Intellectual Property. (a) Section 4.12(a) of the Company Disclosure Schedule sets forth, (i) a complete and accurate list of all (A) patents and patent applications, (B) trademark and service mark registrations and applications, and (C) copyright registrations and applications for copyright registrations, currently owned by the Company or its Subsidiaries, in whole or in part, including jointly with others, in each case, in (1) Australia, Benelux, Brazil, Canada, Hungary, Japan, South Korea, Mexico, Morocco, New Zealand, the United Kingdom, the United States, as well as CTM and Madrid protocol jurisdictions, and (2) all other countries and jurisdictions (except, with respect to this clause (2), as would not, individually or in the aggregate, have a Company Material Adverse Effect), (ii) the corporate names under which the Company or its Subsidiaries conduct business, (iii) the domain names currently owned by the Company or its Subsidiaries, (iv) all of the certificates of plant variety protection currently owned by the Company or its Subsidiaries ("Company PVP Certificates") and all applications by the Company or any of its Subsidiaries for certificates of plant variety protection; and (v) a list of all products sold by the Company and its Subsidiaries as of the date hereof. (b) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, the Company or one of its Subsidiaries (i) owns or has the right to use all Company Intellectual Property, free and clear of all Liens, other than Permitted Liens, and (ii) owns and possesses all right, title and interest in and to, or possesses the valid right to use, in the manner used by the Company and its Subsidiaries, all Company Germplasm and Company PVP Certificates. (c) To the Company's Knowledge, except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) no Person has a right to receive from the Company any royalty or similar payment in respect of any item of Company Intellectual Property or Company Germplasm or Company PVP Certificate pursuant to any contractual or other arrangements entered into by the Company or any of its Subsidiaries, (ii) no former or present employees, officers, directors or Affiliates of the Company hold any right, title or ownership interest, directly or indirectly, in whole or in part, in or to any Company Intellectual Property, Company PVP Certificate or Company Germplasm, (iii) except under confidentiality obligations, there has been no disclosure by the Company or any of its Subsidiaries of any confidential information or trade secrets or other proprietary information, and (iv) the Company and its Subsidiaries, as applicable, have taken reasonable steps to enforce the agreements that have been entered into by the Company's and its Subsidiaries' employees, consultants, contractors and other entities for ownership and confidentiality of the Company Intellectual Property, the Company PVP Certificates and the Company Germplasm. To the Company's Knowledge, except as would not have, individually or in the aggregate, a Company Material Adverse Effect, each current employee or consultant of the Company or any of its U.S. Subsidiaries who is a breeder and who has created Company Intellectual Property has executed an agreement with provisions covering ownership and confidentiality of the Company Intellectual Property (including, where applicable, Company Germplasm) and Company PVP -26- Certificates. With respect to current employees or consultants of the Company or its Subsidiaries who are not covered by the immediately preceding sentence, to the Company's Knowledge, their failure to execute an agreement with provisions covering ownership and confidentiality of the Company Intellectual Property (including where applicable, Company Germplasm) and Company PVP Certificates, will not individually or in the aggregate have a Company Material Adverse Effect. (d) To the Company's Knowledge, (i) the conduct of the business of the Company and its Subsidiaries as currently conducted (including the use of, or reliance upon, the Company Intellectual Property, the Company PVP Certificates and the Company Germplasm) does not infringe upon any intellectual property rights or any certificate of plant variety protection owned or controlled by any Person, except, as would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) there are no material claims or suits pending or threatened, and neither the Company nor any of its Subsidiaries has received notice of any such material claim or suit (A) alleging that the conduct of the business of the Company or any of its Subsidiaries infringes upon or constitutes the unauthorized use of the proprietary rights (including with respect to any certificate of plant variety protection or any germplasm) of any Person or (B) challenging the ownership, use, validity or enforceability of the Company Intellectual Property, Company PVP Certificates or Company Germplasm, (iii) no material Company Intellectual Property or Company PVP Certificate is being violated or infringed upon by any Person, and (iv) there are no settlements, consents, judgments, orders or other agreements which restrict the Company's or any of its Subsidiary's rights to use any material Company Intellectual Property, material Company PVP Certificate or material Company Germplasm. (e) Except as would not individually, or in the aggregate, have a Company Material Adverse Effect, to the Company's Knowledge the Company and its Subsidiaries are in compliance with all requirements (including payment of filing, examination, or maintenance fees and proofs of working or use) relating to the maintenance of registrations of the Company Intellectual Property. (f) Solely for the purposes of this Section 4.12, "Company's Knowledge" means the actual knowledge, after reasonable inquiry, of Eujenio Najera, Bruno Ferrari, C. Edward Green, Jose Manuel Madero, Gaspar Alvarez, Oscar Velasco, Salvador Alanis, Cristobal Cardenas, Enrique Osorio, Franco Campana, Jean Pierre Posa, Juliet Ream, Patrick Turner, Steve Witt, Keith Redenbaugh and Thomas Kramer. Section 4.13. Taxes. The Company and its Subsidiaries have filed all material Tax Returns that are required by applicable laws to be filed by them, and such Tax Returns are complete and accurate in all material respects. Neither the Company nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any such material Tax Return. The Company and its Subsidiaries have paid all material Taxes which have or may become due and payable (whether or not shown on any Tax Return), other than those Taxes being contested in good faith through appropriate proceedings for which provision has been made in accordance with GAAP on the most recent consolidated balance sheet of the Company set forth in the Financial Statements. All material Taxes which the Company and its Subsidiaries are required by law to withhold and collect at or prior to Closing (including any such Taxes arising in connection with the transactions contemplated by Article II or Article III) have been, or will have -27- been, duly withheld, collected and paid over, in each case, in a timely manner, to the proper taxing authorities to the extent due and payable. The Company and its Subsidiaries have not executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any material Tax liabilities of the Company or any of its Subsidiaries for the taxable years prior to and including the most recent taxable year. Neither the Company nor any of its Subsidiaries (or any predecessor thereto) is a "consenting corporation" within the meaning of Section 341(f) of the Code. None of the Company or any of its Subsidiaries (a) has been a member of any consolidated, combined or unitary group (other than with the Company and its Subsidiaries) for Tax purposes, or (b) has any material liability for the Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise. The Company and its Subsidiaries are not a party to any tax sharing agreement or arrangement (other than with the Company and its Subsidiaries). No material liens or encumbrances for Taxes exist with respect to any of the assets or properties of the Company or any of its Subsidiaries, except for statutory liens for Taxes not yet due or payable or that are being contested in good faith through appropriate proceedings. All of the U.S. federal income Tax Returns filed by or on behalf of each of the Company and its Subsidiaries have been examined by and settled with the IRS, or the statute of limitations with respect to the relevant Tax liability expired, for all taxable periods ending on or before September 30, 1995. All Taxes due with respect to any completed and settled audit, examination or deficiency litigation with any taxing authority have been paid in full. There is no audit, examination, deficiency, or refund litigation pending with respect to any material Taxes and no taxing authority has given written notice of the commencement of (or its intent to commence) any audit, examination or deficiency litigation with respect to any material Taxes. No closing agreements, private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any taxing authority with respect to the Company or any of its Subsidiaries. There are no outstanding assessments, claims or deficiencies for any material Taxes of the Company or any of its Subsidiaries that have been proposed, asserted or assessed, in each case in writing. None of the Company or any Subsidiary has been a U.S. real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. The Company and its Subsidiaries had net operating loss carryforwards reflected on its consolidated U.S. federal income Tax Return for the taxable year ended September 30, 2002 totaling not less than $84 million and the fiscal unit represented by three Dutch subsidiaries of the Company is expected to have net operating loss carryforwards reflected on its Dutch income Tax Return for such taxable year totaling not less than E32.6 million (the U.S. and Dutch net operating loss carryforwards together, the "NOL Carryforwards"), which NOL Carryforwards are subject to adjustment as a result of current or future audits by appropriate taxing authorities. Except as may result from this Agreement or the Related Agreements, or the transactions contemplated hereby or thereby, none of the NOL Carryforwards is currently subject to limitation under Section 382 of the Code or Treasury Regulations Section 1.1502-15 or -21 (or any comparable provisions of Dutch tax law) or otherwise. Neither the Company nor any of its Subsidiaries has constituted a "distributing corporation" or a "controlled corporation" within the meaning of Section 355(a)(1)(A) of the Code in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code. Section 4.14. Absence of Litigation. There are no suits, claims, actions, proceedings or investigations pending or, to the Company's Knowledge, threatened against, -28- affecting or involving the Company or any of its Subsidiaries, or any properties of the Company or any of its Subsidiaries, before any Governmental Entity, except as would not, individually or in the aggregate, have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries, nor any of their respective properties or assets, is subject to any order, writ, judgment, injunction, decree, determination or award which has or would have, individually or in the aggregate, a Company Material Adverse Effect. Section 4.15. Material Contracts. (a) To the Company's Knowledge and except for contracts filed as exhibits to the Company's Annual Report on Form 10-K for the year ended September 30, 2002 (the "Company 2002 10-K"), Section 4.15(a) of the Company Disclosure Schedule lists, as of the date hereof, each of the following contracts and agreements (including oral agreements) of the Company and each of its Subsidiaries (such contracts and agreements, together with all contracts and agreements disclosed in Section 4.15(a) of the Company Disclosure Schedule or filed as exhibits to the Company 2002 10-K, being "Material Contracts"): (i) each contract, agreement and other arrangement for the purchase of inventory, spare parts, other materials or personal property with any supplier or for the furnishing of services to the Company and each of its Subsidiaries or otherwise related to the businesses of the Company and each of its Subsidiaries, other than purchase orders in the ordinary course of business consistent with past practice, under the terms of which the Company or any of its Subsidiaries: (A) is likely to pay or otherwise give consideration of more than $200,000 in the aggregate during the calendar year ended December 31, 2003; or (B) is likely to pay or otherwise give consideration of more than $1,000,000 in the aggregate over the remaining term of such contract; (ii) each contract, agreement and other arrangement for the sale of inventory or other property or for the furnishing of services by the Company or any of its Subsidiaries, other than purchase orders in the ordinary course of business consistent with past practice, that: (A) is likely to involve consideration of more than $200,000 in the aggregate during the calendar year ended December 31, 2003; or (B) is likely to involve consideration of more than $1,000,000 in the aggregate over the remaining term of the contract; (iii) all material broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising contracts and agreements to which the Company or any of its Subsidiaries is a party; (iv) all management contracts and contracts with independent contractors or consultants (or similar arrangements) to which the Company or any of its Subsidiaries is a party and which are not cancelable without penalty or further payment in excess of $200,000 and without more than 90 days' notice; (v) all contracts and agreements relating to Indebtedness of the Company or any of its Subsidiaries or to any direct or indirect guaranty by the Company or any of its Subsidiaries of Indebtedness of any other Person, other than any such contracts or agreements as do not involve more than $100,000 individually or $500,000 in the aggregate; -29- (vi) all material contracts, agreements, commitments, written understandings or other arrangements with any Governmental Entity, to which the Company or any of its Subsidiaries is a party; (vii) all contracts and agreements containing any provision or covenant limiting or purporting to limit the ability of the Company or any of its Subsidiaries in any material respect to (i) sell any products or services of or to any other Person, (ii) engage in any line of business or (iii) compete with or obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries, in each case, in any geographic area or during any period of time; (viii) all material contracts or arrangements between the Company or any of its Subsidiaries, on the one hand, and any director, officer, employee, stockholder or Affiliate (or any of their respective Affiliates), on the other hand; (ix) all Real Property Leases; (x) all material license agreements under which the Company or any of its Subsidiaries has granted or received the right to use any Company Intellectual Property (other than licenses for readily available commercial software) or Company Germplasm; and (xi) all other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of the business of the Company and its Subsidiaries, taken as a whole, or the absence of which would, in the aggregate, have a Company Material Adverse Effect. (b) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, each Material Contract: (i) is legal, valid and binding on the Company or its respective Subsidiary party thereto and, to the Company's Knowledge, the other parties thereto, and is in full force and effect and (ii) upon consummation of the transactions contemplated by this Agreement and the Related Agreements, shall be in full force and effect without penalty or other adverse consequence. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach of, or default under, any Material Contract. Neither the Company nor any Subsidiary has received any written or, to the Company's Knowledge, oral notice of a material default (which has not been cured), offset or counterclaim under any Material Contract, or any other written or, to the Company's Knowledge, oral communication calling upon it to comply with any provision of any Material Contract or asserting noncompliance therewith or asserting the Company or any Subsidiary has waived or altered its rights thereunder, nor has the Company or any Subsidiary received any written or, to the Company's Knowledge, oral notice that any party to any Material Contract intends or is threatening to terminate or fail to exercise any renewal or extension of any Material Contract. (c) No other party to any Material Contract is, to the Company's Knowledge, in material breach thereof or default thereunder. (d) There is no contract, agreement or other arrangement granting any Person any preferential right to purchase any of the material real or personal properties or assets of the -30- Company or any of its Subsidiaries, other than inventory in the ordinary course of business consistent with past practice. Section 4.16. Insurance. To the Company's Knowledge, the Company and its Subsidiaries have in full force and effect the material policies of fire, liability, errors and omissions and other forms of insurance listed in Section 4.16 of the Company Disclosure Schedule (such policies, the "Insurance Policies"), all of which policies have previously been provided to Parent. To the Company's Knowledge, the Insurance Policies are in full force and effect, and no notice of cancellation or non-renewal has been received by the Company or any of its Subsidiaries with respect to any Insurance Policy that has not been cured by the payment of premiums that are due. To the Company's Knowledge, the Company and its Subsidiaries have complied in all material respects with the terms and provisions of the Insurance Policies. The Company or one of its Subsidiaries is the primary party to each such Insurance Policy. To the Company's Knowledge, since January 1, 2001, none of the insurers of the Company or any of its Subsidiaries has rejected or plans to reject, any insurance claim of the Company or its Subsidiaries in excess of $100,000. Section 4.17. Environmental Laws and Regulations. (a) To the Company's Knowledge, (i) the Company and each of its Subsidiaries is in compliance with all Environmental Laws, except for such non-compliance that individually or in the aggregate would not have a Company Material Adverse Effect, which compliance includes the possession by the Company and its Subsidiaries of all permits and other governmental authorizations required under applicable Environmental Laws, and compliance with the terms and conditions thereof; (ii) during the immediately preceding four years, neither the Company nor any of its Subsidiaries has received written or oral notice of, or is the subject of, any action or threatened action, cause of action, claim, investigation, demand or notice by any Person alleging material liability (including as a result of non-compliance) under any Environmental Law (an "Environmental Claim") including relating to the business of the Company or any of its Subsidiaries or relating to any contractor, subcontractor or agent of the Company or any of its Subsidiaries or relating in any way to any facilities, locations, or business previously owned, leased or operated by or on behalf of the Company or any of its Subsidiaries; (iii) there are no conditions or circumstances that are reasonably likely to result in any material liability of the Company or any of its Subsidiaries under any Environmental Law or prevent or interfere with any such compliance thereunder in the future, including relating to any contractor, subcontractor or agent of the Company or any of its Subsidiaries or relating to the business of the Company or any of its Subsidiaries, or relating in any way to any facilities, locations, or business previously owned, leased or operated by or on behalf of the Company or any of its Subsidiaries; (iv) none of the properties owned or operated by the Company or any of its Subsidiaries contains any Hazardous Substance in amounts exceeding the levels permitted by applicable Environmental Laws, except for matters that are not reasonably likely to give rise to any material liability for the Company or any of its Subsidiaries, and (v) no Hazardous Substances has been disposed of, released or transported in violation of any applicable Environmental Law from any of the properties owned or operated by the Company or any of its Subsidiaries, except for matters that are not reasonably likely to give rise to any material liability for the Company or any of its Subsidiaries. There are no permits or other governmental authorizations held by the Company or any of its Subsidiaries or required for the Company's business that are required to be transferred or reissued, or that are -31- otherwise prohibited from being transferred or reissued, pursuant to any Environmental Laws as a result of the transactions contemplated by this Agreement or the Related Agreements, except for those the failure of which to possess would not, individually or in the aggregate, have a Company Material Adverse Effect. To the Company's Knowledge, the Company has provided to Parent all environmental assessments, reports, data, results of investigations, or compliance or other environmental audits conducted by or for the Company or any of its Subsidiaries, or otherwise relating to the Company's or any Subsidiary's business or properties (owned, leased or operated) in the possession or control (direct or indirect) of the Company or any of its Subsidiaries. For purposes of this Section 4.17(a) only, the term "material liability" shall mean any liability in excess of $100,000. (b) There are no Environmental Claims that would, individually or in the aggregate, have a Company Material Adverse Effect that are pending or, to the Company's Knowledge, threatened against the Company or any of its Subsidiaries or, to the Company's Knowledge, against any Person whose liability for any Environmental Claim the Company or any of its Subsidiaries has or is reasonably likely to have been retained or assumed either contractually or by operation of law. (c) The only representations and warranties given in respect of environmental matters and agreements relating thereto are those contained in this Section 4.17 and none of the other representations and warranties shall be deemed to constitute, directly or indirectly, a representation or warranty in respect of environmental matters or agreements relating thereto. (d) The disclosures made in Section 4.17 of the Company Disclosure Schedule and the matters identified in Section 4.17 of the Company Disclosure Schedule in the document entitled Addendum to Environmental Health and Safety Documents (excepting therefrom the matters identified in Section 4.17 of the Company Disclosure Schedule in the document entitled Environmental Health and Safety Documents) would not, individually or in the aggregate, have a Company Material Adverse Effect. Section 4.18. Title to Real Properties; Encumbrances. (a) Section 4.18(a)(i) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property (including land, buildings and other improvements) and interests in real property owned by the Company or its Subsidiaries (the "Owned Real Property"), including, for each parcel of Owned Real Property, a description thereof, including the approximate size and use of the property. Section 4.18(a)(ii) of the Company Disclosure Schedule also sets forth a complete and accurate list of all real property leased, subleased or otherwise occupied by the Company or its Subsidiaries (the "Leased Real Property"), which description shall include (for all Leased Real Property) a list of all leases and subleases (and amendments and modifications) pertaining thereto and approximate size of the premises leased thereunder, and the use of such premises. The Owned Real Property and the Leased Real Property shall be hereinafter collectively referred to as the "Real Property." The Company or its Subsidiaries has good and valid fee or leasehold title (as the case may be) to the Real Property, free and clear of all Liens, other than Permitted Liens. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, the Permitted Liens do not and will not impair or adversely affect the value of any Real Property, the current or contemplated (the term "contemplated," as -32- used in this Section 4.18(a), meaning contemplated or planned prior to the Closing Date) use, occupancy or operation thereof, or the business, operations or condition (financial or otherwise) of the Company or any of its Subsidiaries. All aspects of the Real Property are in compliance in all respects with any and all restrictions and other provisions included in the Permitted Liens, and there are no matters which create, or which with notice or the passage of time would create, a default under any of the documents evidencing the Permitted Liens, except as would not, individually or in the aggregate, have a Company Material Adverse Effect. (b) The Real Property constitutes, in the aggregate, all of the real property used to conduct the business of the Company and its Subsidiaries in the manner conducted prior to the date hereof. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, all buildings, structures, improvements and fixtures located on, under, over or within each of the Real Properties and all other aspects of each of the Real Properties: (i) are in good operating condition and repair and are structurally sound and free of any material defects, with no material alterations or repairs being required thereto under applicable law or insurance company requirements; (ii) consist of sufficient land and improvements and lawful means of access and utility service to permit the use thereof in the manner and for the purposes to which they are presently devoted or to which they are contemplated to be devoted; and (iii) are located adjacent to public roads or streets with adequate ingress and egress available between such roads or streets and such Real Property for all purposes related to the current operations of the Company and its Subsidiaries and are otherwise suitable and adequate for their current use, operation and occupancy. (c) There are no pending or, to the Company's Knowledge, threatened material proceedings regarding the amount of the Taxes on, or the assessed valuation of, any Real Property, or relating to eminent domain or the condemnation of any portion of the Real Property, or impact fees, special assessments or similar matters with respect thereto. To the Company's Knowledge, no such action or proceeding is contemplated. (d) To the Company's Knowledge, all certificates, permits, variances or licenses from any Governmental Entity having jurisdiction over any of the Real Property and all agreements, easements or other rights that are necessary to permit the lawful use and operation of the buildings and improvements, in the manner such buildings and improvements are used and operated on any of the Real Property have been obtained and are in full force and effect and there is no pending threat of modification or cancellation of any of same, except as would not, individually or in the aggregate, have a Company Material Adverse Effect. (e) To the Company's Knowledge, all of the Real Property Leases are valid, binding and in full force and effect. True and complete copies of the Real Property Leases have previously been delivered to Parent, including all amendments or modifications thereof and all side letters or other instruments affecting the obligations of any party thereunder. The lessee (identified in Section 4.18(a)(ii) of the Company Disclosure Schedule) under each Real Property Lease is now in possession of the Leased Real Property. There is no pending or, to the Company's Knowledge, threatened suit, action or proceeding that might interfere with the quiet enjoyment of each tenant. There are no outstanding defaults or circumstances that, upon the giving of notice or passage of time or both, would constitute a default or breach by either party under any Real Property Lease. The Company and its Subsidiaries have not assigned, mortgaged, -33- pledged or otherwise encumbered, in any material manner, their interest, if any, under any Real Property Lease. Between the date hereof and the Closing, the Company or its Subsidiaries will exercise within the time prescribed in each Real Property Lease any option provided therein to extend or renew the term thereof, (i) so long as such Real Property Lease is still necessary for the conduct of the business of the Company and its Subsidiaries as conducted during the fiscal year ended September 30, 2002 and (ii) since such time an alternate lease has not been entered into with terms, in the aggregate, generally not less favorable to the Company or its Subsidiaries. As used herein, the term "lease" shall also include subleases, the term "lessor" shall also include any sublessor, and the term "lessee" shall also include any sublessee. Section 4.19. Tangible Personal Property; Sufficiency of Assets. (a) The Company and its Subsidiaries have good and valid title, free and clear of all Liens (other than Permitted Liens), to all tangible personal property that they use in the operation of the business of the Company and its Subsidiaries, including all such tangible personal property reflected in the Company Balance Sheet as being owned by the Company and its Subsidiaries, except for such tangible personal property disposed of to third parties since September 30, 2002 in the ordinary course of business, consistent with past practice and which disposals would not, individually or in the aggregate, have a Company Material Adverse Effect. The tangible personal property of the Company and its Subsidiaries is generally in good working order, reasonable wear and tear excepted, and is suitable for the use for which it is intended in all material respects. (b) Upon consummation of the Merger and the Related Transactions, the Company and its Subsidiaries will own or have valid rights to use all of the rights, facilities, assets, properties and interests which are used in, and are sufficient for, the operation of the business of the Company and its Subsidiaries in the manner in which such business was conducted during the fiscal year ended September 30, 2002 and since such time in all material respects. Section 4.20. Affiliate Transactions. (a) To the Company's Knowledge, no Affiliate of Parent owns or has any interest in any material tangible personal property, Real Property or intangible personal property used in conducting the business of the Company and its Subsidiaries in the manner in which such business was conducted during the fiscal year ended September 30, 2002 and since such time in all material respects; (b) Other than for compensation as an employee of the Company payable in the ordinary course of business consistent with past practice and except as reflected in the Company SEC Documents, to the Company's Knowledge, no Affiliate of Parent has entered into any transactions with the Company or its Subsidiaries that are required to be disclosed in the Company SEC Documents; (c) To the Company's Knowledge, upon consummation of the transactions contemplated by Section 2.1, there will be no outstanding loans or other similar advances due and owing to Parent or its Affiliates by the Company or any of its Subsidiaries; and -34- (d) To the Company's Knowledge, (i) no Affiliate of Parent provides, or causes to be provided to the Company or any of its Subsidiaries any rights, interests, assets, facilities, properties, goods or services, and (ii) neither the Company nor any of its Subsidiaries provides, or causes to be provided, to an Affiliate of Parent any rights, interests, assets, facilities, properties, goods or services. Section 4.21. Suppliers and Customers. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, since September 30, 2002, no licensor, vendor, supplier, grower, licensee or customer of the Company or any of its Subsidiaries has canceled or otherwise modified its relationship with the Company or its Subsidiaries and, to the Company's Knowledge, no such Person has notified the Company of its intention to do so. Section 4.22. Information in Financing Documents. None of the information supplied or to be supplied by the Company for the purpose of inclusion or incorporation by reference in any syndication and other materials to be delivered to potential financing sources in connection with the transactions contemplated by this Agreement (the "Financing Documents") will, at the date delivered, contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Section 4.23. State Takeover Statute Inapplicable. The Company Board and the Special Committee have approved this Agreement and the Related Agreements and the transactions contemplated hereby and thereby as required under any applicable state takeover laws so that any such state takeover laws (including the prohibitions under Section 203 of the DGCL) will not apply to this Agreement or the Related Agreements or any of the transactions contemplated hereby or thereby. Section 4.24. Brokers. Other than Merrill Lynch & Co. (a true and complete copy of whose engagement agreement has been delivered to Parent), no broker, finder, investment banker or other intermediary is or might be entitled to any brokerage, finders' or other fee or commission in connection with the transactions contemplated by this Agreement or the Related Agreements based upon arrangements made by or on behalf of the Company. Section 4.25. Opinion of Financial Advisor. Merrill Lynch & Co. has delivered its opinion to the Special Committee to the effect that, as of the date of such opinion, the consideration to be received in the Merger by the holders of Company Common Stock (other than Parent and its Affiliates) is fair from a financial point of view to such holders. Section 4.26. Company Information. The Company has provided Parent and Merger Sub with all information so as to be responsive to each of the representations and warranties set forth in Article IV. In furtherance of the foregoing, the Company represents that it has not withheld any information required by the representations and warranties set forth in Article IV. -35- ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB Parent and Merger Sub hereby represent and warrant to the Company as follows: Section 5.1. Organization. Each of Parent and Merger Sub is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to be in good standing or to have such corporate or similar power and authority would not, individually or in the aggregate, have a Parent Material Adverse Effect. Each of Parent and Merger Sub was formed solely for the purpose of engaging in the transactions contemplated by this Agreement and the Related Agreements. Other than Parent's 100% ownership interest in Merger Sub, on the date hereof, neither Parent, nor Merger Sub owns any equity, debt or similar interest in any Person. Parent and Merger Sub have delivered to the Company accurate and complete copies of the certificate of incorporation and bylaws (or other governing documents), as currently in effect, of Parent and Merger Sub. Merger Sub has not engaged in any activities, owned any assets or been subject to any liabilities, except as is necessary to effect the Merger. Section 5.2. Authority Relative to this Agreement. Each of Parent and Merger Sub has all necessary power and authority to execute and deliver this Agreement and the Related Agreements and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the members (including the managing member) of Parent and by the board of directors of Merger Sub, and no other corporate or similar proceedings on the part of Parent or Merger Sub are necessary to authorize this Agreement or the Related Agreements or to consummate the transactions contemplated hereby or thereby. This Agreement and the Related Agreements have been duly and validly executed and delivered by each of Parent and Merger Sub and, assuming due and valid authorization, execution and delivery by the other parties thereto, constitute valid, legal and binding agreements of each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with their terms, except that such enforcement may be subject to (a) any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, affecting creditors' rights generally, and (b) the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding of law or equity). Section 5.3. Consents and Approvals; No Violations. Except for filings, permits, authorizations, consents and approvals as may be required under, and other applicable requirements of, the Securities Act, the Exchange Act, any applicable antitrust or trade regulation laws, state securities or blue sky laws, and the filing and recordation of the Certificate of Merger as required by the DGCL, no filing with or notice to, and no permit, authorization, consent or approval of, any Governmental Entity is necessary for the execution and delivery by Parent and Merger Sub of this Agreement or the Related Agreements or the consummation by Parent and Merger Sub of the transactions contemplated hereby or thereby, except where the failure to obtain such permits, authorizations, consents or approvals or to make such filings or give such -36- notice would not, individually or in the aggregate, have a Parent Material Adverse Effect. Neither the execution, delivery and performance of this Agreement or the Related Agreements by Parent and Merger Sub nor the consummation by Parent and Merger Sub of the transactions contemplated hereby or thereby will (a) conflict with or result in any breach of any provision of the certificates of incorporation or bylaws (or similar governing documents) of Parent or Merger Sub, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration, or result in the creation of a Lien on any property or asset of Parent or any of its Subsidiaries, or trigger any rights of first refusal) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which Parent or Merger Sub is a party or by which either of them or their respective properties or assets may be bound, or (c) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to Parent or Merger Sub or any of their respective properties or assets, except in the case of (b) or (c) above for violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, have a Parent Material Adverse Effect. Except for those referred to above in this Section 5.3 and the approval of the Savia shareholders (which has been obtained), Parent and its Affiliates have received all approvals and consents of third parties, including shareholders, creditors and Governmental Entities, required to effect the transactions contemplated by the Exchange Agreement and the Contribution Agreement. Section 5.4. Capitalization. (a) As of the date of this Agreement, 100% of the membership interests of Parent are owned as set forth on Section 5.4 of the Parent Disclosure Schedule. As of the date of this Agreement, Merger Sub has authority to issue (i) 1,000 shares of MS Common Stock, 1,000 of which shares are issued and outstanding, all of which issued and outstanding shares are owned by Parent, and (ii) 1,000 shares of MS Preferred Stock, none of which shares is issued or outstanding. (b) Immediately prior to the Effective Time, (i) Merger Sub shall have authority to issue 100,000,000 shares of MS Common Stock, 84,377,861 of which shares shall be issued and outstanding and all of which issued and outstanding shares will be owned by Parent, and (ii) 1,000 shares of MS Preferred Stock, none of which shares shall be issued or outstanding. (c) All the issued and outstanding shares of capital stock of, or other ownership interests in, each of Parent and Merger Sub have been duly authorized, validly issued and are fully paid and nonassessable and are owned free and clear of all Liens. Section 5.5. Proxy Statement; Information. (a) None of the information supplied by Parent or Merger Sub in writing specifically for inclusion or incorporation by reference in the Proxy Statement will, at the time filed with the SEC, at the time mailed to the Company's stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. -37- (b) A copy of all written material non-public financial information with respect to the Company or any of its Subsidiaries that Parent or Savia or their respective officers, directors, employees, investment bankers, attorneys, agents or representatives has provided to FPSH or any of its Affiliates or their respective investment bankers, attorneys, agents or representatives, has been provided or made available to the Special Committee or its advisors. (c) All material information requested in a letter from the Special Committee to Mr. Alfonso Romo Garza, as Chief Executive Officer and controlling stockholder (through Savia) of the Company, dated January 7, 2003, has, to Parent's knowledge, been provided or made available to the Special Committee or its advisors. Section 5.6. Brokers. Except as set forth in Section 5.6 of the Parent Disclosure Schedule, no broker, finder, investment banker or other intermediary is or might be entitled to any brokerage, finder's or other fee or commission payable by the Company in connection with the transactions contemplated by this Agreement and the Related Agreements based upon arrangements made by or on behalf of Parent or its Affiliates for which the Company would be liable either prior to or after the Effective Time (which, if scheduled, is identified by time period). Section 5.7. Financing. (a) Attached hereto as (i) Exhibit B is a complete and correct copy of the Stock Purchase Agreement, and (ii) Exhibit C is a complete and correct copy of the Contribution Agreement. All of the agreements described in clauses (i) and (ii) above are in full force and effect and have not been amended or modified. (b) The Special Committee has previously been provided with fully-executed commitment letters, highly confident letters and related documentation, copies of which are attached hereto as Exhibit D (the "Financing Commitment Letters"), from lenders (the "Lenders") relating to such debt financing as is necessary, together with the funds to be received by the Surviving Corporation pursuant to the Stock Purchase Agreement, to consummate the Merger, pay the cash amounts payable to the holders of Stock Options pursuant to Section 3.10, effect all re-financings of certain outstanding Indebtedness required as a result of the Merger or as required by the Financing Commitment Letters and pay the anticipated fees and expenses related to the Merger and the Related Transactions (the "Debt Financing"). On the date hereof, the Financing Commitment Letters are in full force and effect and have not been amended or modified in any respect. As of the date hereof, the Lenders have not advised Parent or any of its Affiliates of any facts which cause them to believe the financings contemplated by the Financing Commitment Letters will not be consummated substantially in accordance with the terms thereof. (c) Parent has been informed by FPSH that FPSH has the necessary power and authority to call the funds necessary to make the equity commitment contemplated by the Stock Purchase Agreement and Financing Commitment Letters, without need for any consent or approval of any Person and without any other condition to be satisfied (excluding customary conditions that have been previously disclosed to the Special Committee and those conditions set forth in the equity commitment letter attached hereto as Exhibit F). Attached hereto as Exhibit F is the fully-executed equity commitment letter providing such equity commitment necessary to -38- consummate the transactions contemplated by the Stock Purchase Agreement, in full force and effect as of the date hereof, without amendment or modification in any respect, provided to FPSH by Fox Paine Capital Fund II, L.P. Section 5.8. Ownership of Shares. Except as set forth in the Related Agreements, on the Closing Date, Parent will beneficially and of record own 84,377,861 shares of Company Common Stock, free and clear of any Liens or any other limitation or restriction (including any restriction on the right to vote or sell the same, except as may be provided as a matter of law). Section 5.9. Parent/FPSH Agreements. A complete and correct copy of all material written arrangements or agreements between Parent or any of its Affiliates, on the one hand, and FPSH or its Affiliates, on the other hand, relating to their investment in the Surviving Corporation has been provided to the Special Committee. Section 5.10. Parent Information. Parent represents that neither it, nor the chief financial officer of Savia, is aware of any fact, event or circumstance that makes, or could reasonably be expected to make, the Company's representations and warranties set forth in Section 4.20 (Affiliate Transactions) not true and correct. ARTICLE VI COVENANTS Section 6.1. Stockholders Meeting. The Company, acting through the Company Board in accordance with its certificate of incorporation and bylaws, shall, as promptly as practicable following the date of this Agreement and in consultation with Parent, take all action reasonably necessary, except as otherwise provided for herein, to seek approval and adoption of this Agreement and the Merger at a duly called and noticed meeting of the Company's stockholders (the "Stockholders Meeting"). Section 6.2. Proxy Statement. Promptly following the date of this Agreement, the Company and Parent shall, except as otherwise provided for herein, cooperate in preparing a proxy statement or information statement that meets the requirements of the Exchange Act (together with any amendments thereof or supplements thereto, the "Proxy Statement") to seek the approval and adoption of this Agreement and the Merger by the Company's stockholders. The Company shall use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as reasonably practicable. The Company and Parent each agrees to correct any information provided by it for use in the Proxy Statement that shall have become false or misleading. The Company will promptly notify Parent of the receipt of any comments from the SEC and any request by the SEC for any amendment to the Proxy Statement or for additional information. All filings with the SEC, including the Proxy Statement, and all mailings to the Company's stockholders in connection with the Merger, including the Proxy Statement, shall be subject to the prior review and comment by Parent, and shall be reasonably acceptable to Parent. Parent will furnish (or cause to be furnished) to the Company the information relating to it and its Affiliates and FPSH and its Affiliates required by -39- the Exchange Act to be set forth in the Proxy Statement. The Company agrees to use its commercially reasonable efforts, after consultation with the other parties hereto, to respond promptly to any comments made by the SEC with respect to the Proxy Statement and any preliminary version thereof filed by it and cause such Proxy Statement to be mailed to the Company's stockholders at the earliest practicable time. Subject to Section 6.10, the Company shall include in the Proxy Statement the recommendation of the Special Committee and the recommendation of the Company Board that the Company's stockholders vote in favor of the approval and adoption of this Agreement and the Merger (as the same may be amended, modified or withdrawn in accordance with Section 6.10). Section 6.3. Conduct of Business of the Company. The Company hereby covenants and agrees that, prior to the Effective Time, unless Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as otherwise expressly contemplated by this Agreement or the Related Agreements, the Company shall, and shall cause its Subsidiaries to, (i) operate its business in the usual and ordinary course consistent with past practice, (ii) use its commercially reasonable efforts to preserve substantially intact its business organization, maintain its rights and franchises, retain the services of its respective principal officers and key employees and maintain its relationships with its respective principal customers, suppliers and other persons with which it or any of its Subsidiaries has significant business relations and (iii) use its commercially reasonable efforts to maintain and keep its properties and assets in as good repair and condition as at present, ordinary wear and tear excepted. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, Sections 6.3(a)-6.3(q) of the Company Disclosure Schedule or the Related Agreements or consented to in writing by Parent (which consent shall not be unreasonably withheld or delayed), the Company shall not, and shall not permit its Subsidiaries to, do any of the following: (a) amend or propose to amend its certificate of incorporation or bylaws (or other governing documents); (b) authorize for issuance, issue, sell, deliver, or agree or commit to issue, sell or deliver, dispose of, encumber or pledge (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any securities, except as required by agreements with the Company's employees under the Company Stock Plans as in effect as of the date hereof, or amend any of the terms of any such securities or agreements outstanding as of the date hereof; (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any of its securities or any securities of its Subsidiaries; (d) (i) incur or assume any long-term or short-term indebtedness or issue any debt securities, other than borrowings under (A) the Revolving Credit (as defined in the Company Credit Agreement) or (B) those agreements for short term bank borrowings listed on Section 4.2(e) of the Company Disclosure Schedule under the heading "Seminis Korea;" provided that in no event shall outstanding borrowings pursuant to clause (B) exceed $25 -40- million, in each case in the ordinary course of business consistent with past practice; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; (iii) make any loans, advances or capital contributions to, or investments in, any other Person (other than to wholly owned Subsidiaries of the Company) or make any change in its existing borrowing or lending arrangements for or on behalf of any such Person, whether pursuant to an employee benefit plan or otherwise; (iv) pledge or otherwise encumber shares of capital stock of the Company or any of its Subsidiaries; or (v) mortgage, pledge or otherwise encumber any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon other than Permitted Liens in the ordinary course of business, consistent with past practice; (e) adopt a plan of complete or partial liquidation or adopt resolutions providing for the complete or partial liquidation, dissolution, consolidation, merger, restructuring or recapitalization of the Company or any of its Subsidiaries; (f) (i) except as may be required by law or existing agreements, plans or arrangements as in effect as of the date hereof, or in the ordinary course of business consistent with past practice, pay, agree to pay, grant, issue or accelerate payments or benefits pursuant to any Benefit Plan in excess of the payments or benefits provided under such Benefit Plan as of the date hereof, (ii) except (A) for increases in the ordinary course of business consistent with past practice for employees other than officers and directors of the Company that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company, or (B) as required under existing agreements or in the ordinary course of business consistent with past practice, increase in any manner the salary or fees or benefits of any director, officer, consultant or employee, or (iii) except as may be required by law, amend (other than amendments made in the ordinary course of business consistent with past practice) or terminate any Benefit Plan or establish, adopt or enter into any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement; (g) acquire, sell, transfer, lease, encumber or dispose of any assets outside the ordinary course of business or any assets (other than inventory in the ordinary course consistent with past practice) that, in the aggregate, are material to the Company and its Subsidiaries taken as a whole, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice that would be material to the Company and its Subsidiaries taken as a whole; (h) except as may be required as a result of a change in law or in GAAP, change any of the financial accounting principles or practices used by it; (i) revalue in any material respect any of its assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business; (j) (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement other than in the ordinary course of business consistent with past practice that would be material to the Company and its Subsidiaries taken as -41- a whole; (iii) other than as contemplated by Section 6.3(j)(iii) of the Company Disclosure Schedule, authorize any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $2,000,000; or (iv) enter into or amend any contract, agreement, commitment or arrangement providing for the taking of any action that would be prohibited under this clause (j); (k) make any material Tax election, change any material method of Tax accounting or settle or compromise any material Tax liability of the Company or any of its Subsidiaries, and, in any event, the Company shall consult with Parent before filing or causing to be filed any material Tax Return of the Company or any of its Subsidiaries, except to the extent such Tax Return is filed in the ordinary course of business consistent with past practice, and before executing or causing to be executed any agreement or waiver extending the period for assessment or collection of any material Taxes of the Company or any of its Subsidiaries; (l) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or to the extent provided for in reserves specific to such claim, liability or obligation; (m) (i) permit any insurance policy or policies naming it as a beneficiary or a loss payable payee, which policy or policies, individually or in the aggregate, is/are material to the Company and the Subsidiaries taken as a whole, to be canceled or terminated without notice to Parent unless the Company or one of its Subsidiaries shall have obtained a comparable replacement policy, or (ii) enter into any insurance policy or policies naming it as a beneficiary or a loss payable payee, which policy or policies, individually or in the aggregate, is/are material to the Company and the Subsidiaries taken as a whole; (n) except in the ordinary course of business consistent with past practice, (i) terminate, amend or modify (in any material respect), or waive any material provision of, any Material Contract, or (ii) amend, modify or change (in any material respect) any material policies or procedures governing product sales or returns or the treatment of accounts receivable; (o) settle or compromise any pending or threatened material suit, action or claim; (p) enter into any agreement containing any provision or covenant limiting in any material respect the ability of the Company or any of its Subsidiaries to (i) sell any products or services of or to any other Person, (ii) engage in any line of business, or (iii) compete with or obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries, in each case, in any geographic area or during any period of time; (q) (i) terminate the employment of, materially change the terms or conditions of employment of, or, as referenced by the Employee's waiver in the Employment Agreements, pay any severance amounts upon a voluntary termination of employment or "retirement" of, any of the individuals listed on Section 6.3(q)(i) of the Company Disclosure Schedule, (ii) amend or modify any of the employment agreements listed on Section 6.3(q)(ii) of the Company -42- Disclosure Schedule, or (iii) amend or modify any of the letter agreements listed on Section 6.3(q)(iii) of the Company Disclosure Schedule; or (r) take, or agree in writing or otherwise to take, any of the actions prohibited in Sections 6.3(a) through (q). Section 6.4. Notification of Certain Matters. The Company, Merger Sub and Parent each shall give prompt notice to the others of (a) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which would be likely to cause (i) any representation or warranty contained in this Agreement to be untrue or inaccurate, or (ii) any covenant, condition or agreement contained in this Agreement not to be complied with or satisfied, and (b) any failure of a party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 6.4 shall not affect the representations, warranties or covenants of the parties hereto or limit or otherwise affect the remedies available to the Company, Parent or Merger Sub hereunder. Section 6.5. Access to Information. (a) Between the date hereof and the Effective Time, the Company will, upon reasonable request, give Parent and its authorized representatives (including FPSH) and Persons providing or committed or proposing to provide the Company with financing and their representatives, reasonable access during normal business hours to employees, plants, offices, warehouses and other facilities and properties and to all books and records (including Tax Returns and work papers of the Company's independent auditors, when available) of the Company and its Subsidiaries, will permit Parent and its authorized representatives (including FPSH) to make such inspections (including any physical inspections or soil or groundwater investigations) as they may reasonably request and will instruct the officers and employees of the Company and those of its Subsidiaries to furnish to Parent and its authorized representatives (including FPSH) such financial and operating data and other information with respect to the business and properties of the Company and any of its Subsidiaries as Parent may from time to time reasonably request; provided that the Company shall not be required to provide any such information if the Person receiving such information is not subject to a confidentiality agreement for the benefit of the Company; provided, further that in the event Parent or its authorized representatives or agents (including FPSH) elect to prepare Phase I environmental site assessments, equivalent analyses, or any other reports analyzing potential environmental, human health, or safety issues or liabilities based on the books and records of the Company, or access to the Company's employees, plants, etc., Parent shall promptly provide to the Company copies of any such reports (when executed and delivered), including cost estimates (if any). All information obtained by Persons pursuant to this Section 6.5(a) shall be kept confidential in accordance with, and shall otherwise be subject to the terms of, the confidentiality agreement, dated December 13, 2002, as supplemented by the letter to the Company dated January 10, 2003, by and among Savia, Fox Paine & Company, LLC, ARG Trust, Servasa, S.A. de C.V. and Mr. Alfonso Romo Garza (the "Confidentiality Agreement"). (b) Prior to the Effective Time, the Company shall, and shall use commercially reasonable efforts to cause its accountants, counsel, agents and other representatives to, -43- cooperate with Parent by providing information about the Company which is reasonably requested by Parent and its representatives (including FPSH) in connection with the preparation of the Financing Documents and such other documents and other reasonable requests with respect to such documents. Notwithstanding anything in this Agreement to the contrary, to the extent reasonably appropriate to assist the success of the Debt Financing, Parent may disclose, or cause its representatives to disclose, and at the request of Parent, the Company shall disclose information concerning the Company and its Subsidiaries and their respective businesses, assets and properties, and the Merger and the Related Transactions in the Financing Documents and to prospective financing sources in connection with the Merger, subject to the prior execution of a customary confidentiality agreement approved by the Company (which approval shall not be unreasonably withheld or delayed) executed by the recipient of any such information; provided that nothing in this Section 6.5(b) shall require the Company prior to Closing to sign a registration statement with respect to any securities. (c) Prior to the Effective Time, the Company shall, no later than 30 days following the end of each month and 45 days following the end of each quarter, prepare and deliver to Parent upon completion the balance sheet, income statement and statement of cash flows prepared in accordance with GAAP of the Company for each month ended between the date of this Agreement and the Effective Time. The Company shall promptly prepare all reasonably requested financial statements required to be included in the Financing Documents. Section 6.6. Additional Agreements, Commercially Reasonable Efforts. (a) Prior to the Effective Time, upon the terms and subject to the conditions of this Agreement, each of Savia, Parent, Merger Sub and the Company agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable laws, rules or regulations to consummate and make effective as promptly as practicable the Merger and the Related Transactions and the other transactions contemplated by this Agreement and the Related Agreements, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the Related Transactions and the other transactions contemplated hereby and thereby and the taking of such actions as are necessary to obtain any requisite approvals, consents, orders, exemptions or waivers by any third party, including any Governmental Entity, and (ii) the satisfaction of the other parties' conditions to the consummation of the Merger and the Related Transactions. Without limiting this Section 6.6, Parent and the Company shall each use its commercially reasonable efforts to avoid the entry of, or to have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the Closing, on or before the Outside Date, including defending through litigation on the merits any claim asserted in any court by any Person. In addition, no party hereto shall take any action after the date hereof that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any permission, approval or consent from any Governmental Entity necessary to be obtained prior to the consummation of the Merger and the Related Transactions. In furtherance of and not in limitation of the foregoing, the Company shall permit Parent to reasonably participate (subject to the Company's right to control) in the defense and settlement of any claim, suit or cause of action relating to this Agreement, the Merger or the other transactions contemplated hereby, and the Company shall not settle or compromise any such claim, suit or cause of action -44- without Parent's prior written consent (which consent shall not be unreasonably withheld or delayed). (b) The Company agrees to use its commercially reasonable efforts to cooperate with Parent in connection with its efforts to obtain any financing for Parent and/or the Surviving Corporation and its Subsidiaries in connection with consummation of the Merger, and Parent shall use its commercially reasonable efforts to obtain such financing for Parent and/or the Surviving Corporation and its Subsidiaries. At the reasonable request of Parent from time to time, the Company agrees to use its commercially reasonable efforts to cause members of its senior management to participate in the preparation of any Financing Documents reasonably requested by Parent and to participate in any "roadshow" or other presentations to potential investors in connection with the obtaining of any financing for Parent and/or the Company and its Subsidiaries in connection with the Merger. (c) Prior to the Effective Time, the Company or its Subsidiaries, on the one hand, and Parent or its Affiliates, on the other hand, shall permit the other parties hereto to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed written (or any material proposed oral) communication with any Governmental Entity regarding any of the transactions contemplated by this Agreement or the Related Agreements. The Company or its Subsidiaries, on the one hand, and Parent or its Affiliates, on the other hand, shall promptly inform the other parties hereto of, and if in writing, furnish the other parties with copies of (or, in the case of material oral communication, advise the other parties orally of) any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement or the Related Agreements. If the Company or its Subsidiaries, on the one hand, or Parent or its Affiliates, on the other hand, receives a request for additional information or documentary material from any such Governmental Entity with respect to the Merger or the Related Transactions, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other parties hereto, an appropriate response in compliance with such request. None of the Company or its Subsidiaries, on the one hand, or Parent or its Affiliates, on the other hand, shall participate in any meeting with any Governmental Entity with respect to the Merger or the Related Transactions unless it consults with the other parties hereto in advance and, to the extent permitted by such Governmental Entity, gives the other parties the opportunity to attend and participate thereat. To the extent not otherwise provided in this Section 6.6(c), the Company or its Subsidiaries, on the one hand, and Parent or its Affiliates, on the other hand, shall furnish the other parties hereto with copies of all correspondence, filings and communications between it and any such Governmental Entity with respect to the Merger or the Related Transactions, provided that either the Company or Parent or an Affiliate of Parent may redact any information from such correspondence, filings, and communications that discusses or reflects its valuation of the Merger or Related Transactions. Tax return filings in the ordinary course and Tax proceedings with a Governmental Entity shall not be subject to the above provisions of this Section 6.6(c). The Company or its Subsidiaries, on the one hand, and Parent or its Affiliates, on the other hand shall furnish the other parties hereto with such necessary information and reasonable assistance as such other parties may reasonably request in connection with their preparation of necessary filings or submissions of information to any Governmental Entity. To the extent that transfers of Company Permits are required as a result of execution of this Agreement or the Related Agree- -45- ments or consummation of the Merger or the Related Transactions, the Company and Parent shall use all commercially reasonable efforts to effect such transfers. (d) Notwithstanding any other provision of this Agreement to the contrary, Parent may amend or revise the Financing Commitment Letters referred to in Section 5.6(b), or enter into new, replacement or additional financing arrangements, through itself or any of its Affiliates, in connection with the financings referred to in Section 5.6(b) or otherwise to facilitate the transactions contemplated by this Agreement or the Related Agreements, provided that (i) any such action would not, individually or in the aggregate, have a Parent Material Adverse Effect or delay the Closing, and (ii) any such amendment or revision or new, replacement or additional financing arrangements are upon terms and conditions that are substantially equivalent to those set forth in the Financing Commitment Letters, and to the extent any of the terms or conditions are not substantially equivalent to those set forth in the Financing Commitment Letters, on terms and conditions reasonably satisfactory to the Special Committee. (e) Between the date hereof and the Closing, the Company shall use its commercially reasonable efforts to identify and secure or provide any consents or notices required as a result of the execution, delivery or performance of this Agreement or the Related Agreements or the consummation of the transactions contemplated hereby or thereby. Section 6.7. Public Announcements. Parent, Merger Sub and the Company, as the case may be, will consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement, the Related Agreements, the Merger, the Related Transactions or the other transactions contemplated hereby or thereby, and shall not issue any such press release or make any such public statement without the prior consent of the other parties hereto (which consent shall not be unreasonably withheld or delayed), except as may be required by applicable law or by obligations pursuant to any listing agreement with any national securities exchange or national market system to which Parent, its Affiliates, the Company or its Subsidiaries is a party. The parties hereto have agreed on the text of the joint press release by which announcement of the execution of this Agreement will be made. Section 6.8. Indemnification. (a) Parent and Merger Sub agree that all rights to indemnification or exculpation now existing in favor of the directors, officers, employees and agents of the Company and its Subsidiaries as provided in their respective certificates of incorporation or bylaws (or other governing documents) or otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time shall survive the Merger and shall continue in full force and effect after the Effective Time. Any rights to indemnification or exculpation pursuant to this Section 6.8(a) shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who at the Effective Time were directors, officers, employees or agents of the Company. (b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under the DGCL, indemnify and hold harmless, each present and former -46- director and officer of the Company and its Subsidiaries and each such individual who served at the request of the Company or its Subsidiaries as a director, officer, trustee, partner, fiduciary, employee or agent of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, administrative or investigative, based on the fact that such individual is or was a director or officer of the Company or any of its Subsidiaries and arising out of or pertaining to any action or omission occurring at or before the Effective Time (including the transactions contemplated hereby and the Related Transactions). The Surviving Corporation shall be entitled to assume the defense of any such claim, action, suit, investigation or proceeding with counsel reasonably satisfactory to the Indemnified Party and the Surviving Corporation shall not be liable to any Indemnified Party for any legal expenses of separate counsel or any other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Party advises that there are issues that raise conflicts of interest between the Surviving Corporation and the Indemnified Party or such Indemnified Party shall have legal defenses available to it that are different from or in addition to those available to the Surviving Corporation, the Indemnified Party may retain counsel reasonably satisfactory to the Surviving Corporation, and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Party promptly as statements therefor are received; provided that the Surviving Corporation shall not be liable for the fees of more than one counsel with respect to a particular claim, action, suit, investigation or proceeding, for all Indemnified Parties, other than local counsel, unless a conflict of interest shall be caused thereby, provided further that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed). (c) The Surviving Corporation shall provide or maintain in effect for six years from the Effective Time (the "Tail Period") directors' and officers' and corporate liability insurance covering those individuals who are covered by the directors' and officers' and corporate liability insurance policy provided for directors and officers of the Company and its Subsidiaries as of the date hereof (the "Existing Policy") on terms (other than with respect to minimum aggregate limits of liability for directors' and officers' and corporate liability insurance coverage) comparable to the Existing Policy and such coverage shall contain minimum aggregate limits of liability for directors' and officers' and corporate liability insurance coverage for directors and officers of the Company and its Subsidiaries of at least $25 million and deductibles no larger than those customary for such type of insurance coverage; provided, however, that in no event shall the Surviving Corporation be required to expend in excess of $1,000,000 in aggregate premiums for such insurance coverage with respect to the Tail Period, and if the premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to maintain or obtain a policy with the greatest coverage available for a cost not exceeding such amount. (d) Parent shall cause Savia to exercise its right pursuant to the Existing Policy to obtain insurance coverage for the Discovery Period (as defined in the Existing Policy) provided that the Company shall pay its portion of the cost of any such insurance coverage in -47- accordance with intercompany allocations made on a basis consistent with past practice. The cost to the Company for such coverage shall not exceed $100,000 in the aggregate. (e) If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation, as the case may be, shall assume the obligations of the Surviving Corporation set forth in this Section 6.8. (f) The rights of each Indemnified Party under this Section 6.8 shall be in addition to any rights such individual may have under the certificate of incorporation or bylaws (or other governing documents) of the Company or any of its Subsidiaries, under the DGCL or any other applicable laws or under any agreement of any Indemnified Party with the Company or any of its Subsidiaries. These rights shall survive consummation of the Merger and are intended to benefit, and shall be enforceable by, each Indemnified Party. Section 6.9. Contributions to Parent. Parent shall cause, prior to the Effective Time, the stockholders of the Company set forth on Exhibit E to sell and/or contribute such number of shares of Company Common Stock set forth next to such stockholder's name on Exhibit E to Parent in exchange for an equivalent number of membership interests of Parent (which membership interests shall be issued by Parent prior to the Effective Time), all in accordance with the Contribution Agreement attached as Exhibit C hereto. The shares of Company Common Stock contributed to Parent shall be canceled and retired in the Merger in accordance with Section 3.8(b). Section 6.10. No Solicitation. (a) Except as set forth in this Section 6.10, the Company agrees that, during the term of this Agreement, it shall not, and shall not authorize or permit any of its Subsidiaries to, and shall use commercially reasonable efforts to cause its or its Subsidiaries' directors, officers, investment bankers, consultants, attorneys, agents or representatives, directly or indirectly, not to (i) solicit, initiate or knowingly encourage or facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to a Company Competing Transaction, (ii) negotiate, explore or otherwise engage in substantive discussions with any Person (other than FPSH, Parent, or their respective directors, officers, employees, agents and representatives) with respect to any Company Competing Transaction or (iii) enter into any agreement, arrangement or understanding with respect to a Company Competing Transaction; provided that, prior to the Effective Time, if the Company receives a written proposal for a Company Competing Transaction (x) that was not initiated, solicited or knowingly encouraged after the date of this Agreement by the Company, its Subsidiaries or any of its or their directors, officers, employees, investment bankers, consultants, attorneys, agents or representatives and (y) that the Special Committee determines in good faith, by majority vote, after receiving advice from its outside legal and financial advisors, constitutes or presents a reasonable likelihood of resulting in a Superior Transaction, then subject to compliance with Section 6.10(d), the Company may, directly or indirectly, (A) furnish information with respect to the -48- Company to the Person making such proposal pursuant to a customary confidentiality agreement, and (B) participate in discussions or negotiations with such Person regarding such proposal. The activities referred to in clauses (A) and (B) of the previous sentence, if undertaken in compliance with all of the terms and conditions of the previous sentence, are referred to herein as "Permitted Discussions." The Company shall, and shall cause its Subsidiaries, and shall use commercially reasonable efforts to cause the Company's and its Subsidiaries' respective directors, officers, investment bankers, consultants, attorneys, agents and representatives immediately to cease all existing activities, discussions and negotiations with any parties conducted prior to the date hereof with respect to any inquiries or proposals relating to a Company Competing Transaction. A violation of clauses (i) or (ii) of this Section 6.10(a) by an employee of the Company or any of its Subsidiaries shall be deemed a violation by the Company of such clauses. (b) Except as permitted by Section 6.10(c), neither the Special Committee nor the Company Board shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or FPSH, its recommendation in favor of the Merger, or (ii) approve or recommend, or propose publicly to approve or recommend, any Company Competing Transaction. Nothing contained in this Agreement shall prevent the Special Committee or the Company Board from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act. (c) In the event that, prior to the Effective Time the Special Committee believes, in its good faith judgment, after receiving the advice of its outside legal counsel, that failing to do so would create a reasonable likelihood of breaching its fiduciary duties under applicable law, the Special Committee (and the Company Board acting on the recommendation of the Special Committee) may (subject to this Section 6.10(c) and to Section 6.10(d)) withdraw or modify its approval or recommendation in favor of the Merger, provided that it gives Parent three days' prior written notice of its intention to do so. Any such withdrawal or modification of the recommendation shall not change the approval of the Special Committee and the Company Board for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated hereby, or change the obligation of the Company to present this Agreement and the Merger for approval and adoption. The foregoing notwithstanding, in such event, unless the Special Committee determines otherwise, this Agreement and the Merger will require the approval of the holders of a majority of the outstanding shares beneficially owned by stockholders of the Company other than Parent, FPSH and their respective Affiliates (the "Disinterested Stockholder Approval"). (d) From and after the execution of this Agreement, the Company shall promptly advise Parent orally and in writing of any request for information or of any proposal in connection with a Company Competing Transaction, the material terms and conditions of such request or proposal and the identity of the Person making such request or proposal. The Company shall keep Parent reasonably apprised of the status (including amendments and proposed amendments) of any proposal relating to a Company Competing Transaction on a current basis, including promptly providing to Parent copies of any written communications between the Company and any Person relating to a Company Competing Transaction. (e) If prior to the Effective Time the Special Committee determines in good faith, after consultation with its outside financial and legal advisors, that any bona fide written proposal from a third party for a Company Competing Transaction received after the date hereof -49- that was not initiated, solicited or encouraged by the Company or any of its Subsidiaries or their respective directors, officers, employees, investment bankers, consultants, attorneys, agents or representatives in violation of this Agreement is more favorable to the stockholders of the Company (taking into account all the terms and conditions of the Company Competing Transaction and this Agreement that the Special Committee in good faith deems relevant, including any conditions to and expected timing and risks of consummation, and the ability of the party making such proposal to obtain financing for such Company Competing Proposal and taking into account all other legal, financial, regulatory and other aspects of such proposal) than the transactions contemplated by this Agreement (taking into account any adjustment to the terms and conditions of such transaction proposed in writing by Parent in response to such Company Competing Transaction) (a "Superior Transaction"), and the Special Committee believes in its good faith judgment, after receiving advice of its outside legal counsel that failing to terminate this Agreement and enter into such a Company Competing Transaction would create a reasonable likelihood of breaching its fiduciary duties under applicable law, the Company may terminate this Agreement and enter into a binding acquisition agreement (an "Acquisition Agreement") with respect to such Superior Transaction provided, that, prior to any such termination, (i) the Company has provided Parent written notice that it intends to terminate this Agreement pursuant to this Section 6.10(e), identifying the Superior Transaction then determined to be more favorable and the parties thereto and delivering to Parent a copy of the Acquisition Agreement for such Company Competing Transaction in the form to be entered into, and (ii) at least seven full calendar days after the Company has provided the notice referred to in clause (i) above (provided that the Special Committee's determinations and beliefs shall continue in effect without material revision or modification), (A) the Company (1) delivers to Parent a written notice of termination of this Agreement pursuant to this Section 6.10(e), and (2) delivers (or causes the other party to a Superior Transaction to deliver) to FPSH the Company Termination Fee and the FPSH Expenses as provided in Section 8.3, and (B) FPSH receives a written acknowledgment from the Company and from the other party to a Superior Transaction that the Company and such other party have irrevocably waived any right to contest such payments. Section 6.11. Resignation of Directors. Immediately prior to the Effective Time, the Company shall deliver to Parent evidence satisfactory to Parent of the resignation of all directors of the Company (other than those directors set forth in a written notice of Parent to the Company), such resignations to become effective as of the Effective Time. Section 6.12. Solvency Opinion. The parties shall engage, at the expense of the Company, an appraisal firm of national reputation reasonably acceptable to the Company, the Special Committee, Parent and the Lenders, to deliver a letter addressed to the Special Committee, Parent and FPSH and, if requested by them, the Lenders (and on which the Special Committee and FPSH shall be entitled to rely) indicating that at and immediately after the Effective Time, and after giving effect to the Merger and the other transactions contemplated hereby and by the Related Agreements, including the Debt Financing, the Company will not (a) be insolvent and will have assets sufficient to pay its debts, (b) have unreasonably small capital with which to engage in its business and perform its obligations under this Agreement and the Related Agreements, and (c) have incurred and does not believe it would incur debts beyond its ability to pay as they become absolute and matured. -50- Section 6.13. Related Agreements. Parent and Merger Sub agree that they will not, and will not permit any of their Affiliates to, without the prior consent of the Special Committee, which consent shall not be unreasonably withheld, enter into any amendment to or modification or waiver of any provision of the Related Agreements or take any action to terminate any such agreement that will prevent or delay the Closing. The parties to the Contribution Agreement have acknowledged in such agreement that the Company would not have entered into this Agreement had the parties not entered into the Contribution Agreement. Parent and Merger Sub shall use all commercially reasonable efforts to fulfill all of their obligations under the Related Agreements and to cause any conditions to closing under such agreements to be satisfied. Parent and Merger Sub shall give the Special Committee prompt written notice of (a) any material breach or threatened material breach by any party of the terms or provisions of the Related Agreements, (b) any termination or threatened termination of any of the Related Agreements, or (c) any exercise or threatened exercise of any condition under any of the Related Agreements. Section 6.14. Exchange Agreement. The Company will not, and Savia has agreed not to, terminate the Exchange Agreement during the term of this Agreement. In addition, subject to the conditions set forth in Sections 7.1(a) and 7.2 of this Agreement, immediately prior to the Closing, the Company shall consummate the transactions contemplated by the Exchange Agreement. Section 6.15. Privilege. The parties agree and acknowledge that the disclosure, provision or furnishing of information, directly or indirectly, by the Company under this Agreement shall not be deemed a waiver of any privilege under applicable law that has been or may be asserted, including privileges arising under or relating to the attorney-client relationship (which shall include the attorney-client and work product privileges). Section 6.16. Employee Matters. (a) For a period of one year following the Effective Time, the Surviving Corporation shall provide, or cause to be provided, to the employees of the Company immediately prior to the Effective Time who continue employment, employee benefit programs that are, in the aggregate, generally comparable to those provided to the employees of the Company as of the date hereof; provided that, other than as required by applicable law or employment agreements binding upon the Surviving Corporation or any of its Subsidiaries (in the absence of the consent of the individuals party to such employment agreements), the Surviving Corporation may at any time increase or reduce the level of such benefit programs if such an increase or reduction shall be determined to be advisable in the sole business judgment of the Surviving Corporation. (b) The Company's annual bonuses for the fiscal year ending in 2003 under the Company's Executive Incentive Plan shall be determined based upon the incentive compensation targets set forth in Section 6.16(b) of the Company Disclosure Schedule. Section 6.17. Merger Sub Charter Amendment. At least five days prior to the Effective Time, (a) Parent shall cause Merger Sub to amend its certificate of incorporation to authorize 100,000,000 shares of MS Common Stock, and (b) Parent shall cause Merger Sub to issue to Parent an additional 84,376,861 shares of MS Common Stock so that immediately prior to -51- the Effective Time, Parent shall own all of the outstanding 84,377,861 shares of MS Common Stock. ARTICLE VII CONDITIONS TO CONSUMMATION OF THE MERGER Section 7.1. Conditions to the Merger. (a) The obligation of the Company to consummate the Merger and the other transactions contemplated hereby is subject to the satisfaction or waiver (to the extent permitted by applicable law) at or prior to the Effective Time of each of the following conditions: (i) Accuracy of Representations and Warranties. The representations and warranties made by Parent and Merger Sub herein, disregarding all qualifications and exceptions contained herein relating to materiality or Parent Material Adverse Effect or words of similar import, shall be true and correct on the date hereof and on the Closing Date as if made on and as of such dates (except for representations and warranties that are made as of a specified date, which shall be true and correct only as of such specified date) with only such exceptions as would not, individually or in the aggregate, have a Parent Material Adverse Effect. (ii) Compliance with Covenants. Each of Parent and Merger Sub shall have performed in all material respects (or with respect to any obligation or agreement qualified by materiality or Parent Material Adverse Effect, in all respects) all obligations and agreements, and complied in all material respects (or with respect to any covenant qualified by materiality or Parent Material Adverse Effect, in all respects) with all covenants, contained in this Agreement to be performed or complied with by it prior to or on the Closing Date. (iii) Officer's Certificates. The Company shall have received a certificate of Parent, dated as of the Closing Date, signed by an executive officer of Parent to evidence satisfaction of the conditions set forth in Sections 7.1(a)(i) and (ii). (iv) Debt Financing. The Debt Financing shall have been obtained and, to the extent required, the existing Indebtedness of the Company shall have been repaid. (b) The obligation of Parent and Merger Sub to consummate the Merger and the other transactions contemplated hereby is subject to the satisfaction or waiver (to the extent permitted by applicable law) at or prior to the Effective Time of each of the following conditions: (i) Accuracy of Representations and Warranties. The representations and warranties made by the Company herein (other than in the case of Section 4.8(c)), disregarding all qualifications and exceptions contained herein relating to materiality or Company Material Adverse Effect or words of similar import, shall be true and correct on the date hereof and on the Closing Date as if made on and as of such dates (except for representations and warranties that are made as of a specified date, which shall be true and correct only as of such specified date) with only such exceptions as would not have, individually or in the aggregate, a Company Mate- -52- rial Adverse Effect. The representation made by the Company in Section 4.8(c) shall be true and correct in all respects on the date hereof and on the Closing Date as if made on and as of such dates. (ii) Compliance with Covenants. The Company shall have performed in all material respects (or with respect to any obligation or agreement qualified by materiality or Company Material Adverse Effect, in all respects) all obligations and agreements, and complied in all material respects (or with respect to any covenant qualified by materiality or Company Material Adverse Effect, in all respects) with all covenants, contained in this Agreement to be performed or complied with by it prior to or on the Closing Date. (iii) Officer's Certificate. Parent shall have received a certificate of the Company, dated as of the Closing Date, signed by an executive officer of the Company to evidence satisfaction of the conditions set forth in Sections 7.1(b)(i) and (ii). (iv) No Litigation. After the date hereof, there shall not be (A) any new suit, action or proceeding by any Governmental Entity or any other Person or (B) any development in any existing suit, action or proceeding by any Governmental Entity or any other Person that, in any such case is more likely than not, individually or in the aggregate, to have a Company Material Adverse Effect (for purposes of this clause (iv) only, excluding the reference to the phrase "or is reasonably expected to be" from the definition of Company Material Adverse Effect). (v) Debt Financing. The proceeds from the credit facility portion of the Debt Financing under the Financing Commitment Letters, or alternative financing as permitted pursuant to Section 6.6(d), shall have been obtained substantially on the terms set forth in the Financing Commitment Letters (or the alternative commitment letter referred to in Section 6.6(d)) or, if unavailable on such terms, on such other terms as are not materially less favorable to Parent than those contemplated by the Financing Commitment Letters (or the alternative commitment arrangements referred to in Section 6.6(d)). The proceeds from the senior subordinated note issuance portion of the Debt Financing shall be an amount not less than $175 million, and on terms that are not materially less favorable to Parent than those set forth in Section 7.1(b)(v) of the Parent Disclosure Schedule. (vi) Foreign Investment in Real Property Tax Act. Parent shall have received duly executed and acknowledged affidavits of the Company, in form substantially identical to those attached as Exhibit G hereto in accordance with Treasury Regulation Sections 1.1445-2(c)(3), 1.897-2(g), 1.897-2(g) and 1.897-2(h), certifying that each "interest" in the Company (within the meaning of Section 897(c)(1) of the Code) is not a "United States real property interest" within the meaning of Section 897(c) of the Code. -53- Section 7.2. Conditions to Each Party's Obligations to Effect the Merger. The respective obligations of each party hereto to effect the Merger and the other transactions contemplated hereby are further subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any and all of which may be waived in whole or in part by the parties hereto to the extent permitted by applicable law: (a) Stockholder Approval. The Company Stockholder Approval (or if applicable, the Disinterested Stockholder Approval) shall have been validly obtained under the DGCL and the Company's certificate of incorporation and bylaws. (b) 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 Merger or the Related Transactions. (c) Contribution Agreement. The transactions contemplated by the Contribution Agreement shall have occurred. (d) Stock Purchase Closing. All conditions to the Stock Purchase set forth in Article VII of the Stock Purchase Agreement (other than the condition requiring the consummation of the Merger) shall have been satisfied or waived (to the extent permitted by applicable law) and shall be in full force and effect and the closing of the Stock Purchase shall occur substantially concurrently with the Closing. (e) Competition Approvals. All clearances or approvals required from any Governmental Entity, including pursuant to any antitrust or trade regulation laws or regulations, shall have been received in connection with the Merger and the Related Transactions, other than those clearances or approvals the failure of which to obtain would not have, individually or in the aggregate, a Company Material Adverse Effect. (f) Solvency Opinion. The parties shall have received the opinion referred to in Section 6.12. ARTICLE VIII TERMINATION; AMENDMENT; WAIVER Section 8.1. Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time notwithstanding receipt of the Company Stockholder Approval (or if applicable, the Disinterested Stockholder Approval): (a) by mutual written consent duly authorized by the Company Board (provided such termination has been approved by the Special Committee) and the board of directors of Parent; -54- (b) by Parent or the Company, if (i) 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 parties hereto shall use their commercially reasonable efforts to reverse, overturn or lift) or taken any other final action restraining, enjoining or otherwise prohibiting the Merger or the Related Transactions and such order, decree, ruling or other action is or shall have become final and nonappealable, or (ii) the Effective Time shall not have occurred on or before the Outside Date; provided, however, that the right to terminate this Agreement under this clause (ii) shall not be available to any party hereto whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Outside Date; (c) by Parent, if (i) there shall have been a material breach of any of the Company's representations, warranties or covenants, which breach (A) would give rise to the failure of a condition set forth in Section 7.1(b) or Section 7.2, and (B) is not capable of being cured prior to the Outside Date or, if curable, has not been cured within 20 business days following receipt by the Company of written notice from Parent and Merger Sub of such breach, (ii) the Special Committee or the Company Board shall withdraw, modify, or change (including by amendment of the Proxy Statement) its recommendation with respect to this Agreement and the Merger in a manner adverse to Parent or FPSH or shall have resolved to do any of the foregoing, (iii) the Special Committee or the Company Board shall have recommended any proposal in respect of a Company Competing Transaction or (iv) any Person or group (as defined in Section 13(d)(3) of the Exchange Act) other than Parent or any of its Affiliates shall have become the beneficial owner of shares of Common Stock representing 15% or more of the voting power of the Company (either on a primary or a fully-diluted basis). (d) by the Company, if there shall have been a material breach of any of Parent's or Merger Sub's representations, warranties or covenants, which breach (i) would give rise to the failure of a condition set forth in Section 7.1(a) or Section 7.2 and (ii) is not capable of being cured prior to the Outside Date or, if curable, has not been cured within 20 business days following receipt by Parent and Merger Sub of written notice from the Company of such breach; (e) by the Company, pursuant to and in compliance with Section 6.10(e); (f) by either Parent or the Company, if at the Stockholders Meeting (including any postponement or adjournment thereof), (i) the Company Stockholder Approval shall have not been obtained, or (ii) if applicable, the Disinterested Stockholder Approval shall not have been obtained; or (g) by the Company, if the Stock Purchase Agreement shall have been terminated pursuant to Section 8.1(a), (b), (c) or (d) of the Stock Purchase Agreement. Section 8.2. Effect of Termination. In the event of the termination and abandonment of this Agreement pursuant to Section 8.1, written notice thereof shall forthwith be given to the other party or parties in accordance with Section 9.4, 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 of the Company or its Subsidiaries or its -55- Affiliates or Parent or its Affiliates or their respective directors, officers, employees or stockholders, other than the provisions of this Section 8.2 and Section 8.3; provided, however, that nothing contained in this Section 8.2 shall relieve any party from liability for any willful and material breach of this Agreement. Section 8.3. Fees and Expenses. (a) In the event that: (i) (A)(x) Parent or the Company shall have terminated this Agreement pursuant to Section 8.1(b)(ii) and the failure of the Company to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or prior to the Outside Date, (y) Parent shall have terminated this Agreement pursuant to Section 8.1(c)(i) or (z) either party shall have terminated this Agreement pursuant to Section 8.1(f), (B) on or prior to such time (or in connection with clause (z), on or prior to the Stockholders Meeting) any entity or group (other than Parent and its Affiliates or FPSH and its Affiliates) shall have made and not withdrawn a proposal that is or becomes publicly disclosed for (or publicly disclosed its intention to make a proposal for) a Company Competing Transaction, and (C) within 12 months of termination of this Agreement, the Company (1) consummates a Company Competing Transaction, or (2) enters into a Company Competing Transaction that is thereafter consummated at any time (including after the 12-month period described in the beginning of this clause (C)); (ii) (A) Parent shall have terminated this Agreement pursuant to Section 8.1(c)(ii), (iii) or (iv), and (B) within 12 months of termination of this Agreement, the Company (1) consummates a Company Competing Transaction, or (2) enters into a Company Competing Transaction that is thereafter consummated at any time (including after the 12-month period described in the beginning of this clause (B)); or (iii) the Company shall have terminated this Agreement pursuant to Section 8.1(e), then, in any such event, the Company shall pay to FPSH, a termination fee in cash, of $15 million (the "Company Termination Fee") (less any amount paid or payable pursuant to Section 8.3(b)). Any Company Termination Fee that becomes payable shall be paid (m) in the case of clause (i) or clause (ii) above, not later than the date on which a Company Competing Transaction is consummated, and (n) in the case of clause (iii) above, at or prior to such termination pursuant to Section 8.1(e). (b) Upon the termination of this Agreement (i) by Parent or the Company pursuant to Section 8.1(b)(ii) where the failure of the Company to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Outside Date; (ii) by Parent pursuant to Section 8.1(c)(i), (ii), (iii) or (iv); or (iii) by Parent or the Company pursuant to Section 8.1(f), the Company shall pay to FPSH the FPSH Expenses up to, but not exceeding $4.5 million in cash not later than two business days after -56- submission of statements therefor, less any such expenses previously reimbursed by the Company. (c) Except as specifically provided in this Section 8.3, all costs and expenses incurred in connection with this Agreement, the Related Agreements, the Merger, the Related Transactions and the other transactions contemplated by this Agreement and the Related Agreements shall be paid by the party incurring such expenses, regardless of whether the Merger and the Related Transactions or any other transaction contemplated by this Agreement or the Related Agreements is consummated. Section 8.4. Amendment. This Agreement may be amended at any time before or after the Company Stockholder Approval (or if applicable the Disinterested Stockholder Approval) by an instrument in writing signed by all of the parties hereto; provided that, in addition to any other approval required by law, (a) in the case of the Company, this Agreement may only be amended following approval of such amendment by the Special Committee and (b) in the case of Parent, this Agreement may only be amended following written approval by FPSH; provided, further that after the Company Stockholder Approval (or if applicable the Disinterested Stockholder Approval), no amendment shall be made that by law requires further approval by the stockholders of the Company without the further approval of such stockholders. Section 8.5. Waiver. At any time prior to the Effective Time, any party hereto may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document, certificate or writing delivered pursuant hereto, or (iii) waive compliance by the other party with any of the agreements or conditions contained herein; provided, however, that the Company may only grant such extension or waiver if it first obtains the written approval of the Special Committee, and Parent may only grant such extension or waiver if it first obtains the written approval of FPSH. Any agreement on the part of any party or parties hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party or parties. The failure of any party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights. In the event that this Agreement is to be terminated by the Company, it shall be terminated by the Company following approval by the Special Committee and may not be terminated without the approval of the Special Committee. ARTICLE IX MISCELLANEOUS Section 9.1. Nonsurvival of Representations and Warranties. The representations and warranties made herein shall not survive beyond the Effective Time. Section 9.2. Entire Agreement; Assignment. This Agreement and the Related Agreements (including the schedules and Exhibits hereto and thereto) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, between the parties hereto with -57- respect to the subject matter hereof. This Agreement shall not be assigned by operation of law or otherwise, except that Parent may assign any or all of its rights and obligations under this Agreement to an Affiliate of Parent, but no such assignment shall relieve Parent of its obligations hereunder if such assignee does not perform such obligations. Section 9.3. 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 manner acceptable to all parties hereto. Section 9.4. 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: (a) If to Parent or Merger Sub: c/o Savia, S.A. de C.V. Ave. Roble No. 565 Ote. - Piso 4 Colonia Valle Del Campestre Garza Garcia, N.L. 66265 Mexico Attention: Bernardo Jimenez Barrera Facsimile: 011-52-818-399-5606 With copies, which will not constitute notice, to: Milbank, Tweed, Hadley & McCloy LLP One Chase Manhattan Plaza New York, New York 10005 Attention: Howard S. Kelberg, Esq. Facsimile: 212-822-5530 Fox Paine & Company, LLC 950 Tower Lane, Suite 1950 Foster City, California 94404 Attention: W. Dexter Paine, III Facsimile: 650-525-1396 Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 -58- Attention: Mitchell S. Presser, Esq. Facsimile: 212-403-2000 (b) If to the Company: Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: Chairman of the Special Committee of the Board of Directors Facsimile: 805-918-2530 With copies, which will not constitute notice, to: Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: General Counsel Facsimile: 805-918-2530 Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036 Attention: Peter A. Atkins, Esq. David J. Friedman, Esq. Facsimile: 212-735-2000 Section 9.5. 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 enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the Merger. 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 OF PARENT, MERGER SUB AND THE COMPANY 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 PARENT, MERGER SUB OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. -59- Section 9.6. 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 9.7. Interpretation. When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or Schedule to 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 9.8. Parties in Interest. (a) Subject to Section 9.8(b), this Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns, and except as provided in Section 6.8 and as otherwise explicitly provided in this Agreement and in the Stock Purchase Agreement, nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. (b) Notwithstanding anything to the contrary contained herein, (i) FPSH shall be a third party beneficiary of this Agreement and shall have the right to directly enforce Section 6.10, Section 8.3, Section 8.4 and Section 8.5, (ii) FPSH shall have the right to enforce any right under this Agreement exercisable by Parent or Merger Sub, (iii) any representations, warranties or covenants made by the Company to Parent or Merger Sub shall be deemed made to (and, with respect to covenants, shall be enforceable by) FPSH, (iv) any notice to Parent, Merger Sub or the Company under this Agreement given (or required to be given) shall be simultaneously given to FPSH and (v) anything under this Agreement that must be approved by or acceptable to Parent or Merger Sub must also be approved or accepted by FPSH (which approval or acceptance shall be subject to the same standards applicable to Parent and Merger Sub with respect thereto); provided, however, that none of clauses (i), (ii) or (iii) of this Section 9.8(b) shall prevent Parent or Merger Sub from directly enforcing its rights under this Agreement. The Stock Purchase Agreement shall provide that it may not be amended, modified, supplemented or any terms waived in a manner that would prevent or delay the Closing without the approval of the Special Committee (which approval shall not be unreasonably withheld or delayed). The parties to the Stock Purchase Agreement have acknowledged in such agreement that the Company would not have entered into this Agreement had the parties not entered into the Stock Purchase Agreement. Section 9.9. Performance by Others. Savia shall cause Parent and Merger Sub (and, if applicable, their successors or permitted assigns) to comply with their obligations under this Agreement and the Related Agreements to which Parent or Merger Sub is a party. -60- Section 9.10. 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. -61- 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 ACQUISITION LLC By: /s/ BERNARDO JIMENEZ _________________________________ Name: BERNARDO JIMENEZ Title: ATTORNEY IN FACT SEMINIS MERGER CORP. By: /s/ BERNARDO JIMENEZ ________________________________ Name: BERNARDO JIMENEZ Title: ATTORNEY IN FACT SEMINIS, INC. By: /s/ GASPAR ALVAREZ ________________________________ Name: GASPAR ALVAREZ Title: VP WW CORPORATE COMPTROLLER By: /s/ ENRIQUE OSORIO ________________________________ Name: ENRIQUE OSORIO Title: TREASURER VICE PRESIDENT For purposes of Section 9.9 only, SAVIA, S.A. DE C.V. By: /s/ BERNARDO JIMENEZ ________________________________ Name: BERNARDO JIMENEZ Title: ATTORNEY IN FACT EX-2.2 4 v90668exv2w2.txt EXHIBIT 2.2 EXECUTION COPY ================================================================================ STOCK PURCHASE AGREEMENT dated as of May 30, 2003 by and among FOX PAINE SEMINIS HOLDINGS, LLC, 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 DE ADMINISTRACION Y PAGO NUMERO 167-5), SEMINIS ACQUISITION LLC, and SEMINIS MERGER CORP. ================================================================================ TABLE OF CONTENTS

Page ---- ARTICLE I CERTAIN DEFINITIONS.................................................................... 3 ARTICLE II THE STOCK PURCHASE..................................................................... 7 Section 2.1. The Closing............................................................................ 7 Section 2.2. Purchase and Sale...................................................................... 8 Section 2.3. ARG Option............................................................................. 8 Section 2.4. Delivery of Sale Shares; Payment....................................................... 8 ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB.............................................................. 9 Section 3.1. Organization........................................................................... 9 Section 3.2. Authority.............................................................................. 9 Section 3.3. Consents and Approvals; No Violations.................................................. 9 Section 3.4. Contributions to Parent; Distributions from Parent..................................... 10 Section 3.5. Capitalization......................................................................... 10 Section 3.6. Ownership of Stock..................................................................... 11 Section 3.7. Proxy Statement; Information........................................................... 12 Section 3.8. Brokers................................................................................ 12 Section 3.9. Acknowledgment......................................................................... 12 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF FPSH................................................. 13 Section 4.1. Organization........................................................................... 13 Section 4.2. Authority.............................................................................. 13 Section 4.3. Consents and Approvals; No Violations.................................................. 13 Section 4.4. Proxy Statement........................................................................ 14 Section 4.5. Brokers................................................................................ 14 Section 4.6. Purchase For Investment................................................................ 14 Section 4.7 Financial Capability................................................................... 14 ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ARG TRUST........................................ 14 Section 5.1. Organization........................................................................... 14 Section 5.2. Authority.............................................................................. 15 Section 5.3. Consents and Approvals; No Violations.................................................. 15 Section 5.4. Proxy Statement........................................................................ 15 Section 5.5. Brokers................................................................................ 15 Section 5.6. Purchase For Investment................................................................ 16 ARTICLE VI COVENANTS.............................................................................. 16 Section 6.1. Merger Agreement; Contribution Agreement; Financing Commitment Papers............................................................ 16 Section 6.2. Pre-Closing Conduct.................................................................... 17 Section 6.3. Notification of Certain Matters........................................................ 17 Section 6.4. Additional Agreements, Reasonable Best Efforts......................................... 17

Section 6.5. Further Assurances..................................................................... 18 Section 6.6. Public Announcements................................................................... 19 Section 6.7. Capitalization Matters................................................................. 19 ARTICLE VII CONDITIONS TO CONSUMMATION OF THE STOCK PURCHASE............................................................................... 19 Section 7.1. Conditions to Performance by Parent and Merger Sub..................................... 19 Section 7.2. Conditions to Performance by FPSH...................................................... 20 ARTICLE VIII TERMINATION; AMENDMENT; WAIVER......................................................... 23 Section 8.1. Termination............................................................................ 23 Section 8.2. Effect of Termination.................................................................. 24 Section 8.3. Fees and Expenses...................................................................... 24 Section 8.4. Amendment.............................................................................. 25 Section 8.5. Waiver................................................................................. 25 Section 8.6. Survival............................................................................... 25 Section 8.7. Sole Remedy............................................................................ 25 ARTICLE IX MISCELLANEOUS..................................................................................... 26 Section 9.1. Entire Agreement; Assignment........................................................... 26 Section 9.2. Severability........................................................................... 26 Section 9.3. Notices................................................................................ 26 Section 9.4. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial........................... 28 Section 9.5. Specific Performance................................................................... 28 Section 9.6. Interpretation......................................................................... 29 Section 9.7. Parties in Interest.................................................................... 29 Section 9.8. Counterparts........................................................................... 29 Exhibit A Form of Stock Purchase Agreement for Additional Purchasers Exhibit B-1 Form of 15% Co-Investment Rights Agreement Exhibit B-2 Form of SPC Hurdle Co-Investment Rights Agreement Exhibit B-3 Form of FPSH Hurdle Co-Investment Rights Agreement Exhibit C Form of Parent FIRPTA Affidavit STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT, dated as of May 30, 2003 (this "Agreement"), is made by and among FOX PAINE SEMINIS HOLDINGS, LLC, a Delaware limited liability company ("FPSH"), 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 DE ADMINISTRACION Y PAGO NUMERO 167-5), a Mexican trust (the "ARG Trust"), SEMINIS ACQUISITION LLC, a Delaware limited liability company ("Parent") and SEMINIS MERGER CORP., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"). WHEREAS, Parent, Merger Sub, and Seminis, Inc., a Delaware corporation (the "Company"), have entered into an Agreement and Plan of Merger (the "Merger Agreement"), of even date herewith, pursuant to which Merger Sub will merge with and into the Company (the "Merger") on the terms and conditions set forth therein; WHEREAS, after the Stockholders Meeting (as defined in the Merger Agreement) and immediately prior to the time that the Merger becomes effective under the DGCL (the "Effective Time"), Parent will have received as a contribution and Parent will own 41,554,346 shares of Class A Common Stock, par value $.01 per share, of the Company (the "Company Class A Common Stock") and 42,823,515 shares of Class B Common Stock, par value $.01 per share, of the Company (the "Company Class B Common Stock," and together with the Company Class A Common Stock, the "Company Common Stock") pursuant to the Contribution Agreement; WHEREAS, immediately following the Effective Time, the Company shall have authority to issue 205,000,000 shares of capital stock consisting of: (i) 200,000,000 shares of common stock, par value $.01 per share (the "New Company Common Stock"), 84,377,861 of which shares shall be issued and outstanding, and (ii) 5,000,000 shares of preferred stock, par value $.01 per share (the "Company Preferred Stock"), of which (A) 25,000 shares shall be designated Class A Redeemable Preferred Stock, par value $.01 per share (the "Company Class A Preferred Stock"), none of which shall be issued or outstanding, and (B) 25,000 shares shall be designated Class B Redeemable Preferred Stock, par value $.01 per share (the "Company Class B Preferred Stock"), 25,000 shares of which shall be issued and outstanding; WHEREAS, as of the date hereof, Merger Sub has authority to issue (i) 1,000 shares of common stock, par value $.01 per share (the "MS Common Stock"), 1,000 of which shares of MS Common Stock are issued and outstanding, and (ii) 1,000 shares of preferred stock, par value $.01 per share (the "MS Preferred Stock"), none of which shares is issued or outstanding; WHEREAS, immediately prior to the Effective Time, Merger Sub shall have authority to issue (i) 100,000,000 shares of MS Common Stock, 84,377,861 of which shares shall be issued and outstanding, and (ii) 1,000 shares of MS Preferred Stock, none of which shares shall be issued or outstanding; WHEREAS, Parent owns all of the outstanding shares of MS Common Stock on the date hereof and will own all of the outstanding shares of MS Common Stock immediately prior to the Effective Time; WHEREAS, in the Merger, each share of Company Common Stock owned by Parent will be cancelled and each share of MS Common Stock will be converted into one share of New Company Common Stock; WHEREAS, immediately following the Effective Time, the 84,377,861 shares of New Company Common Stock owned by Parent will represent all of the issued and outstanding shares of New Company Common Stock; WHEREAS, on the terms and subject to the conditions contained herein, Parent desires to sell and FPSH desires to purchase all of Parent's right, title and interest in and to the FPSH Sale Shares for an amount equal to the FPSH Purchase Price (the "FPSH Stock Purchase"); WHEREAS, on the terms and subject to the conditions contained herein, Parent desires to grant an option to the ARG Trust (the "ARG Option"), pursuant to which the ARG Trust shall have the right, but not the obligation, to purchase all of Parent's right, title and interest in and to 900,737 shares of New Company Common Stock owned by Parent (the "ARG Trust Sale Shares") for an aggregate purchase price of $3,062,506 (the "ARG Purchase Price") (the "ARG Trust Stock Purchase"); WHEREAS, on the terms and subject to the conditions contained herein, Parent desires to sell, and Merger Sub (as a constituent party to the Merger) desires that the Company (as the surviving party in the Merger) purchase all of Parent's right, title and interest in and to 6,411,953 shares of New Company Common Stock owned by Parent (the "Company Sale Shares") for an aggregate purchase price of $21,800,641 (the "Company Purchase Price") (the "Company Stock Purchase" and together with the FPSH Stock Purchase and the ARG Trust Stock Purchase, the "Stock Purchase"); WHEREAS, after the Closing and the closing of the Debt Financing (as defined in the Merger Agreement), Parent shall be liquidated pursuant to the terms of the LLC Agreement (as defined in the Contribution Agreement) and in such liquidation, Parent will distribute (i) the Cash Distribution to Savia, S.A. de C.V. ("Savia"), (ii) if the ARG Option is exercised, the right to receive the ARG Purchase Price to Savia, (iii) the right to receive the Additional Purchase Amount, if any, to Savia, (iv) shares of New Company Common Stock to the Persons (and in the amounts) set forth in Section 3.4(b) of the Parent Disclosure Schedule, and (v) all remaining assets, if any, including shares of New Company Common Stock not purchased pursuant to the ARG Option, to Savia; WHEREAS, the members of Parent and the board of directors of Merger Sub have determined that the Stock Purchase is fair to and in the best interests of their respective -2- corporation and stockholders or company and members (as applicable) and have approved the Stock Purchase and this Agreement; WHEREAS, FPSH, the ARG Trust, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with the Stock Purchase and also to prescribe various conditions to the Stock Purchase; and WHEREAS, Parent and Merger Sub desire to grant to FPSH certain rights with respect to the Merger, the Merger Agreement, the Contribution, the Contribution Agreement, the Debt Financing (as defined in the Merger Agreement) and the Financing Commitment Papers; 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: "Additional Purchase Amount" means such amount, if any, equal to (i) the Additional Sale Shares, multiplied by (ii) $3.40. "Additional Purchaser" means any Person that agrees pursuant to the form of agreement attached hereto as Exhibit A, between the date hereof and the Closing Date, to purchase, and that purchases, on the Closing Date, shares of New Company Common Stock from Parent; provided, however, that the Additional Purchasers shall be comprised exclusively of bondholders of, and derivatives holders who are now creditors of, Pulsar Internacional, S.A. de C.V., with such bondholders entitled to purchase a maximum of 6,429,150 shares of New Company Common Stock from Parent and such derivatives holders entitled to purchase a maximum of 6,525,328 shares of New Company Common Stock from Parent. "Additional Sale Shares" means the aggregate number of shares of New Company Common Stock, if any, purchased by the Additional Purchasers; provided, however, that in no event shall the aggregate number of Additional Sale Shares exceed 12,954,478 shares of New Company Common Stock. "Affiliate" means any Person that directly, or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the applicable Person. "Agreement" shall have the meaning set forth in the preamble. "ARG Option" shall have the meaning set forth in the recitals. "ARG Purchase Price" shall have the meaning set forth in the recitals. -3- "ARG Trust" shall have the meaning set forth in the preamble. "ARG Trust Disclosure Schedule" means the schedule of disclosures delivered to Parent and Merger Sub by the ARG Trust together with the execution of this Agreement. "ARG Trust Material Adverse Effect" shall have the meaning set forth in Section 5.1. "ARG Trust Sale Shares" shall have the meaning set forth in the recitals. "ARG Trust Stock Purchase" shall have the meaning set forth in the recitals. "Buyer Material Adverse Effect" means any event, change, circumstance, effect or state of facts that is or is reasonably expected to be materially adverse to FPSH after giving effect to the Stock Purchase and the Related Transactions, except to the extent that such adverse effect results from (i) general economic conditions or changes therein, (ii) financial or securities market fluctuations or conditions, (iii) changes in, or events or conditions affecting, the industries or businesses in which the Company and its Subsidiaries operate, or (iv) the announcement of the transactions contemplated by the Merger Agreement or the Letter of Intent (as defined in the Merger Agreement). "Cash Distribution" shall mean an amount equal to (i) $263,106,832 MINUS (ii) the product of the aggregate number of Additional Sale Shares multiplied by $3.40. "Closing" shall have the meaning set forth in Section 2.1. "Closing Date" shall have the meaning set forth in Section 2.1. "Code" means the Internal Revenue Code of 1986, as amended. "Company" shall have the meaning set forth in the recitals. "Company Class A Common Stock" shall have the meaning set forth in the recitals. "Company Class B Common Stock" shall have the meaning set forth in the recitals. "Company Class A Preferred Stock" shall have the meaning set forth in the recitals. "Company Class B Preferred Stock" shall have the meaning set forth in the recitals. "Company Common Stock" shall have the meaning set forth in the recitals. "Company Material Adverse Effect" means any event, change, circumstance, effect or state of facts that is or is reasonably expected to be materially adverse to (a) the business, results of operations, condition (financial or otherwise), assets or liabilities of the Company and its Subsidiaries, taken as a whole, or (b) the ability of the Company to consummate any of the transactions contemplated by this Agreement and the Related Agreements (other than the Indemnification Agreement), including the Stock Purchase and the Related Transactions (other than the transactions contemplated by the Indemnification Agreement), except to the extent that such adverse effect results from (i) general economic conditions or changes therein, (ii) financial -4- or securities market fluctuations or conditions, (iii) changes in, or events or conditions affecting, the industries or businesses in which the Company and its Subsidiaries operate, or (iv) the announcement of the transactions contemplated by the Merger Agreement or the Letter of Intent (as defined in the Merger Agreement). "Company Preferred Stock" shall have the meaning set forth in the recitals. "Company Purchase Price" shall have the meaning set forth in the recitals. "Company Sale Shares" shall have the meaning set forth in the recitals. "Company Securities" shall have the meaning set forth in Section 3.5(a). "Company Stock Purchase" shall have the meaning set forth in the recitals. "Contribution Agreement" means the Contribution Agreement of even date herewith, among Parent, Mr. Romo (as defined therein), Desarrollo Consolidado de Negocios, S.A. de C.V., the ARG Trust and the Contributors (as defined therein) providing for the contribution of Company Common Stock to Parent. "DGCL" means the General Corporation Law of the State of Delaware. "Effective Time" shall have the meaning set forth in the recitals. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "Financing Commitment Papers" shall mean, collectively, (i) the Commitment Letter, of even date herewith, from Citicorp North America, Inc., Citigroup Global Markets Inc., Harris Trust and Savings Bank, Bank of Montreal, CIBC World Markets Corp. and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank International," New York Branch, to Parent, (ii) the Fee Letter, of even date herewith, from Citicorp North America, Inc., Citigroup Global Markets Inc., Harris Trust and Savings Bank, Bank of Montreal, CIBC World Markets Corp. and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank International," New York Branch, to Parent, (iii) the Engagement Letter, of even date herewith, from Citigroup Global Markets Inc., Harris Trust and Savings Bank, Bank of Montreal, CIBC World Markets Corp. and Rabo Securities USA Inc. to Parent, and (iv) the Highly Confident Letter, of even date herewith, from Citigroup Global Markets Inc. to Parent. "FPSH" shall have the meaning set forth in the preamble. "FPSH Expenses" means all out-of-pocket fees and expenses actually and reasonably incurred by FPSH and its Affiliates or on their behalf in connection with any of the transactions contemplated by this Agreement and the Related Agreements (including fees and expenses payable to financing sources, consultants, counsel to any of the foregoing, accountants and legal counsel). "FPSH Material Adverse Effect" shall have the meaning set forth in Section 4.1. -5- "FPSH Purchase Price" shall mean the product of (i) the FPSH Sale Shares multiplied by (ii) $3.40. "FPSH Sale Shares" means (i) 70,972,409 shares of New Company Common Stock minus (ii) the aggregate number of Additional Sale Shares. "FPSH Stock Purchase" shall have the meaning set forth in the recitals. "GFA" shall have the meaning set forth in Section 8.3(c). "Governmental Entity" means any federal, state, local or foreign court or tribunal or administrative, governmental or regulatory body, agency or authority. "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "Indemnification Agreement" shall mean the Indemnification Agreement, of even date herewith, by and among FPSH, the ARG Trust, Desarrollo Consolidado de Negocios, S.A. de C.V., Desarrollo Empresarial Regiomontano, S.A. de C.V., Emprima, S.A. de C.V., Park Financial Group, Ltd (BVI), Savia, S.A. de C.V., Alfonso Romo Garza and Parent. "Lien" means, with respect to any asset (including any security), any security interests, liens, claims, charges, title defects, deficiencies or exceptions, mortgages, pledges, easements, encroachments, restrictions on use, rights-of-way, 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 in respect of such asset. "Merger" shall have the meaning set forth in the recitals. "Merger Agreement" shall have the meaning set forth in the recitals. "Merger Sub" shall have the meaning set forth in the preamble. "Merger Sub Securities" shall have the meaning set forth in Section 3.5(b). "MS Common Stock" shall have the meaning set forth in the recitals. "MS Preferred Stock" shall have the meaning set forth in the recitals. "New Company Common Stock" shall have the meaning set forth in the recitals. "Parent" shall have the meaning set forth in the preamble. "Parent Disclosure Schedule" means the schedule of disclosures delivered by Parent and Merger Sub to FPSH and the ARG Trust together with the execution of this Agreement. "Parent Material Adverse Effect" means any event, change, circumstance, effect or state of facts that is or is reasonably expected to be materially adverse to the ability of Parent or -6- Merger Sub to consummate the transactions contemplated by this Agreement or the Related Agreements. "Person" means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or "group" (as defined in the Exchange Act). "Related Agreements" means the Voting Agreement, the Merger Agreement, the Contribution Agreement, and the Indemnification Agreement. "Related Transactions" shall mean the transactions contemplated by the Related Agreements. "Savia" shall have the meaning set forth in the recitals. "Stock Purchase" shall have the meaning set forth in the recitals. "Stockholders' Agreement" means the Stockholders' Agreement, of even date herewith, by and among Merger Sub and the Persons listed on the signature pages thereto. "Subsidiary" means, with respect to any Person, any other Person, whether incorporated or unincorporated or domestic or foreign to the United States of which (a) such first Person or any other Subsidiary of such first Person is a general partner (excluding such partnerships where such first Person or any Subsidiary of such first Person does not have a majority of the voting interest in such partnership) or (b) at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is, directly or indirectly, owned or controlled by such first Person or by any one or more of its Subsidiaries, or by such first Person and one or more of its Subsidiaries. "Voting Agreement" means the voting agreement, of even date herewith, among FPSH and the other Persons party thereto pursuant to which, among other things, each Person (other than FPSH) party thereto agrees to vote all shares of Company Common Stock beneficially owned by such Person in favor of the Merger. 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 Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, 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 first business day after satisfaction or waiver of the conditions set forth in Article VII (other than those conditions that are to be satisfied on the Closing Date, but subject to the satisfaction or waiver of such other conditions on the Closing Date) (the "Closing Date"). -7- Section 2.2. Purchase and Sale. Subject to the terms and conditions set forth herein, at the Closing, (a) Parent shall sell to FPSH (or one or more of its designated Affiliates) all of Parent's rights, title and interests in the FPSH Sale Shares, free and clear of any Lien, (b) Parent shall sell to the Company all of Parent's right, title and interest in the Company Sale Shares, free and clear of any Lien, and (c) if the ARG Option has been exercised, Parent shall sell to the ARG Trust all of Parent's right, title and interest in the ARG Trust Sale Shares, free and clear of any Lien. Section 2.3. ARG Option. Parent hereby grants to the ARG Trust the right, but not the obligation, to purchase the ARG Trust Sale Shares for the ARG Purchase Price in accordance with the terms hereof. The ARG Option can be exercised at any time on or before the third business day prior to the Closing Date by delivery to Parent of a written notice stating that the ARG Trust irrevocably exercises the ARG Option to purchase the ARG Trust Sale Shares pursuant to the terms of this Agreement. Exercise of the ARG Option shall constitute: (a) acknowledgment by the ARG Trust that Parent shall transfer the right to receive the ARG Purchase Price to Savia and an agreement by the ARG Trust that it is obligated to pay the ARG Purchase Price to Savia after such transfer; and (b) an agreement by the ARG Trust that Savia may receive or retain any cash dividends on its shares held by the ARG Trust in an amount equal to the ARG Purchase Price otherwise payable by Savia to ARG Trust in lieu of payment to Savia of the ARG Purchase Price by ARG Trust. Section 2.4. Delivery of Sale Shares; Payment. (a) At the Closing, (i) Parent shall deliver or cause to be delivered to FPSH (or one or more of its designated Affiliates) one or more stock certificates representing in the aggregate the FPSH Sale Shares, duly endorsed in blank for transfer or accompanied by duly executed stock powers and all applicable stock transfer stamps and other instruments requisite to proper transfer, all in proper form, (ii) Parent shall deliver or cause to be delivered to the Company one or more stock certificates representing in the aggregate the Company Sale Shares, duly endorsed in blank for transfer or accompanied by duly executed stock powers and all applicable stock transfer stamps and other instruments requisite to proper transfer, all in proper form, (iii) if the ARG Option has been exercised, Parent shall deliver or cause to be delivered to the ARG Trust one or more stock certificates representing in the aggregate the ARG Trust Sale Shares, duly endorsed in blank for transfer or accompanied by duly executed stock powers and all applicable stock transfer stamps and other instruments requisite to proper transfer, all in proper form, and (iv) if the ARG Option has not been exercised, Parent shall deliver or cause to be delivered to Savia one or more stock certificates representing in the aggregate the ARG Trust Sale Shares, duly endorsed in blank for transfer or accompanied by duly executed stock powers and all applicable stock transfer stamps and other instruments requisite to proper transfer, all in proper form. (b) At the Closing, (i) FPSH (or one or more of its designated Affiliates) shall pay to Parent by wire transfer of immediately available funds (to the account designated by Parent in writing not less than three days prior to Closing) the FPSH Purchase Price, (ii) Parent shall cause the Company to pay to Parent by wire transfer of immediately available funds (to the account designated by Parent in writing not less than three days prior to Closing) the Company Purchase Price, and (iii) if the ARG Option has been exercised, the transactions contemplated by the last sentence of Section 2.3 shall occur. -8- ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB Parent and Merger Sub hereby represent and warrant to FPSH and the ARG Trust as follows: Section 3.1. Organization. Each of Parent and Merger Sub is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to be in good standing or to have such corporate or similar power and authority would not, in the aggregate, have a Parent Material Adverse Effect. Each of Parent and Merger Sub was formed solely for the purpose of engaging in the transactions contemplated by this Agreement, the Merger Agreement and the Contribution Agreement and the other transactions contemplated by the Related Agreements. Other than Parent's 100% ownership interest in Merger Sub and as contemplated by the Contribution Agreement, neither Parent, nor Merger Sub owns any equity, debt or similar interest in any Person. Parent and Merger Sub have delivered to FPSH and the ARG Trust accurate and complete copies of the certificate of incorporation and bylaws (or other governing documents), as currently in effect, of Parent and Merger Sub. Neither Parent nor Merger Sub has engaged in any activities, owned any assets or been subject to any liabilities, except as is necessary to effect the Merger, the Stock Purchase and the Contribution. Neither Parent nor Merger Sub has any Indebtedness (as defined in the Merger Agreement) or liabilities, other than as contemplated by this Agreement, the Related Agreements and the Financing Commitment Papers. Section 3.2. Authority. Each of Parent and Merger Sub has all necessary power and authority to execute and deliver this Agreement and any Related Agreement to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreement to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the boards of directors (or other governing body) and stockholders or members (as applicable) of each of Parent and Merger Sub, and no other corporate or similar proceedings on the part of Parent or Merger Sub are necessary to authorize this Agreement or any Related Agreement to which it is a party or to consummate the transactions contemplated hereby or thereby. This Agreement and any Related Agreement to which it is a party have been duly and validly executed and delivered by each of Parent and Merger Sub and, assuming due and valid authorization, execution and delivery by the other party or parties hereto or thereto, constitute the valid, legal and binding agreements of each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with their terms. Section 3.3. Consents and Approvals; No Violations. Except as set forth on Section 3.3 of the Parent Disclosure Schedule, no filing with or notice to, and no permit, authorization, consent or approval of, any Governmental Entity or any other Person is necessary for the execution and delivery by Parent and Merger Sub of this Agreement or the consummation by Parent and Merger Sub of the transactions contemplated by this Agreement and the Related Agreements, except where the failure to obtain such permits, authorizations, consents or -9- approvals or to make such filings or give such notice would not have a Parent Material Adverse Effect or a Company Material Adverse Effect. Neither the execution, delivery and performance of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated by this Agreement and the Related Agreements will (a) conflict with or result in any breach of any provision of the certificates of incorporation or bylaws (or similar governing documents) of Parent or Merger Sub, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration, or result in the creation of a Lien on any property or asset of Parent or Merger Sub, or trigger any rights of first refusal) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which Parent or Merger Sub is a party or by which either of them or their respective properties or assets may be bound, or (c) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to Parent, Merger Sub or any of their respective properties or assets, except in the case of (b) or (c) above for violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, have a Parent Material Adverse Effect or a Company Material Adverse Effect. Section 3.4. Contributions to Parent; Distributions from Parent. (a) On the date hereof, Parent entered into the Contribution Agreement with the Persons set forth in Section 3.4(a) of the Parent Disclosure Schedule pursuant to which, immediately prior to the Effective Time, such Persons have agreed to transfer to Parent all rights, title and interests in the shares of Company Common Stock set forth next to such Person's name in Section 3.4(a) of the Parent Disclosure Schedule, in each case, free and clear of any Lien and in accordance with the terms of the Contribution Agreement. (b) Immediately after the Closing and the closing of the Debt Financing (as defined in the Merger Agreement), Parent shall be liquidated pursuant to the terms of the LLC Agreement (as defined in the Contribution Agreement) and in such liquidation, Parent will distribute (i) the Cash Distribution to Savia, (ii) if the ARG Option is exercised, the right to receive the ARG Purchase Price to Savia, (iii) the right to receive the Additional Purchase Amount, if any, to Savia, (iv) shares of New Company Common Stock to the Persons (and in the amounts) set forth in Section 3.4(b) of the Parent Disclosure Schedule and (v) all remaining assets, if any, including shares of New Company Common Stock not purchased pursuant to the ARG Option, to Savia. Section 3.5. Capitalization. (a) Immediately following the Effective Time and immediately prior to the Closing, the authorized capital stock of the Company shall consist of (i) 200,000,000 shares of New Company Common Stock, 84,377,861 shares of which shall be issued and outstanding and owned exclusively by Parent, and (ii) 5,000,000 shares of Company Preferred Stock, (A) 25,000 shares of which shall be designated as shares of Company Class A Preferred Stock, none of which shall be issued or outstanding, and (B) 25,000 shares of which shall be designated as shares of Company Class B Preferred Stock, 25,000 shares of which shall be issued and outstanding. Except (w) as set forth in the preceding sentence, (x) the options to purchase shares of New Company Common Stock granted under the Amended and Restated Seminis, Inc. 1998 -10- Stock Option Plan which are or become Retained Options (as defined in the Merger Agreement) in accordance with any agreements among Parent, FPSH and any individual owning such Retained Options (as defined in the Merger Agreement), (y) as contemplated by this Agreement, and (z) as provided in the employment agreements and letter agreements set forth in Section 3.5 of the Parent Disclosure Schedule, immediately following the Effective Time and immediately prior to the Closing, there will be no outstanding (i) shares of capital stock or other voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options or other rights to acquire from the Company, or obligations of the Company to issue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, or (iv) equity equivalents, interests in the ownership or earnings of the Company or other similar rights (collectively, "Company Securities"). Other than pursuant to this Agreement and the Related Agreements (including the Stockholders' Agreement to be executed at the Closing), there are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any Company Securities. (b) As of the date hereof, Merger Sub has authority to issue (i) 1,000 shares of MS Common Stock, 1,000 of which shares are issued and outstanding, all of which issued and outstanding shares are owned by Parent, and (ii) 1,000 shares of MS Preferred Stock, none of which shares is issued or outstanding. Immediately prior to the Effective Time, (i) Merger Sub shall have authority to issue 100,000,000 shares of MS Common Stock, 84,377,861 of which shares shall be issued and outstanding and all of which will be owned by Parent, and (ii) 1,000 shares of MS Preferred Stock, none of which shares shall be issued or outstanding. Except as set forth in the preceding sentence, there are no outstanding (i) shares of capital stock or other voting securities of Merger Sub, (ii) securities of Merger Sub convertible into or exchangeable for shares of capital stock or voting securities of Merger Sub, (iii) options or other rights to acquire from Merger Sub, or obligations of Merger Sub to issue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Merger Sub, or (iv) equity equivalents, interests in the ownership or earnings of Merger Sub or other similar rights (collectively, "Merger Sub Securities"). There are no outstanding obligations of Merger Sub to repurchase, redeem or otherwise acquire any Merger Sub Securities. Section 3.6. Ownership of Stock. (a) On the Closing Date, following the Effective Time and prior to the Closing, Parent will be the owner, beneficially and of record, of the FPSH Sale Shares, free and clear of any Lien and will transfer to FPSH (or one or more of its Affiliates) good and valid title to such FPSH Sale Shares free and clear of any Lien. Except as set forth in Section 3.6(a) of the Parent Disclosure Schedule, on the Closing Date, Parent will have no beneficial interest in any Company Securities other than the FPSH Sale Shares, the Company Sale Shares, the ARG Trust Sale Shares and the Additional Sale Shares, if any. (b) On the Closing Date, following the Effective Time and prior to the Closing, Parent will be the owner, beneficially and of record, of the Company Sale Shares, free and clear of any Lien and will transfer to the Company good and valid title to such Company Sale Shares free and clear of any Lien. -11- (c) On the Closing Date, following the Effective Time and prior to the Closing, Parent will be the owner, beneficially and of record, of the ARG Trust Sale Shares, free and clear of any Lien and, (i) if the ARG Option has been exercised, will transfer to the ARG Trust good and valid title to such ARG Trust Sale Shares free and clear of any Lien, or (ii) if the ARG Option has not been exercised, will transfer to Savia good and valid title to such ARG Trust Sale Shares free and clear of any Lien. Section 3.7. Proxy Statement; Information. (a) None of the information supplied by Parent or Merger Sub in writing specifically for inclusion in the Proxy Statement (as defined in the Merger Agreement) will, at the time filed with the SEC (as defined in the Merger Agreement), at the time first mailed to the Company's stockholders or at the time of the Stockholders Meeting (as defined in the Merger Agreement), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (b) A copy of all written material non-public financial information with respect to the Company or any of its Subsidiaries that Parent or Savia or their respective officers, directors, employees, investment bankers, attorneys, agents or representatives has provided to FPSH or any of its Affiliates or their respective investment bankers, attorneys, agents or representatives, has been provided or made available to the Special Committee (as defined in the Merger Agreement) or its advisors. (c) All material information requested in a letter from the Special Committee to Mr. Alfonso Romo Garza, as Chief Executive Officer and controlling stockholder (through Savia) of the Company, dated January 7, 2003, has, to Parent's knowledge, been provided or made available to the Special Committee (as defined in the Merger Agreement) or its advisors and to FPSH or its advisors. Section 3.8. Brokers. No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement and the Related Agreements based upon arrangements made by or on behalf of Parent or Merger Sub. Section 3.9. Acknowledgment. Each of Parent and Merger Sub hereby acknowledges that (a) in connection with FPSH entering into the Stock Purchase Agreement, FPSH is relying upon the representations, warranties and covenants of (i) each of Parent and Merger Sub contained in this Agreement, and (ii) each of Parent, the Contributors (as defined in the Contribution Agreement), Mr. Romo (as defined in the Contribution Agreement), Desarrollo Consolidado de Negocios, S.A. de C.V. and the ARG Trust contained in the Contribution Agreement, and (b) FPSH shall be entitled to rely upon and enforce the representations, warranties and covenants as provided in this Agreement and in the Indemnification Agreement. -12- ARTICLE IV REPRESENTATIONS AND WARRANTIES OF FPSH FPSH hereby represents and warrants to Parent and the ARG Trust as follows: Section 4.1. Organization. FPSH is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to be in good standing or to have such corporate or similar power and authority would not, in the aggregate, have an FPSH Material Adverse Effect. FPSH was formed solely for the purpose of engaging in the transactions contemplated by this Agreement. FPSH has not engaged in any activities, owned any assets or been subject to any liabilities, other than in connection with or as contemplated by this Agreement, the Related Agreements and the Financing Commitment Papers. The term "FPSH Material Adverse Effect" means any event, change, circumstance or effect that is or is reasonably expected to be materially adverse to the ability of FPSH to consummate the Stock Purchase. Section 4.2. Authority. FPSH has all necessary power and authority to execute and deliver this Agreement and any Related Agreement to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreement to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the manager and the sole member of FPSH, and no other corporate or similar proceedings on the part of FPSH are necessary to authorize this Agreement or any Related Agreement to which it is a party or to consummate the transactions contemplated hereby or thereby. This Agreement and any Related Agreement to which it is a party have been duly and validly executed and delivered by FPSH and, assuming due and valid authorization, execution and delivery by the other parties hereto or thereto, constitute valid, legal and binding agreements of FPSH, enforceable against FPSH in accordance with their terms. Section 4.3. Consents and Approvals; No Violations. No filing with or notice to, and no permit, authorization, consent or approval of, any Governmental Entity or any other Person is necessary for the execution and delivery by FPSH of this Agreement or the consummation by FPSH of the transactions contemplated hereby, except (a) in connection with the requirements of the HSR Act and (b) where the failure to obtain such permits, authorizations, consents or approvals or to make such filings or give such notice would not have an FPSH Material Adverse Effect. Neither the execution, delivery and performance of this Agreement by FPSH nor the consummation by FPSH of the transactions contemplated hereby will (a) conflict with or result in any breach of any provision of the governing documents of FPSH, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration, or result in the creation of a Lien on any property or asset of FPSH, or trigger any rights of first refusal) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which FPSH is a party or by which FPSH or its properties or assets may be bound, or (c) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to FPSH or its properties or assets, except in the case of (b) or (c) -13- above for violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, have an FPSH Material Adverse Effect. Section 4.4. Proxy Statement. None of the information supplied by FPSH in writing specifically for inclusion in the Proxy Statement (as defined in the Merger Agreement) will, at the time filed with the SEC (as defined in the Merger Agreement), at the time first mailed to the Company's stockholders or at the time of the Stockholders Meeting (as defined in the Merger Agreement), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Section 4.5. Brokers. No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement and the Related Agreements based upon arrangements made by or on behalf of FPSH. Section 4.6. Purchase for Investment. FPSH acknowledges that it (a) has such knowledge and experience in business and financial matters with respect to investments in securities to enable it to understand and evaluate the risks of the investment contemplated hereby and form an investment decision with respect thereto and is able to bear the risk of such investment for an indefinite period and to afford a complete loss thereof, (b) is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended and (c) has had the opportunity to (i) ask such questions as it has deemed necessary of, and to receive answers from, representatives of Parent concerning the terms of its purchase of the FPSH Sale Shares contemplated hereby and the merits and risks of investing in such securities and (ii) to obtain such additional information which Parent possesses or can acquire without unreasonable effort or expense. Section 4.7. Financial Capability. FPSH will have on the Closing Date sufficient cash and cash equivalents (and has provided Parent with evidence thereof) to purchase the FPSH Sale Shares and to consummate the transactions contemplated by this Agreement, including payments of fees and expenses contemplated hereunder. ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ARG TRUST The ARG Trust hereby represents and warrants to Parent and FPSH as follows: Section 5.1. Organization. The ARG Trust is duly created under the laws of the United Mexican States and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to have such power and authority would not, in the aggregate, have an ARG Trust Material Adverse Effect. The term "ARG Trust Material Adverse Effect" means any event, change, circumstance or effect that is or is reasonably expected to be materially adverse to the ability of the ARG Trust to consummate the ARG Trust Stock Purchase. -14- Section 5.2. Authority. The ARG Trust has all necessary power and authority to execute and deliver this Agreement and any Related Agreement to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreement to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the technical committee of the ARG Trust, and, except as set forth in Section 5.2 of the ARG Trust Disclosure Schedule, no other proceedings on the part of the ARG Trust are necessary to authorize this Agreement or any Related Agreement to which it is a party or to consummate the transactions contemplated hereby or thereby. This Agreement and any Related Agreement to which it is a party have been duly and validly executed and delivered by the ARG Trust and, assuming due and valid authorization, execution and delivery by the other parties hereto or thereto, constitute valid, legal and binding agreements of the ARG Trust, enforceable against the ARG Trust in accordance with their terms. Section 5.3. Consents and Approvals; No Violations. Except as set forth in Section 5.3 of the ARG Disclosure Schedule, no filing with or notice to, and no permit, authorization, consent or approval of, any Governmental Entity or any other Person is necessary for the execution and delivery by the ARG Trust of this Agreement or the consummation by the ARG Trust of the transactions contemplated hereby, except where the failure to obtain such permits, authorizations, consents or approvals or to make such filings or give such notice would not have an ARG Trust Material Adverse Effect. Neither the execution, delivery and performance of this Agreement by the ARG Trust nor the consummation by the ARG Trust of the transactions contemplated hereby will (a) conflict with or result in any breach of any provision of the governing documents of the ARG Trust, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration, or result in the creation of a Lien on any property or asset of the ARG Trust, or trigger any rights of first refusal) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the ARG Trust is a party or by which the ARG Trust or its properties or assets may be bound, or (c) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to the ARG Trust or its properties or assets, except in the case of (b) or (c) above for violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, have an ARG Trust Material Adverse Effect. Section 5.4. Proxy Statement. None of the information supplied by the ARG Trust in writing specifically for inclusion in the Proxy Statement (as defined in the Merger Agreement) will, at the time filed with the SEC (as defined in the Merger Agreement), at the time first mailed to the Company's stockholders or at the time of the Stockholders Meeting (as defined in the Merger Agreement), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Section 5.5. Brokers. No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement and the Related Agreements based upon arrangements made by or on behalf of the ARG Trust. -15- Section 5.6. Purchase for Investment. The ARG Trust acknowledges that its technical committee (a) has such knowledge and experience in business and financial matters with respect to investments in securities to enable it to understand and evaluate the risks of the investment contemplated hereby and form an investment decision with respect thereto and is able to bear the risk of such investment for an indefinite period and to afford a complete loss thereof, (b) is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended and (c) has had the opportunity to (i) ask such questions as it has deemed necessary of, and to receive answers from, representatives of Parent concerning the terms of its purchase of the ARG Trust Sale Shares contemplated hereby and the merits and risks of investing in such securities and (ii) to obtain such additional information which Parent possesses or can acquire without unreasonable effort or expense. ARTICLE VI COVENANTS Section 6.1. Merger Agreement; Contribution Agreement; Financing Commitment Papers. (a) Parent and Merger Sub hereby acknowledge and agree that pursuant to this Agreement, Section 9.8(b) of the Merger Agreement and Section 8.7(b) of the Contribution Agreement, FPSH shall be a third party beneficiary of the Merger Agreement and the Contribution Agreement. As a third party beneficiary of the Merger Agreement, FPSH shall have the right to directly enforce Sections 6.10 (No Solicitation), 8.3 (Fees and Expenses), 8.4 (Amendment) and 8.5 (Waiver) of the Merger Agreement. As a third party beneficiary of the Merger Agreement and the Contribution Agreement, (i) FPSH shall have the right to exercise any right (or enforce any obligation, covenant or condition) under the Merger Agreement and the Contribution Agreement exercisable (or enforceable) by Parent or Merger Sub (to the extent that Parent or Merger Sub shall not have exercised or enforced such right, obligation, covenant or condition), (ii) representations, warranties or covenants made to Parent or Merger Sub in the Merger Agreement and the Contribution Agreement shall be deemed made to (and, with respect to covenants, shall be enforceable (to the extent that Parent or Merger Sub has not enforced such covenant) by) FPSH, and (iii) anything under the Merger Agreement and the Contribution Agreement that must be approved by or acceptable to Parent or Merger Sub must also be approved or accepted by FPSH; provided, however, that the foregoing shall not grant to FPSH the right to amend or waive any obligation, covenant or condition under the Merger Agreement or the Contribution Agreement without the written consent of Parent. (b) Parent and Merger Sub hereby covenant and agree that (i) without the prior written consent of FPSH, neither Parent nor Merger Sub shall waive any obligation, covenant or condition under the Merger Agreement or the Contribution Agreement, (ii) Parent and Merger Sub shall provide to FPSH any notice under the Merger Agreement and the Contribution Agreement received from any other party thereto within one day of receipt of such notice by Parent or Merger Sub and neither Parent nor Merger Sub shall deliver any notice under the Merger Agreement or the Contribution Agreement to any other party thereto without the prior written consent of FPSH, and (iii) upon the request and at the direction of FPSH, Parent and Merger Sub -16- shall exercise or enforce any rights under the Merger Agreement or the Contribution Agreement specified by FPSH; provided, however, that the foregoing shall not grant to FPSH the right to amend or waive any obligation, covenant or condition under the Merger Agreement or the Contribution Agreement without the written consent of Parent. (c) Parent hereby acknowledges and agrees that (i) FPSH (through Parent) shall have the right to exercise any right (or enforce any obligation, covenant or condition) under the Financing Commitment Papers exercisable or enforceable by Parent (to the extent that Parent shall not have exercised or enforced such right), and (ii) anything under the Financing Commitment Papers that must be approved by or acceptable to Parent must also be approved or accepted by FPSH. Parent hereby covenants that (x) without the prior written consent of FPSH, it shall not amend, modify or waive any obligation, covenant or condition under any of the Financing Commitment Papers, (y) it shall provide to FPSH any notice under the Financing Commitment Papers received from any other party thereto within one day of receipt of such notice by Parent and Parent shall not deliver any notice under any of the Financing Commitment Papers to any other party thereto without the prior written consent of FPSH, and (z) upon the request and at the direction of FPSH, Parent shall exercise or enforce any rights under the Financing Commitment Papers specified by FPSH; provided, however, that the foregoing shall not grant to FPSH the right to amend or waive any obligation, covenant or condition under the Financing Commitment Papers without the written consent of Parent. Section 6.2. Pre-Closing Conduct. Parent, Merger Sub, FPSH and the ARG Trust hereby covenant and agree that neither FPSH, nor the ARG Trust, nor Parent, nor Merger Sub shall take any action that would make any of the representations or warranties of Parent, Merger Sub, the ARG Trust or FPSH contained in this Agreement or the Related Agreements untrue or incorrect as of the date hereof or the Closing Date or would result in any of the conditions set forth in Article VII not being satisfied. Section 6.3. Notification of Certain Matters. The parties hereto shall give prompt notice to one another of (a) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which would be likely to cause (i) any representation or warranty contained in this Agreement or the Related Agreements to be untrue or inaccurate, or (ii) any covenant, condition or agreement contained in this Agreement or the Related Agreements not to be complied with or satisfied, and (b) any failure of any party hereto or to any Related Agreement to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under this Agreement or the Related Agreements; provided, however, that the delivery of any notice pursuant to this Section 6.3 shall not affect the representations, warranties or covenants of the parties hereto or limit or otherwise affect the remedies available to any party hereunder. Section 6.4. Additional Agreements, Reasonable Best Efforts. (a) Prior to the Closing Date, upon the terms and subject to the conditions of this Agreement, each of FPSH, the ARG Trust, Parent and Merger Sub agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable laws, rules or regulations to consummate and make effective as promptly as practicable the Stock Purchase and the Related Transactions and the other transactions contemplated by this Agreement and the Related Agreements, including -17- (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Stock Purchase and the Related Transactions and the other transactions contemplated hereby and thereby and the taking of such actions as are necessary to obtain any requisite approvals, consents, orders, exemptions or waivers by any third party, including any Governmental Entity, (ii) to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act (and to make such other filings as are required under laws, rules and regulations in foreign jurisdictions governing antitrust or merger control matters) with respect to the transactions contemplated hereby as promptly as practicable after the date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act (or pursuant to such foreign laws, rules or regulations), (iii) the preparation of any Financing Documents (as defined in the Merger Agreement) reasonably requested by FPSH or Parent, and (iv) the satisfaction of the conditions to the consummation of the Stock Purchase and the Related Transactions. In addition, no party hereto shall take any action after the date hereof that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any permission, approval or consent from any Governmental Entity necessary to be obtained prior to the consummation of the Stock Purchase and the Related Transactions. (b) Each of the parties hereto agrees to use its reasonable efforts to assist the other parties hereto in connection with structuring or obtaining any financing for Parent and/or the Company and its Subsidiaries in connection with consummation of the Merger, and each of the parties shall use its reasonable efforts to obtain such financing for Parent and/or the Company and its Subsidiaries. (c) Prior to the Effective Time, each party shall promptly consult with the other parties hereto with respect to, provide any necessary information with respect to and provide the other (or its counsel) copies of, all filings made by such party with any Governmental Entity or any other information supplied by such party to a Governmental Entity in connection with this Agreement, the Related Agreements and the transactions contemplated hereby and thereby. Each party hereto shall promptly inform the other of any communication from any Governmental Entity regarding the Stock Purchase or any of the Related Transactions. If any party hereto or Affiliate thereof receives a request for additional information or documentary material from any such Governmental Entity with respect to the Stock Purchase or the Related Transactions, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. Section 6.5. Further Assurances. (a) Parent, Merger Sub and the ARG Trust shall use their reasonable best efforts to implement the provisions of this Agreement, and, for such purpose, at the request of FPSH, will, at or after the Closing, promptly execute and deliver, or cause to be so executed and delivered, such documents to FPSH or the Company and take such further action as FPSH may deem reasonably necessary or desirable to facilitate or better evidence the consummation of the transactions contemplated hereby. -18- (b) FPSH shall use its reasonable best efforts to implement the provisions of this Agreement, and, for such purpose, at the request of Parent or Merger Sub, will, at or after the Closing, promptly execute and deliver, or cause to be so executed and delivered, such documents to Parent or Merger Sub, and take such further action as Parent or Merger Sub may deem reasonably necessary or desirable to facilitate or better evidence the consummation of the transactions contemplated hereby. (c) Parent shall cause the Company to become a party to this Agreement immediately following consummation of the Merger. Section 6.6. Public Announcements. The parties will consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement, the Related Agreements, the Merger, the Related Transactions or the other transactions contemplated hereby or thereby, and shall not issue any such press release or make any such public statement without the prior consent of the other parties hereto (which consent shall not be unreasonably withheld or delayed), except as may be required by applicable law or by obligations pursuant to any listing agreement with any national securities exchange or national market system to which any party or its Affiliates is a party. The parties hereto have agreed on the text of the joint press release by which announcement of the execution of this Agreement will be made. Section 6.7. Capitalization. (a) Parent shall not permit Merger Sub or commit the Surviving Corporation (as defined in the Merger Agreement) to, and Merger Sub shall not, incur, or become responsible for, any Indebtedness (as defined in the Merger Agreement) or other liabilities, other than as reasonably required to fulfill their respective obligations under this Agreement, the Related Agreements or the Financing Commitment Papers. (b) At least five days prior to the Effective Time, (i) Parent shall cause Merger Sub to amend its certificate of incorporation to authorize 100,000,000 shares of MS Common Stock, and (ii) Parent shall cause Merger Sub to issue to Parent an additional 84,376,861 shares of MS Common Stock so that immediately prior to the Effective Time, Parent shall own all of the outstanding 84,377,861 shares of MS Common Stock. ARTICLE VII CONDITIONS TO CONSUMMATION OF THE STOCK PURCHASE Section 7.1. Conditions to Performance by Parent and Merger Sub. The obligation of Parent and Merger Sub 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 FPSH herein, disregarding all qualifications and exceptions contained herein relating to materiality or FPSH Material Adverse Effect or words of similar import, shall be true and correct on the date hereof and on the Closing Date as if made on and as of such dates (except -19- for representations and warranties that are made as of a specified date, which shall be true and correct only as of such specified date) with only such exceptions as would not reasonably be expected to have, individually or in the aggregate, an FPSH Material Adverse Effect. (b) Compliance with Covenants. FPSH shall have performed in all material respects (or with respect to any obligation or agreement qualified by materiality or FPSH Material Adverse Effect, in all respects) all obligations and agreements, and complied in all material respects (or with respect to any covenant qualified by materiality or FPSH Material Adverse Effect, in all respects) with all covenants, contained in this Agreement to be performed or complied with by FPSH prior to or on the Closing Date. (c) Officer's Certificates. Parent shall have received a certificate of FPSH, dated as of the Closing Date, signed by an executive officer of FPSH to evidence satisfaction of the conditions set forth in Sections 7.1(a) and (b). (d) Co-Investment Rights Agreements. The Company and Desarrollo Consolidado de Negocios, S.A. de C.V. shall have executed and delivered the 15% Co-Investment Rights Agreement and the SPC Hurdle Co-Investment Rights Agreement in form and substance substantially identical to the forms attached hereto as Exhibits B-1 and B-2 and the Company and FPSH shall have executed and delivered the FPSH Hurdle Co-Investment Rights Agreement in form and substance identical to the form attached hereto as Exhibit B-3, with the number of Co-Investment Rights granted pursuant to the SPC Hurdle Co-Investment Rights Agreement, on the one hand, and FPSH Hurdle Co-Investment Rights Agreement, on the other hand, determined in accordance with the letter, of even date herewith, from FPSH to Desarrollo Consolidado de Negocios, S.A. de C.V. (e) [Reserved] (f) Conditions to the Merger. The conditions to the Merger set forth in Sections 7.1(b) and 7.2 (other than Sections 7.2(c) and 7.2(d)) of the Merger Agreement shall have been satisfied or waived, and the Effective Time shall have occurred. (g) Closings of the Merger and the Debt Financing. The closing of the Merger and the Debt Financing (as defined in the Merger Agreement) shall occur substantially concurrently with the Closing. (h) 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 Related Transactions. Section 7.2. Conditions to Performance by FPSH. The obligation of FPSH 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. -20- (i) The representations and warranties made herein by Parent, Merger Sub and the ARG Trust, disregarding all qualifications and exceptions contained herein relating to materiality, Parent Material Adverse Effect, ARG Trust Material Adverse Effect and Company Material Adverse Effect or words of similar import, shall be true and correct on the date hereof and on the Closing Date as if made on and as of such dates (except for representations and warranties that are made as of a specified date, which shall be true and correct only as of such specified date) with only such exceptions as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, an ARG Trust Material Adverse Effect, a Company Material Adverse Effect or a Buyer Material Adverse Effect. (ii) The representations and warranties made in the Contribution Agreement by Parent, the Contributors (as defined in the Contribution Agreement), Mr. Romo (as defined in the Contribution Agreement), the ARG Trust and Mexican SPC (as defined in the Contribution Agreement), disregarding all qualifications and exceptions contained therein relating to materiality, Parent Material Adverse Effect, Contributor Material Adverse Effect (as defined in the Contribution Agreement) and Company Material Adverse Effect or words of similar import, shall be true and correct on the date hereof and on the Closing Date as if made on and as of such dates (except for representations and warranties that are made as of a specified date, which shall be true and correct only as of such specified date) with only such exceptions as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, a Contributor Material Adverse Effect (as defined in the Contribution Agreement), a Company Material Adverse Effect or a Buyer Material Adverse Effect. (b) Compliance with Covenants. (i) Parent, Merger Sub and the ARG Trust shall have performed in all material respects (or with respect to any obligation or agreement qualified by materiality, Company Material Adverse Effect, Parent Material Adverse Effect or ARG Trust Material Adverse Effect, in all respects) all obligations and agreements, and complied in all material respects (or with respect to any covenant qualified by materiality, Company Material Adverse Effect, Parent Material Adverse Effect or ARG Trust Material Adverse Effect, in all respects) with all covenants contained in this Agreement to be performed or complied with by them prior to or on the Closing Date. (ii) Parent, each of the Contributors (as defined in the Contribution Agreement), Mr. Romo (as defined in the Contribution Agreement), the ARG Trust and Mexican SPC (as defined in the Contribution Agreement) shall have performed in all material respects (or with respect to any obligation or agreement qualified by materiality, Parent Material Adverse Effect, Company Material Adverse Effect or Contributor Material Adverse Effect (as defined in the Contribution Agreement), in all respects) all obligations and agreements, and complied in all material respects (or with respect to any covenant qualified by materiality, Parent Material Adverse Effect, Company Material Adverse Effect or Contributor Material Adverse Effect (as defined in the Contribution Agreement), in all respects) with all covenants contained in the Contribution Agreement to be performed or complied with by them prior to or on the Closing Date. -21- (c) Officer's Certificates. (i) FPSH shall have received (A) a certificate of Parent, dated as of the Closing Date, signed by an executive officer of Parent, to evidence satisfaction of the conditions set forth in Sections 7.2(a) and (b), and (B) a certificate of the ARG Trust, dated as of the Closing Date, signed by the settlor of the ARG Trust, to evidence satisfaction of the conditions set forth in Sections 7.2(a) and (b). (ii) FPSH shall have received a certificate of each of the Contributors (as defined in the Contribution Agreement), Mr. Romo (as defined in the Contribution Agreement) and Mexican SPC (as defined in the Contribution Agreement), dated as of the Closing Date, signed by an executive officer of each of the Contributors (as defined in the Contribution Agreement) (other than any Management Contributor) (as defined in the Contribution Agreement), each of whom shall sign in his individual capacity), an executive officer of Mexican SPC (as defined in the Contribution Agreement) and Mr. Romo (as defined in the Contribution Agreement) to evidence satisfaction of the conditions set forth in Sections 7.2(a)(ii) and (b)(ii). (d) No Litigation. After the date hereof, there shall not be (i) any new suit, action or proceeding by any Governmental Entity or any other Person or (ii) any development in any existing suit, action or proceeding by any Governmental Entity or any other Person that, in any such case, is more likely than not, individually or in the aggregate, to have a Company Material Adverse Effect or a Buyer Material Adverse Effect (for purposes of this Section 7.2(d) only, excluding the reference to the phrase "or is reasonably expected to be" from the definitions of Company Material Adverse Effect and Buyer Material Adverse Effect). (e) Co-Investment Rights Agreements. The Company and Desarrollo Consolidado de Negocios, S.A. de C.V. shall have executed and delivered the 15% Co-Investment Rights Agreement and the SPC Hurdle Co-Investment Rights Agreement in form and substance substantially identical to the forms attached hereto as Exhibits B-1 and B-2 and the Company and FPSH shall have executed and delivered the FPSH Hurdle Co-Investment Rights Agreement in from and substance identical to the form attached hereto as Exhibit B-3, with the number of Co-Investment Rights granted pursuant to the SPC Hurdle Co-Investment Rights Agreement, on the one hand, and FPSH Hurdle Co-Investment Rights Agreement, on the other hand, determined in accordance with the letter, of even date herewith, from FPSH to Desarrollo Consolidado de Negocios, S.A. de C.V. (f) [Reserved]. (g) Foreign Investment in Real Property Tax Act. FPSH shall have received an affidavit of Parent in form substantially identical to the form attached as Exhibit C hereto duly executed and acknowledged, certifying facts that would exempt the FPSH Stock Purchase from the provisions of the Foreign Investment in Real Property Tax Act. FPSH shall have received a duly executed and acknowledged affidavit of the Company, in form and in substance reasonably satisfactory to FPSH and in accordance with Treasury Regulation Sections 1.1445-2(c)(3), 1.897-2(g) and 1.897-2(h), certifying that each "interest" in the Company (within the meaning of -22- Section 897(c)(1) of the Code) is not a "United States real property interest" within the meaning of Section 897(c) of the Code. (h) Contribution Agreement. There shall not have occurred any breach of any of the representations, warranties or covenants under the Contribution Agreement, that, individually or in the aggregate, would have a Company Material Adverse Effect. As of the Closing Date, each of the Pre-Closing Restructuring Steps (as defined in the Contribution Agreement) shall have been completed and each of the Post-Closing Restructuring Steps (as defined in the Contribution Agreement) shall occur substantially concurrently with the Closing. The transactions contemplated by the Contribution Agreement shall have been consummated. (i) Conditions to the Merger. The conditions to the Merger set forth in Sections 7.1(b) and 7.2 (other than Section 7.2(d)) of the Merger Agreement shall have been satisfied or waived, and the Effective Time shall have occurred. (j) Closings of the Merger and the Debt Financing. The closing of the Merger and the Debt Financing (as defined in the Merger Agreement) shall occur substantially concurrently with the Closing. (k) Capitalization. The equity capitalization of the Company immediately following the Closing, giving effect to the transactions contemplated by this Agreement and the Related Agreements, shall be as set forth in Section 7.2(k) of the Parent Disclosure Schedule. (l) 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 Related Transactions. ARTICLE VIII TERMINATION; AMENDMENT; WAIVER Section 8.1. Termination. This Agreement may be terminated and the Stock Purchase may be abandoned at any time prior to the Closing: (a) by mutual written consent of Parent and FPSH, duly authorized by the boards of directors (or similar governing bodies) of Parent and FPSH; (b) by Parent or FPSH, if (i) 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 parties hereto shall use their reasonable best efforts to reverse, overturn or lift) or taken any other final action restraining, enjoining or otherwise prohibiting the Stock Purchase or the Related Transactions and such order, decree, ruling or other action is or shall have become final and nonappealable, or (ii) the Merger Agreement shall have been terminated in accordance with its terms; -23- (c) by FPSH, if (i) there shall have been a material breach of any of the representations, warranties or covenants of Parent or Merger Sub under this Agreement, which breach (A) would give rise to the failure of a condition set forth in Section 7.2 and (B) is not capable of being cured prior to the Outside Date (as defined in the Merger Agreement) or, if curable, has not been cured within 20 business days following receipt by Parent of written notice from FPSH of such breach, or (ii) there shall have been a breach of any of the representations, warranties or covenants under the Contribution Agreement, which breach, individually or in the aggregate would reasonably be expected to have a Parent Material Adverse Effect, a Contributor Material Adverse Effect (as defined in the Contribution Agreement), a Company Material Adverse Effect or a Buyer Material Adverse Effect; provided that in the case of clause (ii), such breach is not capable of being cured prior to the Outside Date (as defined in the Merger Agreement) or, if curable, has not been cured within 20 business days following receipt by Parent of written notice from FPSH of such breach; or (d) by Parent, if there shall have been a material breach of any of the representations, warranties or covenants of FPSH which breach (A) would give rise to the failure of a condition set forth in Section 7.1 and (B) is not capable of being cured prior to the Outside Date (as defined in the Merger Agreement) or, if curable, has not been cured within 20 business days following receipt by FPSH of written notice from Parent of such breach. Section 8.2. Effect of Termination. In the event of the termination and abandonment of this Agreement pursuant to Section 8.1, 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, other than the provisions of this Section 8.2, Section 8.3(a) and Article IX of this Agreement; provided, however, that nothing contained in this Section 8.2 shall relieve any party from liability for any willful and material breach of this Agreement. Section 8.3. Fees and Expenses. (a) Except as otherwise provided in the Merger Agreement, if the transactions contemplated by this Agreement are not consummated for any reason, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such expenses. (b) If the transactions contemplated by this Agreement are consummated, on the Closing Date, the parties hereto shall cause the Company to pay to FPSH by wire transfer of immediately available funds (to the account or accounts designated by FPSH in writing not less than one business day prior to the Closing) (i) a transaction fee equal to the amount paid to Savia in cash pursuant to Section 2.02 of the Exchange Agreement (as defined in the Merger Agreement), and (ii) all FPSH Expenses; provided, however, that the FPSH Expenses shall not exceed $7.5 million. (c) If the transactions contemplated by this Agreement are consummated, on the Closing Date, Parent shall cause the Company to pay the settlement amount to Grupo Financiero Atlantico ("GFA") in accordance with the Settlement Agreement by and among Savia, the Company, Desarrollo Inmobiliario Omega, S.A. de C.V., Bionova Holding Corp., Pulsar Inter- -24- nacional, S.A. de C.V., Alfonso Romo Garza, Servasa, S.A. de C.V., the ARG Trust, Fox Paine & Company, LLC and GFA, dated as of April 25, 2003. Section 8.4. Amendment. This Agreement may be amended at any time by an instrument in writing signed by FPSH and Parent; provided, however, that any amendment that would prevent or delay the Closing shall also require the written consent of the Special Committee (as defined in the Merger Agreement), such consent not to be unreasonably withheld or delayed. Section 8.5. Waiver. At any time prior to the Effective Time: (a) Parent may (i) extend the time for the performance of any of the obligations or other acts of FPSH, (ii) waive any inaccuracies in the representations and warranties of FPSH contained herein or in any document, certificate or writing delivered pursuant hereto, or (iii) waive compliance by FPSH with any of the agreements or conditions contained herein, and (b) FPSH may (i) extend the time for the performance of any of the obligations or other acts of Parent, Merger Sub or the ARG Trust, (ii) waive any inaccuracies in the representations and warranties of Parent, Merger Sub or the ARG Trust contained herein or in any document, certificate or writing delivered pursuant hereto, or (iii) waive compliance by Parent, Merger Sub or the ARG Trust with any of the agreements or conditions contained herein; provided, however, that in the case of clauses (a) and (b), any extension or waiver that would prevent or delay the Closing shall also require the written consent of the Special Committee (as defined in the Merger Agreement), such consent not to be unreasonably withheld or delayed. Any agreement on the part of any party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights. Section 8.6. Survival. The parties hereto hereby acknowledge that indemnification with respect to breaches of representations, warranties and covenants contained in this Agreement shall be made pursuant to the Indemnification Agreement and that the representations and warranties in this Agreement shall survive as provided in this Section 8.6 for such purpose. The representations and warranties in this Agreement shall survive until the two-year anniversary of the Closing, provided, however, that the representations and warranties contained in Section 3.6 of this Agreement shall survive indefinitely. Any covenants or agreements contained herein or made pursuant hereto that by their terms are to be performed prior to the Closing Date, shall not survive beyond the Closing Date. Any covenants or agreements contained herein or made pursuant hereto that by their terms are to be performed in whole or in part after the Closing Date, shall survive until fully discharged. Section 8.7. Sole Remedy. After the Closing, and conditioned thereupon, to the extent permitted by law, the indemnities set forth in the Indemnification Agreement shall be the exclusive remedies of the parties hereto and their respective officers, directors, employees, agents and Affiliates for any misrepresentation, breach of warranty or nonfulfillment or failure to be performed of any covenant or agreement contained in this Agreement, and the parties shall not be entitled to rescission of this Agreement or to any further indemnification rights or claims of any nature whatsoever in respect thereof, all of which the parties hereto hereby waive. -25- ARTICLE IX MISCELLANEOUS Section 9.1. Entire Agreement; Assignment. This Agreement and the Related Agreements (including the schedules and Exhibits hereto and thereto) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof. This Agreement shall not be assigned by operation of law or otherwise. Notwithstanding the foregoing, at Closing, FPSH may assign its rights and obligations under this Agreement to one or more of its Affiliates who would qualify as an "FPSH Affiliate Transferee" as defined in the Stockholders' Agreement, and with respect to Section 2.2 of this Agreement, to any entity co-investing with FPSH who would qualify as a "Co-Investor Transferee" under the Stockholders' Agreement; provided, however, that FPSH remains liable for its obligations hereunder until the Closing occurs at which time such assignees shall be liable. Section 9.2. 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 9.3. 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: (a) If to Parent, Merger Sub or the ARG Trust: c/o Savia, S.A. de C.V. Ave. Roble No. 565 Ote. - Piso 4 Colonia Valle Del Campestre Garza Garcia, N.L. 66265 Mexico Attention: Bernardo Jimenez Barrera Facsimile: 011-52-818-399-5606 With a copy, which will not constitute notice, to: Milbank, Tweed, Hadley & McCloy LLP One Chase Manhattan Plaza New York, New York 10005 -26- Attention: Howard S. Kelberg, Esq. Facsimile: 212-822-5530 With copies, which will not constitute notice, to: Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: Chairman of the Special Committee of the Board of Directors Facsimile: 805-918-2530 Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: General Counsel Facsimile: 805-918-2530 Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036 Attention: Peter A. Atkins, Esq. David J. Friedman, Esq. Facsimile: 212-735-2000 (b) If to FPSH: Fox Paine & Company, LLC 950 Tower Lane, Suite 1950 Foster City, California 94404 Attention: W. Dexter Paine, III Facsimile: 650-525-1396 With a copy, which will not constitute notice, to: Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Attention: Mitchell S. Presser, Esq. Facsimile: 212-403-2000 With copies, which will not constitute notice, to: Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: Chairman of the Special Committee -27- of the Board of Directors Facsimile: 805-918-2530 Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: General Counsel Facsimile: 805-918-2530 Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036 Attention: Peter A. Atkins, Esq. David J. Friedman, Esq. Facsimile: 212-735-2000 Section 9.4. 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) The ARG Trust irrevocably appoints CT Corporation Systems, which currently maintains an office at 2711 Centerville Road, Suite 400, Wilmington, Delaware, 19808, as its agent to receive service of process or other legal summons for purposes of any such action or proceeding. So long as the ARG Trust has any obligation under this Agreement, it will maintain a duly appointed agent in the State of Delaware for the service of such process or summons, and if it fails to maintain such an agent, any such process or summons may be served by mailing a copy thereof by registered mail, or a form of mail substantially equivalent thereto, addressed to it at its address as provided for notices hereunder. (d) 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 9.5. 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 -28- 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 9.6. Interpretation. When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or Schedule to 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 9.7. Parties in Interest. (a) Subject to Section 9.7(b), except as otherwise provided in Sections 2.2, 8.5 and 9.1 of this Agreement, this Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. (b) Notwithstanding anything to the contrary contained herein, (i) Savia shall be a third party beneficiary of this Agreement and shall have the right to enforce any right under this Agreement exercisable by Parent to the extent such right is not enforced by Parent, and (ii) any representations, warranties or covenants made by FPSH shall be deemed made to Savia. (c) The parties hereto acknowledge that the Company would not have entered into the Merger Agreement had the parties hereto not entered into this Agreement. Section 9.8. 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. -29- 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. FOX PAINE SEMINIS HOLDINGS, LLC By: Fox Paine & Company, LLC, as sole member By: /S/ Kevin Schwartz ------------------ Name: Kevin Schwartz Title: Vice President 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 DE ADMINISTRACION Y PAGO NUMERO 167-5) By: /S/ Adrian J. Lozano -------------------- Name: Adrian J. Lozano Title: Delegado Fiduciario By: /S/ Beatriz Garza L. -------------------- Name: Beatriz Garza L. Title: Delegado Fiduciario SEMINIS ACQUISITION LLC By: /S/ Bernardo Jimenez -------------------- Name: Bernardo Jimenez Title: SEMINIS MERGER CORP. By: /S/ Bernardo Jimenez -------------------- Name: Bernardo Jimenez Title: [SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT] EX-99.1 5 v90668exv99w1.txt EXHIBIT 99.1 EXECUTION COPY Exhibit 99.1 VOTING AGREEMENT Voting Agreement (this "Agreement"), dated as of May 30, 2003, among Savia, S.A. de C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States ("Savia"), 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 de Administracion y Pago Numero 167-5), a trust created under the laws of the United Mexican States ("ARG Trust"), Conjunto Administrativo Integral, S.A. de C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States ("CAI"), Emprima, S.A. de C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States ("Emprima"), Park Financial Group, Ltd (BVI) a British Virgin Islands Company ("Park"), Seminis Acquisition LLC, a Delaware limited liability company ("Parent"), Alfonso Romo Garza, an individual and a citizen of the United Mexican States ("Mr. Romo," and together with Savia, ARG Trust, CAI, Emprima, Park and Parent, the "Stockholders," each, a "Stockholder") and Fox Paine Seminis Holdings, LLC, a Delaware limited liability company ("FPSH"). WHEREAS, Parent, Seminis Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and Seminis, Inc., a Delaware corporation (the "Company") have entered into an Agreement and Plan of Merger (the "Merger Agreement") of even date herewith, pursuant to which Merger Sub will merge with and into the Company (the "Merger") on the terms and conditions set forth in the Merger Agreement; WHEREAS, immediately following the Merger, pursuant to the Stock Purchase Agreement, of even date herewith, among FPSH, Parent, Merger Sub and the ARG Trust (the "Stock Purchase Agreement"), FPSH will purchase outstanding shares of New Company Common Stock from Parent in accordance with the terms of the Stock Purchase Agreement; WHEREAS, in order to induce FPSH to enter into the Stock Purchase Agreement, FPSH has requested each Stockholder, and each Stockholder has agreed, to enter into this Agreement; and WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Merger Agreement. NOW, THEREFORE, the parties hereto agree as follows: 1. During the period (the "Agreement Period") beginning on the date hereof and ending on the earliest of (a) the Effective Time, (b) to the extent amounts are payable pursuant to Section 8.3(b) of the Merger Agreement, the date of payment in full of all amounts payable to FPSH by the Company pursuant to such section (unless FPSH shall fail to provide to the Company within two business days of termination of the Merger Agreement any required statements of expenses), and (c) the date of termination of the Merger Agreement for any other reason, each Stockholder hereby agrees to vote the shares of Company Common Stock set forth opposite its name on Schedule A hereto (with respect to such Stockholder, the "Schedule A Securities") (x) to approve and adopt the Merger Agreement and the Merger and any actions directly and reasonably related thereto at any meeting or meetings of the stockholders of the Company, and at any adjournments or postponements thereof, at or by which such Merger Agreement, or such other actions, are submitted for the consideration and vote of the stockholders of the Company so long as such meeting is held and completed prior to the termination of the Agreement Period, and (y) to help cause such meeting to be held. 2. During the Agreement Period, each Stockholder hereby agrees that it will not vote any of the Schedule A Securities in favor of the approval of any other merger, consolidation, sale of assets, reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company or any matters related to or in connection therewith, or any corporate action that upon consummation would either frustrate the purposes of, or prevent or delay the consummation of, the transactions contemplated by the Merger Agreement. 3. As security for each Stockholder's agreements provided for herein, each Stockholder hereby grants to FPSH a proxy to vote the Schedule A Securities with respect to the matters specified in, and in accordance with the provisions of, Paragraphs 1 and 2 of this Agreement. Each Stockholder agrees that this proxy shall be irrevocable during the Agreement Period and coupled with an interest and will take such further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy and hereby revokes any proxy previously granted by such Stockholder with respect to the Schedule A Securities. 4. Except as otherwise provided in this Paragraph 4, during the Agreement Period, each Stockholder agrees that it shall not, and shall not authorize or permit any of its Subsidiaries to, and shall use commercially reasonable efforts to cause its or its Subsidiaries' directors, officers, employees, investment bankers, consultants, attorneys, agents or representatives, directly or indirectly, not to (a) solicit, initiate or knowingly encourage or facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to a Company Competing Transaction or a Savia Competing Transaction, (b) negotiate, explore or otherwise engage in substantive discussions with any Person (other than FPSH, Parent, or their respective directors, officers, employees, agents and representatives) with respect to any Company Competing Transaction or Savia Competing Transaction or (c) enter into any agreement, arrangement or understanding with respect to a Company Competing Transaction or a Savia Competing Transaction. Each Stockholder shall, and shall, if applicable, cause its Subsidiaries, and shall use commercially reasonable efforts, as applicable, to cause such Stockholder's and its Subsidiaries' respective directors, officers, employees, investment bankers, consultants, attorneys, agents and representatives immediately to cease all existing activities, discussions and negotiations with any parties conducted prior to the date hereof with respect to any inquiries or proposals relating to a Company Competing Transaction or a Savia Competing Transaction. Anything herein to the contrary notwithstanding, this Agreement shall not limit actions taken, or require actions to be taken, by any Stockholder or any party related to any Stockholder one or more of whose affiliates, directors, partners, officers or employees is a director or officer of the Company, to the extent such actions are taken solely in such Person's capacity as a director or officer of the Company and such actions are otherwise permitted to be taken pursuant to the Merger Agreement. From and after the execution of this Agreement, each Stockholder shall promptly advise FPSH orally and in writing of any request for information or of any proposal in -2- connection with a Savia Competing Transaction or a Company Competing Transaction, the material terms and conditions of such request or proposal and the identity of the Person making such request or proposal. Each Stockholder shall keep FPSH reasonably apprised of the status (including amendments and proposed amendments) of any proposal relating to a Company Competing Transaction or a Savia Competing Transaction on a current basis, including promptly providing to FPSH copies of any written communications between such Stockholder and any Person relating to a Company Competing Transaction or a Savia Competing Transaction. The obligations pursuant to the preceding two sentences with respect to information provided to the Company or learned as a director or officer of the Company shall be governed by the Merger Agreement. For purposes of this Agreement, "Savia Competing Transaction" shall mean any recapitalization, merger, consolidation or other business combination involving Savia, or direct or indirect acquisition of 15% or more of the voting stock or equity securities of Savia or any material portion of the assets (except for acquisitions of assets in the ordinary course of business consistent with past practice, the Restructuring Steps (as defined in the Contribution Agreement) or as otherwise permitted by the Merger Agreement) of Savia and its Subsidiaries, or any combination of the foregoing. 5. Each Stockholder agrees to comply with the terms and conditions of the Contribution Agreement. 6. Each Stockholder agrees not to exercise any rights (including, without limitation, under Section 262 of the Delaware General Corporation Law) to demand appraisal of any shares of Company Common Stock owned by such Stockholder with respect to the Merger. 7. Each Stockholder hereby represents and warrants to FPSH that as of the date hereof: (a) Such Stockholder (i) (A) owns beneficially and of record all of the Schedule A Securities, free and clear of any claims, liens, encumbrances and security interests and (B) does not own beneficially or of record any other shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, other than the Schedule A Securities, (ii) has the full and unrestricted legal power, authority and right to enter into, execute, deliver and perform its obligations under this Agreement without the consent or approval of any other Person, (iii) has (on the date hereof), and will have (as of the date of the Stockholders Meeting), sole voting power with respect to the Schedule A Securities, and (iv) is not party to any voting agreement, and has not granted any Person any proxy (revocable or irrevocable), with respect to such shares (other than pursuant to this Agreement); (b) assuming the due authorization, execution and delivery of this Agreement by FPSH, this Agreement is the valid and binding agreement of such Stockholder; and (c) other than as disclosed pursuant to the Merger Agreement, no investment banker, broker or finder is entitled to a commission or fee from the Company, such Stockholder or their respective Affiliates in respect of this Agreement based upon any arrangement or agreement made by or on behalf of such Stockholder. -3- 8. Each Stockholder agrees that it will not (a) sell, transfer, pledge, assign, encumber or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, assignment, encumbrance or other disposition of, or limitation on the voting rights of, any of the Schedule A Securities (whether to an Affiliate or otherwise) until the expiration of the Agreement Period, (b) grant any proxies or powers of attorney, deposit any Schedule A Securities into a voting trust or enter into a voting agreement with respect to any Schedule A Securities, (c) take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing or delaying such Stockholder from performing its obligations under this Agreement or (d) commit or agree to take any of the foregoing actions, other than (i) pursuant to this Agreement, the Merger Agreement, the Stock Purchase Agreement, the Exchange Agreement or the Contribution Agreement, or (ii) transfers to Parent prior to or concurrent with the consummation of such transfer that includes such shares as Schedule A Securities thereunder. Any transfer of Schedule A Securities not permitted hereby shall be null and void. 9. Each Stockholder hereby agrees, while this Agreement is in effect, to promptly notify FPSH of the number of new shares of Company Common Stock, if any, acquired by such Stockholder after the date hereof. Any such shares shall be subject to the terms of this Agreement and shall be included as Schedule A Securities hereunder. 10. (a) In the event that: (i) (A)(u) Parent or the Company shall have terminated the Merger Agreement pursuant to Section 8.1(b)(ii) of the Merger Agreement and the failure of Parent or the Company to fulfill any obligation under the Merger Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or prior to the Outside Date, (v) Parent shall have terminated the Merger Agreement pursuant to Section 8.1(c)(i) of the Merger Agreement, (w) the Company shall have terminated the Merger Agreement pursuant to Section 8.1(d) of the Merger Agreement, (x) the Company or Parent shall have terminated the Merger Agreement pursuant to Section 8.1(f) of the Merger Agreement (other than in the circumstances described in Paragraph 10(a)(iii) of this Agreement), (y) FPSH shall have terminated the Stock Purchase Agreement pursuant to Section 8.1(c) of the Stock Purchase Agreement or (z) any party shall have terminated the Merger Agreement, the Stock Purchase Agreement or the Contribution Agreement due to the non-occurrence of any Restructuring Step (as defined in the Contribution Agreement), which non-occurrence is the result, directly or indirectly, of a breach by any Romo Entity (as defined in the Contribution Agreement) or the failure of any Romo Entity (as defined in the Contribution Agreement) to have used its reasonable best efforts to cause the Restructuring Steps to have occurred, (B) on or prior to such time any entity or group (other than FPSH and its Affiliates (together with Parent and its Affiliates)) shall have made and not withdrawn a proposal that is or becomes publicly disclosed for (or publicly disclosed its intention to make a proposal for) a Company Competing Transaction or a Savia Competing Transaction, and (C) within 12 months of termination of the Merger Agreement or the Stock Purchase Agreement, Savia consummates a Savia Competing Transaction or enters into a Savia Competing Transaction that is thereafter consummated at any time (including after the 12-month period described in the beginning of this clause (C)) or the Company consummates a Company Competing Transaction or enters into a Company Competing Transaction that is thereafter consummated at any time (including after the 12-month period described in the beginning of this clause (C)); -4- (ii) (A)Parent shall have terminated the Merger Agreement pursuant to Section 8.1(c)(ii), (iii) or (iv) of the Merger Agreement, and (B) within 12 months of termination of the Merger Agreement, Savia consummates a Savia Competing Transaction or enters into a Savia Competing Transaction that is thereafter consummated at any time (including after the 12-month period described in the beginning of this clause (B)); or (iii) either Parent or the Company shall have terminated the Merger Agreement pursuant to Section 8.1(f) of the Merger Agreement in a circumstance in which Savia shall have failed to vote the Schedule A Securities in accordance with Paragraph 1 of this Agreement, then, Savia shall pay or cause to be paid to FPSH a termination fee in cash, of $15 million (the "Savia Termination Fee") (less the aggregate amount paid pursuant to Section 8.3(a) and Section 8.3(b) of the Merger Agreement and Section 10(b) of this Agreement). Any Savia Termination Fee that becomes payable shall be paid (m) in the case of clause (i) or clause (ii) above, not later than the date on which a Company Competing Transaction or Savia Competing Transaction is consummated, and (n) in the case of clause (iii) above, upon such termination pursuant to Section 8.1(f) of the Merger Agreement. If the Company pays (and FPSH receives from the Company) any amounts pursuant to Section 8.3(a) or Section 8.3(b) of the Merger Agreement after Savia has paid or caused to be paid the Savia Termination Fee, FPSH shall immediately pay to Savia such amounts received from the Company pursuant to Section 8.3(a) or Section 8.3(b) of the Merger Agreement, it being understood that in no event shall FPSH be required to pay any amounts to Savia if such payment would result in FPSH receiving an aggregate amount less than the Savia Termination Fee. (b) (i) Upon the termination of the Merger Agreement (A) by Parent or the Company pursuant to Section 8.1(b)(ii) of the Merger Agreement where the failure of Parent to fulfill any obligation under the Merger Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Outside Date, or (B) by the Company pursuant to Section 8.1(d) of the Merger Agreement; (ii) Upon the termination of the Stock Purchase Agreement by FPSH pursuant to Section 8.1(c) of the Stock Purchase Agreement; (iii) Upon the termination of the Merger Agreement, the Stock Purchase Agreement or the Contribution Agreement by any party due to the non-occurrence of any Restructuring Step (as defined in the Contribution Agreement), which non-occurrence is the result, directly or indirectly, of a breach by any Romo Entity (as defined in the Contribution Agreement) or the failure of any Romo Entity (as defined in the Contribution Agreement) to have used its reasonable best efforts to cause the Restructuring Steps to have occurred; or (iv) (A) Upon the termination of the Merger Agreement, the Stock Purchase Agreement or the Contribution Agreement by any party due to the non-occurrence of any Restructuring Step (as defined in the Contribution Agreement) which non-occurrence is not the result, directly or indirectly, of a breach by any Romo Entity (as defined in the Contribution Agreement) or the failure of any Romo Entity (as defined in the Contribution Agreement) to have used its reasonable best efforts to cause the Restructuring Steps to have occurred, (B) on or -5- prior to such time any entity or group (other than FPSH and its Affiliates (together with Parent and its Affiliates)) shall have made and not withdrawn a proposal that is or becomes publicly disclosed for (or publicly disclosed its intention to make a proposal for) a Company Competing Transaction or a Savia Competing Transaction, and (C) within 12 months of termination of the Stock Purchase Agreement, Savia consummates a Savia Competing Transaction or enters into a Savia Competing Transaction that is thereafter consummated at any time (including after the 12-month period described in the beginning of this clause (C)) or the Company consummates a Company Competing Transaction or enters into a Company Competing Transaction that is thereafter consummated at any time (including after the 12-month period described in the beginning of this clause (C)), Savia shall pay or cause to be paid to FPSH the FPSH Expenses in cash up to, but not exceeding $4.5 million (less any amount paid pursuant to Section 8.3(b) of the Merger Agreement). Any FPSH Expenses that become payable shall be paid (m) in the case of clause (i), clause (ii) or clause (iii) above, in cash not later than two business days after submission of statements therefor, less any such expenses previously reimbursed by the Company, and (n) in the case of clause (iv) above not later than the date on which a Company Competing Transaction or Savia Competing Transaction is consummated. If the Company pays (and FPSH receives from the Company) any amounts pursuant to Section 8.3(a) or 8.3(b) of the Merger Agreement after Savia has paid or caused to be paid the FPSH Expenses, FPSH shall immediately pay to Savia such amounts received from the Company pursuant to Section 8.3(a) or 8.3(b) of the Merger Agreement, it being understood that in no event shall FPSH be required to pay any amounts to Savia if such payment would result in FPSH receiving an aggregate amount less than the FPSH Expenses (subject to the $4.5 million cap). 11. If any provision of this Agreement shall be invalid or unenforceable under applicable law, such provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining provisions of this Agreement. 12. This Agreement may be executed in two or more counterparts each of which shall be an original with the same effect as if the signatures hereto and thereto were upon the same instrument. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by all parties hereto. Except for provisions of this Agreement that by their terms survive the termination hereof, the provisions of this Agreement shall terminate upon the expiration of the Agreement Period. Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that Section 10 of this Agreement shall survive until the obligations set forth therein have been fully discharged. 13. The parties hereto agree that if for any reason any party hereto shall have failed to perform its obligations under this Agreement, then the party seeking to enforce this Agreement against such non-performing party shall be entitled to specific performance and injunctive and other equitable relief, and the parties hereto further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief. This provision is without prejudice to any other rights or remedies, whether at law or in equity, that any party hereto may have against any other party hereto for any failure to perform its obligations under this Agreement. -6- 14. (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 laws 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. 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 Stockholder irrevocably appoints CT Corporation Systems, which currently maintains an office at 2711 Centerville Road, Suite 400, Wilmington, Delaware, 19808, as its agent to receive service of process or other legal summons for purposes of any such action or proceeding. So long as any Stockholder has any obligation under this Agreement, each such Stockholder will maintain a duly appointed agent in the State of Delaware for the service of such process or summons, and if it fails to maintain such an agent, any such process or summons may be served by mailing a copy thereof by registered mail, or a form of mail substantially equivalent thereto, addressed to it at its address as provided for notices hereunder. (d) 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. 15. Each Stockholder will, upon reasonable request, execute and deliver any additional documents deemed by FPSH to be reasonably necessary or desirable to complete and effectuate the covenants contained herein. 16. 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: If to a Stockholder: Savia, S.A. de C.V. Ave. Roble No. 565 Ote. - Piso 4 Colonia Valle Del Campestre Garza Garcia, N.L. 66265 Mexico -7- Attention: Bernardo Jimenez Barrera Facsimile: 011-52-818-399-5606 With a copy, which will not constitute notice, to: Milbank, Tweed, Hadley & McCloy LLP One Chase Manhattan Plaza New York, New York 10005 Attention: Howard S. Kelberg, Esq. Facsimile: 212-822-5530 If to FPSH: Fox Paine & Company, LLC 950 Tower Lane, Suite 1950 Foster City, California 94404 Attention: W. Dexter Paine, III Facsimile: 650-525-1396 With a copy, which will not constitute notice, to: Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Attention: Mitchell S. Presser, Esq. Facsimile: 212-403-2000 Copies of all notices given under this Agreement shall also be provided to: Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: Chairman of the Special Committee of the Board of Directors Facsimile: 805-918-2530 and Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: General Counsel Facsimile: 805-918-2530 -8- With a copy, which will not constitute notice, to: Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036 Attention: Peter A. Atkins, Esq. David J. Friedman, Esq. Facsimile: 212-735-2000 -9- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. FOX PAINE SEMINIS HOLDINGS, LLC By: Fox Paine & Company, LLC, as sole member By: /s/ Kevin M. Schwartz -------------------------- Name: Kevin M. Schwartz Title: Vice President SAVIA, S.A. DE C.V. By: /s/ Bernardo Jimenez -------------------------- Name: Bernardo Jimenez Title: Attorney SEMINIS ACQUISITION LLC By: /s/ Bernardo Jimenez -------------------------- Name: Bernardo Jimenez Title: -10- 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 DE ADMINISTRACION Y PAGO NUMERO 167-5) By: /s/ ADRIAN J. LOZANO -------------------------- Name: ADRIAN J. LOZANO Title: DELEGADO FIDUCIARIO By: /s/ BEATRIZ GARZA L. -------------------------- Name: BEATRIZ GARZA L. Title: DELEGADO FIDUCIARIO CONJUNTO ADMINISTRATIVO INTEGRAL, S.A. DE C.V. By: /s/ HERIBERTO S. MUZZA -------------------------- Name: HERIBERTO S. MUZZA Title: ATTORNEY IN FACT By: /s/ CARLOS G. MAHUAD -------------------------- Name: CARLOS G. MAHUAD Title: ATTORNEY IN FACT EMPRIMA, S.A. DE C.V. By: /s/ HERIBERTO S. MUZZA -------------------------- Name: HERIBERTO S. MUZZA Title: ATTORNEY IN FACT By: /s/ CARLOS G. MAHUAD -------------------------- Name: CARLOS G. MAHUAD Title: ATTORNEY IN FACT PARK FINANCIAL GROUP By: /s/ BERNARDO JIMENEZ -------------------------- Name: BERNARDO JIMENEZ Title: By: /s/ ALFONSO ROMO GARZA -------------------------- Name: ALFONSO ROMO GARZA -11- SCHEDULE A

Shares of Company Stockholder Common Stock ----------- ------------ Savia, S.A. de C.V ............................................ 40,615,619 Conjunto Administrativo Integral, S.A. de C.V ................. 42,000 Park Financial Group, Ltd (BVI) ............................... 1,000,000 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 de Administracion Y Pago Numero 167-5) ............................................ 4,365,257

EX-99.2 6 v90668exv99w2.txt EXHIBIT 99.2 EXECUTION COPY This AMENDED AND RESTATED EXCHANGE AGREEMENT (amending and restating in its entirety the Exchange Agreement, dated as of July 1, 2002 (the "Old Exchange Agreement")) dated as of May 30, 2003 (this "Agreement") is made and entered into by and between Seminis, Inc., a Delaware corporation ("Seminis"), and Savia, S.A. de C.V., a Mexican corporation ("Savia"). WHEREAS, Seminis and Savia have not completed the transactions contemplated under the Old Exchange Agreement, and Seminis and Savia have agreed to amend and restate the Old Exchange Agreement; WHEREAS, on July 2, 2002, Savia (a) owned 12,018 shares of Class C Redeemable PIK Preferred Stock, par value $.01 per share, of Seminis (the "Class C Preferred Stock") with a liquidation value of $120,181,364 and (b) had contributed to Seminis $46,695,372 of additional capital contributions, including accrued in kind obligations thereon ( the "APIC"); WHEREAS, by resolution of the Board of Directors of Seminis, on July 16, 2002, the APIC was determined to have the legal and economic rights equivalent in all respects to the Class C Preferred Stock; WHEREAS, in accordance with such resolution, on December 31, 2002, Seminis issued 4,669.5372 additional shares of Class C Preferred Stock (the "Additional Shares") to evidence the interests previously reflected as APIC; WHEREAS, the interest accrued on the APIC between January 1, 2001 until December 31, 2002 has been treated as a cash obligation of Seminis (the "Cash Obligation"); WHEREAS, Seminis has entered into an Agreement and Plan of Merger by and among Seminis, Seminis Acquisition LLC and Seminis Merger Corp. (the "Merger Agreement"), pursuant to which Seminis Merger Corp. will merge with and into Seminis (the "Merger") with Seminis as the surviving corporation in the Merger and in connection thereunder, Seminis desires to recapitalize (a) all of the issued and outstanding shares of Class C Preferred Stock, (b) the accrued and unpaid dividends on the Class C Preferred Stock through the date of the Exchange (as defined below), other than $15,000,000 of such accrued and unpaid dividends, to be paid by the Cash Payment (as defined below), (the "Dividends"), and (c) the Cash Obligation; WHEREAS, Savia has agreed, in connection with the Merger and related transactions, to exchange all of the issued and outstanding shares of Class C Preferred Stock, the Cash Obligation and the Dividends for 37,669,480 shares of Class A Common Stock, par value $.01 per share, of Seminis (the "Class A Common Stock") and a payment equal to (i) $15,000,000 plus (ii) Interest from July 1, 2002 until the date of payment minus (iii) $3,000,000 (the "Cash Payment"). NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I Exchange AND CLOSING 1.01 Exchange. Savia and Seminis hereby agree to exchange all of the right, title and interest of Savia in and to 16,688 shares of Class C Preferred Stock, the Cash Obligation and the Dividends, and any other rights or claims with respect to any of the foregoing through the effective time of the Merger, for 37,669,480 shares of Class A Common Stock (the "Seminis Shares") and the Cash Payment (the "Exchange"), on the terms and subject to the conditions set forth in Section 2.01. 1.02 Closing. The Closing will take place at the offices of Seminis, 2700 Camino del Sol, Oxnard, California 93030, or at such other place as Seminis and Savia mutually agree, immediately prior to the Merger. ARTICLE II EXCHANGE OF SHARES AND PAYMENTS 2.01 Exchange of Shares. (a) At the Closing, Seminis will deliver to Savia a certificate or certificates representing the Seminis Shares, registered in the name of Savia, and (b) At the Closing, Savia will assign and transfer to Seminis all of Savia's right, title and interest in and to 16,688 shares of Class C Preferred Stock, the Cash Obligation and the Dividends by delivering to Seminis (i) a certificate or certificates representing the 16,688 shares of Class C Preferred Stock, in genuine and unaltered form, duly endorsed in blank or accompanied by duly executed stock powers endorsed in blank, with requisite stock transfer tax stamps, if any, attached, and (ii) an acknowledgement that the Cash Obligation, the Dividends and any other rights or claims with respect to the Class C Preferred Stock, Cash Obligation or Dividends through the effective time of the Merger have been fully satisfied as part of the delivery of the Seminis Shares. 2.02 Payment of Cash Payment. At the Closing, Seminis will pay to Savia the Cash Payment. ARTICLE III REPRESENTATIONS AND WARRANTIES OF SAVIA Savia hereby represents and warrants to Seminis as follows: 3.01 Organization of Savia. Savia is a corporation duly organized, validly existing and in good standing under the laws of the United Mexican States. Savia has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby, including, without limitation, to own, hold, exchange and transfer the 16,688 shares of Class C Preferred Stock, the Cash Obligation and the Dividends. 3.02 Title to Class C Preferred Stock. Savia owns 16,688 shares of Class C Preferred Stock, beneficially and of record, free and clear of all liens, except for the lien under the Pledge and Security Agreement dated as of June 27, 2001 between Savia and JP Morgan Chase Bank (formerly known as The Chase Manhattan Bank), as collateral agent (the "Pledge Agreement"). At or prior to the Closing, Savia will provide to Seminis a copy of all documentation evidencing the release of the 16,688 shares of Class C Preferred Stock from the lien pursuant to the Pledge Agreement, and upon such release, Savia shall have the right to transfer the 16,688 shares of Class C Preferred Stock free and clear of all liens. The delivery of a certificate or certificates at the Closing representing the shares of Class C Preferred Stock in the manner provided in Section 2.01(b) will transfer to Seminis good and valid title to the shares of Class C Preferred Stock, free and clear of all liens. Upon the Closing, Seminis shall acquire all of Savia's right, title and interest in and to the Cash Obligation and Dividends free and clear of all liens. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SEMINIS Seminis hereby represents and warrants to Savia as follows: 4.01 Organization. Seminis is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Seminis has full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. 4.02 Class A Common Stock. Upon issuance and delivery of the Seminis Shares in accordance with this Agreement, the Seminis Shares will be duly authorized, validly issued, fully paid and nonassessable. ARTICLE V COVENANTS OF SAVIA Savia covenants and agrees with Seminis that, at all times from and after the date hereof until the Closing, Savia will not sell, dispose, or otherwise transfer, or incur any lien or other interest on, the 16,688 shares of Class C Preferred Stock, the Cash Obligation or the Dividends, other than pursuant to the Pledge Agreement. Savia will comply with all covenants and provisions of this Article V, except to the extent Seminis may otherwise consent in writing. ARTICLE VI CONDITIONS TO OBLIGATIONS OF SEMINIS AND SAVIA The obligations of Seminis hereunder to deliver the Seminis Shares and the Cash Payment and the obligations of Savia hereunder to exchange the 16,688 shares of Class C Preferred Stock, the Cash Obligation and the Dividends are subject to the consummation of the Merger. Such conditions may be waived in whole or in part by Seminis and Savia. ARTICLE VII TERMINATION 7.01 Termination. This Agreement may be terminated, and the transactions contemplated herein may be abandoned: (a) at any time before the Closing, by mutual written agreement of Savia, Seminis and Fox Paine Seminis Holdings, LLC ("FPSH"); (b) at any time, by either party upon termination of the Merger Agreement; or (c) by either party, if the Closing has not occurred on or before the six-month anniversary of the date hereof. 7.02 Effect of Termination. If this Agreement is validly terminated pursuant to Section 7.01, this Agreement will forthwith become null and void, and there will be no liability or obligation on the part of Savia or Seminis (or any of their respective officers, directors, employees, agents or other representatives or affiliates) pursuant hereto. ARTICLE VIII DEFINITIONS 8.01 Definitions. As used in this Agreement, the following defined terms have the meanings indicated below: "Closing" means the closing of the transactions contemplated by Article II. "Interest" means a rate of interest of 10% per year, compounded quarterly. ARTICLE IX MISCELLANEOUS 9.01 Notices. All notices and other communications in connection with this Agreement must be in writing and given by hand delivery, airmail (postage prepaid) or telex or facsimile transmission, in each case addressed as specified below or in any subsequent notice from the intended recipient to the party sending the notice. Such notices and communications will be effective upon delivery if delivered by hand, upon receipt if sent by mail, upon transmission with answerback confirmed if sent by telex or upon receipt if sent by facsimile transmission. If to Seminis, to: Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030 Facsimile No.: 805-918-2553 Attn: Enrique Osorio With copies to: Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036 Facsimile No.: 212-735-2000 Attn: Peter A. Atkins, Esq. David J. Friedman, Esq. If to Savia, to: Savia, S.A. de C.V. Rio Sena No. 500 Pte. Col. Del Valle Entre Humberto Lobo y Tamesis San Pedro Garza Garcia, Nuevo Leon 66220 Mexico Facsimile No.: 011 528181735508 Attn: Francisco Garza With copies to: Milbank, Tweed, Hadley & McCloy LLP 1 Chase Manhattan Plaza New York, New York 10005 Facsimile No.: 212-822-5530 Attn: Howard S. Kelberg, Esq. Fox Paine & Company, LLC 950 Tower Lane, Suite 1150 Foster City, California 94404 Facsimile No.: 650-525-1396 Attn: W. Dexter Paine, III Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Facsimile No. 212-403-2000 Attn: Mitchell S. Presser, Esq. All such notices, requests and other communications will (i) if delivered personally to the address as provided in this Section, be deemed given upon delivery, (ii) if delivered by facsimile transmission to the facsimile number as provided in this Section, be deemed given upon receipt, and (iii) if delivered by mail in the manner described above to the address as provided in this Section, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice, request or other communication is to be delivered pursuant to this Section). Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other party hereto. 9.02 Entire Agreement. This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof. 9.03 Expenses. Except as otherwise expressly provided in this Agreement (including, without limitation, as provided in Section 7.02), whether or not the transactions contemplated hereby are consummated, each party will pay its own costs and expenses. 9.04 Waiver. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by law or otherwise afforded, will be cumulative and not alternative. 9.05 Amendment. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each party hereto provided, however, that any amendment that would prevent, delay or alter the terms of the Merger, shall require the written consent of FPSH (such consent not to be unreasonably withheld or delayed). 9.06 Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof. 9.07 Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of any party hereto under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, and (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom. 9.08 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to a contract executed and performed in the State of Delaware, without giving effect to the conflicts of laws principles thereof. 9.09 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officer of each party hereto as of the date first written above. SAVIA, S.A. DE C.V. /S/ Bernardo Jimenez --------------------------------- Name: Bernardo Jimenez Title: SEMINIS, INC. /S/ Gaspar Alvarez --------------------------------- Name: Gaspar Alvarez Title: VPWW Corporate Comptroller /S/ Enrique Osorio --------------------------------- Name: Enrique Osorio Title: Treasurer Vice President EX-99.3 7 v90668exv99w3.txt EXHIBIT 99.3 EXECUTION COPY ================================================================================ CONTRIBUTION AGREEMENT dated as of May 30, 2003 by and 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 DE ADMINISTRACION Y PAGO NUMERO 167-5) 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 (BVI), ALFONSO ROMO GARZA, AND CERTAIN MEMBERS OF SEMINIS AND SAVIA MANAGEMENT ================================================================================ TABLE OF CONTENTS

Page ---- ARTICLE I CERTAIN DEFINITIONS...................................................................... 3 ARTICLE II THE CONTRIBUTION......................................................................... 8 Section 2.1. The Closing......................................................................... 8 Section 2.2. Contribution........................................................................ 8 Section 2.3. Delivery of Contribution Shares..................................................... 8 Section 2.4. Distribution of Parent Assets....................................................... 9 ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT................................................. 9 Section 3.1 Organization........................................................................ 9 Section 3.2. Authority........................................................................... 9 Section 3.3. Consents and Approvals; No Violations............................................... 10 Section 3.4. Membership Interests................................................................ 10 Section 3.5. Capitalization...................................................................... 10 Section 3.6. Brokers............................................................................. 11 Section 3.7. Acknowledgment...................................................................... 11 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS, MR. ROMO, EMPRIMA AND MEXICAN SPC...................................................................................... 11 Section 4.1. Representations and Warranties with Respect to the Contribution Shares.............. 11 Section 4.2. Representations and Warranties of Savia............................................. 14 Section 4.3. Representations and Warranties with Respect to the Restructurings................... 15 ARTICLE V COVENANTS................................................................................ 16 Section 5.1. Pre-Closing Conduct................................................................. 16 Section 5.2. Further Assurances.................................................................. 17 Section 5.3. Notification of Certain Matters..................................................... 17 Section 5.4. Public Announcements................................................................ 17 Section 5.5. Additional Agreements, Reasonable Best Efforts...................................... 18 ARTICLE VI CONDITIONS TO CONSUMMATION OF THE CONTRIBUTION........................................... 19 ARTICLE VII TERMINATION; AMENDMENT; WAIVER........................................................... 19 Section 7.1. Termination......................................................................... 19 Section 7.2. Effect of Termination............................................................... 19 Section 7.3. Fees and Expenses................................................................... 19 Section 7.4. Amendment........................................................................... 19 Section 7.5. Waiver.............................................................................. 20 Section 7.6. Survival............................................................................ 20 Section 7.7. Indemnification by Management Contributors.......................................... 20 Section 7.8. Sole Remedy......................................................................... 20

ARTICLE VIII MISCELLANEOUS............................................................................ 21 Section 8.1. Entire Agreement; Assignment........................................................ 21 Section 8.2. Severability........................................................................ 21 Section 8.3. Notices............................................................................. 21 Section 8.4. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial........................ 23 Section 8.5. Specific Performance................................................................ 24 Section 8.6. Interpretation...................................................................... 24 Section 8.7. Parties in Interest................................................................. 24 Section 8.8. Counterparts........................................................................ 25 Exhibit A Management Contributors Exhibit B Form of Stock Purchase Agreement for Additional Purchasers Exhibit C Amended and Restated Limited Liability Company Agreement of Seminis Acquisition LLC Exhibit D Legal Opinion of Milbank, Tweed, Hadley & McCloy LLP Exhibit E Legal Opinion of Mancera Ernst & Young CONTRIBUTION AGREEMENT THIS CONTRIBUTION AGREEMENT, dated as of May 30, 2003 (this "Agreement"), is made by and among SEMINIS ACQUISITION LLC, a Delaware limited liability company ("Parent"), SAVIA, S.A. DE C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States ("Savia"), 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 DE ADMINISTRACION Y PAGO NUMERO 167-5), a trust created under the laws of the United Mexican States ("ARG Trust"), CONJUNTO ADMINISTRATIVO INTEGRAL, S.A. DE C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States ("CAI"), 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 ("Mexican SPC"), EMPRIMA, S.A. DE C.V., a corporation (sociedad anonima de capital variable) organized under the laws of the United Mexican States ("Emprima"), PARK FINANCIAL GROUP, LTD (BVI) a British Virgin Islands Company ("Park"), ALFONSO ROMO GARZA, an individual and a citizen of the United Mexican States ("Mr. Romo") and CERTAIN MEMBERS OF SEMINIS, INC. AND SAVIA MANAGEMENT as listed on Exhibit A hereto ("Management Contributors," and together with Savia, the ARG Trust, CAI, and Park, the "Contributors"). WHEREAS, Parent, Seminis Merger Corp., a Delaware corporation ("Merger Sub"), and Seminis, Inc., a Delaware corporation (the "Company"), have entered into an Agreement and Plan of Merger (the "Merger Agreement") of even date herewith, pursuant to which Merger Sub will merge with and into the Company (the "Merger") on the terms and subject to the conditions set forth therein with the Company as the surviving corporation in the Merger; WHEREAS, (i) Savia owns, as of the date hereof, and will own, immediately prior to the Closing, (A) Class C Redeemable PIK Preferred Stock, par value, $.01 per share, exchangeable into 37,669,480 shares of Class A Common Stock, par value $.01 per share of the Company (the "Class A Common Stock") (the "Exchange" (as defined in the Merger Agreement) is contemplated to occur after the date hereof and prior to the Closing), and (B) 40,615,619 shares of Class B Common Stock, par value $.01 per share of the Company (the "Class B Common Stock," together with the Class A Common Stock, the "Old Company Common Stock") (the 37,669,480 shares of Class A Common Stock and the 40,615,619 shares of Class B Common Stock, taken together, the "Savia Old Company Shares"), (ii) the ARG Trust owns, as of the date hereof, and will own, as of the Closing Date, 2,157,361 shares of Class A Common Stock and 2,207,896 shares of Class B Common Stock (the "ARG Trust Old Company Shares"), (iii) CAI owns, as of the date hereof, and will own, as of the Closing Date, 42,000 shares of Class A Common Stock (the "CAI Old Company Shares"), (iv) Park owns, as of the date hereof, and will own, as of the Closing Date, 1,000,000 shares of Class A Common Stock (the "Park Old Company Shares"), and (v) each of the Management Contributors owns, as of the date hereof, and will own, as of the Closing Date, the shares of Old Company Common Stock set forth on Exhibit A (with respect to each such Management Contributor, the "Management Old Company Shares," together with the Savia Old Company Shares, the ARG Trust Old Company Shares, the CAI Old Company Shares and the Park Old Company Shares, the "Contribution Shares"); WHEREAS, on the terms and subject to the conditions contained herein, Parent desires to acquire and (i) Savia desires to contribute its right, title and interest in and to the Savia Old Company Shares, (ii) the ARG Trust desires to contribute its right, title and interest in and to the ARG Trust Old Company Shares that it will own as of the Closing Date, (iii) CAI desires to contribute its right, title and interest in and to the CAI Old Company Shares, (iv) Park desires to contribute its right, title and interest in and to the Park Old Company Shares, and (v) each of the Management Contributors desires to contribute his right, title and interest in and to his Management Old Company Shares in exchange for membership interests in Parent (collectively, the "Contribution"); WHEREAS, immediately prior to the time that the Merger becomes effective under the DGCL (the "Effective Time"), Parent will own the Contribution Shares; WHEREAS, as of the date hereof, Merger Sub has authority to issue (i) 1,000 shares of common stock, par value $.01 per share (the "MS Common Stock"), 1,000 of which shares of MS Common Stock are issued and outstanding, and (ii) 1,000 shares of preferred stock, par value $.01 per share (the "MS Preferred Stock"), none of which shares is issued or outstanding; WHEREAS, immediately prior to the Effective Time, Merger Sub shall have authority to issue (i) 100,000,000 shares of MS Common Stock, 84,377,861 of which shares shall be issued and outstanding, and (ii) 1,000 shares of MS Preferred Stock, none of which shares shall be issued or outstanding; WHEREAS, Parent owns all of the outstanding shares of MS Common Stock on the date hereof and will own all of the outstanding shares of MS Common Stock immediately prior to the Effective Time; WHEREAS, pursuant to the Merger, each share of Old Company Common Stock owned by Parent will be cancelled and each share of MS Common Stock will be converted into one share of common stock, par value $.01 per share of the surviving corporation in the Merger (the "New Company Common Stock"); WHEREAS, after the Merger, on the terms and subject to the conditions in the Stock Purchase Agreement, (i) FPSH will purchase the FPSH Sale Shares (as defined in the Stock Purchase Agreement), (ii) the Company will purchase 6,411,953 shares of New Company Common Stock owned by Parent and (iii) if the ARG Option (as defined in the Stock Purchase Agreement) is exercised, the ARG Trust will purchase 900,737 shares of New Company Common Stock owned by Parent (collectively, the "Stock Purchase"); WHEREAS, after the closing of the Stock Purchase and the Debt Financing (as defined in the Stock Purchase Agreement), Parent shall be liquidated pursuant to the terms of the LLC Agreement and in such liquidation, Parent will distribute (i) the Cash Distribution to Savia, (ii) if the ARG Option is exercised, the right to receive the ARG Purchase Price (as defined in the Stock Purchase Agreement) to Savia, (iii) such additional amount (the "Additional Purchase -2- Amount"), if any, to Savia, equal to (A) the aggregate number of shares of New Company Common Stock purchased by the Additional Purchasers, multiplied by (B) $3.40, (iv) 4,365,257 shares of New Company Common Stock to the ARG Trust, (v) 42,000 shares of New Company Common Stock to CAI, (vi) 1,000,000 shares of New Company Common Stock to Park, (vii) an aggregate of 685,505 shares of New Company Common Stock to the Management Contributors as set forth on Exhibit A hereto, and (viii) all remaining assets, including shares not purchased pursuant to the ARG Option, if any, to Savia; WHEREAS, Parent, Mr. Romo and the Contributors desire to make certain representations, warranties, covenants and agreements in connection with the transactions described herein; 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: "Additional Purchase Amount" shall have the meaning set forth in the recitals. "Additional Purchaser" shall mean any Person that agrees pursuant to the form of agreement attached hereto as Exhibit B, between the date hereof and the Closing Date, to purchase, and that purchases, on the Closing Date, shares of New Company Common Stock from Parent, provided, however, that the Additional Purchasers shall be comprised exclusively of bondholders of, and derivatives holders who are now creditors of, Pulsar Internacional, S.A. de C.V. with such bondholders entitled to purchase a maximum of 6,429,150 shares of New Company Common Stock from Parent and such derivatives holders entitled to purchase a maximum of 6,525,328 shares of New Company Common Stock from Parent. "Additional Sale Shares" means the aggregate number of shares of New Company Common Stock, if any, purchased by the Additional Purchasers, provided, however, that in no event shall the aggregate number of Additional Sale Shares exceed 12,954,478 shares of New Company Common Stock. "Affiliate" means any Person that directly, or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the applicable Person. "Agreement" shall have the meaning set forth in the preamble. "ARG Option" shall have the meaning set forth in the recitals. "ARG Purchase Price" shall have the meaning set forth in the recitals. -3- "ARG Trust" shall have the meaning set forth in the recitals. "ARG Trust Old Company Shares" shall have the meaning set forth in the recitals. "CAI" shall have the meaning set forth in the preamble. "CAI Old Company Shares" shall have the meaning set forth in the recitals. "Cash Distribution" shall mean an amount equal to (i) $263,106,832 MINUS (ii) the product of the aggregate number of Additional Sale Shares multiplied by $3.40. "Class A Common Stock" shall have the meaning set forth in the recitals. "Class B Common 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 recitals. "Company Material Adverse Effect" means any event, change, circumstance, effect or state of facts that is or is reasonably expected to be materially adverse to (a) the business, results of operations, condition (financial or otherwise), assets or liabilities of the Company and its Subsidiaries, taken as a whole, or (b) the ability of the Company to consummate any of the transactions contemplated by this Agreement and the Related Agreements (other than the Indemnification Agreement), except to the extent that such adverse effect results from (i) general economic conditions or changes therein, (ii) financial or securities market fluctuations or conditions, (iii) changes in, or events or conditions affecting, the industries or businesses in which the Company and its Subsidiaries operate, or (iv) the announcement of the transactions contemplated by the Merger Agreement or the Letter of Intent (as defined in the Merger Agreement). "Company Securities" shall have the meaning set forth in Section 3.5. "Contribution" shall have the meaning set forth in the recitals. "Contribution Shares" shall have the meaning set forth in the recitals. "Contributor Disclosure Schedule" means the schedule of disclosures delivered by the Contributors to Parent together with the execution of this Agreement. "Contributor Material Adverse Effect" shall have the meaning set forth in Section 4.1. "Contributors" shall have the meaning set forth in the preamble. "Debt Financing" shall have the meaning set forth in the Merger Agreement. -4- "DGCL" means the General Corporation Law of the State of Delaware. "Effective Time" shall have the meaning set forth in the recitals. "Emprima" shall have the meaning set forth in the preamble. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "FPSH" means Fox Paine Seminis Holdings, LLC. "FPSH Sale Shares" means (i) 70,972,409 shares of New Company Common Stock minus (ii) the Additional Sale Shares. "Governmental Entity" means any federal, state, local or foreign court or tribunal or administrative, governmental or regulatory body, agency or authority. "Indebtedness" of any Person means (a) all obligations of such Person for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices, and excluding ordinary operating leases), (b) any other obligations of such Person that are evidenced by a note, bond, debenture or similar instrument, (c) all obligations under conditional sale or other title retention agreements relating to property purchased, (d) capital lease or sale-leaseback obligations, (e) all liabilities secured by any Lien on any property (other than ordinary operating leases), and (f) any guarantee or assumption of any of the foregoing in clauses (a) through (e) above or guaranty of minimum equity or capital or any make-whole or similar obligation or any other guarantee of indebtedness of a third party. "Indemnification Agreement" shall mean the Indemnification Agreement, of even date herewith, by and among FPSH, the ARG Trust, Mexican SPC, Desarrollo Empresarial Regiomontano, S.A. de C.V., Emprima, Park, Savia, Mr. Romo and Parent. "Lien" means, with respect to any asset (including any security), any security interests, liens, claims, charges, title defects, deficiencies or exceptions, mortgages, pledges, easements, encroachments, restrictions on use, rights-of-way, 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 in respect of such asset. "LLC Agreement" shall have the meaning set forth in Section 2.3(b). "Management Contributors" shall have the meaning set forth in the preamble. "Management Old Company Shares" shall have the meaning set forth in the recitals. "Membership Interests" shall have the meaning set forth in Section 2.3(b). -5- "Merger" shall have the meaning set forth in the recitals. "Merger Agreement" shall have the meaning set forth in the recitals. "Merger Sub" shall have the meaning set forth in the recitals. "Mexican SPC" shall have the meaning set forth in the preamble. "Mr. Romo" shall have the meaning set forth in the preamble. "MS Common Stock" shall have the meaning set forth in the recitals. "MS Preferred Stock" shall have the meaning set forth in the recitals. "New Company Common Stock" shall have the meaning set forth in the recitals. "Old Company Common Stock" shall have the meaning set forth in the recitals. "Parent" shall have the meaning set forth in the preamble. "Parent Disclosure Schedule" means the schedule of disclosures delivered by Parent to the Contributors together with the execution of this Agreement. "Parent Material Adverse Effect" means any event, change, circumstance, effect or state of facts that is or is reasonably expected to be materially adverse to the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement or the Related Agreements. "Park" shall have the meaning set forth in the preamble. "Park Old Company Shares" shall have the meaning set forth in the recitals. "Person" means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or "group" (as defined in the Exchange Act). "Pre-Closing Restructuring Steps" shall mean the items specified under the heading "Pre-Closing Restructuring Steps" in Section 4.3(c) of the Contributor Disclosure Schedule. "Post-Closing Restructuring Steps" shall mean the items specified under the heading "Post-Closing Restructuring Steps" in Section 4.3(c) of the Contributor Disclosure Schedule. "Related Agreements" means the Merger Agreement, the Voting Agreement, the Stock Purchase Agreement and the Indemnification Agreement. "Related Transactions" shall mean the transactions contemplated by the Related Agreements. -6- "Restructuring Steps" shall mean the items set forth in Section 4.3(c) of the Contributor Disclosure Schedule. "Romo Entities" shall mean Mr. Romo, Alejandro Garza Laguerra, Savia, the ARG Trust, Pulsar Internacional, S.A. de C.V., CAI, Desarrollo Empresarial Regiomontano, S.A. de C.V., Mexican SPC, Emprima, Impulsora, S.A. de C.V., Park, Servasa, S.A. de C.V. and each of their respective Affiliates, not including the Company and its Subsidiaries. "Romo Entity Consents" shall have the meaning set forth in Section 4.3(c). "Romo Entity Matters" means (a) any Indebtedness of any Romo Entity or any liabilities related thereto, (b) any restructuring or settlement of any Indebtedness or equity or assets of any Romo Entity or any liabilities related thereto, (c) any sale, transfer, pledge, assignment, encumbrance or other disposition by any Romo Entity of any shares of Company Common Stock or New Company Common Stock or any equity securities of Savia, (d) the Restructuring Steps (including the making and consummation of offers to purchase shares of New Company Common Stock to Persons (other than the Management Contributors) pursuant to any written or oral communications with, or consent solicitations of, such Persons), and (e) any other transactions contemplated by this Agreement. "Savia" shall have the meaning set forth in the preamble. "Savia Expenses" means all out-of-pocket fees and expenses actually and reasonably incurred by Savia or on its behalf in connection with any of the transactions contemplated by this Agreement and the Related Agreements (including fees and expenses of accountants and legal counsel); provided, however, that "Savia Expenses" shall not include (a) any financing charges, (b) any charges related to any Romo Entity Matters (other than the fees and expenses of its US counsel relating solely to the transactions contemplated by this Agreement and the Related Agreements), or (c) the fees and expenses of any financial advisors or investment bankers of the Romo Entities (including Grupo Financiero Atlantico or any of its Affiliates). "Savia Old Company Shares" shall have the meaning set forth in the recitals. "Stock Purchase" shall have the meaning set forth in the recitals. "Stock Purchase Agreement" shall mean the Stock Purchase Agreement by and among FPSH, the ARG Trust, Parent and Merger Sub of even date herewith. "Stockholders' Agreement" means the Stockholders' Agreement, to be entered into at Closing, by and among the Company and the Persons to be listed on the signature pages thereto. "Subsidiary" means, with respect to any Person, any other Person, whether incorporated or unincorporated or domestic or foreign to the United States of which (a) such first Person or any other Subsidiary of such first Person is a general partner (excluding such partnerships where such first Person or any Subsidiary of such first Person does not have a majority of the voting interest in such partnership) or (b) at least a majority of the securities or other interests -7- having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is, directly or indirectly, owned or controlled by such first Person or by any one or more of its Subsidiaries, or by such first Person and one or more of its Subsidiaries. "Voting Agreement" means the voting agreement, of even date herewith, among FPSH and the other Persons party thereto pursuant to which, among other things, each Person (other than FPSH) party thereto agrees to vote all shares of Old Company Common Stock beneficially owned by such Person in favor of the Merger. ARTICLE II THE CONTRIBUTION Section 2.1 The Closing. The closing of the Contribution (the "Closing") will be held at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, 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 first business day after satisfaction or waiver of the conditions set forth in Article VI (other than those conditions that are to be satisfied on the Closing Date, but subject to the satisfaction or waiver of such other conditions on the Closing Date) (the "Closing Date"). Section 2.2 Contribution. Subject to the terms and conditions set forth herein, at the Closing, (a) Savia shall contribute to Parent all of Savia's right, title and interests in the Savia Old Company Shares, free and clear of any Lien, (b) the ARG Trust shall contribute to Parent all of its right, title and interests in the ARG Trust Old Company Shares, free and clear of any Lien, (c) CAI shall contribute to Parent all of CAI's right, title and interests in the CAI Old Company Shares, free and clear of any Lien, (d) Park shall contribute to Parent all of Park's right, title and interests in the Park Old Company Shares, free and clear of any Lien, and (e) each of the Management Contributors shall contribute to Parent all of his right, title and interests in his Management Old Company Shares, free and clear of any Lien. Section 2.3 Delivery of Contribution Shares. (a) At the Closing, (i) Savia shall deliver or cause to be delivered to Parent one or more stock certificates representing in the aggregate the Savia Old Company Shares, (ii) the ARG Trust shall deliver or cause to be delivered to Parent one or more stock certificates representing in the aggregate the ARG Trust Old Company Shares, (iii) CAI shall deliver or cause to be delivered to Parent one or more stock certificates representing in the aggregate the CAI Old Company Shares, (iv) Park shall deliver or cause to be delivered to Parent one or more stock certificates representing in the aggregate the Park Old Company Shares, and (v) each of the Management Contributors shall deliver or cause to be delivered to Parent one or more stock certificates representing in the aggregate his Management Old Company Shares, in each case duly endorsed in blank for transfer or accompanied by duly executed stock powers and all applicable stock transfer stamps and other instruments requisite to proper transfer, all in proper form. -8- (b) At the Closing, each of the Contributors and Parent shall enter into the Amended and Restated Limited Liability Agreement of Parent (the "LLC Agreement") substantially identical to the form set forth on Exhibit C, which shall provide that each of the Contributors shall have a membership interest representing such member's proportionate percentage ownership in Parent as set forth in the LLC Agreement. Section 2.4 Distribution of Parent Assets. Immediately after the closing of the Merger, the Stock Purchase and the Debt Financing, Parent shall distribute (a) all of Parent's rights, title and interests in (i) 4,365,257 shares of New Company Common Stock to the ARG Trust, (ii) 42,000 shares of New Company Common Stock to CAI, (iii) 1,000,000 shares of New Company Common Stock to Park, and (iv) an aggregate of 685,505 shares of New Company Common Stock to the Management Contributors as set forth on Exhibit A hereto, and (b) to Savia (i) by wire transfer of immediately available funds (to the account designated by Savia in writing not less than three days prior to the closing of the Merger) an amount equal to the Cash Distribution, (ii) if the ARG Option is exercised, the right to receive the ARG Purchase Price, (iii) the Additional Purchase Amount, if any, and (iv) all remaining assets, including shares of New Company Common Stock, if any. After such distribution, Parent shall be dissolved in accordance with the terms of the LLC Agreement and the provisions of the Delaware Limited Liability Company Act. ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT Parent hereby represents and warrants to the Contributors as follows: Section 3.1 Organization. Parent is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to be in good standing or to have such corporate or similar power and authority would not, in the aggregate, have a Parent Material Adverse Effect. Parent was formed solely for the purpose of engaging in the transactions contemplated by this Agreement, the Merger Agreement and the Stock Purchase Agreement. Other than Parent's 100% ownership interest in Merger Sub, on the date hereof, Parent does not own any equity, debt or similar interest in any Person. Parent has delivered to the Contributors accurate and complete copies of the certificate of formation and other governing documents, as currently in effect, of Parent. Parent has not engaged in any activities, owned any assets or been subject to any liabilities, except as is necessary to effect the Merger, the Contribution, the Stock Purchase and the other transactions contemplated by the Related Agreements. Section 3.2 Authority. Parent has all necessary power and authority to execute and deliver this Agreement and any Related Agreement to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and any Related Agreement to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the sole member of Parent and no other corporate or similar proceedings on the part of Parent is necessary to -9- authorize this Agreement or any Related Agreement to which it is a party or to consummate the transactions contemplated hereby or thereby. This Agreement and any Related Agreement to which it is a party have been duly and validly executed and delivered by Parent and, assuming due and valid authorization, execution and delivery by the other parties hereto or thereto, constitute the valid, legal and binding agreements of Parent, enforceable against Parent in accordance with their terms. Section 3.3 Consents and Approvals; No Violations. Except as set forth on Section 3.3 of the Parent Disclosure Schedule, no filing with or notice to, and no permit, authorization, consent or approval of, any Governmental Entity or any other Person is necessary for the execution and delivery by Parent of this Agreement or the consummation by Parent of the transactions contemplated by this Agreement or the Related Agreements except where the failure to obtain such permits, authorizations, consents or approvals or to make such filings or give such notice would not have a Parent Material Adverse Effect. Except as set forth in Section 3.3 of the Parent Disclosure Schedule, neither the execution, delivery and performance of this Agreement by Parent, nor the consummation by Parent of the transactions contemplated by this Agreement and the Related Agreements will (a) conflict with or result in any breach of any provision of the certificate of formation of Parent or the LLC Agreement, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration, or result in the creation of a Lien on any property or asset of Parent, or trigger any rights of first refusal) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which Parent is a party or by which its respective properties or assets may be bound, or (c) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to Parent or its respective properties or assets, except in the case of (b) or (c) above for violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, have a Parent Material Adverse Effect or a Company Material Adverse Effect. Section 3.4 Membership Interests. (a) On the Closing Date, the Membership Interests to be issued pursuant to the transactions contemplated hereby will be duly authorized and validly issued, fully paid and nonassessable and Parent will transfer to each of the Contributors good and valid title to such Contributor's Membership Interests free and clear of any Lien. (b) The shares of New Company Common Stock to be distributed pursuant Section 2.4 hereof will be duly authorized and validly issued, fully paid and non-assessable and Parent will transfer to each of the Contributors good and valid title to such shares of New Company Common Stock free and clear of any Lien. Section 3.5 Capitalization. Immediately following the Effective Time and immediately prior to the closing of the Stock Purchase, the authorized capital stock of the Company shall consist of (i) 200,000,000 shares of New Company Common Stock, 84,377,861 shares of which shall be issued and outstanding and owned exclusively by Parent, and (ii) 5,000,000 shares of Company Preferred Stock, (A) 25,000 shares of which shall be designated as shares of Company Class A Preferred Stock, none of which shall be issued or outstanding, and (B) 25,000 -10- shares of which shall be designated as shares of Company Class B Preferred Stock, 25,000 shares of which shall be issued and outstanding. Except (w) as set forth in the preceding sentence, (x) the options to purchase shares of New Company Common Stock granted under the Amended and Restated Seminis, Inc. 1998 Stock Option Plan which are or become Retained Options (as defined in the Merger Agreement) in accordance with any agreements among Parent, FPSH and any individual owning such Retained Options (as defined in the Merger Agreement), (y) as contemplated by this Agreement, and (z) as provided in the employment agreements and letter agreements set forth in Section 3.5 of the Parent Disclosure Schedule, immediately following the Effective Time and immediately prior to the closing of the Stock Purchase, there will be no outstanding (i) shares of capital stock or other voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options or other rights to acquire from the Company, or obligations of the Company to issue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, or (iv) equity equivalents, interests in the ownership or earnings of the Company or other similar rights (collectively, "Company Securities"). Other than pursuant to this Agreement and the Related Agreements (including the Stockholders' Agreement to be executed at the closing of the Stock Purchase), there are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any Company Securities. Section 3.6 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent. Section 3.7 Acknowledgment. Parent hereby acknowledges that (i) FPSH is relying upon the representations, warranties and covenants of Parent contained in this Agreement in connection with FPSH entering into the Stock Purchase Agreement, and (ii) FPSH shall be entitled to rely upon and enforce such representations, warranties and covenants as provided in this Agreement and in the Indemnification Agreement. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS, MR. ROMO, EMPRIMA AND MEXICAN SPC Section 4.1 Representations and Warranties with Respect to the Contribution Shares. Each of the Contributors, Emprima, Mexican SPC and Mr. Romo, severally and not jointly, hereby represents and warrants to Parent with respect to itself or himself as set forth below: (a) Organization. Other than as set forth in Section 4.1(a) of the Contributor Disclosure Schedule with respect to the good standing of CAI, such Contributor (other than the Management Contributors) and Mexican SPC is duly organized, validly existing and in good standing under the laws of its respective jurisdiction of incorporation or formation and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to be in good standing or -11- to have such corporate or similar power and authority would not have a Contributor Material Adverse Effect. The ARG Trust is duly created under the laws of the United Mexican States and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to be in good standing or to have such corporate or similar power and authority would not have a Contributor Material Adverse Effect. The term "Contributor Material Adverse Effect" means any event, change, circumstance or effect that is or is reasonably expected to be materially adverse to the ability of such Contributor (or in the case of Mr. Romo, Emprima, or Mexican SPC, such Person) to consummate the transactions contemplated by this Agreement. (b) Authority. Such Contributor, Mr. Romo, Emprima and Mexican SPC has all necessary power and authority to execute and deliver this Agreement and any Related Agreement to which it is a party and to consummate the transactions contemplated hereby or thereby. The execution and delivery of this Agreement and any Related Agreement to which it is a party and the consummation of the transactions contemplated hereby or thereby have been duly and validly authorized by the board of directors (or other governing body) and stockholders or beneficiaries, if necessary, of such Contributor (other than the ARG Trust and the Management Contributors) and Mexican SPC and the technical committee of the ARG Trust, and except as set forth in Section 4.1(b) of the Contributor Disclosure Schedule, no other corporate or similar proceedings on the part of such Contributor, Mr. Romo, Emprima or Mexican SPC is necessary to authorize this Agreement or any Related Agreement to which it is a party or to consummate the transactions contemplated hereby or thereby. This Agreement and any Related Agreement to which it is a party have been duly and validly executed and delivered by such Contributor, Mr. Romo, Emprima and Mexican SPC and, assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, constitute valid, legal and binding agreements of such Contributor, Mr. Romo, Emprima and Mexican SPC, enforceable against such Contributor, Mr. Romo, Emprima and Mexican SPC in accordance with their terms. (c) Consents and Approvals; No Violations. Except as set forth in Section 4.1(c) or (d) of the Contributor Disclosure Schedule, no filing with or notice to, and no permit, authorization, consent or approval of, any Governmental Entity or any other Person is necessary for the execution and delivery by such Contributor, Mr. Romo, Emprima or Mexican SPC of this Agreement or any Related Agreement to which it is a party or the consummation by such Contributor, Mr. Romo, Emprima or Mexican SPC of the transactions contemplated by this Agreement, the Related Agreements or the Restructuring Steps, except where the failure to obtain such permits, authorizations, consents or approvals or to make such filings or give such notice would not have a Contributor Material Adverse Effect or a Company Material Adverse Effect. Except as set forth in Section 4.1(c) of the Contributor Disclosure Schedule, neither the execution, delivery and performance of this Agreement or any Related Agreement to which it is a party by such Contributor, Mr. Romo, Emprima or Mexican SPC, nor the consummation by such Contributor, Mr. Romo, Emprima or Mexican SPC of the transactions contemplated by this Agreement, the Related Agreements or the Restructuring Steps will (i) conflict with or result in any breach of any provision of the governing documents of such Contributor, Emprima or Mexican SPC, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration, or result in the creation of a Lien on any property or asset of such Contributor, Mr. Romo, Emprima or Mexican SPC, or trigger any rights of first refusal) under, any of the -12- terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which such Contributor, Mr. Romo, Emprima or Mexican SPC is a party or by which such Contributor, Mr. Romo, Emprima or Mexican SPC or its respective properties or assets may be bound, or (iii) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to such Contributor, Mr. Romo, Emprima or Mexican SPC or its respective properties or assets, except in the case of (ii) or (iii) above for violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, have a Contributor Material Adverse Effect or a Company Material Adverse Effect. (d) Ownership of Stock. Subject to the consents set forth in Sections 4.1(b) and 4.1(c) and except as set forth in Section 4.1(d) of the Contributor Disclosure Schedule, (i) Savia is and at all times through the Closing will be the owner, beneficially and of record, of the Savia Old Company Shares, free and clear of any Lien and will transfer to Parent good and valid title to such Savia Old Company Shares free and clear of any Lien, (ii) (A) the ARG Trust is and at all times will be the owner beneficially and of record of the ARG Trust Old Company Shares, free and clear of any Lien and will transfer to Parent good and valid title to such ARG Trust Old Company Shares free and clear of any Lien, (iii) CAI is and at all times through the Closing will be the owner, beneficially and of record, of the CAI Old Company Shares, free and clear of any Lien and will transfer to Parent good and valid title to such CAI Old Company Shares free and clear of any Lien, (iv) Park is and at all times through the Closing will be the owner, beneficially and of record, of the Park Old Company Shares, free and clear of any Lien, and will transfer to Parent good and valid title to such Park Old Company Shares free and clear of any Lien, and (v) each of the Management Contributors is and at all times through the Closing will be the owner, beneficially and of record, of his Management Old Company Shares, free and clear of any Lien and will transfer to Parent good and valid title to such Management Old Company Shares, free and clear of any Lien. (e) Purchase for Investment. The Membership Interests to be acquired by each Contributor will be acquired for its or his own account for the purpose of investment. Such Contributor will refrain from transferring or otherwise disposing of any of the Membership Interests, or any interest therein other than pursuant to this Agreement. (f) Accredited Investor. Such Contributor acknowledges that it or he (i) has such knowledge and experience in business and financial matters with respect to investments in securities to enable it or him to understand and evaluate the risks of such investment and form an investment decision with respect thereto and is able to bear the risk of such investment for an indefinite period and to afford a complete loss thereof, (ii) is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended and (iii) has had the opportunity to (x) ask such questions as it or he has deemed necessary of, and to receive answers from, representatives of Parent concerning the terms of its purchase of the Membership Interests contemplated hereby and the merits and risks of investing in such securities and (y) to obtain such additional information which Parent possesses or can acquire without unreasonable effort or expense. (g) Brokers. Other than Grupo Financiero Atlantico, no broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection -13- with the transactions contemplated by this Agreement or the Related Agreements based upon arrangements made by or on behalf of each of the Contributors or any Romo Entity. (h) Acknowledgment. Each of the Contributors, Mexican SPC, Emprima and Mr. Romo hereby acknowledges that (i) FPSH is relying upon the representations, warranties and covenants of each of such Contributors, Mexican SPC, Emprima and Mr. Romo contained in this Agreement in connection with FPSH entering into the Stock Purchase Agreement and (ii) FPSH shall be entitled to rely upon and enforce such representations, warranties and covenants as provided in this Agreement and in the Indemnification Agreement. Section 4.2 Representations and Warranties of Savia. Savia hereby represents and warrants to Parent as follows: (a) Completeness of Assets. For purposes of this Section 4.2, Subsidiaries of Savia shall not include the Company and its Subsidiaries. (i) Except as disclosed in Section 4.2(a)(i) of the Contributor Disclosure Schedule, neither Savia nor any of its Subsidiaries owns any asset, property or right, tangible or intangible, that is used in, or for the benefit of, the business conducted by the Company and its Subsidiaries. (ii) Except as disclosed in the Company SEC Documents (as defined in the Merger Agreement) or in Section 4.2(a)(ii) of the Contributor Disclosure Schedule, (x) neither Savia nor any of its Subsidiaries provides or causes or permits to be provided and, since September 30, 1999, neither Savia nor any of its Subsidiaries has provided or caused or permitted to be provided, to the Company or any of its Subsidiaries, any assets, loans, advances, services or facilities and (y) neither the Company nor any of its Subsidiaries provides or causes to be provided to Savia or any of its Subsidiaries any assets, loans, advances, services or facilities, and, since September 30, 1999, neither the Company nor any of its Subsidiaries has provided or caused to be provided, to Savia or any of its Subsidiaries, any assets, loans, advances, services or facilities. (iii) Except as disclosed in the Company SEC Documents (as defined in the Merger Agreement) or in Section 4.2(a)(iii) of the Contributor Disclosure Schedule, (x) neither the Company nor any of its Subsidiaries purchases from or sells to, and, since September 30, 1999, neither the Company nor any of its Subsidiaries has purchased from or sold to, Savia or any of its Subsidiaries, goods or services, (y) neither the Company nor any of its Subsidiaries, jointly with Savia and any of its Subsidiaries, purchases or sells goods and services, and, since September 30, 1999, neither the Company nor any of its Subsidiaries, jointly with Savia or any of its Subsidiaries, has purchased or sold goods or services and (z) neither the Company nor any of its Subsidiaries has, and, since September 30, 1999, neither the Company nor any of its Subsidiaries has had, any other significant business relationship with Savia or any of its Subsidiaries. (b) No Undisclosed Liabilities. Except as disclosed in Section 4.2(b) of the Contributor Disclosure Schedule, neither Savia nor any of its Subsidiaries (excluding the Company and its Subsidiaries) has, or has incurred or has permitted to be incurred any liabilities -14- or obligations of any nature, whether or not absolute, accrued, contingent or otherwise, that have become or may become liabilities of the Company or any of its Subsidiaries. Except as disclosed in Section 4.3(b) of the Contributor Disclosure Schedule, neither the Company, nor its Subsidiaries, is responsible for any liabilities or obligations of any nature, whether or not absolute, accrued, contingent or otherwise, of Savia or any of its Subsidiaries. Section 4.3 Representations and Warranties with Respect to the Restructurings. Mr. Romo, Mexican SPC, Emprima, and Park, jointly and severally, hereby represent and warrant to Parent: (a) Completeness of Assets. (i) Except as disclosed in Section 4.3(a)(i) of the Contributor Disclosure Schedule, none of the Romo Entities owns any asset, property or right, tangible or intangible, that is used in, or for the benefit of, the business conducted by the Company and its Subsidiaries. (ii) Except as disclosed in the Company SEC Documents (as defined in the Merger Agreement) or in Section 4.3(a)(ii) of the Contributor Disclosure Schedule, (x) no Romo Entity provides or causes to be provided and, since September 30, 1999, no Romo Entity has provided or caused to be provided, to the Company or any of its Subsidiaries, any assets, loans, advances, services or facilities and (y) neither the Company nor any of its Subsidiaries provides or causes to be provided to any Romo Entity any assets, loans, advances, services or facilities, and, since September 30, 1999, neither the Company nor any of its Subsidiaries has provided or caused to be provided, to any Romo Entity, any assets, loans, advances, services or facilities. (iii) Except as disclosed in the Company SEC Documents (as defined in the Merger Agreement) or in Section 4.3(a)(iii) of the Contributor Disclosure Schedule, (x) neither the Company nor any of its Subsidiaries purchases from or sells to, and, since September 30, 1999, neither the Company nor any of its Subsidiaries has purchased from or sold to, any Romo Entity, goods or services, (y) neither the Company nor any of its Subsidiaries, jointly with any Romo Entity, purchases or sells goods and services, and, since September 30, 1999, neither the Company nor any of its Subsidiaries, jointly with any Romo Entity, has purchased or sold goods or services and (z) neither the Company nor any of its Subsidiaries has, and, since September 30, 1999, neither the Company nor any of its Subsidiaries has had, any other significant business relationship with any Romo Entity. (b) No Undisclosed Liabilities. Except as disclosed in Section 4.3(b) of the Contributor Disclosure Schedule, none of the Romo Entities has, or has incurred any liabilities or obligations of any nature, whether or not absolute, accrued, contingent or otherwise, that have become or may become liabilities of the Company or any of its Subsidiaries. Except as disclosed in Section 4.3(b) of the Contributor Disclosure Schedule, neither the Company, nor its Subsidiaries, is responsible for any liabilities or obligations of any nature, whether or not absolute, accrued, contingent or otherwise, of any Romo Entity. -15- (c) Romo Entity Matters. (i) The Romo Entities have obtained the written consents and/or amendments set forth in Section 4.3(c) of the Contributor Disclosure Schedule (the "Romo Entity Consents"). True and complete copies of the Romo Entity Consents have been provided to FPSH. Except as set forth in Section 4.3(c) of the Contributor Disclosure Schedule, other than the Romo Entity Consents, no filing with or notice to, and no permit, authorization, consent or approval of, any Governmental Entity or any other Person is necessary for the consummation by any Romo Entity of the transactions contemplated by this Agreement, the Related Agreements or the Restructuring Steps, except where the failure to obtain such permits, authorizations, consents or approvals or to make such filings or give such notice would not have a Contributor Material Adverse Effect or a Company Material Adverse Effect. (ii) Except as set forth in Section 4.3(c) of the Contributor Disclosure Schedule, the consummation by any Romo Entity of the transactions contemplated by this Agreement, the Related Agreements or the Restructuring Steps will not (A) conflict with or result in any breach of any provision of the governing documents of any Romo Entity, (B) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration, or result in the creation of a Lien on any property or asset of any Romo Entity, or trigger any rights of first refusal) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which any Romo Entity is a party or by which any Romo Entity or its respective properties or assets may be bound, or (C) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to such Romo Entity or its properties or assets, except in the case of (B) or (C) above for violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, have a Contributor Material Adverse Effect or a Company Material Adverse Effect. (d) Restructuring Steps. To the extent necessary, the applicable Romo Entities have entered into valid, legal and binding agreements providing for the Restructuring Steps. (e) Legal Opinions. Attached hereto as Exhibit D and Exhibit E are true and complete copies of written opinions dated the date hereof from Milbank, Tweed, Hadley & McCloy LLP and Mancera Ernst & Young. ARTICLE V COVENANTS Section 5.1 Pre-Closing Conduct. Each party hereby covenants and agrees that it shall not take any action that would make any of such party's representations or warranties contained in this Agreement or the Related Agreements untrue or incorrect as of the date hereof or the Closing Date or would result in any of the conditions set forth in Article VI not being satisfied. Moreover, each of Mr. Romo and Savia hereby covenants and agrees that it shall not approve -16- any action that will result in the Company violating the Merger Agreement or any Related Agreement and will take all actions to cause the Romo Entities to take such actions necessary to consummate the transactions contemplated by this Agreement and the Related Agreements. Section 5.2 Further Assurances. (a) Parent shall use its best efforts to implement the provisions of this Agreement, and, for such purpose, at the request of any of the Contributors, will, at or after the Closing, promptly execute and deliver, or cause to be so executed and delivered, such documents to any of the Contributors and take such further action as any of the Contributors may deem reasonably necessary or desirable to facilitate or better evidence the consummation of the transactions contemplated hereby. (b) Each of Savia and Mr. Romo shall use its best efforts to implement the provisions of this Agreement, and, for such purpose, at the request of Parent, will, at or after the Closing, promptly execute and deliver, or cause to be so executed and delivered, such documents to Parent, and to take such further action as Parent may deem reasonably necessary or desirable to facilitate or better evidence the consummation of the transactions contemplated hereby, including such action as is required to rectify any breach of the representations contained in Section 4.2 and Section 4.3(a) and (b) of this Agreement. Without limiting the foregoing, to the extent that any contract or agreement to which any Romo Entity is a party, is used in, or for the benefit of, the business conducted by the Company and its Subsidiaries, and is not assignable without the consent of another party, (i) Savia and Mr. Romo shall use reasonable best efforts to obtain the consent of such other party to the assignment of any such contract or agreement to the Company in all cases in which such consent is or may be required for such assignment, and (ii) if such consent shall not be obtained, Savia and Mr. Romo shall cause the Romo Entities to cooperate to put into place a reasonable arrangement designed to provide for the Company the benefits intended to be assigned to the Company or one of its Subsidiaries under the relevant contract or agreement, including enforcement at the cost and for the account of the Company or one of its Subsidiaries of any rights of any Romo Entity against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. Section 5.3 Notification of Certain Matters. The parties hereto shall give prompt notice to one another of (i) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which would be likely to cause (A) any representation or warranty contained in this Agreement or the Related Agreements to be untrue or inaccurate, or (B) any covenant, condition or agreement contained in this Agreement or the Related Agreements not to be complied with or satisfied, and (ii) any failure of any party hereto to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under this Agreement or the Related Agreements; provided, however, that the delivery of any notice pursuant to this Section 5.3 shall not affect the representations, warranties or covenants of the parties hereto or limit or otherwise affect the remedies available to any party hereunder. Section 5.4 Public Announcements. Parent and the Contributors, as the case may be, will consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement, the Related Agreements or the other transactions contemplated hereby or thereby, and shall not issue any such press release or make any such -17- public statement without the prior consent of the other parties hereto (which consent shall not be unreasonably withheld or delayed), except as may be required by applicable law or by obligations pursuant to any listing agreement with any national securities exchange or national market system to which Parent, the Contributors or their Affiliates is a party. The parties hereto have agreed on the text of the joint press release by which announcement of the execution of this Agreement will be made. Section 5.5 Additional Agreements, Reasonable Best Efforts. (a) Prior to the Closing Date, upon the terms and subject to the conditions of this Agreement, each of Parent, Emprima, Mexican SPC, Mr. Romo and the Contributors agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable laws, rules or regulations to consummate and make effective as promptly as practicable the Contribution and the Related Transactions and the other transactions contemplated by this Agreement and the Related Agreements, including, but not limited to, (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Contribution and the Related Transactions and the other transactions contemplated hereby and thereby and the taking of such actions as are necessary to obtain any requisite approvals, consents, orders, exemptions or waivers by any third party, including any Governmental Entity, and (ii) the satisfaction of the conditions to the consummation of the Contribution and the Related Transactions. In addition, no party hereto shall take any action after the date hereof that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any permission, approval or consent from any Governmental Entity necessary to be obtained prior to the consummation of the Contribution and the Related Transactions. (b) Prior to the Effective Time, each party shall promptly consult with the other parties hereto with respect to, provide any necessary information with respect to and provide the other (or its counsel) copies of, all filings made by such party with any Governmental Entity or any other information supplied by such party to a Governmental Entity in connection with this Agreement, the Related Agreements and the transactions contemplated hereby and thereby. Each party hereto shall promptly inform the other of any communication from any Governmental Entity regarding the Contribution or any of the Related Transactions. If any party hereto or Affiliate thereof receives a request for additional information or documentary material from any such Governmental Entity with respect to the Contribution or the Related Transactions, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. (c) Each of Emprima, the ARG Trust, CAI, Park, Mr. Romo, Mexican SPC and the Management Contributors hereby covenants, and if the ARG Option is not exercised, Savia covenants, that upon the consummation of the transactions contemplated by this Agreement, the Merger Agreement and the Stock Purchase Agreement, each such party shall execute the Stockholders' Agreement. -18- ARTICLE VI CONDITIONS TO CONSUMMATION OF THE CONTRIBUTION The obligation of Parent, on the one hand, and the Contributors and Mr. Romo, on the other hand, to consummate the Contribution is subject to (a) the satisfaction or waiver of the conditions to the Merger set forth in Sections 7.1(b) and 7.2 (other than Section 7.2(c)) of the Merger Agreement, (b) the Pre-Closing Restructuring Steps having occurred and (c) the Post-Closing Restructuring Steps occurring substantially concurrently with the Closing; provided, however, that no party hereto shall have the right to assert the nonfulfillment of the condition set forth in clause (b) or clause (c) as a basis for failing to consummate the Contribution, if (x) the non-occurrence of any Restructuring Step is the result of a breach by any Romo Entity, or (y) any of Parent, the Contributors or Mr. Romo shall have failed to use its reasonable best efforts to cause the Restructuring Steps to have occurred. ARTICLE VII TERMINATION; AMENDMENT; WAIVER Section 7.1 Termination. This Agreement may be terminated by any party hereto and the Contribution may be abandoned at any time prior to the Closing if the Merger Agreement is terminated in accordance with its terms. Section 7.2 Effect of Termination. In the event of the termination and abandonment of this Agreement pursuant to Section 7.1, written notice thereof shall forthwith be given to the other party or parties, 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, other than the provisions of this Section 7.2 and Section 7.3(a) of this Agreement; provided, however, that nothing contained in this Section 7.2, shall relieve any party from liability for any breach of this Agreement. Section 7.3 Fees and Expenses. (a) If the transactions contemplated by this Agreement are not consummated for any reason, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such expenses. (b) If the transactions contemplated by this Agreement and the Related Agreements are consummated, on the Closing Date, Parent shall cause the Company to pay to Savia by wire transfer of immediately available funds (to the account or accounts designated by Savia in writing not less than one business day prior to Closing) all Savia Expenses; provided, however, that the Savia Expenses shall not exceed $3.5 million. Section 7.4 Amendment. This Agreement may be amended at any time with the prior written consent of FPSH by an instrument in writing signed by each party hereto; provided, however, that any amendment that would prevent or delay the Closing shall also require the written consent of the Special Committee (as defined in the Merger Agreement), such consent not to be unreasonably withheld or delayed. -19- Section 7.5 Waiver. Subject to the prior written consent of FPSH, at any time prior to the Effective Time, any party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other party, (b) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document, certificate or writing delivered pursuant hereto, or (c) waive compliance by the other party with any of the agreements or conditions contained herein; provided, however, that in the case of clauses (a) and (c), that any extension or waiver that would prevent or delay the Closing shall also require the written consent of the Special Committee (as defined in the Merger Agreement), such consent not to be unreasonably withheld or delayed. Any agreement on the part of any party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights. Section 7.6 Survival. The parties hereto hereby acknowledge that indemnification of FPSH with respect to breaches of representations, warranties and covenants contained in this Agreement shall be made pursuant to the Indemnification Agreement and that the representations and warranties in this Agreement shall survive as provided in this Section 7.6 for such purpose. The representations and warranties in this Agreement shall survive until the two-year anniversary of the Closing; provided, however, that the representations and warranties contained in Section 4.1(d) of this Agreement shall survive indefinitely. Any covenants or agreements contained herein or made pursuant hereto that by their terms are to be performed prior to the Closing Date, shall not survive beyond the Closing Date. Any covenants or agreements contained herein or made pursuant hereto that by their terms are to be performed in whole or in part after the Closing Date, shall survive until fully discharged. Section 7.7 Indemnification by Management Contributors. Each of the Management Contributors shall, severally and not jointly, indemnify the Company and hold it harmless from and against any loss, liability, claim, cost, damage or expense (including reasonable legal fees and expenses) suffered or incurred by the Company to the extent arising from any breach or inaccuracy of any representation or warranty made by such Management Contributor pursuant to Section 4.1 or the nonfulfillment by such Management Contributor of any covenant or agreement of such Management Contributor under this Agreement. For purposes of this Section 7.7, the Company shall be a third party beneficiary of this Agreement. Section 7.8 Sole Remedy. Except as otherwise provided in Section 7.7, after the Closing, and conditioned thereupon, to the extent permitted by law, the indemnities set forth in the Indemnification Agreement shall be the exclusive remedies of the parties hereto and their respective officers, directors, employees, agents and Affiliates for any misrepresentation, breach of warranty or nonfulfillment or failure to be performed of any covenant or agreement contained in this Agreement, and the parties shall not be entitled to rescission of this Agreement or to any further indemnification rights or claims of any nature whatsoever in respect thereof, all of which the parties hereto hereby waive. -20- ARTICLE VIII MISCELLANEOUS Section 8.1 Entire Agreement; Assignment. This Agreement and the Related Agreements (including the schedules and Exhibits hereto and thereto) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof. This Agreement shall not be assigned by operation of law or otherwise. Section 8.2 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 8.3 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: (a) If to Parent: c/o Savia, S.A. de C.V. Ave. Roble No. 565 Ote. - Piso 4 Colonia Valle Del Campestre Garza Garcia, N.L. 66265 Mexico Attention: Bernardo Jimenez Barrera Facsimile: 011-52-818-399-5606 With a copy, which will not constitute notice, to: Milbank, Tweed, Hadley & McCloy LLP One Chase Manhattan Plaza New York, New York 10005 Attention: Howard S. Kelberg, Esq. Facsimile: 212-822-5530 With a copy, which will not constitute notice, to: Fox Paine & Company, LLC 950 Tower Lane, Suite 1950 -21- Foster City, California 94404 Attention: W. Dexter Paine, III Facsimile: 650-525-1396 With a copy, which will not constitute notice, to: Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Attention: Mitchell S. Presser, Esq. Facsimile: 212-403-2000 With copies, which will not constitute notice, to: Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: Chairman of the Special Committee of the Board of Directors Facsimile: 805-918-2530 Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: General Counsel Facsimile: 805-918-2530 Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036 Attention: Peter A. Atkins, Esq. David J. Friedman, Esq. Facsimile: 212-735-2000 (b) If to the Contributors, Mr. Romo, Mexican SPC or Emprima: Savia, S.A. de C.V. Ave. Roble No. 565 Ote. - Piso 4 Colonia Valle Del Campestre Garza Garcia, N.L. 66265 Mexico Attention: Bernardo Jimenez Barrera Facsimile: 011-52-818-399-5606 With a copy, which will not constitute notice, to: Fox Paine & Company, LLC 950 Tower Lane, Suite 1950 -22- Foster City, California 94404 Attention: W. Dexter Paine, III Facsimile: 650-525-1396 With a copy, which will not constitute notice, to: Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Attention: Mitchell S. Presser, Esq. Facsimile: 212-403-2000 With a copy, which will not constitute notice, to: Milbank, Tweed, Hadley & McCloy LLP One Chase Manhattan Plaza New York, New York 10005 Attention: Howard S. Kelberg, Esq. Facsimile: 212-822-5530 With copies, which will not constitute notice, to: Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: Chairman of the Special Committee of the Board of Directors Facsimile: 805-918-2530 Seminis, Inc. 2700 Camino del Sol Oxnard, California 93030-7967 Attention: General Counsel Facsimile: 805-918-2530 Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036 Attention: Peter A. Atkins, Esq. David J. Friedman, Esq. Facsimile: 212-735-2000 Section 8.4 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. -23- (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 Contribution. 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 of the Contributors, Mr. Romo, Emprima and Mexican SPC irrevocably appoints CT Corporation Systems, which currently maintains an office at 2711 Centerville Road, Suite 400, Wilmington, Delaware, 19808, as its agent to receive service of process or other legal summons for purposes of any such action or proceeding. So long as any party hereto has any obligation under this Agreement, it will maintain a duly appointed agent in the State of Delaware for the service of such process or summons, and if it fails to maintain such an agent, any such process or summons may be served by mailing a copy thereof by registered mail, or a form of mail substantially equivalent thereto, addressed to it at its address as provided for notices hereunder. (d) 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 8.5 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 8.6 Interpretation. When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or Schedule to 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 8.7 Parties in Interest. (a) Subject to Section 8.7(b), this Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns, and except as provided in Section 7.4, 7.5 and Section 7.7, nothing in this Agreement, express or implied, is -24- intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. (b) Notwithstanding anything to the contrary contained herein, (i) FPSH shall be a third party beneficiary of this Agreement and shall have the right to enforce any right under this Agreement exercisable by Parent, the Contributors, Mr. Romo, Emprima or Mexican SPC to the extent such right is not enforced by Parent, the Contributors, Mr. Romo, Mexican SPC or Emprima (ii) any representations, warranties or covenants made by Parent, any Contributor, Mr. Romo, Emprima or Mexican SPC shall be deemed made to (and, with respect to covenants, shall be enforceable (to the extent such right is not enforced by any Contributor, Mr. Romo, the ARG Trust, Mexican SPC or Parent) by FPSH, (iii) any notice under this Agreement given (or required to be given) to Parent, any Contributor, Mr. Romo, the ARG Trust or Mexican SPC shall be simultaneously given to FPSH and to the Special Committee (as defined in the Merger Agreement), and (iv) anything under this Agreement that must be approved by or acceptable to Parent, any Contributor, Mr. Romo, the ARG Trust or Mexican SPC must also be approved or accepted by FPSH. The parties hereto acknowledge that the Company would not have entered into the Merger Agreement had the parties hereto not entered into this Agreement. Section 8.8 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. -25- 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 ACQUISITION LLC By: /S/ Bernardo Jimenez --------------------------------- Name: Bernardo Jimenez Title: SAVIA, S.A. DE C.V. By: /S/ Bernardo Jimenez --------------------------------- Name: Bernardo Jimenez Title: Attorney in Fact 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 DE ADMINISTRACION Y PAGO NUMERO 167-5) By: /S/ Adrian J. Lozano --------------------------------- Name: Adrian J. Lozano Title: Delegado Fiduciario By: /S/ Beatriz Garza L --------------------------------- Name: Beatriz Garza L. Title: Delegado Fiduciario CONJUNTO ADMINISTRATIVO INTEGRAL, S.A. DE C.V. [SIGNATURE PAGE TO CONTRIBUTION AGREEMENT] By: /S/ Carlos G. Mahuad --------------------------------- Name: Carlos G. Mahuad Title: Attorney in Fact By: /S/ Heriberto S. Muzza --------------------------------- Name: Heriberto S. Muzza Title: Attorney in Fact DESARROLLO CONSOLIDADO DE NEGOCIOS, S.A. DE C.V. By: /S/ Gustavo Adolfo Romo Garza --------------------------------- Name: Gustavo Adolfo Romo Garza Title: Attorney in Fact EMPRIMA, S.A. DE C.V. By: /S/ Carlos G. Mahuad --------------------------------- Name: Carlos G. Mahuad Title: Attorney in Fact By: /S/ Heriberto S. Muzza --------------------------------- Name: Heriberto S. Muzza Title: Attorney in Fact PARK FINANCIAL GROUP By: /S/ Bernardo Jimenez --------------------------------- Name: Bernardo Jimenez Title: [SIGNATURE PAGE TO CONTRIBUTION AGREEMENT] By: /S/ Alfonso Romo Garza --------------------------------- Name: Alfonso Romo Garza By: /S/ Bruno Ferrari --------------------------------- Name: Bruno Ferrari By: /S/ Gaspar Alvarez --------------------------------- Name: Gaspar Alvarez By: /S/ Charles Edward Green --------------------------------- Name: Charles Edward Green By: /S/ Franco Campana --------------------------------- Name: Franco Campana By: /S/ Jean Pierre Posa --------------------------------- Name: Jean Pierre Posa By: /S/ Luis Maiz --------------------------------- Name: Luis Maiz By: /S/ Mateo Mazal Beja --------------------------------- Name: Mateo Mazal Beja By: /S/ Bernardo Jimenez --------------------------------- Name: Bernardo Jimenez By: /S/ Adrian Rodriguez --------------------------------- Name: Adrian Rodriguez [SIGNATURE PAGE TO CONTRIBUTION AGREEMENT] EX-99.4 8 v90668exv99w4.htm EXHIBIT 99.4

Exhibit 99.4

SAVIA AND FOX PAINE ENTER INTO
DEFINITIVE AGREEMENTS
TO ACQUIRE SEMINIS

     Oxnard, California, Monterrey, Mexico and, San Francisco, California. June 2, 2003 – Seminis, Inc. (Nasdaq: SMNS) announced today that it has entered into a definitive merger agreement with entities related to Savia, S.A. de C.V. (BMV: SAVIA; NYSE: VAI) pursuant to which certain Savia related parties will acquire all of the outstanding shares of Seminis, the world’s largest developer, producer and marketer of fruit and vegetable seeds. Public holders of approximately 15.8 million Seminis shares will receive $3.78 per share in the merger. Immediately following the merger, certain Savia related parties will sell to certain investment funds managed by Fox Paine & Company, LLC, a San Francisco based private equity firm, a number of the Seminis shares they will then own, representing approximately 75% of the Seminis common shares, following completion of the transactions, for $3.40 per share in cash. Certain entities affiliated with Alfonso Romo Garza, Seminis’ and Savia’s Chairman and Chief Executive Officer, will receive co-investment rights to purchase, subject to certain conditions, up to 34% of Seminis following the merger. Stockholders of Seminis representing in excess of 85% of the currently outstanding voting power of Seminis have entered into agreements to vote in favor of the merger. Savia shareholders provided their approval at a shareholder meeting held on April 30, 2003.

     The overall transaction has a total enterprise value in excess of US$650 million. The $3.78 per share price to Seminis’ public stockholders represents a premium of 51% based on Seminis’ closing price of $2.51 on December 13, 2002, the last closing price prior to the public announcement of the Savia letter of intent with Fox Paine regarding the overall transaction.

     The Seminis Board of Directors approved the merger agreement after receiving the unanimous recommendation of a special committee of independent directors, which was formed following the announcement of the December 13, 2002 letter of intent between Savia and Fox Paine.

     As part of the transaction, immediately prior to the consummation of the merger, Savia will exchange its Seminis Class C preferred shares for approximately 37.7 million shares of Seminis common stock, after which, the total number of outstanding Seminis common shares will be approximately 101.7 million. Savia expects to distribute approximately $0.53 per share to its shareholders from the proceeds of its sale of Seminis shares to Fox Paine. In addition, a portion of the proceeds will be used by Savia to settle and repay all of its currently outstanding indebtedness.

     Existing management will continue to run the Company, with Mr. Romo serving as Chairman and Chief Executive Officer and Dexter Paine, President of Fox Paine, serving as Vice Chairman of Seminis.

     Mr. Romo said, “With Fox Paine as a strategic partner, we are strengthening Seminis’ position as the world’s leading provider of high-quality specialty seeds in both developed and emerging markets. Fox Paine’s insight and expertise in the industry is proving to be invaluable as we focus on offering total solutions to our customers and capturing value in the food chain.”

     Mr. Paine said, “We are very excited to be making a strategic investment in Seminis and to have the opportunity to participate in its future growth. Seminis’ innovative agricultural technology and its experienced and talented management team, led by Alfonso Romo Garza, together with its new capital structure, will accelerate the next stage of this dynamic company’s development.”

     The transaction is expected to be completed later this summer and is subject to customary conditions, including the approval by Seminis’ stockholders, availability of financing and certain regulatory approvals. Seminis intends to file shortly with the U.S. Securities and Exchange Commission copies of the merger and other related agreements.

Safe Harbor Statement
All statements in this press release other than statements of historical facts are “forward looking” statements, including without limitation statements regarding the Savia’s and Seminis’ financial position, business strategy, plans, proposed transaction and objectives of management and industry conditions. Although Savia and Seminis each believes that the expectations reflected in such forward-looking statements regarding it are reasonable, it can give no assurance that such expectations will prove to be correct or that the proposed transaction will be completed. The following factors, among others,

may affect the actual results of Savia and/or Seminis or the proposed transaction and could cause such results to differ materially from those expressed in any forward-looking statements made by or on behalf of Savia and/or Seminis: competitive factors, agribusiness risks, governmental and economic risks associated with foreign operations, need for additional financing, as well as changes in the equity markets. Further information on the factors that could affect the financial results of Savia and/or Seminis is contained in their respective filings with the U.S. Securities and Exchange Commission. Neither Seminis nor Savia take any obligation to update or revise forward-looking statements to reflect changed assumptions, the occurrences of unanticipated events or changes to future operating results.

     Savia (www.savia.com.mx) participates in industries that offer high growth potential in Mexico and internationally. Among its main subsidiaries are: Seminis a global leader in the development, production and commercialization of fruit and vegetable seeds; Bionova, a grower and marketer of fresh produce; and Omega, a real estate development company.

     Seminis, Inc. (http://www.seminis.com) is the world’s largest developer, producer and marketer of vegetable seeds. The company uses seeds as the delivery vehicle for innovative agricultural technology. Its products are designed to reduce the need for agricultural chemicals, increase crop yield, reduce spoilage, offer longer shelf life, create better tasting foods and foods with better nutritional content. Seminis has established a worldwide presence and global distribution network that spans 150 countries and territories.

     Fox Paine & Company, LLC manages investment funds in excess of US$1.5 billion, providing equity capital for corporate acquisitions, company expansion and growth programs and management buyouts. The Fox Paine funds are managed on behalf of over 50 leading international financial institutions, including major governmental and corporate pension systems, Fortune 100 companies, major life and property & casualty insurance and reinsurance companies, money center and super regional commercial banks, investment banking firms, and university endowments. Fox Paine was founded in 1997 by Saul A. Fox, a former general partner of Kohlberg Kravis Roberts & Co., and W. Dexter Paine, III, a former general partner of Kohlberg & Co. More information about Fox Paine can be found at www.foxpaine.com.

     ADDITIONAL INFORMATION

     Seminis will file with the SEC, and will furnish to holders of Seminis common stock, a proxy statement. HOLDERS OF SEMINIS COMMON STOCK ARE URGED TO READ THE PROXY STATEMENT TO BE PREPARED IN CONNECTION WITH THE MERGER WHEN IT BECOMES AVAILABLE, BECAUSE IT CONTAINS IMPORTANT INFORMATION. Holders of Seminis common stock may obtain a copy of the proxy statement (when it is available) and other documents containing information about Seminis, free of charge, at the SEC’s web site at www.sec.gov. Copies of the proxy statement (when it is available) may also be obtained for free by directing a request to: Investor Relations, Seminis, Inc., 2700 Camino del Sol, Oxnard, CA 93030-7969 USA.

     Seminis and certain of its directors and executive officers may, under the rules of the SEC, be deemed to be participants in the solicitation of proxies from holders of Seminis common stock in favor of the merger. Information about the directors and executive officers of Seminis and their ownership of Seminis common stock is set forth in the Annual Report on Form 10-K filed with the SEC by Seminis on January 14, 2003, as amended on January 28, 2003. Additional information regarding the interests of these participants may be obtained by reading the proxy statement regarding the proposed transaction when it becomes available.

-----END PRIVACY-ENHANCED MESSAGE-----

EX-2.1

                                                                     Exhibit 2.1

                                                                  EXECUTION COPY





                          AGREEMENT AND PLAN OF MERGER

                            dated as of May 30, 2003

                                  by and among

                            SEMINIS ACQUISITION LLC,

                              SEMINIS MERGER CORP.,

                                       and

                                  SEMINIS, INC.

                               TABLE OF CONTENTS



                                                                                Page
                                                                                ----
                                                                             
ARTICLE I       CERTAIN DEFINITIONS                                              3

ARTICLE II      THE EXCHANGE AND THE DIVIDEND                                    10
  Section 2.1.    The Exchange                                                   10
  Section 2.2.    The Company Class B Preferred Stock Dividend                   11
  Section 2.3.    Withholding Taxes                                              11

ARTICLE III     THE MERGER                                                       11
  Section 3.1.    The Merger                                                     11
  Section 3.2.    Effective Time                                                 11
  Section 3.3.    Effects of the Merger                                          12
  Section 3.4.    Certificate of Incorporation and Bylaws                        12
  Section 3.5.    Directors                                                      12
  Section 3.6.    Officers                                                       12
  Section 3.7.    Subsequent Actions                                             12
  Section 3.8.    Effect on the Capital Stock                                    12
  Section 3.9.    Dissenting Shares                                              13
  Section 3.10.   List of Other Equity Awards; Treatment of Other Equity Awards  14
  Section 3.11.   Payment for Shares                                             15

ARTICLE IV      REPRESENTATIONS AND WARRANTIES OF THE COMPANY                    17
  Section 4.1.    Organization and Qualification; Subsidiaries                   17
  Section 4.2.    Capitalization of the Company and its Subsidiaries             17
  Section 4.3.    Authority Relative to this Agreement                           19
  Section 4.4.    SEC Reports; Financial Statements                              20
  Section 4.5.    Proxy Statement                                                21
  Section 4.6.    Consents and Approvals, No Violations                          21
  Section 4.7.    No Default                                                     22
  Section 4.8.    No Undisclosed Liabilities; Absence of Changes                 22
  Section 4.9.    Compliance with Applicable Law                                 22
  Section 4.10.   Employee Benefit Matters                                       23
  Section 4.11.   Labor Matters                                                  25
  Section 4.12.   Intellectual Property                                          26
  Section 4.13.   Taxes                                                          27
  Section 4.14.   Absence of Litigation                                          28
  Section 4.15.   Material Contracts                                             29
  Section 4.16.   Insurance                                                      31
  Section 4.17.   Environmental Laws and Regulations                             31
  Section 4.18.   Title to Properties; Encumbrances                              32
  Section 4.19.   Tangible Personal Property; Sufficiency of Assets              34
  Section 4.20.   Affiliate Transactions                                         34
  Section 4.21.   Suppliers and Customers                                        35




                                                                                Page
                                                                                ----
                                                                             
  Section 4.22.   Information in Financing Documents                             35
  Section 4.23.   State Takeover Statute Inapplicable                            35
  Section 4.24.   Brokers                                                        35
  Section 4.25.   Opinion of Financial Advisor                                   35
  Section 4.26.   Company Information                                            35

ARTICLE V       REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB          36
  Section 5.1.    Organization                                                   36
  Section 5.2.    Authority Relative to this Agreement                           36
  Section 5.3.    Consents and Approvals; No Violations                          36
  Section 5.4.    Capitalization                                                 37
  Section 5.5.    Proxy Statement; Information                                   37
  Section 5.6.    Brokers                                                        38
  Section 5.7.    Financing                                                      38
  Section 5.8.    Ownership of Shares                                            39
  Section 5.9.    Parent/FPSH Agreements                                         39
  Section 5.10.   Parent Information                                             39

ARTICLE VI      COVENANTS                                                        39
  Section 6.1.    Stockholders Meeting                                           39
  Section 6.2.    Proxy Statement                                                39
  Section 6.3.    Conduct of Business of the Company                             40
  Section 6.4.    Notification of Certain Matters                                43
  Section 6.5.    Access to Information                                          43
  Section 6.6.    Additional Agreements, Commercially Reasonable Efforts         44
  Section 6.7.    Public Announcements                                           46
  Section 6.8.    Indemnification                                                46
  Section 6.9.    Contributions to Parent                                        48
  Section 6.10.   No Solicitation                                                48
  Section 6.11.   Resignation of Directors                                       50
  Section 6.12.   Solvency Opinion                                               50
  Section 6.13.   Related Agreements                                             51
  Section 6.14.   Exchange Agreement                                             51
  Section 6.15.   Privilege                                                      51
  Section 6.16.   Employee Matters                                               51
  Section 6.17.   Merger Sub Charter Amendment                                   51

ARTICLE VII     CONDITIONS TO CONSUMMATION OF THE MERGER                         52
  Section 7.1.    Conditions to the Merger                                       52
  Section 7.2.    Conditions to Each Party's Obligations to Effect the Merger    54

ARTICLE VIII    TERMINATION; AMENDMENT; WAIVER                                   54
  Section 8.1.    Termination                                                    54
  Section 8.2.    Effect of Termination                                          55
  Section 8.3.    Fees and Expenses                                              56
  Section 8.4.    Amendment                                                      57
  Section 8.5.    Waiver                                                         57




                                                                                Page
                                                                                ----
                                                                             
ARTICLE IX      MISCELLANEOUS                                                    57
  Section 9.1.    Nonsurvival of Representations and Warranties                  57
  Section 9.2.    Entire Agreement; Assignment                                   57
  Section 9.3.    Severability                                                   58
  Section 9.4.    Notices                                                        58
  Section 9.5.    Governing Law; Consent to Jurisdiction; Waiver of Jury Trial   59
  Section 9.6.    Specific Performance                                           60
  Section 9.7.    Interpretation                                                 60
  Section 9.8.    Parties in Interest                                            60
  Section 9.9.    Performance by Others                                          60
  Section 9.10.   Counterparts                                                   61

EXHIBIT A - Certificate of Merger

EXHIBIT B - Stock Purchase Agreement

EXHIBIT C - Contribution Agreement

EXHIBIT D - Financing Commitment Letters

EXHIBIT E - Shares of Company Common Stock to be Contributed to Parent

EXHIBIT F - Equity Commitment Letter

EXHIBIT G - Foreign Investment in Real Property Tax Act Affidavits

EXHIBIT H - By-laws of Merger Sub

Company Disclosure Schedule

Parent Disclosure Schedule


                          AGREEMENT AND PLAN OF MERGER

                  THIS AGREEMENT AND PLAN OF MERGER, dated as of May 30, 2003
(this "Agreement"), is made by and among Seminis Acquisition LLC, a Delaware
limited liability company ("Parent"), Seminis Merger Corp., a Delaware
corporation and wholly owned subsidiary of Parent ("Merger Sub"), and Seminis,
Inc., a Delaware corporation (the "Company").

                  WHEREAS, the Company has authority to issue 288,000,000 shares
of capital stock consisting of: (1) 278,000,000 shares of common stock, par
value $.01 per share (the "Company Common Stock"), of which (a) 211,000,000
shares are designated Class A Common Stock, par value $.01 per share (the
"Company Class A Common Stock"), 18,978,291 of which were outstanding as of
April 29, 2003 and (b) 67,000,000 shares are designated Class B Common Stock,
par value $.01 per share (the "Company Class B Common Stock"), 45,142,508 of
which were outstanding as of April 29, 2003, and (2) 10,000,000 shares of
preferred stock, par value $.01 per share (the "Company Preferred Stock"), of
which (a) 25,000 shares are designated Class A Redeemable Preferred Stock, par
value $.01 per share (the "Company Class A Preferred Stock"), none of which are
outstanding, (b) 25,000 shares are designated Class B Redeemable Preferred
Stock, par value $.01 per share (the "Company Class B Preferred Stock"), 25,000
of which were outstanding as of April 29, 2003 and (c) 16,688 shares are
designated Class C Redeemable PIK Preferred Stock, par value $.01 per share (the
"Company Class C Preferred Stock"), 16,688 of which were outstanding as of April
29, 2003;

                  WHEREAS, each share of Company Class A Common Stock is
entitled to one vote per share and each share of Company Class B Common Stock is
entitled to three votes per share;

                  WHEREAS, Parent and its Affiliates own an aggregate of
3,199,361 shares of Company Class A Common Stock and 42,823,515 shares of
Company Class B Common Stock as of the date hereof, and Parent and its
Affiliates will own an aggregate of 41,554,346 shares of Company Class A Common
Stock and 42,823,515 shares of Company Class B Common Stock as of the Closing
Date;

                  WHEREAS, Affiliates of Parent have proposed to the board of
directors of the Company (the "Company Board") a transaction pursuant to which
Parent would, among other things, acquire the outstanding shares of Company
Common Stock not owned by Parent or its Affiliates;

                  WHEREAS, the Company Board has established a special committee
of the Company Board comprised solely of directors unaffiliated with Parent or
its Affiliates (the "Special Committee") to consider such proposal and make a
recommendation to the Company Board with respect thereto;

                  WHEREAS, the Special Committee and the Company Board, based on
the recommendation of the Special Committee, (a) have determined that the merger
of Merger Sub with and into the Company, with the Company as the surviving
corporation (the "Merger"), upon the terms and subject to the conditions set
forth in this Agreement, is advisable, fair to and in the

best interests of the Company's stockholders (other than Parent and its
Affiliates), and (b) have approved (i) this Agreement and the Merger, pursuant
to which each share of Company Common Stock issued and outstanding immediately
prior to the Effective Time (except for shares of Company Common Stock owned,
directly or indirectly by Parent, Merger Sub or the Company, and except for any
shares of Company Common Stock as to which appraisal rights are exercised and
perfected pursuant to applicable law) will be converted into the right to
receive $3.78 in cash (the "Per Share Amount"), and (ii) the Related Agreements
and the Related Transactions;

                  WHEREAS, the Special Committee and the Company Board, based on
the recommendation of the Special Committee, have resolved to recommend that the
Company's stockholders approve and adopt this Agreement and the Merger;

                  WHEREAS, immediately following the Merger, pursuant to the
Stock Purchase Agreement, of even date herewith, among Fox Paine Seminis
Holdings, LLC ("FPSH"), 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 de Administracion y Pago
Numero 167-5) (the "ARG Trust"), Parent and Merger Sub (the "Stock Purchase
Agreement"), FPSH will purchase shares of common stock, par value $.01 per
share, of the Surviving Corporation (the "New Company Common Stock") from Parent
on the terms and conditions set forth in the Stock Purchase Agreement (the
"Stock Purchase");

                  WHEREAS, as a condition and inducement to FPSH's willingness
to enter into the Stock Purchase Agreement and consummate the transactions
contemplated thereby, FPSH has required certain Persons to enter into a voting
agreement, of even date herewith (the "Voting Agreement"), pursuant to which,
among other things, and subject to the terms and conditions therein, each Person
(other than FPSH) party to the Voting Agreement agrees to vote, or cause to be
voted, all shares of Company Common Stock beneficially owned by such stockholder
in favor of the Merger;

                  WHEREAS, the members of Parent (including the managing member)
and the board of directors of Merger Sub have determined that this Agreement and
the Merger are advisable, fair to and in the best interests of their respective
company and members or corporation and stockholders (as applicable) and have
approved this Agreement and the Merger; and

                  WHEREAS, Parent, Merger Sub and the Company desire to make
certain representations, warranties, covenants and agreements in connection with
the Merger and also to prescribe various conditions to the Merger;

                  NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, the parties
agree as follows:


                                      -2-

                                    ARTICLE I

                              CERTAIN DEFINITIONS

      As used in this Agreement, the following terms shall have the respective
meanings set forth below:

      "Affiliate" of a specified Person means a Person who, directly or
indirectly, through one or more intermediaries controls, is controlled by or is
under common control with such specified Person; provided that as used in this
Agreement with respect to Parent, the term "Affiliate" or "Affiliates" means
Affiliates of Parent, including Savia, Merger Sub and their respective
Affiliates, other than the Company and its Subsidiaries. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting shares, by
contract or otherwise.

      "Agreement" shall have the meaning set forth in the preamble.

      "Acquisition Agreement" shall have the meaning set forth in Section
6.10(e).

      "ARG Trust" shall have the meaning set forth in the recitals.

      "Award List" shall have the meaning set forth in Section 3.10(a).

      "Award Cancellation Time" means the time that is immediately prior to the
Effective Time.

      "Benefit Plans" shall have the meaning set forth in Section 4.10(a).

      "Certificate of Merger" shall have the meaning set forth in Section 3.2.

      "Certificate" shall have the meaning set forth in Section 3.8(d).

      "Closing" shall have the meaning set forth in Section 3.2.

      "Closing Date" shall have the meaning set forth in Section 3.2.

      "Code" means the Internal Revenue Code of 1986, as amended.

      "Company" shall have the meaning set forth in the preamble.

      "Company 2002 10-K" shall have the meaning set forth in Section 4.15(a).

      "Company Balance Sheet" means the audited balance sheet for the period
ended September 30, 2002, contained in the Company's Form 10-K for the period
ended September 30, 2002, filed with the SEC on January 14, 2003.

      "Company Board" shall have the meaning set forth in the recitals.


                                      -3-

      "Company Class A Common Stock" shall have the meaning set forth in the
recitals.

      "Company Class A Preferred Stock" shall have the meaning set forth in the
recitals.

      "Company Class B Common Stock" shall have the meaning set forth in the
recitals.

      "Company Class B Preferred Stock" shall have the meaning set forth in the
recitals.

      "Company Class C Preferred Stock" shall have the meaning set forth in the
recitals.

      "Company Common Stock" shall have the meaning set forth in the recitals.

      "Company Competing Transaction" means any recapitalization, merger,
consolidation or other business combination involving the Company, or direct or
indirect acquisition of shares of Company Common Stock representing 15% or more
of the voting power of the Company (except for transactions contemplated by the
Exchange Agreement or any amendment thereto) or any material portion of the
assets (except for acquisitions of assets in the ordinary course of business
consistent with past practice) of the Company and its Subsidiaries, or any
combination of the foregoing.

      "Company Credit Agreement" means the Credit Agreement among the Company,
Seminis Vegetable Seeds, Inc., SVS Holland B.V., as borrowers, and Harris Trust
and Savings Bank, individually and as administrative agent, and Bank of
Montreal, Chicago Branch, individually and as syndication agent, and the lenders
from time to time parties thereto, dated as of June 28, 1999, as amended through
the date hereof.

      "Company Disclosure Schedule" means the schedule of disclosures delivered
by the Company to Parent and Merger Sub concurrent with the execution of this
Agreement.

      "Company Germplasm" means the germplasm actively used in the breeding or
research programs of the Company and its Subsidiaries.

      "Company Intellectual Property" means the intellectual property rights
used in the conduct of the business of the Company or its Subsidiaries,
including all patents and patent applications, trademarks, trademark
registrations and applications, domain names, copyrights and copyright
registrations and applications, computer programs, technology, know-how, trade
secrets, proprietary processes, inventions, service marks, original works of
authorship and formulae, together with the goodwill associated with the
foregoing.

      "Company's Knowledge" means the actual knowledge, after reasonable
inquiry, of Eugenio Najera, Bruno Ferrari, C. Edward Green, Jose Manuel Madero,
Gaspar Alvarez, Oscar Velasco, Salvador Alanis, Cristobal Cardenas, Enrique
Osorio, Franco Campana, Jean Pierre Posa, Juliet Ream, Patrick Turner, Steve
Witt, and, with respect to seedmen's claims only, Pieter Vandenberg.

      "Company Material Adverse Effect" means any event, change, circumstance,
effect or state of facts that is or is reasonably expected to be materially
adverse to (a) the business, results of operations, condition (financial or
otherwise), assets or liabilities of the Company and its


                                      -4-

Subsidiaries, taken as a whole, or (b) the ability of the Company to consummate
any of the transactions contemplated by this Agreement and the Related
Agreements, including the Merger and the Related Transactions, except to the
extent that such adverse effect results from (i) general economic conditions or
changes therein, (ii) financial or securities market fluctuations or conditions,
(iii) changes in, or events or conditions affecting, the industries or
businesses in which the Company and its Subsidiaries operate, or (iv) the
announcement of the transactions contemplated by this Agreement or the Letter of
Intent.

      "Company Permits" shall have the meaning set forth in Section 4.9.


      "Company Preferred Stock" shall have the meaning set forth in the
recitals.

      "Company PVP Certificates" shall have the meaning set forth in Section
4.12(a).

      "Company SEC Documents " shall have the meaning set forth in Section
4.4(a).

      "Company Securities" shall have the meaning set forth in Section 4.2(a).

      "Company Stock Plans" shall have the meaning set forth in Section 3.10(a).

      "Company Stockholder Approval" means the vote of a majority of the voting
power of the Company Common Stock (voting together as a single class) for the
approval and adoption of this Agreement and the Merger.

      "Company Termination Fee" shall have the meaning set forth in Section
8.3(a).

      "Compensation Payment" shall have the meaning set forth in Section
4.10(d).

      "Confidentiality Agreement" shall have the meaning set forth in Section
6.5(a).

      "Contribution Agreement" means the Contribution Agreement of even date
herewith among Parent, the Contributors (as defined therein), ARG Trust, Mexican
SPC (as defined therein) and Mr. Alfonso Romo Garza, providing for the
contribution of shares of Company Common Stock to Parent.

      "Controlled Group Liability" shall have the meaning set forth in Section
4.10(f).

      "Debt Financing" shall have the meaning set forth in Section 5.7(b).

      "DGCL" means the General Corporation Law of the State of Delaware.

      "Disinterested Stockholder Approval" shall have the meaning set forth in
Section 6.10(C).

      "Dissenting Shares" shall have the meaning set forth in Section 3.9.

      "Effective Time" shall have the meaning set forth in Section 3.2.

      "Employees" shall have the meaning set forth in Section 4.10(h).


                                      -5-

      "Employment Agreements" shall have the meaning set forth in Section
4.10(h).

      "Environmental Claim" shall have the meaning set forth in Section 4.17(a).

      "Environmental Laws" means all applicable statutes, laws, ordinances,
codes, common law, licenses, permits, rules, regulations, orders, demands,
approvals, authorizations and similar items of any Governmental Entity relating
to pollution or Hazardous Substances or protection of human health or the
environment (including ambient air, surface water, ground water, land surface or
subsurface strata) or emissions, discharges, releases, disposal or handling of
any pollutants or Hazardous Substances.

      "ERISA" shall have the meaning set forth in Section 4.10(a).

      "ERISA Affiliate" shall have the meaning set forth in Section 4.10(c).

      "Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.

      "Exchange Agreement" shall have the meaning set forth in Section 2.1.

      "Existing Policy" shall have the meaning set forth in Section 6.8(c).

      "Financial Statements" shall have the meaning set forth in Section 4.4(a).

      "Financing Commitment Letters" shall have the meaning set forth in Section
5.7(b).

      "Financing Documents" shall have the meaning set forth in Section 4.22.

      "FPSH" shall have the meaning set forth in the recitals.

      "FPSH Expenses" means all documented out-of-pocket fees and expenses
actually and reasonably incurred by FPSH and its Affiliates or on their behalf
in connection with any of the transactions contemplated by this Agreement and
the Related Agreements (including fees and expenses payable to financing
sources, investment bankers, consultants, counsel to any of the foregoing,
accountants and legal counsel).

      "GAAP" means U.S. generally accepted accounting principles.

      "Governmental Entity" shall have the meaning set forth in Section 4.6.

      "Hazardous Substance" means any substance presently listed, defined,
designated or classified as hazardous, toxic, radioactive or dangerous, or
otherwise regulated, under any Environmental Law, including any toxic waste,
pollutant, contaminant, hazardous substance, toxic substance, hazardous waste,
special waste, industrial substance or petroleum or any derivative or byproduct
thereof, radon, radioactive material, asbestos, or asbestos containing material,
urea formaldehyde, foam insulation or polychlorinated biphenyls, lead or
lead-based paints or materials.

      "HMO" shall have the meaning set forth in Section 4.10(c).


                                      -6-

      "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended.

      "Indemnified Parties" shall have the meaning set forth in Section 6.8(b).

      "Indebtedness" of any Person means (a) all obligations of such Person for
borrowed money or for the deferred purchase price of property or services (other
than current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices, and excluding ordinary operating
leases), (b) any other obligations of such Person that are evidenced by a note,
bond, debenture or similar instrument, (c) all obligations under conditional
sale or other title retention agreements relating to property purchased, (d)
capital lease or sale-leaseback obligations, (e) all liabilities secured by any
Lien on any property (other than ordinary operating leases), and (f) any
guarantee or assumption of any of the foregoing in clauses (a) through (e) above
or guaranty of minimum equity or capital or any make-whole or similar obligation
or any other guarantee of indebtedness of a third party.

      "Insurance Policies" shall have the meaning set forth in Section 4.16.

      "IRS" means the U.S. Internal Revenue Service.

      "Key Employee" means any Chief Executive Officer, President, Executive
Vice President or Senior Vice President or other employee of the Company or its
Subsidiaries whose annual base salary (excluding bonuses and other non-salary
compensation) exceeds $100,000.

      "Leased Real Property" shall have the meaning set forth in Section
4.18(a).

      "Lenders" shall have the meaning set forth in Section 5.7(b).

      "Letter of Intent" means the non-binding letter of intent, by and among
Fox Paine & Company, LLC, Savia, ARG Trust, Servasa, S.A. de C.V. and Mr.
Alfonso Romo, dated December 13, 2002, as amended.

      "Lien" means, with respect to any asset (including any security), any
security interests, liens, claims, charges, title defects, deficiencies or
exceptions (including, with respect to Real Property Leases, subleases,
assignments, licenses or other agreements granting to any third party any
interest in a Real Property Lease or any right to the use or occupancy of any
Leased Real Property), mortgages, pledges, easements, encroachments,
restrictions on use, rights-of-way, 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 in respect of such asset.

      "Material Contracts" shall have the meaning set forth in Section 4.15(a).

      "Merger" shall have the meaning set forth in the recitals.

      "Merger Consideration" shall have the meaning set forth in Section 3.8(d).

      "Merger Sub" shall have the meaning set forth in the preamble.


                                      -7-

      "MS Common Stock" means shares of common stock, par value $.01 per share,
of Merger Sub.

      "MS Preferred Stock" means shares of preferred stock, par value $.01 per
share, of Merger Sub.

      "New Company Common Stock" shall have the meaning set forth in the
recitals.

      "NOL Carryforwards" shall have the meaning specified in Section 4.13.

      "Outside Date" shall mean October 15, 2003, unless the commitment set
forth in the Financing Commitment Letters (or in any replacement financing
arrangement pursuant to Section 6.6(d)) shall have been extended or obtained
until a date beyond October 15, 2003, in which event "Outside Date" shall mean
the earlier of (i) the date until which financing commitments have been extended
or obtained, and (ii) November 30, 2003.

      "Owned Real Property" shall have the meaning set forth in Section 4.18(a).

      "Parent" shall have the meaning set forth in the preamble.

      "Parent Disclosure Schedule" means the schedule of disclosures delivered
by Parent to the Company concurrent with the execution of this Agreement.

      "Parent Material Adverse Effect" means any event, change, circumstance,
effect or state of facts that is or is reasonably expected to be materially
adverse to the ability of Parent or Merger Sub to consummate the transactions
contemplated by this Agreement or by the Related Agreements.

      "Paying Agent" shall have the meaning set forth in Section 3.11(a).

      "PBGC" means the Pension Benefit Guaranty Corporation.

      "Permitted Discussions" shall have the meaning set forth in Section
6.10(a).

      "Permitted Liens" means (a) growers', mechanics', carriers', workers',
repairers', materialmen's, warehousemen's, and other similar Liens arising in
the ordinary course of the Company's business and either (i) for sums not yet
due and payable or (ii) such Liens as are less than $100,000 in amount and are
being contested in good faith and by appropriate proceedings, (b) Liens under
the Company Credit Agreement, (c) Liens for current Taxes not yet due or payable
or being contested in good faith or for supplemental Taxes for which the Company
has not received a written notice of assessment, and (d) any other covenants,
conditions, restrictions, reservations, rights and non-monetary Liens incurred
or suffered in the ordinary course of business and that (i) do not materially
detract from the current use of the applicable Real Property and (ii) would not,
individually or in the aggregate, have a Company Material Adverse Effect.

      "Per Share Amount" shall have the meaning set forth in the recitals.


                                      -8-

      "Person" means an individual, corporation, limited liability company,
partnership, association, trust, unincorporated organization, other entity or
"group" (as defined in the Exchange Act).

      "Proxy Statement" shall have the meaning set forth in Section 6.2.

      "Real Property" shall have the meaning set forth in Section 4.18(a).

      "Real Property Lease" shall mean any contract or agreement to which the
Company or any of its Subsidiaries is a party relating to the lease of real
property used by the Company or its Subsidiaries requiring annual payments in
excess of (or reasonably expected to be in excess of) $100,000.

      "Record Date" shall mean the date on which holders of Company Common Stock
on such date, as reflected on the Company's (or its transfer agent's) books and
records, shall be entitled to vote at the Stockholders Meeting, such date
determined in accordance with the Company's Bylaws and other applicable
requirements.

      "Related Agreements " shall mean the Voting Agreement, the Contribution
Agreement and the Stock Purchase Agreement.

      "Related Transactions" shall mean the transactions contemplated by the
Related Agreements.

      "Restricted Shares" means shares of restricted stock granted under any
Company Stock Plan.

      "Retained Options" shall have the meaning set forth in Section 3.10(a).

      "Retained Option Participants" shall have the meaning set forth in Section
3.10(a).

      "Savia" means Savia, S.A. de C.V., a corporation (sociedad anonima de
capital variable) organized under the laws of the United Mexican States.

      "SEC" means the U.S. Securities and Exchange Commission.

      "Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.

      "Special Committee" shall have the meaning set forth in the recitals.

      "Stock Option" shall have the meaning set forth in Section 3.10(a).

      "Stock Purchase" shall have the meaning set forth in the recitals.

      "Stock Purchase Agreement" shall have the meaning set forth in the
recitals.

      "Stockholders' Agreement" means the Stockholders' Agreement, of even date
herewith, by and among Merger Sub and the Persons listed on the signature pages
thereto.


                                      -9-

      "Stockholders Meeting" shall have the meaning set forth in Section 6.1.

      "Subsidiary" means, with respect to any Person, any other Person, whether
incorporated or unincorporated or domestic or foreign to the United States, of
which (a) such first Person or any other Subsidiary of such first Person is a
general partner (excluding such partnerships where such first Person or any
Subsidiary of such first Person does not have a majority of the voting interest
in such partnership) or (b) at least a majority of the securities or other
interests having by their terms ordinary voting power to elect a majority of the
board of directors or others performing similar functions with respect to such
corporation or other organization is, directly or indirectly, owned or
controlled by such first Person or by any one or more of its Subsidiaries, or by
such first Person and one or more of its Subsidiaries.

      "Superior Transaction" shall have the meaning set forth in Section
6.10(e).

      "Surviving Corporation" shall have the meaning set forth in Section 3.1.

      "Tail Period" shall have the meaning set forth in Section 6.8(c).

      "Tax Returns" means all reports, returns, information returns, statements,
declarations and certifications required to be filed with respect to Taxes.

      "Taxes" means any income, alternative or add-on minimum tax, gross
receipts, sales, use, transfer, gains, ad valorem, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, occupation, premium,
property, environmental or windfall profit tax, custom, duty or other tax, or
other like assessment or charge, together with any related interest, penalty,
addition to tax or additional amount.

      "Transmittal Documents" shall have the meaning set forth in Section
3.11(b).

      "Voting Agreement" shall have the meaning set forth in the recitals.

      "WARN Act" shall have the meaning set forth in Section 4.11(b).

                                   ARTICLE II

                          THE EXCHANGE AND THE DIVIDEND

                  Section 2.1. The Exchange. Immediately prior to the Merger,
and pursuant to, and subject to the conditions set forth in, the Amended and
Restated Exchange Agreement, dated as of the date hereof, by and between the
Company and Savia (the "Exchange Agreement"): the Company will issue to Savia an
aggregate of 37,669,480 shares of Company Class A Common Stock and will pay to
Savia an amount in cash as determined in accordance with the Exchange Agreement
in exchange for (a) all of Savia's right, title and interest in and to 16,688
shares of Company Class C Preferred Stock (all of which shares of Company Class
C Preferred Stock shall be surrendered, free and clear of any and all Liens)
including the right to accrued but unpaid paid in kind dividends thereon, (b)
any right, title or interest in or to any and all accrued and unpaid cash
dividends on the Company Class C Preferred Stock, and (c) any right, title or
inter-


                                      -10-

est in or to any and all accrued and unpaid cash obligations on additional paid
in capital and any other rights and claims with respect to any of the foregoing
through the Effective Time.

                  Section 2.2. The Company Class B Preferred Stock Dividend.
Immediately prior to the Merger, the Company shall declare and pay a dividend
equal to all accrued and unpaid dividends on the Company Class B Preferred
Stock as of the payment date immediately preceding the Closing Date (which, as
of April 25, 2003, are in an aggregate amount equal to $5,666,667), which
payment shall be made in cash in accordance with the Company's certificate of
incorporation and the certificate of designations for the Company Class B
Preferred Stock.

                  Section 2.3. Withholding Taxes. The amounts set forth in this
Article II or Article III shall be subject to reduction for any applicable
federal, state, local or foreign withholding Taxes. To the extent that amounts
are so withheld, such amounts shall be treated for all purposes of this
Agreement as having been paid to the Person in respect of which such withholding
was made.

                                   ARTICLE III

                                   THE MERGER

                  Section 3.1. The Merger. Subject to the conditions of this
Agreement and in accordance with the DGCL, the parties hereto shall consummate
the Merger pursuant to which (a) Merger Sub shall merge with and into the
Company and the separate corporate existence of Merger Sub shall thereupon
cease, (b) the Company shall be the surviving corporation in the Merger
(sometimes referred to as the "Surviving Corporation") and shall continue to be
governed by the laws of the State of Delaware, and (c) the corporate existence
of the Company, with all of its rights, privileges, immunities, powers and
franchises, shall continue unaffected by the Merger.

                  Section 3.2. Effective Time. As soon as practicable after the
satisfaction or waiver (to the extent permitted by applicable law) of the
conditions set forth in Article VII, the parties hereto shall cause a
certificate of merger (the "Certificate of Merger") to be executed and filed on
the Closing Date (or on such other date as Parent and the Company may agree)
with the Secretary of State of the State of Delaware in such form as required
by, and executed in accordance with, the relevant provisions of the DGCL. The
closing of the Merger (the "Closing") will take place (a) at the offices of
Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York, at
10:00 a.m. New York City time as soon as reasonably practicable (but in any
event no later than the third business day) after satisfaction or waiver (to the
extent permitted by applicable law) of the conditions set forth in Article VII
(other than those conditions that are to be satisfied at the Closing, but
subject to the satisfaction or waiver (to the extent permitted by applicable
law) of such other conditions), or (b) at such other place or time and/or such
other date as the parties may agree. The date on which the Closing occurs is
referred to in this Agreement as the "Closing Date." The Merger shall become
effective at such time as the Certificate of Merger is duly filed with the
Secretary of State of the State of Delaware or at such later date and time as
the parties shall agree and as shall be specified in the Certificate of Merger
(the time the Merger becomes effective, the "Effective Time").


                                      -11-

                  Section 3.3. Effects of the Merger. The Merger shall have the
effects as set forth in the applicable provisions of the DGCL. Without limiting
the generality of the foregoing, and subject thereto, at the Effective Time, all
the properties, rights, privileges, powers and franchises of the Company and
Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities
and duties of the Company and Merger Sub shall become the debts, liabilities and
duties of the Surviving Corporation.

                  Section 3.4. Certificate of Incorporation and Bylaws.

                  (a) The certificate of incorporation of the Company in effect
immediately prior to the Effective Time, as amended in accordance with the
Certificate of Merger attached hereto as Exhibit A, shall be the certificate of
incorporation of the Surviving Corporation until amended in accordance with its
terms and applicable law.

                  (b) The bylaws of Merger Sub in effect immediately prior to
the Effective Time, in the form attached hereto as Exhibit H, shall be the
bylaws of the Surviving Corporation until amended in accordance with their terms
and applicable law.

                  Section 3.5. Directors. The directors of Merger Sub
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the certificate of
incorporation and bylaws of the Surviving Corporation until such director's
successor is duly elected or appointed and qualified.

                  Section 3.6. Officers. The officers of the Company immediately
prior to the Effective Time shall be the initial officers of the Surviving
Corporation, each to hold office in accordance with the certificate of
incorporation and bylaws of the Surviving Corporation until such officer's
successor is duly elected or appointed and qualified.

                  Section 3.7. Subsequent Actions. If, at any time after the
Effective Time, the Surviving Corporation shall determine in good faith or be
advised that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or confirm of
record or otherwise in the Surviving Corporation its right, title or interest
in, to or under any of the rights, properties or assets of either of the Company
or Merger Sub acquired or to be acquired by the Surviving Corporation as a
result of, or in connection with the Merger or otherwise to carry out this
Agreement, the officers and directors of the Surviving Corporation shall be
authorized to execute and deliver, in the name and on behalf of either the
Company or Merger Sub, all such deeds, bills of sale, assignments and assurances
and to take and do, in the name and on behalf of each of such corporations or
otherwise, all such other actions and things as may be necessary or desirable to
vest, perfect or confirm any and all right, title and interest in, to and under
such rights, properties or assets in the Surviving Corporation or otherwise to
carry out this Agreement.

                  Section 3.8. Effect on the Capital Stock. As of the Effective
Time, by virtue of the Merger and without any action on the part of the Company,
Parent, Merger Sub or any holder of any shares of Company Common Stock, Company
Preferred Stock or any shares of capital stock of Merger Sub:


                                      -12-

                  (a) Each share of MS Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into one share of New
Company Common Stock following the Merger.

                  (b) Each share of Company Common Stock that is owned by Parent
or Merger Sub immediately prior to the Effective Time shall automatically be
canceled and retired and shall cease to exist, and no cash, Company Common Stock
or other consideration shall be delivered or deliverable in exchange therefor.

                  (c) Each share of Company Common Stock that is owned by or
held in the treasury of the Company immediately prior to the Effective Time
shall automatically be canceled and retired and shall cease to exist, and no
cash, Company Common Stock or other consideration, including the Merger
Consideration, shall be delivered or deliverable in exchange therefor.

                  (d) Shares of Company Common Stock issued and outstanding
immediately prior to the Effective Time (other than any shares to be canceled
pursuant to Sections 3.8(b) and 3.8(c) and any Dissenting Shares) held by each
stockholder of the Company shall be converted into the right to receive an
amount in cash (the "Merger Consideration") equal to the product of (A) the
number of shares of Company Common Stock owned by such stockholder immediately
prior to the Effective Time, and (B) the Per Share Amount. The Merger
Consideration shall be payable to the holder of shares of Company Common Stock,
without interest thereon, upon the surrender of the certificate or certificates
formerly representing such shares of Company Common Stock (each, a
"Certificate") in the manner provided in Section 3.11, less any required with-
holding of U.S. federal, state, local or foreign Taxes. From and after the
Effective Time, all such shares of Company Common Stock so converted into the
Merger Consideration shall no longer be outstanding and shall be deemed to be
canceled and retired and shall cease to exist, and each holder of a Certificate
or Certificates shall cease to have any rights with respect thereto, except the
right to receive the Merger Consideration therefor upon the surrender of such
Certificate or Certificates in accordance with Section 3.11 (or, with respect to
Dissenting Shares, as provided in Section 3.9).

                  (e) Each share of Company Class B Preferred Stock issued and
outstanding or held by the Company as treasury stock immediately prior to the
Effective Time shall remain issued and outstanding or held as treasury stock,
as the case may be, and shall be unaffected by the Merger.

                  Section 3.9. Dissenting Shares. Anything in this Agreement to
the contrary notwithstanding, each share of Company Common Stock or Company
Class B Preferred Stock outstanding immediately prior to the Effective Time and
held by a holder who has not voted in favor of the Merger or consented thereto
in writing and who has demanded appraisal for such share of Company Common Stock
or Company Class B Preferred Stock in accordance with Section 262 of the DGCL,
if such Section 262 of the DGCL provides for appraisal rights for such shares of
Company Common Stock or Company Class B Preferred Stock in the Merger
("Dissenting Shares"), shall not: (a) in the case of the Company Common Stock,
be converted into or be exchangeable for the right to receive the Merger
Consideration; or (b) in the case of the Company Class B Preferred Stock, remain
issued and outstanding following the Merger, unless and until such holder of
Company Common Stock or Company Class B Preferred Stock,


                                      -13-

as the case may be, fails to perfect or withdraws or otherwise loses his right
to appraisal and payment under the DGCL. If, after the Effective Time, any such
holder fails to perfect or withdraws or loses his right to appraisal, such
Dissenting Shares shall: (a) in the case of Company Common Stock, thereupon be
treated as if such shares had been converted as of the Effective Time into the
right to receive the Merger Consideration, if any, to which such holder is
entitled, without interest or dividends thereon; and (b) in the case of Company
Class B Preferred Stock, remain issued and outstanding and unaffected by the
Merger. The Company shall give Parent (a) prompt notice of any demands received
by the Company for appraisal of shares of Company Common Stock or Company Class
B Preferred Stock, attempted written withdrawals of such demands, and any other
instruments served pursuant to the DGCL and received by the Company relating to
stockholders' rights to appraisal with respect to the Merger; and (b) the
opportunity to direct all negotiations and proceedings with respect to any
exercise of such appraisal rights under the DGCL. The Company shall not, except
with the prior written consent of Parent, voluntarily make any payment with
respect to any demands for payment of fair value for capital stock of the
Company, offer to settle or settle any such demands or approve any withdrawal of
any such demands.

                  Section 3.10. List of Other Equity Awards; Treatment of Other
Equity Awards.

                  (a) Section 3.10(a) of the Company Disclosure Schedule
contains a true and complete list (the "Award List") of each option to purchase
shares of Company Common Stock (a "Stock Option") granted under each employee
and director stock incentive or compensation plan, agreement or arrangement (the
"Company Stock Plans") outstanding as of the date hereof (along with the
exercise prices thereof). Stock Options held by any person permitted by Parent
in writing on or after the date hereof to retain his or her Stock Options
following the Award Cancellation Time (collectively, the "Retained Option
Participants") are referred to as "Retained Options," to the extent such Person
agrees to have such Stock Options treated as Retained Options. Parent may
require that a Retained Option Participant, as a condition of having the Stock
Options held by such Retained Option Participant be treated as Retained Options,
agree in writing to be subject to certain restrictions on the transferability of
any shares of New Company Common Stock that are acquired after the Effective
Time upon the exercise of such Retained Options.

                  (b) At the Award Cancellation Time, each then-outstanding
Stock Option (whether vested or unvested), other than any Retained Option, shall
be canceled and, in consideration of such cancellation, the Company shall pay to
the holder as soon as practicable following the Award Cancellation Time, in full
satisfaction of such Stock Option, less any applicable withholding tax, an
amount in cash equal to the product of (i) the excess of the Per Share Amount
over the exercise price per share of such unexercised Stock Option, if any, and
(ii) the number of shares of Company Common Stock subject to such Stock Option.

                  (c) The Company shall (i) take all actions reasonably
necessary to cause the actions and effects specified in Section 3.10(b) to
occur, (ii) take all actions reasonably necessary, with Parent's assistance, to
ensure that, effective as of the Award Cancellation Time, no holder of Stock
Options, other than the Retained Option Participants, will have any right to
receive any shares of capital stock of the Company or, if applicable, the
Surviving Corporation, upon exercise of any Stock Option or any other event, and
(iii) provide its reasonable


                                      -14-

cooperation to Parent in connection with the actions contemplated by this
Section 3.10, including seeking, on Parent's behalf, consents from the Retained
Option Participants to have their Stock Options treated as Retained Options.

                  Section 3.11. Payment for Shares.

                  (a) Prior to the Effective Time, Parent shall designate a bank
or trust company reasonably acceptable to the Company to act as paying agent in
connection with the Merger (the "Paying Agent") pursuant to a paying agent
agreement providing for the matters set forth in this Section 3.11 and otherwise
reasonably satisfactory to the Company. At, or promptly following the Effective
Time, Parent shall, or shall cause the Surviving Corporation to, make available
to the Paying Agent for the benefit of holders of shares of Company Common
Stock, as needed, the aggregate consideration to which such holders of shares of
Company Common Stock shall be entitled at the Effective Time pursuant to Section
3.8(d). Such funds shall be invested in time deposits, treasury bills, or money
market or other similar instruments as directed by the Surviving Corporation
pending payment thereof by the Paying Agent to holders of the shares of Company
Common Stock. Earnings from such investments shall be the sole and exclusive
property of the Surviving Corporation, and no part thereof shall accrue to the
benefit of the holders of shares of Company Common Stock.

                  (b) Promptly after the Effective Time, the Paying Agent shall
mail to each record holder, as of the Effective Time, of an outstanding
Certificate(s), whose shares of Company Common Stock were converted pursuant to
Section 3.8(d) into the right to receive the Merger Consideration (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificate(s) shall pass, only upon proper delivery of
the Certificates to the Paying Agent and shall be in such form and have such
other provisions not inconsistent with this Agreement as Parent may reasonably
specify), and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for payment of the Merger Consideration (together, the
"Transmittal Documents"). Upon surrender of a Certificate or Certificates for
cancellation to the Paying Agent or to such other agent or agents as may be
appointed by Parent, together with such letter of transmittal and any other
required documents, duly executed, the holder of such Certificate(s) shall be
entitled to receive in exchange therefor (as promptly as practicable) the Merger
Consideration in respect of all shares of Company Common Stock formerly
represented by such surrendered Certificate(s), without any interest thereon,
pursuant to Section 3.8(d). The Certificate(s) so surrendered shall forthwith be
canceled. If payment of the Merger Consideration is to be made to a Person other
than the Person in whose name the surrendered Certificate(s) is registered, it
shall be a condition of payment that the Certificate(s) so surrendered shall be
properly endorsed or shall otherwise be in proper form for transfer, that the
signatures on the Certificate(s) or any related stock power shall be properly
guaranteed and that the Person requesting such payment shall have established to
the satisfaction of Parent that any transfer and other Taxes required by reason
of the payment of the Merger Consideration to a Person other than the registered
holder of the Certificate(s) surrendered have been paid or are not applicable.
Until surrendered in accordance with the provisions of and as contemplated by
this Section 3.11, any Certificate(s) (other than Certificate(s) representing
shares of Company Common Stock subject to Sections 3.8(b) and (c) and other than
Dissenting Shares) shall be deemed, at any time after the Effective Time, to
represent only the right to receive the Merger Consideration in cash without
interest as


                                      -15-

contemplated by this Section 3.11. Upon the surrender of a Certificate(s) in
accordance with the terms and instructions contained in the Transmittal
Documents, the Surviving Corporation shall cause the Paying Agent to pay to the
holder of such Certificate(s) in exchange therefor cash in an amount equal to
the Merger Consideration (other than Certificate(s) representing shares of
Company Common Stock subject to Sections 3.8(b) and (c) and other than
Dissenting Shares).

                  (c) At the Effective Time, the stock transfer books of the
Company shall be closed and there shall not be any further registration of
transfers of any shares of capital stock thereafter on the records of the
Company. If, after the Effective Time, a Certificate (other than those subject
to Sections 3.8(b) and (c)) is presented to the Surviving Corporation, it shall
be canceled and exchanged for the consideration provided for, and in accordance
with the procedures set forth, in this Section 3.11. No interest shall accrue or
be paid on any cash payable upon the surrender of a Certificate.

                  (d) From and after the Effective Time, the holders of
Certificates shall cease to have any rights with respect to shares of Company
Common Stock represented by such Certificate except as otherwise provided herein
or by applicable law.

                  (e) If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed, the Surviving Corporation
shall pay or cause to be paid in exchange for such lost, stolen or destroyed
Certificate the relevant portion of the Merger Consideration in accordance with
Section 3.8(d) for shares of Company Common Stock represented thereby. When
authorizing such payment of any portion of the Merger Consideration in exchange
therefor, the board of directors of the Surviving Corporation may, in its
discretion and as a condition precedent to the payment thereof, require the
owner of such lost, stolen or destroyed Certificate to give the Surviving
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Surviving Corporation with respect to the
Certificate alleged to have been lost, stolen or destroyed.

                  (f) Promptly following the date that is one year after the
Effective Time, the Surviving Corporation shall be entitled to require the
Paying Agent to deliver to it any cash (including any interest received with
respect thereto), Certificates and other documents in its possession relating to
the Merger, that had been made available to the Paying Agent and that have not
been disbursed to holders of Certificates, and thereafter such holders shall be
entitled to look to the Surviving Corporation (subject to abandoned property,
escheat or similar laws) only as a general creditor thereof with respect to any
portion of the Merger Consideration payable upon due surrender of their
Certificates, without any interest thereon.

                  (g) The Merger Consideration paid in the Merger shall be net
to the holder of shares of Company Common Stock in cash, subject to reduction
only for any applicable federal, state, local or foreign withholding Taxes. To
the extent that amounts are so withheld, such amounts shall be treated for all
purposes of this Agreement as having been paid to the Person in respect of which
such withholding was made.

                  (h) Anything to the contrary in this Section 3.11
notwithstanding, to the fullest extent permitted by law, none of the Paying
Agent, Parent or the Surviving Corporation


                                      -16-

shall be liable to any holder of a Certificate for any amount properly delivered
to a public official pursuant to any applicable abandoned property, escheat or
similar law. If Certificates are not surrendered prior to two years after the
Effective Time, unclaimed funds payable with respect to such Certificates shall,
to the extent permitted by applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interest of any Person previously
entitled thereto.

                                   ARTICLE IV

                  REPRESENTATIONS AND WARRANTIES OF THE COMPANY

      Except as set forth in the Company SEC Documents filed on or prior to the
date hereof or in the Company Disclosure Schedule (it being understood that any
matter set forth in any section of the Company Disclosure Schedule shall be
deemed disclosed with respect to any other section of the Company Disclosure
Schedule to the extent such matter is disclosed in a way as to make its
relevance to the information called for by such other section reasonably clear
on its face), the Company hereby represents and warrants to Parent and Merger
Sub as follows:

            Section 4.1. Organization and Qualification; Subsidiaries.

            (a) To the Company's Knowledge, each of the Company and its
Subsidiaries is a corporation duly organized, validly existing and, if
applicable, in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate or other power and authority and
all necessary governmental approvals to own, lease and operate its properties
and to carry on its businesses as now being conducted, except where the failure
to be in good standing or to have such power, authority and governmental
approvals, would not, individually or in the aggregate, have a Company Material
Adverse Effect. The Company has heretofore delivered to Parent accurate and
complete copies of the certificate of incorporation and bylaws, as currently in
effect, of the Company. Section 4.1(a) of the Company Disclosure Schedule sets
forth a complete list of the Company's Subsidiaries.

            (b) To the Company's Knowledge, each of the Company and its
Subsidiaries is duly qualified or licensed and, if applicable, in good standing
to do business in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except in such jurisdictions where the
failure to be so duly qualified or licensed and in good standing would not,
individually or in the aggregate, have a Company Material Adverse Effect.

            (c) The Company does not own, directly or indirectly, any equity
(other than equity of its Subsidiaries) or debt (other than debt of its
Subsidiaries and other than short-term investments of the Company's working
capital in high-grade commercial paper or similar high- grade, short-term
instruments) or similar interest in any Person.

            Section 4.2. Capitalization of the Company and its Subsidiaries.

            (a) The authorized capital stock of the Company consists of: (i)
278,000,000 shares of Company Common Stock, (A) 211,000,000 shares of which are
designated as shares of


                                      -17-

Company Class A Common Stock and (B) 67,000,000 shares of which are designated
as shares of Company Class B Common Stock and (ii) 10,000,000 shares of Company
Preferred Stock, (A) 25,000 shares of which are designated as shares of Company
Class A Preferred Stock, (B) 25,000 shares of which are designated as shares of
Company Class B Preferred Stock and (C) 16,688 shares of which are designated as
shares of Company Class C Preferred Stock. As of April 29, 2003, (i) 18,978,291
shares of Company Class A Common Stock were issued and outstanding, (ii)
45,142,508 shares of Company Class B Common Stock were issued and outstanding,
(iii) no shares of Company Class A Preferred Stock were issued and outstanding,
(iv) 25,000 shares of Company Class B Preferred Stock were issued and
outstanding and (v) 16,688 shares of Company Class C Preferred Stock were issued
and outstanding. All of the outstanding shares of Company Common Stock and
Company Preferred Stock have been validly issued, and are fully paid,
nonassessable and free of preemptive rights. As of April 29, 2003, a total of
4,170,854 shares of Company Class A Common Stock were reserved for issuance
pursuant to outstanding Stock Options, and no other shares of Company Class A
Common Stock are subject to issuance pursuant to Stock Options or awards of
Restricted Shares. Immediately prior to the Effective Time, no shares of Company
Class A Preferred Stock or Company Class C Preferred Stock will be outstanding
and 25,000 shares of Company Class B Preferred Stock will be outstanding. Set
forth in Section 4.2(a) of the Company Disclosure Schedule is a complete and
accurate list of the Company Stock Plans and the number of shares of Company
Common Stock reserved for issuance pursuant to Stock Options outstanding as of
April 29, 2003 under each such Company Stock Plan, and no other shares of
Company Common Stock are subject to issuance pursuant to such Company Stock
Plans. Since April 29, 2003, no shares of capital stock of the Company have been
issued other than pursuant to Stock Options set forth on the Award List, and
since April 29, 2003, no Stock Options or Restricted Shares have been granted.
Except as set forth above, and as contemplated by Section 2.1, there are no
outstanding (i) shares of capital stock (including Restricted Shares) or other
voting securities of the Company, (ii) securities of the Company or any of its
Subsidiaries convertible into or exchangeable for shares of capital stock or
voting securities of the Company, (iii) options or other rights to acquire from
the Company or any of its Subsidiaries, or obligations of the Company or any of
its Subsidiaries to issue or sell, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of the Company, or (iv) equity equivalents, interests in the
ownership or earnings of the Company or other similar rights (collectively,
"Company Securities"). Other than as contemplated by this Agreement, there are
no outstanding obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any Company Securities.

            (b) All of the outstanding capital stock of, or other ownership
interests in, each Subsidiary of the Company, is owned by the Company, directly
or indirectly, free and clear of any Lien or any other limitation or restriction
(including any restriction on the right to vote or sell the same, except as may
be provided as a matter of law). All such shares have been validly issued, fully
paid and nonassessable, and have been issued free of preemptive rights. There
are no outstanding securities of the Company or any of its Subsidiaries
convertible into or exchangeable for, no options or other rights to acquire from
the Company or any of its Subsidiaries, and no other contract, understanding,
arrangement or obligation (whether or not contingent) providing for the issuance
or sale, directly or indirectly, of, any capital stock or other ownership
interests in, or any other securities of, any Subsidiary of the Company. There
are no outstanding equity equivalents, interests in the ownership or earnings or
similar rights of any


                                      -18-

Subsidiary of the Company. There are no contractual obligations of the Company
or any of its Subsidiaries to repurchase, redeem or otherwise acquire any
outstanding shares of capital stock or other ownership interests in any
Subsidiary of the Company.

            (c) The shares of Company Class A Common Stock constitute the only
class of equity securities of the Company or any of its Subsidiaries registered
or required to be registered under the Exchange Act. No Subsidiary of the
Company owns any capital stock in the Company.

            (d) Other than the Voting Agreement, there are no voting trusts or
other agreements or understandings to which the Company or any of its
Subsidiaries, or to the Company's Knowledge, any of the Company's stockholders,
is a party with respect to the voting of the capital stock of the Company or any
of its Subsidiaries.

            (e) To the Company's Knowledge, other than with respect to the
Indebtedness set forth in Section 4.2(e) of the Company Disclosure Schedule,
there is no Indebtedness of the Company or any of its Subsidiaries existing that
contains any material restriction upon, or imposes any material penalty with
respect to (i) the prepayment of such Indebtedness, (ii) the incurrence of
Indebtedness by the Company or its Subsidiaries, respectively, or (iii) the
ability of the Company or its Subsidiaries to grant any of the Liens on its
properties or assets contemplated by the Financing Commitment Letters.

            Section 4.3. Authority Relative to this Agreement.

            (a) The Company has all the necessary corporate power and authority
to execute and deliver this Agreement and, subject to obtaining Company
Stockholder Approval (or if applicable, the Disinterested Stockholder Approval),
to consummate the transactions contemplated hereby in accordance with the terms
hereof. The execution, delivery and performance of this Agreement by the Company
and the consummation by it of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action, and, except for
obtaining the Company Stockholder Approval (or if applicable, the Disinterested
Stockholder Approval), no other corporate action or corporate proceeding on the
part of the Company is necessary to authorize the execution and delivery by the
Company of this Agreement and the consummation by it of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Company and, assuming due and valid authorization, execution
and delivery by Parent and Merger Sub, constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except that such enforcement may be subject to (i) any bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other laws, now
or hereafter in effect, affecting creditors' rights generally, and (ii) the
effect of general principles of equity (regardless of whether enforceability is
considered in a proceeding of law or equity).

            (b) (i) The Special Committee has been duly authorized and
constituted, and (ii) the Special Committee, at a meeting thereof duly called
and held on May 30, 2003, (A) determined that this Agreement, the Related
Agreements, the Merger and the Related Transactions are fair to and in the best
interests of the Company's stockholders (other than Parent and its Affiliates),
(B) determined that this Agreement, the Related Agreements, the


                                      -19-

Merger and the Related Transactions should be approved and declared advisable by
the Company Board and (C) resolved to recommend that the Company's stockholders
approve and adopt this Agreement and the Merger.

            (c) The Company Board, at a meeting thereof duly called and held on
May 30, 2003, based on the recommendation of the Special Committee, (i)
determined that this Agreement, the Related Agreements, the Merger and the
Related Transactions are fair to and in the best interests of the Company and
its stockholders (other than Parent and its Affiliates), (ii) approved and
declared advisable this Agreement and the Merger, and (iii) resolved to
recommend that the Company's stockholders approve and adopt this Agreement and
the Merger.

            Section 4.4. SEC Reports; Financial Statements.

            (a) Since August 1, 2000, the Company has filed with the SEC all
forms, reports, schedules, statements and other documents required to be filed
by it under the Securities Act and the Exchange Act (any such documents filed
since August 1, 2000 and prior to the Closing Date collectively, including all
exhibits and schedules thereto and documents incorporated by reference therein,
the "Company SEC Documents"). The Company SEC Documents, including any financial
statements or schedules included therein, at the time filed, or, in the case of
registration statements, on their respective effective dates, (i) complied in
all material respects with the applicable requirements of the Securities Act and
the Exchange Act, as the case may be and (ii) did not at the time filed (or, in
the case of registration statements, at the time of effectiveness), contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading. No
Subsidiary of the Company is required to file any form, report or other document
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The financial
statements included in the Company SEC Documents (the "Financial Statements")
(i) have been prepared from, and are in accordance with, the books and records
of the Company and its Subsidiaries, (ii) complied on the date of filing and
effectiveness thereof in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto on the date of filing and effectiveness thereof, (iii) have been
prepared in accordance with GAAP as in effect as of the dates of such financial
statements applied on a consistent basis during the periods involved (except as
may be indicated in the notes thereto and, in the case of unaudited statements,
as permitted by the rules and regulations of the SEC during the periods
involved), and (iv) fairly present in all material respects the consolidated
financial position and the consolidated results of operations and cash flows
(and changes in financial position, if any) of the Company and its Subsidiaries
as of the times and for the periods referred to therein, except that any
Financial Statements that are unaudited, interim financial statements were or
are subject to normal and recurring year end adjustments which were not and are
not expected, individually or in the aggregate, to be material in amount. The
representations and warranties set forth in this Section 4.4(a) are made to the
Company's Knowledge.

            (b) Except as otherwise available via the SEC's Electronic Data
Gathering, Analysis, and Retrieval (EDGAR) service, the Company has heretofore
made available to Parent, in the form filed with the SEC (including any
amendments thereto), (i) its Annual Reports on Form 10-K for each of its two
most recently completed fiscal years, (ii) all definitive proxy


                                      -20-

statements relating to the Company's meetings of stockholders (whether annual or
special) held since March 14, 2000, and (iii) all other reports (other than
Quarterly Reports on Form 10-Q) or registration statements filed by the Company
with the SEC since March 14, 2000.

            Section 4.5. Proxy Statement. None of the information included in
the Proxy Statement will, at the time filed with the SEC, at the time mailed to
the Company's stockholders or at the time of the Stockholders Meeting, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which such statements are made, not
misleading, except that no representation is made by the Company with respect to
statements made in or omitted from the Proxy Statement relating to Parent, FPSH
or any of their respective Affiliates based on information supplied by Parent,
FPSH or any of their respective Affiliates for inclusion or incorporation by
reference in the Proxy Statement. The Proxy Statement will comply as to form in
all material respects with the requirements of the Exchange Act.

            Section 4.6. Consents and Approvals, No Violations. To the Company's
Knowledge, no filing with or notice to, and no permit, authorization, consent or
approval of, any federal, state, local or foreign court or tribunal or
administrative, governmental, arbitral or regulatory body, agency or authority
(a "Governmental Entity"), is required on the part of the Company or any of its
Subsidiaries for the execution, delivery and performance by the Company of this
Agreement or the Related Agreements or the consummation by the Company of the
transactions contemplated hereby or thereby, except (a) pursuant to the
applicable requirements of the Securities Act and the Exchange Act, (b) the
filing of the Certificate of Merger pursuant to the DGCL, (c) where the failure
to obtain such permits, authorizations, consents or approvals or to make such
filings or give such notice would not, individually or in the aggregate, have a
Company Material Adverse Effect, and (d) with respect to the Stock Purchase
Agreement only, in connection with the requirements of the HSR Act and the rules
and regulations in foreign jurisdictions governing antitrust or merger control
matters. Neither the execution, delivery and performance of this Agreement or
the Related Agreements by the Company, nor the consummation by the Company of
the transactions contemplated hereby or thereby will (i) conflict with or result
in any breach of any provision of the respective certificate of incorporation or
bylaws (or similar governing documents) of the Company or of any its
Subsidiaries, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation, alteration or acceleration, or
result in the creation of a Lien on any property or asset of the Company or any
of its Subsidiaries, or trigger any rights of first refusal) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which the
Company or any of its Subsidiaries is a party or by which any of them or any of
their respective properties, capital stock or assets may be bound or result in
the loss or impairment of the Company's or any of its Subsidiary's right to use
the Company Intellectual Property, Company PVP Certificates or Company
Germplasm, or (iii) violate any order, writ, injunction, decree, law, statute,
rule or regulation applicable to the Company or any of its Subsidiaries or any
of their respective properties or assets, except in the case of (ii) or (iii)
above for violations, breaches, defaults or other occurrences that would not,
individually or in the aggregate, have a Company Material Adverse Effect.


                                      -21-

            Section 4.7. No Default. To the Company's Knowledge, none of the
Company or any of its Subsidiaries is in default, breach or violation (and no
event has occurred that with notice or the lapse of time or both would
constitute a default, breach or violation) of any term, condition or provision
of (a) its certificate of incorporation or bylaws (or similar governing
documents), (b) any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which the Company or any of its
Subsidiaries is now a party or by which any of them or any of their respective
properties or assets may be bound or (c) any order, writ, injunction, decree,
law, statute, rule or regulation applicable to the Company, any of its
Subsidiaries or any of their respective properties or assets, except in the case
of (b) or (c) above for violations, breaches or defaults that would not,
individually or in the aggregate, have a Company Material Adverse Effect.

            Section 4.8. No Undisclosed Liabilities; Absence of Changes.

            (a) Except (i) for liabilities incurred since September 30, 2002 in
the ordinary course of business consistent with past practice, or (ii) for
liabilities and obligations reasonably required by the Merger or any other
transactions contemplated by this Agreement or the Related Agreements, neither
the Company nor any of its Subsidiaries has, or has incurred since September 30,
2002, any material liabilities or obligations of any nature, whether or not
absolute, accrued, contingent or otherwise, that would be required to be
reflected or reserved against on a consolidated balance sheet, or in the notes
thereto, of the Company and its Subsidiaries prepared in accordance with GAAP.

            (b) Other than as reasonably required by this Agreement and the
Related Agreements, to the Company's Knowledge, (i) since September 30, 2002 and
prior to the date hereof, the Company and its Subsidiaries have conducted their
businesses in the ordinary course of business consistent with past practice, and
(ii) since December 27, 2002 and prior to the date hereof, the Company has not
taken any of the actions set forth in paragraphs (a) through (q) of Section 6.3.

            (c) Since September 30, 2002, there has not been any Company
Material Adverse Effect.

            Section 4.9. Compliance with Applicable Law. Except as would not,
individually or in the aggregate, have a Company Material Adverse Effect: (a)
the Company and its Subsidiaries hold all permits, licenses, variances,
exemptions, orders and approvals of all Governmental Entities necessary for them
to own, lease or operate their properties and assets and to carry on their
businesses as now conducted ("Company Permits"); (b) there has not occurred any
default under, or violation of, or failure of compliance under, any such Company
Permit; (c) the businesses of the Company and its Subsidiaries are not being,
and have not been, conducted in violation of any law, ordinance, regulation,
order, judgment, injunction, writ or decree of any Governmental Entity; and (d)
there is (and during the past two years, there has been) no claim, action,
proceeding, review or investigation pending or threatened against the Company or
any Subsidiary of the Company or any of their respective products by, on behalf
of or before any Governmental Entity.


                                      -22-

            Section 4.10. Employee Benefit Matters.

            (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a
complete list of all material employee, consultant or director benefit plans,
arrangements or agreements, including any employee welfare benefit plan within
the meaning of Section 3(1) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), any employee pension benefit plan within the meaning
of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any
material bonus, incentive, deferred compensation, vacation, stock purchase,
stock option, severance, termination, indemnity, employment, change of control
or fringe benefit plan, program, arrangement or agreement that provides benefits
to any current or former employee or director of the Company or any of its
Subsidiaries or any beneficiary or dependent thereof or with respect to which
the Company or any of its Subsidiaries could have a material liability
(collectively, the "Benefit Plans"). The Company has made available to Parent
for each Benefit Plan, if applicable, true and complete copies of (i) each
Benefit Plan (or, in the case of any unwritten Benefit Plan, a description
thereof) and any amendment thereto, (ii) the most recent summary plan
description (or similar document), (iii) the most recent Annual Reports (Form
5500 Series) and accompanying schedules, if any, (iv) the most recent actuarial
report, and (v) the most recent determination letter from the IRS (if
applicable).

            (b) Section 4.10(b) of the Company Disclosure Schedule contains a
complete and accurate list of all Key Employees, setting forth their respective
names, current positions, salaries and target bonuses.

            (c) (i) Each Benefit Plan has been maintained and administered in
material compliance with its terms and with all applicable laws including ERISA
and the Code; (ii) each Benefit Plan intended to be qualified under Section
401(a) of the Code is so qualified and has been determined by the IRS to be so
qualified, and, to the Company's Knowledge, no event has occurred that could
reasonably be expected to adversely affect the qualified status of such Benefit
Plan; (iii) neither the Company nor any of its Subsidiaries has incurred or is
reasonably likely to incur any material liability or penalty under Sections 4975
or 4976 of the Code or Sections 409 or 502(i) of ERISA; (iv) there are no
pending, or to the Company's Knowledge threatened, claims against or otherwise
involving any of the Benefit Plans (other than routine claims for benefits); (v)
no Benefit Plan is under audit or investigation by the IRS, the Department of
Labor or the PBGC, and no such audit or investigation is pending or, to the
Company's Knowledge, threatened; (vi) all contributions or other payments
required to be made, as well as all required filings with Governmental Entities
required to be made, as of the date of this Agreement to or pursuant to the
Benefit Plans with respect to the Company or any of its Subsidiaries have been
made; (vii) neither the Company nor any entity under "common control" with the
Company within the meaning of Sections 414(b), (c), (m) or (o) of the Code or
Section 4001 of ERISA (an "ERISA Affiliate") has at any time contributed to, or
been required to contribute to, any "pension plan" (as defined in Section 3(2)
of ERISA) that is subject to Title IV of ERISA or Section 412 of the Code,
including any "multi-employer plan" (as defined in Sections 3(37) and 4001(a)(3)
of ERISA); (viii) none of the Company and its Subsidiaries nor any ERISA
Affiliates has incurred any "withdrawal liability" (as defined in Part I of
Subtitle E of Title IV of ERISA) that has not been satisfied in full; (ix)
neither the Company nor any of its Subsidiaries has any obligation for retiree
health or life benefits, other than benefits mandated by applicable law; (x) the
Company or its Subsidiaries may amend or terminate any of the Benefit


                                      -23-

Plans without incurring any material liability thereunder; (xi) all amounts of
deferred compensation benefits under any Benefit Plan have been properly accrued
on the Financial Statements of the Company and its Subsidiaries to the extent
required under GAAP; and (xii) each Benefit Plan which is an "employee welfare
benefit plan" within the meaning of Section 3(1) of ERISA is either insured
pursuant to a contract of insurance whereby the insurance company bears any risk
of loss with respect to such claims or covered under a contract with a health
maintenance organization (an "HMO") pursuant to which the HMO bears the
liability for such claims.

            (d) The consummation of the transactions contemplated by this
Agreement and the Related Agreements will not (either alone or upon the
occurrence of any additional or subsequent events) (i) constitute an event under
any Benefit Plan, trust, or loan that will or may result in any payment (whether
of severance pay or otherwise), acceleration, forgiveness of indebtedness,
vesting, distribution, increase in benefits or obligation to fund benefits with
respect to any current or former employee, officer, consultant or director of
the Company or any Subsidiary, or (ii) result in the triggering or imposition of
any restrictions or limitations on the right of the Company or Parent to amend
or terminate any Benefit Plan and receive the full amount of any excess assets
remaining or resulting from such amendment or termination, subject to applicable
taxes. No payment or benefit which has been made or will or may be made by the
Company, any of its Subsidiaries, Parent or any of its Affiliates with respect
to any employee, officer or director of the Company or its Subsidiaries (a
"Compensation Payment") will be characterized as an "excess parachute payment,"
within the meaning of Section 280G(b)(1) of the Code, no amount of any
Compensation Payment or benefit will fail to be deductible by the Company by
reason of Section 162(m) of the Code, and no deduction that the Company has
taken on any previously filed Tax return would reasonably be expected to be
challenged as non-deductible pursuant to Section 162(m) of the Code.

            (e) No Benefit Plan is or has been subject to Title IV or Section
302 of ERISA or Sections 412 or 4971 of the Code.

            (f) There does not now exist, nor do any circumstances exist that
could result in, any Controlled Group Liability that would be a liability of the
Company or any of its Subsidiaries following the Closing. Without limiting the
generality of the foregoing, neither the Company nor any of its Subsidiaries,
nor any of their respective ERISA Affiliates, has engaged in any transaction
described in Section 4069 or Section 4204 or 4212 of ERISA. "Controlled Group
Liability" means any and all liabilities (i) under Title IV of ERISA, (ii) under
Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code, (iv) as a
result of a failure to comply with the continuation coverage requirements of
Section 601 et seq. of ERISA and Section 4980B of the Code, and (v) under
corresponding or similar provisions of foreign laws or regulations, other than
such liabilities that, in each case, arise solely out of, or relate solely to,
the Benefit Plans listed in Section 4.10(a) of the Disclosure Schedule.

            (g) Except as would not, individually or in the aggregate, have a
Company Material Adverse Effect, all Benefit Plans subject to the laws of any
jurisdiction outside of the United States (i) have been maintained in accordance
with such laws and all applicable requirements, (ii) if they are intended to
qualify for special tax treatment, meet all requirements for such


                                      -24-

treatment, and (iii) if they are intended to be funded and/or book-reserved, are
fully funded and/or book reserved, as appropriate, based upon reasonable
actuarial assumptions.

            (h) The Company acknowledges that Merger Sub has entered into
certain employment-related agreements (the "Employment Agreements"), dated as of
the date hereof, with the employees listed on Schedule 4.10(h) (the
"Employees"), which are intended to supersede the Employees' existing employment
agreements at the Effective Time. The Company confirms and acknowledges that (i)
the Special Committee has been apprised of the material terms of the Employment
Agreements and, by approving this Agreement, has authorized the Company to
consent to permit the Employees to enter into the Employment Agreements (which
the Company hereby does) and (ii) by entering into the Employment Agreements and
performing their obligations thereunder, no Employee will be deemed to be in
violation of his employment agreement listed on Schedule 4.10(h), and that
neither Parent nor Merger Sub shall be deemed to be interfering with any
contractual rights of the Company or the Company's relationship with the
Employees.

            Section 4.11. Labor Matters.

            (a) (i) There is no labor strike, dispute, slowdown, stoppage or
lockout of any material nature pending, or, to the Company's Knowledge,
threatened against or affecting the Company or any of its Subsidiaries and
during the immediately preceding three years there has not been any such action.

            (ii) Section 4.11(a)(ii) of the Company Disclosure Schedule sets
forth a complete and accurate list of all collective bargaining or similar
agreements with any labor organization, or work rules or practices agreed to
with any labor organization or employee association by the Company or any of its
Subsidiaries.

            (iii) There are no material complaints, lawsuits or other
proceedings pending or, to the Company's Knowledge, threatened in any forum by
or on behalf of any present or former employee, consultant, officer or director
of the Company or any of its Subsidiaries, any applicant for employment or
classes of the foregoing alleging breach by the Company or its Subsidiaries of
any express or implied contract of employment, any laws governing employment or
the termination thereof or other discriminatory, wrongful or tortious conduct in
connection with the employment relationship.

            (b) The Company and its Subsidiaries and each member of their
respective business enterprises has complied with the Worker Adjustment and
Retraining Notification Act (the "WARN Act") and any similar state, local or
foreign law or regulation, as applicable. There has not occurred a "mass layoff"
(as defined in the WARN Act) affecting any site of employment or facility of the
Company or its Subsidiaries during the 90-day period prior to the date of this
Agreement.

            (c) Section 4.11(c) of the Company Disclosure Schedule sets forth a
complete and accurate list of all collective bargaining or similar agreements
which were in place as of September 30, 2002, but have since been materially
modified, renewed, renegotiated or superceded by one or more of the collective
bargaining or similar agreements set forth in Section 4.11(a)(ii)


                                      -25-

of the Company Disclosure Schedule, none of which has resulted in a material
increase in cost on an annual basis to the Company or its Subsidiaries under
such modified, renewed, renegotiated or superseding agreement.

            Section 4.12. Intellectual Property.

            (a) Section 4.12(a) of the Company Disclosure Schedule sets forth,
(i) a complete and accurate list of all (A) patents and patent applications, (B)
trademark and service mark registrations and applications, and (C) copyright
registrations and applications for copyright registrations, currently owned by
the Company or its Subsidiaries, in whole or in part, including jointly with
others, in each case, in (1) Australia, Benelux, Brazil, Canada, Hungary, Japan,
South Korea, Mexico, Morocco, New Zealand, the United Kingdom, the United
States, as well as CTM and Madrid protocol jurisdictions, and (2) all other
countries and jurisdictions (except, with respect to this clause (2), as would
not, individually or in the aggregate, have a Company Material Adverse Effect),
(ii) the corporate names under which the Company or its Subsidiaries conduct
business, (iii) the domain names currently owned by the Company or its
Subsidiaries, (iv) all of the certificates of plant variety protection currently
owned by the Company or its Subsidiaries ("Company PVP Certificates") and all
applications by the Company or any of its Subsidiaries for certificates of plant
variety protection; and (v) a list of all products sold by the Company and its
Subsidiaries as of the date hereof.

            (b) Except as would not, individually or in the aggregate, have a
Company Material Adverse Effect, the Company or one of its Subsidiaries (i) owns
or has the right to use all Company Intellectual Property, free and clear of all
Liens, other than Permitted Liens, and (ii) owns and possesses all right, title
and interest in and to, or possesses the valid right to use, in the manner used
by the Company and its Subsidiaries, all Company Germplasm and Company PVP
Certificates.

            (c) To the Company's Knowledge, except as would not have,
individually or in the aggregate, a Company Material Adverse Effect, (i) no
Person has a right to receive from the Company any royalty or similar payment in
respect of any item of Company Intellectual Property or Company Germplasm or
Company PVP Certificate pursuant to any contractual or other arrangements
entered into by the Company or any of its Subsidiaries, (ii) no former or
present employees, officers, directors or Affiliates of the Company hold any
right, title or ownership interest, directly or indirectly, in whole or in part,
in or to any Company Intellectual Property, Company PVP Certificate or Company
Germplasm, (iii) except under confidentiality obligations, there has been no
disclosure by the Company or any of its Subsidiaries of any confidential
information or trade secrets or other proprietary information, and (iv) the
Company and its Subsidiaries, as applicable, have taken reasonable steps to
enforce the agreements that have been entered into by the Company's and its
Subsidiaries' employees, consultants, contractors and other entities for
ownership and confidentiality of the Company Intellectual Property, the Company
PVP Certificates and the Company Germplasm. To the Company's Knowledge, except
as would not have, individually or in the aggregate, a Company Material Adverse
Effect, each current employee or consultant of the Company or any of its U.S.
Subsidiaries who is a breeder and who has created Company Intellectual Property
has executed an agreement with provisions covering ownership and confidentiality
of the Company Intellectual Property (including, where applicable, Company
Germplasm) and Company PVP


                                      -26-

Certificates. With respect to current employees or consultants of the Company or
its Subsidiaries who are not covered by the immediately preceding sentence, to
the Company's Knowledge, their failure to execute an agreement with provisions
covering ownership and confidentiality of the Company Intellectual Property
(including where applicable, Company Germplasm) and Company PVP Certificates,
will not individually or in the aggregate have a Company Material Adverse
Effect.

            (d) To the Company's Knowledge, (i) the conduct of the business of
the Company and its Subsidiaries as currently conducted (including the use of,
or reliance upon, the Company Intellectual Property, the Company PVP
Certificates and the Company Germplasm) does not infringe upon any intellectual
property rights or any certificate of plant variety protection owned or
controlled by any Person, except, as would not, individually or in the
aggregate, have a Company Material Adverse Effect, (ii) there are no material
claims or suits pending or threatened, and neither the Company nor any of its
Subsidiaries has received notice of any such material claim or suit (A) alleging
that the conduct of the business of the Company or any of its Subsidiaries
infringes upon or constitutes the unauthorized use of the proprietary rights
(including with respect to any certificate of plant variety protection or any
germplasm) of any Person or (B) challenging the ownership, use, validity or
enforceability of the Company Intellectual Property, Company PVP Certificates or
Company Germplasm, (iii) no material Company Intellectual Property or Company
PVP Certificate is being violated or infringed upon by any Person, and (iv)
there are no settlements, consents, judgments, orders or other agreements which
restrict the Company's or any of its Subsidiary's rights to use any material
Company Intellectual Property, material Company PVP Certificate or material
Company Germplasm.

            (e) Except as would not individually, or in the aggregate, have a
Company Material Adverse Effect, to the Company's Knowledge the Company and its
Subsidiaries are in compliance with all requirements (including payment of
filing, examination, or maintenance fees and proofs of working or use) relating
to the maintenance of registrations of the Company Intellectual Property.

            (f) Solely for the purposes of this Section 4.12, "Company's
Knowledge" means the actual knowledge, after reasonable inquiry, of Eujenio
Najera, Bruno Ferrari, C. Edward Green, Jose Manuel Madero, Gaspar Alvarez,
Oscar Velasco, Salvador Alanis, Cristobal Cardenas, Enrique Osorio, Franco
Campana, Jean Pierre Posa, Juliet Ream, Patrick Turner, Steve Witt, Keith
Redenbaugh and Thomas Kramer.

            Section 4.13. Taxes. The Company and its Subsidiaries have filed all
material Tax Returns that are required by applicable laws to be filed by them,
and such Tax Returns are complete and accurate in all material respects. Neither
the Company nor any of its Subsidiaries currently is the beneficiary of any
extension of time within which to file any such material Tax Return. The Company
and its Subsidiaries have paid all material Taxes which have or may become due
and payable (whether or not shown on any Tax Return), other than those Taxes
being contested in good faith through appropriate proceedings for which
provision has been made in accordance with GAAP on the most recent consolidated
balance sheet of the Company set forth in the Financial Statements. All material
Taxes which the Company and its Subsidiaries are required by law to withhold and
collect at or prior to Closing (including any such Taxes arising in connection
with the transactions contemplated by Article II or Article III) have been, or
will have


                                      -27-

been, duly withheld, collected and paid over, in each case, in a timely manner,
to the proper taxing authorities to the extent due and payable. The Company and
its Subsidiaries have not executed any waiver to extend, or otherwise taken or
failed to take any action that would have the effect of extending, the
applicable statute of limitations in respect of any material Tax liabilities of
the Company or any of its Subsidiaries for the taxable years prior to and
including the most recent taxable year. Neither the Company nor any of its
Subsidiaries (or any predecessor thereto) is a "consenting corporation" within
the meaning of Section 341(f) of the Code. None of the Company or any of its
Subsidiaries (a) has been a member of any consolidated, combined or unitary
group (other than with the Company and its Subsidiaries) for Tax purposes, or
(b) has any material liability for the Taxes of any other Person (other than the
Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any
similar provision of state, local or foreign law), as a transferee or successor,
by contract or otherwise. The Company and its Subsidiaries are not a party to
any tax sharing agreement or arrangement (other than with the Company and its
Subsidiaries). No material liens or encumbrances for Taxes exist with respect to
any of the assets or properties of the Company or any of its Subsidiaries,
except for statutory liens for Taxes not yet due or payable or that are being
contested in good faith through appropriate proceedings. All of the U.S. federal
income Tax Returns filed by or on behalf of each of the Company and its
Subsidiaries have been examined by and settled with the IRS, or the statute of
limitations with respect to the relevant Tax liability expired, for all taxable
periods ending on or before September 30, 1995. All Taxes due with respect to
any completed and settled audit, examination or deficiency litigation with any
taxing authority have been paid in full. There is no audit, examination,
deficiency, or refund litigation pending with respect to any material Taxes and
no taxing authority has given written notice of the commencement of (or its
intent to commence) any audit, examination or deficiency litigation with respect
to any material Taxes. No closing agreements, private letter rulings, technical
advice memoranda or similar agreements or rulings have been entered into or
issued by any taxing authority with respect to the Company or any of its
Subsidiaries. There are no outstanding assessments, claims or deficiencies for
any material Taxes of the Company or any of its Subsidiaries that have been
proposed, asserted or assessed, in each case in writing. None of the Company or
any Subsidiary has been a U.S. real property holding corporation within the
meaning of Section 897(c)(2) of the Code during the applicable period specified
in Section 897(c)(1)(A)(ii) of the Code. The Company and its Subsidiaries had
net operating loss carryforwards reflected on its consolidated U.S. federal
income Tax Return for the taxable year ended September 30, 2002 totaling not
less than $84 million and the fiscal unit represented by three Dutch
subsidiaries of the Company is expected to have net operating loss carryforwards
reflected on its Dutch income Tax Return for such taxable year totaling not less
than E32.6 million (the U.S. and Dutch net operating loss carryforwards
together, the "NOL Carryforwards"), which NOL Carryforwards are subject to
adjustment as a result of current or future audits by appropriate taxing
authorities. Except as may result from this Agreement or the Related Agreements,
or the transactions contemplated hereby or thereby, none of the NOL
Carryforwards is currently subject to limitation under Section 382 of the Code
or Treasury Regulations Section 1.1502-15 or -21 (or any comparable provisions
of Dutch tax law) or otherwise. Neither the Company nor any of its Subsidiaries
has constituted a "distributing corporation" or a "controlled corporation"
within the meaning of Section 355(a)(1)(A) of the Code in a distribution of
stock intended to qualify for tax-free treatment under Section 355 of the Code.

            Section 4.14. Absence of Litigation.  There are no suits, claims,
actions, proceedings or investigations pending or, to the Company's
Knowledge, threatened against,


                                      -28-

affecting or involving the Company or any of its Subsidiaries, or any properties
of the Company or any of its Subsidiaries, before any Governmental Entity,
except as would not, individually or in the aggregate, have a Company Material
Adverse Effect. Neither the Company nor any of its Subsidiaries, nor any of
their respective properties or assets, is subject to any order, writ, judgment,
injunction, decree, determination or award which has or would have, individually
or in the aggregate, a Company Material Adverse Effect.

            Section 4.15. Material Contracts.

            (a) To the Company's Knowledge and except for contracts filed as
exhibits to the Company's Annual Report on Form 10-K for the year ended
September 30, 2002 (the "Company 2002 10-K"), Section 4.15(a) of the Company
Disclosure Schedule lists, as of the date hereof, each of the following
contracts and agreements (including oral agreements) of the Company and each of
its Subsidiaries (such contracts and agreements, together with all contracts and
agreements disclosed in Section 4.15(a) of the Company Disclosure Schedule or
filed as exhibits to the Company 2002 10-K, being "Material Contracts"):

            (i) each contract, agreement and other arrangement for the purchase
of inventory, spare parts, other materials or personal property with any
supplier or for the furnishing of services to the Company and each of its
Subsidiaries or otherwise related to the businesses of the Company and each of
its Subsidiaries, other than purchase orders in the ordinary course of business
consistent with past practice, under the terms of which the Company or any of
its Subsidiaries: (A) is likely to pay or otherwise give consideration of more
than $200,000 in the aggregate during the calendar year ended December 31, 2003;
or (B) is likely to pay or otherwise give consideration of more than $1,000,000
in the aggregate over the remaining term of such contract;

            (ii) each contract, agreement and other arrangement for the sale of
inventory or other property or for the furnishing of services by the Company or
any of its Subsidiaries, other than purchase orders in the ordinary course of
business consistent with past practice, that: (A) is likely to involve
consideration of more than $200,000 in the aggregate during the calendar year
ended December 31, 2003; or (B) is likely to involve consideration of more than
$1,000,000 in the aggregate over the remaining term of the contract;

            (iii) all material broker, distributor, dealer, manufacturer's
representative, franchise, agency, sales promotion, market research, marketing,
consulting and advertising contracts and agreements to which the Company or any
of its Subsidiaries is a party;

            (iv) all management contracts and contracts with independent
contractors or consultants (or similar arrangements) to which the Company or any
of its Subsidiaries is a party and which are not cancelable without penalty or
further payment in excess of $200,000 and without more than 90 days' notice;

            (v) all contracts and agreements relating to Indebtedness of the
Company or any of its Subsidiaries or to any direct or indirect guaranty by the
Company or any of its Subsidiaries of Indebtedness of any other Person, other
than any such contracts or agreements as do not involve more than $100,000
individually or $500,000 in the aggregate;


                                      -29-

            (vi) all material contracts, agreements, commitments, written
understandings or other arrangements with any Governmental Entity, to which the
Company or any of its Subsidiaries is a party;

            (vii) all contracts and agreements containing any provision or
covenant limiting or purporting to limit the ability of the Company or any of
its Subsidiaries in any material respect to (i) sell any products or services of
or to any other Person, (ii) engage in any line of business or (iii) compete
with or obtain products or services from any Person or limiting the ability of
any Person to provide products or services to the Company or any of its
Subsidiaries, in each case, in any geographic area or during any period of time;

            (viii) all material contracts or arrangements between the Company or
any of its Subsidiaries, on the one hand, and any director, officer, employee,
stockholder or Affiliate (or any of their respective Affiliates), on the other
hand;

            (ix) all Real Property Leases;

            (x) all material license agreements under which the Company or any
of its Subsidiaries has granted or received the right to use any Company
Intellectual Property (other than licenses for readily available commercial
software) or Company Germplasm; and

            (xi) all other contracts and agreements, whether or not made in the
ordinary course of business, which are material to the Company and its
Subsidiaries, taken as a whole, or the conduct of the business of the Company
and its Subsidiaries, taken as a whole, or the absence of which would, in the
aggregate, have a Company Material Adverse Effect.

            (b) Except as would not, individually or in the aggregate, have a
Company Material Adverse Effect, each Material Contract: (i) is legal, valid and
binding on the Company or its respective Subsidiary party thereto and, to the
Company's Knowledge, the other parties thereto, and is in full force and effect
and (ii) upon consummation of the transactions contemplated by this Agreement
and the Related Agreements, shall be in full force and effect without penalty or
other adverse consequence. Except as would not, individually or in the
aggregate, have a Company Material Adverse Effect, neither the Company nor any
of its Subsidiaries is in breach of, or default under, any Material Contract.
Neither the Company nor any Subsidiary has received any written or, to the
Company's Knowledge, oral notice of a material default (which has not been
cured), offset or counterclaim under any Material Contract, or any other written
or, to the Company's Knowledge, oral communication calling upon it to comply
with any provision of any Material Contract or asserting noncompliance therewith
or asserting the Company or any Subsidiary has waived or altered its rights
thereunder, nor has the Company or any Subsidiary received any written or, to
the Company's Knowledge, oral notice that any party to any Material Contract
intends or is threatening to terminate or fail to exercise any renewal or
extension of any Material Contract.

            (c) No other party to any Material Contract is, to the Company's
Knowledge, in material breach thereof or default thereunder.

            (d) There is no contract, agreement or other arrangement granting
any Person any preferential right to purchase any of the material real or
personal properties or assets of the


                                      -30-

Company or any of its Subsidiaries, other than inventory in the ordinary course
of business consistent with past practice.

            Section 4.16. Insurance. To the Company's Knowledge, the Company and
its Subsidiaries have in full force and effect the material policies of fire,
liability, errors and omissions and other forms of insurance listed in Section
4.16 of the Company Disclosure Schedule (such policies, the "Insurance
Policies"), all of which policies have previously been provided to Parent. To
the Company's Knowledge, the Insurance Policies are in full force and effect,
and no notice of cancellation or non-renewal has been received by the Company or
any of its Subsidiaries with respect to any Insurance Policy that has not been
cured by the payment of premiums that are due. To the Company's Knowledge, the
Company and its Subsidiaries have complied in all material respects with the
terms and provisions of the Insurance Policies. The Company or one of its
Subsidiaries is the primary party to each such Insurance Policy. To the
Company's Knowledge, since January 1, 2001, none of the insurers of the Company
or any of its Subsidiaries has rejected or plans to reject, any insurance claim
of the Company or its Subsidiaries in excess of $100,000.

            Section 4.17. Environmental Laws and Regulations.

            (a) To the Company's Knowledge, (i) the Company and each of its
Subsidiaries is in compliance with all Environmental Laws, except for such
non-compliance that individually or in the aggregate would not have a Company
Material Adverse Effect, which compliance includes the possession by the Company
and its Subsidiaries of all permits and other governmental authorizations
required under applicable Environmental Laws, and compliance with the terms and
conditions thereof; (ii) during the immediately preceding four years, neither
the Company nor any of its Subsidiaries has received written or oral notice of,
or is the subject of, any action or threatened action, cause of action, claim,
investigation, demand or notice by any Person alleging material liability
(including as a result of non-compliance) under any Environmental Law (an
"Environmental Claim") including relating to the business of the Company or any
of its Subsidiaries or relating to any contractor, subcontractor or agent of the
Company or any of its Subsidiaries or relating in any way to any facilities,
locations, or business previously owned, leased or operated by or on behalf of
the Company or any of its Subsidiaries; (iii) there are no conditions or
circumstances that are reasonably likely to result in any material liability of
the Company or any of its Subsidiaries under any Environmental Law or prevent or
interfere with any such compliance thereunder in the future, including relating
to any contractor, subcontractor or agent of the Company or any of its
Subsidiaries or relating to the business of the Company or any of its
Subsidiaries, or relating in any way to any facilities, locations, or business
previously owned, leased or operated by or on behalf of the Company or any of
its Subsidiaries; (iv) none of the properties owned or operated by the Company
or any of its Subsidiaries contains any Hazardous Substance in amounts exceeding
the levels permitted by applicable Environmental Laws, except for matters that
are not reasonably likely to give rise to any material liability for the Company
or any of its Subsidiaries, and (v) no Hazardous Substances has been disposed
of, released or transported in violation of any applicable Environmental Law
from any of the properties owned or operated by the Company or any of its
Subsidiaries, except for matters that are not reasonably likely to give rise to
any material liability for the Company or any of its Subsidiaries. There are no
permits or other governmental authorizations held by the Company or any of its
Subsidiaries or required for the Company's business that are required to be
transferred or reissued, or that are


                                      -31-

otherwise prohibited from being transferred or reissued, pursuant to any
Environmental Laws as a result of the transactions contemplated by this
Agreement or the Related Agreements, except for those the failure of which to
possess would not, individually or in the aggregate, have a Company Material
Adverse Effect. To the Company's Knowledge, the Company has provided to Parent
all environmental assessments, reports, data, results of investigations, or
compliance or other environmental audits conducted by or for the Company or any
of its Subsidiaries, or otherwise relating to the Company's or any Subsidiary's
business or properties (owned, leased or operated) in the possession or control
(direct or indirect) of the Company or any of its Subsidiaries. For purposes of
this Section 4.17(a) only, the term "material liability" shall mean any
liability in excess of $100,000.

            (b) There are no Environmental Claims that would, individually or in
the aggregate, have a Company Material Adverse Effect that are pending or, to
the Company's Knowledge, threatened against the Company or any of its
Subsidiaries or, to the Company's Knowledge, against any Person whose liability
for any Environmental Claim the Company or any of its Subsidiaries has or is
reasonably likely to have been retained or assumed either contractually or by
operation of law.

            (c) The only representations and warranties given in respect of
environmental matters and agreements relating thereto are those contained in
this Section 4.17 and none of the other representations and warranties shall be
deemed to constitute, directly or indirectly, a representation or warranty in
respect of environmental matters or agreements relating thereto.

            (d) The disclosures made in Section 4.17 of the Company Disclosure
Schedule and the matters identified in Section 4.17 of the Company Disclosure
Schedule in the document entitled Addendum to Environmental Health and Safety
Documents (excepting therefrom the matters identified in Section 4.17 of the
Company Disclosure Schedule in the document entitled Environmental Health and
Safety Documents) would not, individually or in the aggregate, have a Company
Material Adverse Effect.

            Section 4.18. Title to Real Properties; Encumbrances.

            (a) Section 4.18(a)(i) of the Company Disclosure Schedule sets forth
a complete and accurate list of all real property (including land, buildings and
other improvements) and interests in real property owned by the Company or its
Subsidiaries (the "Owned Real Property"), including, for each parcel of Owned
Real Property, a description thereof, including the approximate size and use of
the property. Section 4.18(a)(ii) of the Company Disclosure Schedule also sets
forth a complete and accurate list of all real property leased, subleased or
otherwise occupied by the Company or its Subsidiaries (the "Leased Real
Property"), which description shall include (for all Leased Real Property) a
list of all leases and subleases (and amendments and modifications) pertaining
thereto and approximate size of the premises leased thereunder, and the use of
such premises. The Owned Real Property and the Leased Real Property shall be
hereinafter collectively referred to as the "Real Property." The Company or its
Subsidiaries has good and valid fee or leasehold title (as the case may be) to
the Real Property, free and clear of all Liens, other than Permitted Liens.
Except as would not, individually or in the aggregate, have a Company Material
Adverse Effect, the Permitted Liens do not and will not impair or adversely
affect the value of any Real Property, the current or contemplated (the term
"contemplated," as


                                      -32-

used in this Section 4.18(a), meaning contemplated or planned prior to the
Closing Date) use, occupancy or operation thereof, or the business, operations
or condition (financial or otherwise) of the Company or any of its Subsidiaries.
All aspects of the Real Property are in compliance in all respects with any and
all restrictions and other provisions included in the Permitted Liens, and there
are no matters which create, or which with notice or the passage of time would
create, a default under any of the documents evidencing the Permitted Liens,
except as would not, individually or in the aggregate, have a Company Material
Adverse Effect.

            (b) The Real Property constitutes, in the aggregate, all of the real
property used to conduct the business of the Company and its Subsidiaries in the
manner conducted prior to the date hereof. Except as would not, individually or
in the aggregate, have a Company Material Adverse Effect, all buildings,
structures, improvements and fixtures located on, under, over or within each of
the Real Properties and all other aspects of each of the Real Properties: (i)
are in good operating condition and repair and are structurally sound and free
of any material defects, with no material alterations or repairs being required
thereto under applicable law or insurance company requirements; (ii) consist of
sufficient land and improvements and lawful means of access and utility service
to permit the use thereof in the manner and for the purposes to which they are
presently devoted or to which they are contemplated to be devoted; and (iii) are
located adjacent to public roads or streets with adequate ingress and egress
available between such roads or streets and such Real Property for all purposes
related to the current operations of the Company and its Subsidiaries and are
otherwise suitable and adequate for their current use, operation and occupancy.

            (c) There are no pending or, to the Company's Knowledge, threatened
material proceedings regarding the amount of the Taxes on, or the assessed
valuation of, any Real Property, or relating to eminent domain or the
condemnation of any portion of the Real Property, or impact fees, special
assessments or similar matters with respect thereto. To the Company's Knowledge,
no such action or proceeding is contemplated.

            (d) To the Company's Knowledge, all certificates, permits, variances
or licenses from any Governmental Entity having jurisdiction over any of the
Real Property and all agreements, easements or other rights that are necessary
to permit the lawful use and operation of the buildings and improvements, in the
manner such buildings and improvements are used and operated on any of the Real
Property have been obtained and are in full force and effect and there is no
pending threat of modification or cancellation of any of same, except as would
not, individually or in the aggregate, have a Company Material Adverse Effect.

            (e) To the Company's Knowledge, all of the Real Property Leases are
valid, binding and in full force and effect. True and complete copies of the
Real Property Leases have previously been delivered to Parent, including all
amendments or modifications thereof and all side letters or other instruments
affecting the obligations of any party thereunder. The lessee (identified in
Section 4.18(a)(ii) of the Company Disclosure Schedule) under each Real Property
Lease is now in possession of the Leased Real Property. There is no pending or,
to the Company's Knowledge, threatened suit, action or proceeding that might
interfere with the quiet enjoyment of each tenant. There are no outstanding
defaults or circumstances that, upon the giving of notice or passage of time or
both, would constitute a default or breach by either party under any Real
Property Lease. The Company and its Subsidiaries have not assigned, mortgaged,


                                      -33-

pledged or otherwise encumbered, in any material manner, their interest, if any,
under any Real Property Lease. Between the date hereof and the Closing, the
Company or its Subsidiaries will exercise within the time prescribed in each
Real Property Lease any option provided therein to extend or renew the term
thereof, (i) so long as such Real Property Lease is still necessary for the
conduct of the business of the Company and its Subsidiaries as conducted during
the fiscal year ended September 30, 2002 and (ii) since such time an alternate
lease has not been entered into with terms, in the aggregate, generally not less
favorable to the Company or its Subsidiaries. As used herein, the term "lease"
shall also include subleases, the term "lessor" shall also include any
sublessor, and the term "lessee" shall also include any sublessee.

            Section 4.19. Tangible Personal Property; Sufficiency of Assets.

            (a) The Company and its Subsidiaries have good and valid title, free
and clear of all Liens (other than Permitted Liens), to all tangible personal
property that they use in the operation of the business of the Company and its
Subsidiaries, including all such tangible personal property reflected in the
Company Balance Sheet as being owned by the Company and its Subsidiaries, except
for such tangible personal property disposed of to third parties since September
30, 2002 in the ordinary course of business, consistent with past practice and
which disposals would not, individually or in the aggregate, have a Company
Material Adverse Effect. The tangible personal property of the Company and its
Subsidiaries is generally in good working order, reasonable wear and tear
excepted, and is suitable for the use for which it is intended in all material
respects.

            (b) Upon consummation of the Merger and the Related Transactions,
the Company and its Subsidiaries will own or have valid rights to use all of the
rights, facilities, assets, properties and interests which are used in, and are
sufficient for, the operation of the business of the Company and its
Subsidiaries in the manner in which such business was conducted during the
fiscal year ended September 30, 2002 and since such time in all material
respects.

            Section 4.20. Affiliate Transactions.

            (a) To the Company's Knowledge, no Affiliate of Parent owns or has
any interest in any material tangible personal property, Real Property or
intangible personal property used in conducting the business of the Company and
its Subsidiaries in the manner in which such business was conducted during the
fiscal year ended September 30, 2002 and since such time in all material
respects;

            (b) Other than for compensation as an employee of the Company
payable in the ordinary course of business consistent with past practice and
except as reflected in the Company SEC Documents, to the Company's Knowledge, no
Affiliate of Parent has entered into any transactions with the Company or its
Subsidiaries that are required to be disclosed in the Company SEC Documents;

            (c) To the Company's Knowledge, upon consummation of the
transactions contemplated by Section 2.1, there will be no outstanding loans or
other similar advances due and owing to Parent or its Affiliates by the Company
or any of its Subsidiaries; and


                                      -34-

            (d) To the Company's Knowledge, (i) no Affiliate of Parent provides,
or causes to be provided to the Company or any of its Subsidiaries any rights,
interests, assets, facilities, properties, goods or services, and (ii) neither
the Company nor any of its Subsidiaries provides, or causes to be provided, to
an Affiliate of Parent any rights, interests, assets, facilities, properties,
goods or services.

            Section 4.21. Suppliers and Customers. Except as would not,
individually or in the aggregate, have a Company Material Adverse Effect, since
September 30, 2002, no licensor, vendor, supplier, grower, licensee or customer
of the Company or any of its Subsidiaries has canceled or otherwise modified its
relationship with the Company or its Subsidiaries and, to the Company's
Knowledge, no such Person has notified the Company of its intention to do so.

            Section 4.22. Information in Financing Documents. None of the
information supplied or to be supplied by the Company for the purpose of
inclusion or incorporation by reference in any syndication and other materials
to be delivered to potential financing sources in connection with the
transactions contemplated by this Agreement (the "Financing Documents") will, at
the date delivered, contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.

            Section 4.23. State Takeover Statute Inapplicable. The Company Board
and the Special Committee have approved this Agreement and the Related
Agreements and the transactions contemplated hereby and thereby as required
under any applicable state takeover laws so that any such state takeover laws
(including the prohibitions under Section 203 of the DGCL) will not apply to
this Agreement or the Related Agreements or any of the transactions contemplated
hereby or thereby.

            Section 4.24. Brokers. Other than Merrill Lynch & Co. (a true and
complete copy of whose engagement agreement has been delivered to Parent), no
broker, finder, investment banker or other intermediary is or might be entitled
to any brokerage, finders' or other fee or commission in connection with the
transactions contemplated by this Agreement or the Related Agreements based upon
arrangements made by or on behalf of the Company.

            Section 4.25. Opinion of Financial Advisor.  Merrill Lynch & Co.
has delivered its opinion to the Special Committee to the effect that, as of
the date of such opinion, the consideration to be received in the Merger by
the holders of Company Common Stock (other than Parent and its Affiliates) is
fair from a financial point of view to such holders.

            Section 4.26. Company Information. The Company has provided Parent
and Merger Sub with all information so as to be responsive to each of the
representations and warranties set forth in Article IV. In furtherance of the
foregoing, the Company represents that it has not withheld any information
required by the representations and warranties set forth in Article IV.


                                      -35-

                                    ARTICLE V

             REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

      Parent and Merger Sub hereby represent and warrant to the Company as
follows:

            Section 5.1. Organization. Each of Parent and Merger Sub is duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate or similar power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be in good standing or to have such
corporate or similar power and authority would not, individually or in the
aggregate, have a Parent Material Adverse Effect. Each of Parent and Merger Sub
was formed solely for the purpose of engaging in the transactions contemplated
by this Agreement and the Related Agreements. Other than Parent's 100% ownership
interest in Merger Sub, on the date hereof, neither Parent, nor Merger Sub owns
any equity, debt or similar interest in any Person. Parent and Merger Sub have
delivered to the Company accurate and complete copies of the certificate of
incorporation and bylaws (or other governing documents), as currently in effect,
of Parent and Merger Sub. Merger Sub has not engaged in any activities, owned
any assets or been subject to any liabilities, except as is necessary to effect
the Merger.

            Section 5.2. Authority Relative to this Agreement. Each of Parent
and Merger Sub has all necessary power and authority to execute and deliver this
Agreement and the Related Agreements and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the Related Agreements and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by the members
(including the managing member) of Parent and by the board of directors of
Merger Sub, and no other corporate or similar proceedings on the part of Parent
or Merger Sub are necessary to authorize this Agreement or the Related
Agreements or to consummate the transactions contemplated hereby or thereby.
This Agreement and the Related Agreements have been duly and validly executed
and delivered by each of Parent and Merger Sub and, assuming due and valid
authorization, execution and delivery by the other parties thereto, constitute
valid, legal and binding agreements of each of Parent and Merger Sub,
enforceable against each of Parent and Merger Sub in accordance with their
terms, except that such enforcement may be subject to (a) any bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other laws, now
or hereafter in effect, affecting creditors' rights generally, and (b) the
effect of general principles of equity (regardless of whether enforceability is
considered in a proceeding of law or equity).

            Section 5.3. Consents and Approvals; No Violations. Except for
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Securities Act, the Exchange
Act, any applicable antitrust or trade regulation laws, state securities or blue
sky laws, and the filing and recordation of the Certificate of Merger as
required by the DGCL, no filing with or notice to, and no permit, authorization,
consent or approval of, any Governmental Entity is necessary for the execution
and delivery by Parent and Merger Sub of this Agreement or the Related
Agreements or the consummation by Parent and Merger Sub of the transactions
contemplated hereby or thereby, except where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings or give such


                                      -36-

notice would not, individually or in the aggregate, have a Parent Material
Adverse Effect. Neither the execution, delivery and performance of this
Agreement or the Related Agreements by Parent and Merger Sub nor the
consummation by Parent and Merger Sub of the transactions contemplated hereby or
thereby will (a) conflict with or result in any breach of any provision of the
certificates of incorporation or bylaws (or similar governing documents) of
Parent or Merger Sub, (b) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, amendment, cancellation or acceleration, or result in
the creation of a Lien on any property or asset of Parent or any of its
Subsidiaries, or trigger any rights of first refusal) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which Parent or Merger
Sub is a party or by which either of them or their respective properties or
assets may be bound, or (c) violate any order, writ, injunction, decree, law,
statute, rule or regulation applicable to Parent or Merger Sub or any of their
respective properties or assets, except in the case of (b) or (c) above for
violations, breaches, defaults or other occurrences that would not, individually
or in the aggregate, have a Parent Material Adverse Effect. Except for those
referred to above in this Section 5.3 and the approval of the Savia shareholders
(which has been obtained), Parent and its Affiliates have received all approvals
and consents of third parties, including shareholders, creditors and
Governmental Entities, required to effect the transactions contemplated by the
Exchange Agreement and the Contribution Agreement.

            Section 5.4. Capitalization.

            (a) As of the date of this Agreement, 100% of the membership
interests of Parent are owned as set forth on Section 5.4 of the Parent
Disclosure Schedule. As of the date of this Agreement, Merger Sub has authority
to issue (i) 1,000 shares of MS Common Stock, 1,000 of which shares are issued
and outstanding, all of which issued and outstanding shares are owned by Parent,
and (ii) 1,000 shares of MS Preferred Stock, none of which shares is issued or
outstanding.

            (b) Immediately prior to the Effective Time, (i) Merger Sub shall
have authority to issue 100,000,000 shares of MS Common Stock, 84,377,861 of
which shares shall be issued and outstanding and all of which issued and
outstanding shares will be owned by Parent, and (ii) 1,000 shares of MS
Preferred Stock, none of which shares shall be issued or outstanding.

            (c) All the issued and outstanding shares of capital stock of, or
other ownership interests in, each of Parent and Merger Sub have been duly
authorized, validly issued and are fully paid and nonassessable and are owned
free and clear of all Liens.

            Section 5.5. Proxy Statement; Information.

            (a) None of the information supplied by Parent or Merger Sub in
writing specifically for inclusion or incorporation by reference in the Proxy
Statement will, at the time filed with the SEC, at the time mailed to the
Company's stockholders or at the time of the Stockholders Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.


                                      -37-

            (b) A copy of all written material non-public financial information
with respect to the Company or any of its Subsidiaries that Parent or Savia or
their respective officers, directors, employees, investment bankers, attorneys,
agents or representatives has provided to FPSH or any of its Affiliates or their
respective investment bankers, attorneys, agents or representatives, has been
provided or made available to the Special Committee or its advisors.

            (c) All material information requested in a letter from the Special
Committee to Mr. Alfonso Romo Garza, as Chief Executive Officer and controlling
stockholder (through Savia) of the Company, dated January 7, 2003, has, to
Parent's knowledge, been provided or made available to the Special Committee or
its advisors.

            Section 5.6. Brokers. Except as set forth in Section 5.6 of the
Parent Disclosure Schedule, no broker, finder, investment banker or other
intermediary is or might be entitled to any brokerage, finder's or other fee or
commission payable by the Company in connection with the transactions
contemplated by this Agreement and the Related Agreements based upon
arrangements made by or on behalf of Parent or its Affiliates for which the
Company would be liable either prior to or after the Effective Time (which, if
scheduled, is identified by time period).

            Section 5.7. Financing.

            (a) Attached hereto as (i) Exhibit B is a complete and correct copy
of the Stock Purchase Agreement, and (ii) Exhibit C is a complete and correct
copy of the Contribution Agreement. All of the agreements described in clauses
(i) and (ii) above are in full force and effect and have not been amended or
modified.

            (b) The Special Committee has previously been provided with
fully-executed commitment letters, highly confident letters and related
documentation, copies of which are attached hereto as Exhibit D (the "Financing
Commitment Letters"), from lenders (the "Lenders") relating to such debt
financing as is necessary, together with the funds to be received by the
Surviving Corporation pursuant to the Stock Purchase Agreement, to consummate
the Merger, pay the cash amounts payable to the holders of Stock Options
pursuant to Section 3.10, effect all re-financings of certain outstanding
Indebtedness required as a result of the Merger or as required by the Financing
Commitment Letters and pay the anticipated fees and expenses related to the
Merger and the Related Transactions (the "Debt Financing"). On the date hereof,
the Financing Commitment Letters are in full force and effect and have not been
amended or modified in any respect. As of the date hereof, the Lenders have not
advised Parent or any of its Affiliates of any facts which cause them to believe
the financings contemplated by the Financing Commitment Letters will not be
consummated substantially in accordance with the terms thereof.

            (c) Parent has been informed by FPSH that FPSH has the necessary
power and authority to call the funds necessary to make the equity commitment
contemplated by the Stock Purchase Agreement and Financing Commitment Letters,
without need for any consent or approval of any Person and without any other
condition to be satisfied (excluding customary conditions that have been
previously disclosed to the Special Committee and those conditions set forth in
the equity commitment letter attached hereto as Exhibit F). Attached hereto as
Exhibit F is the fully-executed equity commitment letter providing such equity
commitment necessary to


                                      -38-

consummate the transactions contemplated by the Stock Purchase Agreement, in
full force and effect as of the date hereof, without amendment or modification
in any respect, provided to FPSH by Fox Paine Capital Fund II, L.P.

            Section 5.8. Ownership of Shares. Except as set forth in the Related
Agreements, on the Closing Date, Parent will beneficially and of record own
84,377,861 shares of Company Common Stock, free and clear of any Liens or any
other limitation or restriction (including any restriction on the right to vote
or sell the same, except as may be provided as a matter of law).

            Section 5.9. Parent/FPSH Agreements. A complete and correct copy of
all material written arrangements or agreements between Parent or any of its
Affiliates, on the one hand, and FPSH or its Affiliates, on the other hand,
relating to their investment in the Surviving Corporation has been provided to
the Special Committee.

            Section 5.10. Parent Information. Parent represents that neither it,
nor the chief financial officer of Savia, is aware of any fact, event or
circumstance that makes, or could reasonably be expected to make, the Company's
representations and warranties set forth in Section 4.20 (Affiliate
Transactions) not true and correct.

                                   ARTICLE VI

                                    COVENANTS

            Section 6.1. Stockholders Meeting. The Company, acting through the
Company Board in accordance with its certificate of incorporation and bylaws,
shall, as promptly as practicable following the date of this Agreement and in
consultation with Parent, take all action reasonably necessary, except as
otherwise provided for herein, to seek approval and adoption of this Agreement
and the Merger at a duly called and noticed meeting of the Company's
stockholders (the "Stockholders Meeting").

            Section 6.2. Proxy Statement. Promptly following the date of this
Agreement, the Company and Parent shall, except as otherwise provided for
herein, cooperate in preparing a proxy statement or information statement that
meets the requirements of the Exchange Act (together with any amendments thereof
or supplements thereto, the "Proxy Statement") to seek the approval and adoption
of this Agreement and the Merger by the Company's stockholders. The Company
shall use its commercially reasonable efforts to cause the Proxy Statement to be
mailed to the Company's stockholders as promptly as reasonably practicable. The
Company and Parent each agrees to correct any information provided by it for use
in the Proxy Statement that shall have become false or misleading. The Company
will promptly notify Parent of the receipt of any comments from the SEC and any
request by the SEC for any amendment to the Proxy Statement or for additional
information. All filings with the SEC, including the Proxy Statement, and all
mailings to the Company's stockholders in connection with the Merger, including
the Proxy Statement, shall be subject to the prior review and comment by Parent,
and shall be reasonably acceptable to Parent. Parent will furnish (or cause to
be furnished) to the Company the information relating to it and its Affiliates
and FPSH and its Affiliates required by


                                      -39-

the Exchange Act to be set forth in the Proxy Statement. The Company agrees to
use its commercially reasonable efforts, after consultation with the other
parties hereto, to respond promptly to any comments made by the SEC with respect
to the Proxy Statement and any preliminary version thereof filed by it and cause
such Proxy Statement to be mailed to the Company's stockholders at the earliest
practicable time. Subject to Section 6.10, the Company shall include in the
Proxy Statement the recommendation of the Special Committee and the
recommendation of the Company Board that the Company's stockholders vote in
favor of the approval and adoption of this Agreement and the Merger (as the same
may be amended, modified or withdrawn in accordance with Section 6.10).

            Section 6.3. Conduct of Business of the Company. The Company hereby
covenants and agrees that, prior to the Effective Time, unless Parent shall
otherwise consent in writing (which consent shall not be unreasonably withheld
or delayed) or except as otherwise expressly contemplated by this Agreement or
the Related Agreements, the Company shall, and shall cause its Subsidiaries to,
(i) operate its business in the usual and ordinary course consistent with past
practice, (ii) use its commercially reasonable efforts to preserve substantially
intact its business organization, maintain its rights and franchises, retain the
services of its respective principal officers and key employees and maintain its
relationships with its respective principal customers, suppliers and other
persons with which it or any of its Subsidiaries has significant business
relations and (iii) use its commercially reasonable efforts to maintain and keep
its properties and assets in as good repair and condition as at present,
ordinary wear and tear excepted. Without limiting the generality of the
foregoing, and except as otherwise expressly contemplated by this Agreement,
Sections 6.3(a)-6.3(q) of the Company Disclosure Schedule or the Related
Agreements or consented to in writing by Parent (which consent shall not be
unreasonably withheld or delayed), the Company shall not, and shall not permit
its Subsidiaries to, do any of the following:

            (a)   amend or propose to amend its certificate of incorporation
or bylaws (or other governing documents);

            (b) authorize for issuance, issue, sell, deliver, or agree or commit
to issue, sell or deliver, dispose of, encumber or pledge (whether through the
issuance or granting of options, warrants, commitments, subscriptions, rights to
purchase or otherwise) any stock of any class or any securities, except as
required by agreements with the Company's employees under the Company Stock
Plans as in effect as of the date hereof, or amend any of the terms of any such
securities or agreements outstanding as of the date hereof;

            (c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its capital stock,
or redeem or otherwise acquire any of its securities or any securities of its
Subsidiaries;

            (d) (i) incur or assume any long-term or short-term indebtedness or
issue any debt securities, other than borrowings under (A) the Revolving Credit
(as defined in the Company Credit Agreement) or (B) those agreements for short
term bank borrowings listed on Section 4.2(e) of the Company Disclosure Schedule
under the heading "Seminis Korea;" provided that in no event shall outstanding
borrowings pursuant to clause (B) exceed $25


                                      -40-

million, in each case in the ordinary course of business consistent with past
practice; (ii) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of
any other Person; (iii) make any loans, advances or capital contributions to, or
investments in, any other Person (other than to wholly owned Subsidiaries of the
Company) or make any change in its existing borrowing or lending arrangements
for or on behalf of any such Person, whether pursuant to an employee benefit
plan or otherwise; (iv) pledge or otherwise encumber shares of capital stock of
the Company or any of its Subsidiaries; or (v) mortgage, pledge or otherwise
encumber any of its material assets, tangible or intangible, or create or suffer
to exist any material Lien thereupon other than Permitted Liens in the ordinary
course of business, consistent with past practice;

            (e) adopt a plan of complete or partial liquidation or adopt
resolutions providing for the complete or partial liquidation, dissolution,
consolidation, merger, restructuring or recapitalization of the Company or any
of its Subsidiaries;

            (f) (i) except as may be required by law or existing agreements,
plans or arrangements as in effect as of the date hereof, or in the ordinary
course of business consistent with past practice, pay, agree to pay, grant,
issue or accelerate payments or benefits pursuant to any Benefit Plan in excess
of the payments or benefits provided under such Benefit Plan as of the date
hereof, (ii) except (A) for increases in the ordinary course of business
consistent with past practice for employees other than officers and directors of
the Company that, in the aggregate, do not result in a material increase in
benefits or compensation expense to the Company, or (B) as required under
existing agreements or in the ordinary course of business consistent with past
practice, increase in any manner the salary or fees or benefits of any director,
officer, consultant or employee, or (iii) except as may be required by law,
amend (other than amendments made in the ordinary course of business consistent
with past practice) or terminate any Benefit Plan or establish, adopt or enter
into any plan, agreement, program, policy, trust, fund or other arrangement that
would be a Benefit Plan if it were in existence as of the date of this
Agreement;

            (g) acquire, sell, transfer, lease, encumber or dispose of any
assets outside the ordinary course of business or any assets (other than
inventory in the ordinary course consistent with past practice) that, in the
aggregate, are material to the Company and its Subsidiaries taken as a whole, or
enter into any commitment or transaction outside the ordinary course of business
consistent with past practice that would be material to the Company and its
Subsidiaries taken as a whole;

            (h)   except as may be required as a result of a change in law or
in GAAP, change any of the financial accounting principles or practices used
by it;

            (i) revalue in any material respect any of its assets, including
writing down the value of inventory or writing off notes or accounts receivable
other than in the ordinary course of business;

            (j) (i) acquire (by merger, consolidation, or acquisition of stock
or assets) any corporation, partnership or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract or
agreement other than in the ordinary course of business consistent with past
practice that would be material to the Company and its Subsidiaries taken as


                                      -41-

a whole; (iii) other than as contemplated by Section 6.3(j)(iii) of the Company
Disclosure Schedule, authorize any new capital expenditure or expenditures
which, individually, is in excess of $500,000 or, in the aggregate, are in
excess of $2,000,000; or (iv) enter into or amend any contract, agreement,
commitment or arrangement providing for the taking of any action that would be
prohibited under this clause (j);

            (k) make any material Tax election, change any material method of
Tax accounting or settle or compromise any material Tax liability of the Company
or any of its Subsidiaries, and, in any event, the Company shall consult with
Parent before filing or causing to be filed any material Tax Return of the
Company or any of its Subsidiaries, except to the extent such Tax Return is
filed in the ordinary course of business consistent with past practice, and
before executing or causing to be executed any agreement or waiver extending the
period for assessment or collection of any material Taxes of the Company or any
of its Subsidiaries;

            (l) pay, discharge or satisfy any material claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the ordinary
course of business consistent with past practice or to the extent provided for
in reserves specific to such claim, liability or obligation;

            (m) (i) permit any insurance policy or policies naming it as a
beneficiary or a loss payable payee, which policy or policies, individually or
in the aggregate, is/are material to the Company and the Subsidiaries taken as a
whole, to be canceled or terminated without notice to Parent unless the Company
or one of its Subsidiaries shall have obtained a comparable replacement policy,
or (ii) enter into any insurance policy or policies naming it as a beneficiary
or a loss payable payee, which policy or policies, individually or in the
aggregate, is/are material to the Company and the Subsidiaries taken as a whole;

            (n) except in the ordinary course of business consistent with past
practice, (i) terminate, amend or modify (in any material respect), or waive any
material provision of, any Material Contract, or (ii) amend, modify or change
(in any material respect) any material policies or procedures governing product
sales or returns or the treatment of accounts receivable;

            (o)   settle or compromise any pending or threatened material
suit, action or claim;

            (p) enter into any agreement containing any provision or covenant
limiting in any material respect the ability of the Company or any of its
Subsidiaries to (i) sell any products or services of or to any other Person,
(ii) engage in any line of business, or (iii) compete with or obtain products or
services from any Person or limiting the ability of any Person to provide
products or services to the Company or any of its Subsidiaries, in each case, in
any geographic area or during any period of time;

            (q) (i) terminate the employment of, materially change the terms or
conditions of employment of, or, as referenced by the Employee's waiver in the
Employment Agreements, pay any severance amounts upon a voluntary termination of
employment or "retirement" of, any of the individuals listed on Section
6.3(q)(i) of the Company Disclosure Schedule, (ii) amend or modify any of the
employment agreements listed on Section 6.3(q)(ii) of the Company


                                      -42-

Disclosure Schedule, or (iii) amend or modify any of the letter agreements
listed on Section 6.3(q)(iii) of the Company Disclosure Schedule; or

            (r) take, or agree in writing or otherwise to take, any of the
actions prohibited in Sections 6.3(a) through (q).

            Section 6.4. Notification of Certain Matters. The Company, Merger
Sub and Parent each shall give prompt notice to the others of (a) the occurrence
or nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause (i) any representation or warranty contained in this Agreement
to be untrue or inaccurate, or (ii) any covenant, condition or agreement
contained in this Agreement not to be complied with or satisfied, and (b) any
failure of a party to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided, however,
that the delivery of any notice pursuant to this Section 6.4 shall not affect
the representations, warranties or covenants of the parties hereto or limit or
otherwise affect the remedies available to the Company, Parent or Merger Sub
hereunder.

            Section 6.5. Access to Information.

            (a) Between the date hereof and the Effective Time, the Company
will, upon reasonable request, give Parent and its authorized representatives
(including FPSH) and Persons providing or committed or proposing to provide the
Company with financing and their representatives, reasonable access during
normal business hours to employees, plants, offices, warehouses and other
facilities and properties and to all books and records (including Tax Returns
and work papers of the Company's independent auditors, when available) of the
Company and its Subsidiaries, will permit Parent and its authorized
representatives (including FPSH) to make such inspections (including any
physical inspections or soil or groundwater investigations) as they may
reasonably request and will instruct the officers and employees of the Company
and those of its Subsidiaries to furnish to Parent and its authorized
representatives (including FPSH) such financial and operating data and other
information with respect to the business and properties of the Company and any
of its Subsidiaries as Parent may from time to time reasonably request; provided
that the Company shall not be required to provide any such information if the
Person receiving such information is not subject to a confidentiality agreement
for the benefit of the Company; provided, further that in the event Parent or
its authorized representatives or agents (including FPSH) elect to prepare Phase
I environmental site assessments, equivalent analyses, or any other reports
analyzing potential environmental, human health, or safety issues or liabilities
based on the books and records of the Company, or access to the Company's
employees, plants, etc., Parent shall promptly provide to the Company copies of
any such reports (when executed and delivered), including cost estimates (if
any). All information obtained by Persons pursuant to this Section 6.5(a) shall
be kept confidential in accordance with, and shall otherwise be subject to the
terms of, the confidentiality agreement, dated December 13, 2002, as
supplemented by the letter to the Company dated January 10, 2003, by and among
Savia, Fox Paine & Company, LLC, ARG Trust, Servasa, S.A. de C.V. and Mr.
Alfonso Romo Garza (the "Confidentiality Agreement").

            (b) Prior to the Effective Time, the Company shall, and shall use
commercially reasonable efforts to cause its accountants, counsel, agents and
other representatives to,


                                      -43-

cooperate with Parent by providing information about the Company which is
reasonably requested by Parent and its representatives (including FPSH) in
connection with the preparation of the Financing Documents and such other
documents and other reasonable requests with respect to such documents.
Notwithstanding anything in this Agreement to the contrary, to the extent
reasonably appropriate to assist the success of the Debt Financing, Parent may
disclose, or cause its representatives to disclose, and at the request of
Parent, the Company shall disclose information concerning the Company and its
Subsidiaries and their respective businesses, assets and properties, and the
Merger and the Related Transactions in the Financing Documents and to
prospective financing sources in connection with the Merger, subject to the
prior execution of a customary confidentiality agreement approved by the Company
(which approval shall not be unreasonably withheld or delayed) executed by the
recipient of any such information; provided that nothing in this Section 6.5(b)
shall require the Company prior to Closing to sign a registration statement with
respect to any securities.

            (c) Prior to the Effective Time, the Company shall, no later than 30
days following the end of each month and 45 days following the end of each
quarter, prepare and deliver to Parent upon completion the balance sheet, income
statement and statement of cash flows prepared in accordance with GAAP of the
Company for each month ended between the date of this Agreement and the
Effective Time. The Company shall promptly prepare all reasonably requested
financial statements required to be included in the Financing Documents.

            Section 6.6. Additional Agreements, Commercially Reasonable Efforts.

            (a) Prior to the Effective Time, upon the terms and subject to the
conditions of this Agreement, each of Savia, Parent, Merger Sub and the Company
agrees to use its commercially reasonable efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper or
advisable under any applicable laws, rules or regulations to consummate and make
effective as promptly as practicable the Merger and the Related Transactions and
the other transactions contemplated by this Agreement and the Related
Agreements, including (i) the preparation and filing of all forms, registrations
and notices required to be filed to consummate the Merger and the Related
Transactions and the other transactions contemplated hereby and thereby and the
taking of such actions as are necessary to obtain any requisite approvals,
consents, orders, exemptions or waivers by any third party, including any
Governmental Entity, and (ii) the satisfaction of the other parties' conditions
to the consummation of the Merger and the Related Transactions. Without limiting
this Section 6.6, Parent and the Company shall each use its commercially
reasonable efforts to avoid the entry of, or to have vacated or terminated, any
decree, order, or judgment that would restrain, prevent or delay the Closing, on
or before the Outside Date, including defending through litigation on the merits
any claim asserted in any court by any Person. In addition, no party hereto
shall take any action after the date hereof that would reasonably be expected to
materially delay the obtaining of, or result in not obtaining, any permission,
approval or consent from any Governmental Entity necessary to be obtained prior
to the consummation of the Merger and the Related Transactions. In furtherance
of and not in limitation of the foregoing, the Company shall permit Parent to
reasonably participate (subject to the Company's right to control) in the
defense and settlement of any claim, suit or cause of action relating to this
Agreement, the Merger or the other transactions contemplated hereby, and the
Company shall not settle or compromise any such claim, suit or cause of action


                                      -44-

without Parent's prior written consent (which consent shall not be unreasonably
withheld or delayed).

            (b) The Company agrees to use its commercially reasonable efforts to
cooperate with Parent in connection with its efforts to obtain any financing for
Parent and/or the Surviving Corporation and its Subsidiaries in connection with
consummation of the Merger, and Parent shall use its commercially reasonable
efforts to obtain such financing for Parent and/or the Surviving Corporation and
its Subsidiaries. At the reasonable request of Parent from time to time, the
Company agrees to use its commercially reasonable efforts to cause members of
its senior management to participate in the preparation of any Financing
Documents reasonably requested by Parent and to participate in any "roadshow" or
other presentations to potential investors in connection with the obtaining of
any financing for Parent and/or the Company and its Subsidiaries in connection
with the Merger.

            (c) Prior to the Effective Time, the Company or its Subsidiaries, on
the one hand, and Parent or its Affiliates, on the other hand, shall permit the
other parties hereto to review and discuss in advance, and consider in good
faith the views of the other parties in connection with, any proposed written
(or any material proposed oral) communication with any Governmental Entity
regarding any of the transactions contemplated by this Agreement or the Related
Agreements. The Company or its Subsidiaries, on the one hand, and Parent or its
Affiliates, on the other hand, shall promptly inform the other parties hereto
of, and if in writing, furnish the other parties with copies of (or, in the case
of material oral communication, advise the other parties orally of) any
communication from any Governmental Entity regarding any of the transactions
contemplated by this Agreement or the Related Agreements. If the Company or its
Subsidiaries, on the one hand, or Parent or its Affiliates, on the other hand,
receives a request for additional information or documentary material from any
such Governmental Entity with respect to the Merger or the Related Transactions,
then such party will endeavor in good faith to make, or cause to be made, as
soon as reasonably practicable and after consultation with the other parties
hereto, an appropriate response in compliance with such request. None of the
Company or its Subsidiaries, on the one hand, or Parent or its Affiliates, on
the other hand, shall participate in any meeting with any Governmental Entity
with respect to the Merger or the Related Transactions unless it consults with
the other parties hereto in advance and, to the extent permitted by such
Governmental Entity, gives the other parties the opportunity to attend and
participate thereat. To the extent not otherwise provided in this Section
6.6(c), the Company or its Subsidiaries, on the one hand, and Parent or its
Affiliates, on the other hand, shall furnish the other parties hereto with
copies of all correspondence, filings and communications between it and any such
Governmental Entity with respect to the Merger or the Related Transactions,
provided that either the Company or Parent or an Affiliate of Parent may redact
any information from such correspondence, filings, and communications that
discusses or reflects its valuation of the Merger or Related Transactions. Tax
return filings in the ordinary course and Tax proceedings with a Governmental
Entity shall not be subject to the above provisions of this Section 6.6(c). The
Company or its Subsidiaries, on the one hand, and Parent or its Affiliates, on
the other hand shall furnish the other parties hereto with such necessary
information and reasonable assistance as such other parties may reasonably
request in connection with their preparation of necessary filings or submissions
of information to any Governmental Entity. To the extent that transfers of
Company Permits are required as a result of execution of this Agreement or the
Related Agree-


                                      -45-

ments or consummation of the Merger or the Related Transactions, the Company and
Parent shall use all commercially reasonable efforts to effect such transfers.

            (d) Notwithstanding any other provision of this Agreement to the
contrary, Parent may amend or revise the Financing Commitment Letters referred
to in Section 5.6(b), or enter into new, replacement or additional financing
arrangements, through itself or any of its Affiliates, in connection with the
financings referred to in Section 5.6(b) or otherwise to facilitate the
transactions contemplated by this Agreement or the Related Agreements, provided
that (i) any such action would not, individually or in the aggregate, have a
Parent Material Adverse Effect or delay the Closing, and (ii) any such amendment
or revision or new, replacement or additional financing arrangements are upon
terms and conditions that are substantially equivalent to those set forth in the
Financing Commitment Letters, and to the extent any of the terms or conditions
are not substantially equivalent to those set forth in the Financing Commitment
Letters, on terms and conditions reasonably satisfactory to the Special
Committee.

            (e) Between the date hereof and the Closing, the Company shall use
its commercially reasonable efforts to identify and secure or provide any
consents or notices required as a result of the execution, delivery or
performance of this Agreement or the Related Agreements or the consummation of
the transactions contemplated hereby or thereby.

            Section 6.7. Public Announcements. Parent, Merger Sub and the
Company, as the case may be, will consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Agreement, the Related Agreements, the Merger, the Related Transactions or the
other transactions contemplated hereby or thereby, and shall not issue any such
press release or make any such public statement without the prior consent of the
other parties hereto (which consent shall not be unreasonably withheld or
delayed), except as may be required by applicable law or by obligations pursuant
to any listing agreement with any national securities exchange or national
market system to which Parent, its Affiliates, the Company or its Subsidiaries
is a party. The parties hereto have agreed on the text of the joint press
release by which announcement of the execution of this Agreement will be made.

            Section 6.8. Indemnification.

            (a) Parent and Merger Sub agree that all rights to indemnification
or exculpation now existing in favor of the directors, officers, employees and
agents of the Company and its Subsidiaries as provided in their respective
certificates of incorporation or bylaws (or other governing documents) or
otherwise in effect as of the date hereof with respect to matters occurring
prior to the Effective Time shall survive the Merger and shall continue in full
force and effect after the Effective Time. Any rights to indemnification or
exculpation pursuant to this Section 6.8(a) shall not be amended, repealed or
otherwise modified for a period of six years from the Effective Time in a manner
that would adversely affect the rights thereunder of individuals who at the
Effective Time were directors, officers, employees or agents of the Company.

            (b) From and after the Effective Time, the Surviving Corporation
shall, to the fullest extent permitted under the DGCL, indemnify and hold
harmless, each present and former


                                      -46-

director and officer of the Company and its Subsidiaries and each such
individual who served at the request of the Company or its Subsidiaries as a
director, officer, trustee, partner, fiduciary, employee or agent of another
corporation, partnership, joint venture, trust, pension or other employee
benefit plan or enterprise (collectively, the "Indemnified Parties") against all
costs and expenses (including attorneys' fees), judgments, fines, losses,
claims, damages, liabilities and settlement amounts paid in connection with any
claim, action, suit, proceeding or investigation (whether arising before or
after the Effective Time), whether civil, administrative or investigative, based
on the fact that such individual is or was a director or officer of the Company
or any of its Subsidiaries and arising out of or pertaining to any action or
omission occurring at or before the Effective Time (including the transactions
contemplated hereby and the Related Transactions). The Surviving Corporation
shall be entitled to assume the defense of any such claim, action, suit,
investigation or proceeding with counsel reasonably satisfactory to the
Indemnified Party and the Surviving Corporation shall not be liable to any
Indemnified Party for any legal expenses of separate counsel or any other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, except that if the Surviving Corporation elects not to assume
such defense or counsel for the Indemnified Party advises that there are issues
that raise conflicts of interest between the Surviving Corporation and the
Indemnified Party or such Indemnified Party shall have legal defenses available
to it that are different from or in addition to those available to the Surviving
Corporation, the Indemnified Party may retain counsel reasonably satisfactory to
the Surviving Corporation, and the Surviving Corporation shall pay all
reasonable fees and expenses of such counsel for the Indemnified Party promptly
as statements therefor are received; provided that the Surviving Corporation
shall not be liable for the fees of more than one counsel with respect to a
particular claim, action, suit, investigation or proceeding, for all Indemnified
Parties, other than local counsel, unless a conflict of interest shall be caused
thereby, provided further that the Surviving Corporation shall not be liable for
any settlement effected without its written consent (which consent shall not be
unreasonably withheld or delayed).

            (c) The Surviving Corporation shall provide or maintain in effect
for six years from the Effective Time (the "Tail Period") directors' and
officers' and corporate liability insurance covering those individuals who are
covered by the directors' and officers' and corporate liability insurance policy
provided for directors and officers of the Company and its Subsidiaries as of
the date hereof (the "Existing Policy") on terms (other than with respect to
minimum aggregate limits of liability for directors' and officers' and corporate
liability insurance coverage) comparable to the Existing Policy and such
coverage shall contain minimum aggregate limits of liability for directors' and
officers' and corporate liability insurance coverage for directors and officers
of the Company and its Subsidiaries of at least $25 million and deductibles no
larger than those customary for such type of insurance coverage; provided,
however, that in no event shall the Surviving Corporation be required to expend
in excess of $1,000,000 in aggregate premiums for such insurance coverage with
respect to the Tail Period, and if the premiums of such insurance coverage
exceed such amount, the Surviving Corporation shall be obligated to maintain or
obtain a policy with the greatest coverage available for a cost not exceeding
such amount.

            (d) Parent shall cause Savia to exercise its right pursuant to the
Existing Policy to obtain insurance coverage for the Discovery Period (as
defined in the Existing Policy) provided that the Company shall pay its portion
of the cost of any such insurance coverage in


                                      -47-

accordance with intercompany allocations made on a basis consistent with past
practice. The cost to the Company for such coverage shall not exceed $100,000 in
the aggregate.

            (e) If the Surviving Corporation or any of its successors or assigns
(i) consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger,
or (ii) transfers or conveys all or substantially all of its properties and
assets to any Person, then, in each such case, to the extent necessary, proper
provision shall be made so that the successors and assigns of the Surviving
Corporation, as the case may be, shall assume the obligations of the Surviving
Corporation set forth in this Section 6.8.

            (f) The rights of each Indemnified Party under this Section 6.8
shall be in addition to any rights such individual may have under the
certificate of incorporation or bylaws (or other governing documents) of the
Company or any of its Subsidiaries, under the DGCL or any other applicable laws
or under any agreement of any Indemnified Party with the Company or any of its
Subsidiaries. These rights shall survive consummation of the Merger and are
intended to benefit, and shall be enforceable by, each Indemnified Party.

            Section 6.9. Contributions to Parent. Parent shall cause, prior to
the Effective Time, the stockholders of the Company set forth on Exhibit E to
sell and/or contribute such number of shares of Company Common Stock set forth
next to such stockholder's name on Exhibit E to Parent in exchange for an
equivalent number of membership interests of Parent (which membership interests
shall be issued by Parent prior to the Effective Time), all in accordance with
the Contribution Agreement attached as Exhibit C hereto. The shares of Company
Common Stock contributed to Parent shall be canceled and retired in the Merger
in accordance with Section 3.8(b).

            Section 6.10. No Solicitation.

            (a) Except as set forth in this Section 6.10, the Company agrees
that, during the term of this Agreement, it shall not, and shall not authorize
or permit any of its Subsidiaries to, and shall use commercially reasonable
efforts to cause its or its Subsidiaries' directors, officers, investment
bankers, consultants, attorneys, agents or representatives, directly or
indirectly, not to (i) solicit, initiate or knowingly encourage or facilitate,
or furnish or disclose non-public information in furtherance of, any inquiries
or the making of any proposal with respect to a Company Competing Transaction,
(ii) negotiate, explore or otherwise engage in substantive discussions with any
Person (other than FPSH, Parent, or their respective directors, officers,
employees, agents and representatives) with respect to any Company Competing
Transaction or (iii) enter into any agreement, arrangement or understanding with
respect to a Company Competing Transaction; provided that, prior to the
Effective Time, if the Company receives a written proposal for a Company
Competing Transaction (x) that was not initiated, solicited or knowingly
encouraged after the date of this Agreement by the Company, its Subsidiaries or
any of its or their directors, officers, employees, investment bankers,
consultants, attorneys, agents or representatives and (y) that the Special
Committee determines in good faith, by majority vote, after receiving advice
from its outside legal and financial advisors, constitutes or presents a
reasonable likelihood of resulting in a Superior Transaction, then subject to
compliance with Section 6.10(d), the Company may, directly or indirectly, (A)
furnish information with respect to the


                                      -48-

Company to the Person making such proposal pursuant to a customary
confidentiality agreement, and (B) participate in discussions or negotiations
with such Person regarding such proposal. The activities referred to in clauses
(A) and (B) of the previous sentence, if undertaken in compliance with all of
the terms and conditions of the previous sentence, are referred to herein as
"Permitted Discussions." The Company shall, and shall cause its Subsidiaries,
and shall use commercially reasonable efforts to cause the Company's and its
Subsidiaries' respective directors, officers, investment bankers, consultants,
attorneys, agents and representatives immediately to cease all existing
activities, discussions and negotiations with any parties conducted prior to the
date hereof with respect to any inquiries or proposals relating to a Company
Competing Transaction. A violation of clauses (i) or (ii) of this Section
6.10(a) by an employee of the Company or any of its Subsidiaries shall be deemed
a violation by the Company of such clauses.

            (b) Except as permitted by Section 6.10(c), neither the Special
Committee nor the Company Board shall (i) withdraw or modify, or propose to
withdraw or modify, in a manner adverse to Parent or FPSH, its recommendation in
favor of the Merger, or (ii) approve or recommend, or propose publicly to
approve or recommend, any Company Competing Transaction. Nothing contained in
this Agreement shall prevent the Special Committee or the Company Board from
complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act.

            (c) In the event that, prior to the Effective Time the Special
Committee believes, in its good faith judgment, after receiving the advice of
its outside legal counsel, that failing to do so would create a reasonable
likelihood of breaching its fiduciary duties under applicable law, the Special
Committee (and the Company Board acting on the recommendation of the Special
Committee) may (subject to this Section 6.10(c) and to Section 6.10(d)) withdraw
or modify its approval or recommendation in favor of the Merger, provided that
it gives Parent three days' prior written notice of its intention to do so. Any
such withdrawal or modification of the recommendation shall not change the
approval of the Special Committee and the Company Board for purposes of causing
any state takeover statute or other state law to be inapplicable to the
transactions contemplated hereby, or change the obligation of the Company to
present this Agreement and the Merger for approval and adoption. The foregoing
notwithstanding, in such event, unless the Special Committee determines
otherwise, this Agreement and the Merger will require the approval of the
holders of a majority of the outstanding shares beneficially owned by
stockholders of the Company other than Parent, FPSH and their respective
Affiliates (the "Disinterested Stockholder Approval").

            (d) From and after the execution of this Agreement, the Company
shall promptly advise Parent orally and in writing of any request for
information or of any proposal in connection with a Company Competing
Transaction, the material terms and conditions of such request or proposal and
the identity of the Person making such request or proposal. The Company shall
keep Parent reasonably apprised of the status (including amendments and proposed
amendments) of any proposal relating to a Company Competing Transaction on a
current basis, including promptly providing to Parent copies of any written
communications between the Company and any Person relating to a Company
Competing Transaction.

            (e) If prior to the Effective Time the Special Committee determines
in good faith, after consultation with its outside financial and legal advisors,
that any bona fide written proposal from a third party for a Company Competing
Transaction received after the date hereof


                                      -49-

that was not initiated, solicited or encouraged by the Company or any of its
Subsidiaries or their respective directors, officers, employees, investment
bankers, consultants, attorneys, agents or representatives in violation of this
Agreement is more favorable to the stockholders of the Company (taking into
account all the terms and conditions of the Company Competing Transaction and
this Agreement that the Special Committee in good faith deems relevant,
including any conditions to and expected timing and risks of consummation, and
the ability of the party making such proposal to obtain financing for such
Company Competing Proposal and taking into account all other legal, financial,
regulatory and other aspects of such proposal) than the transactions
contemplated by this Agreement (taking into account any adjustment to the terms
and conditions of such transaction proposed in writing by Parent in response to
such Company Competing Transaction) (a "Superior Transaction"), and the Special
Committee believes in its good faith judgment, after receiving advice of its
outside legal counsel that failing to terminate this Agreement and enter into
such a Company Competing Transaction would create a reasonable likelihood of
breaching its fiduciary duties under applicable law, the Company may terminate
this Agreement and enter into a binding acquisition agreement (an "Acquisition
Agreement") with respect to such Superior Transaction provided, that, prior to
any such termination, (i) the Company has provided Parent written notice that it
intends to terminate this Agreement pursuant to this Section 6.10(e),
identifying the Superior Transaction then determined to be more favorable and
the parties thereto and delivering to Parent a copy of the Acquisition Agreement
for such Company Competing Transaction in the form to be entered into, and (ii)
at least seven full calendar days after the Company has provided the notice
referred to in clause (i) above (provided that the Special Committee's
determinations and beliefs shall continue in effect without material revision or
modification), (A) the Company (1) delivers to Parent a written notice of
termination of this Agreement pursuant to this Section 6.10(e), and (2) delivers
(or causes the other party to a Superior Transaction to deliver) to FPSH the
Company Termination Fee and the FPSH Expenses as provided in Section 8.3, and
(B) FPSH receives a written acknowledgment from the Company and from the other
party to a Superior Transaction that the Company and such other party have
irrevocably waived any right to contest such payments.

            Section 6.11. Resignation of Directors. Immediately prior to the
Effective Time, the Company shall deliver to Parent evidence satisfactory to
Parent of the resignation of all directors of the Company (other than those
directors set forth in a written notice of Parent to the Company), such
resignations to become effective as of the Effective Time.

            Section 6.12. Solvency Opinion. The parties shall engage, at the
expense of the Company, an appraisal firm of national reputation reasonably
acceptable to the Company, the Special Committee, Parent and the Lenders, to
deliver a letter addressed to the Special Committee, Parent and FPSH and, if
requested by them, the Lenders (and on which the Special Committee and FPSH
shall be entitled to rely) indicating that at and immediately after the
Effective Time, and after giving effect to the Merger and the other transactions
contemplated hereby and by the Related Agreements, including the Debt Financing,
the Company will not (a) be insolvent and will have assets sufficient to pay its
debts, (b) have unreasonably small capital with which to engage in its business
and perform its obligations under this Agreement and the Related Agreements, and
(c) have incurred and does not believe it would incur debts beyond its ability
to pay as they become absolute and matured.


                                      -50-

            Section 6.13. Related Agreements. Parent and Merger Sub agree that
they will not, and will not permit any of their Affiliates to, without the prior
consent of the Special Committee, which consent shall not be unreasonably
withheld, enter into any amendment to or modification or waiver of any provision
of the Related Agreements or take any action to terminate any such agreement
that will prevent or delay the Closing. The parties to the Contribution
Agreement have acknowledged in such agreement that the Company would not have
entered into this Agreement had the parties not entered into the Contribution
Agreement. Parent and Merger Sub shall use all commercially reasonable efforts
to fulfill all of their obligations under the Related Agreements and to cause
any conditions to closing under such agreements to be satisfied. Parent and
Merger Sub shall give the Special Committee prompt written notice of (a) any
material breach or threatened material breach by any party of the terms or
provisions of the Related Agreements, (b) any termination or threatened
termination of any of the Related Agreements, or (c) any exercise or threatened
exercise of any condition under any of the Related Agreements.

            Section 6.14. Exchange Agreement. The Company will not, and Savia
has agreed not to, terminate the Exchange Agreement during the term of this
Agreement. In addition, subject to the conditions set forth in Sections 7.1(a)
and 7.2 of this Agreement, immediately prior to the Closing, the Company shall
consummate the transactions contemplated by the Exchange Agreement.

            Section 6.15. Privilege. The parties agree and acknowledge that the
disclosure, provision or furnishing of information, directly or indirectly, by
the Company under this Agreement shall not be deemed a waiver of any privilege
under applicable law that has been or may be asserted, including privileges
arising under or relating to the attorney-client relationship (which shall
include the attorney-client and work product privileges).

            Section 6.16. Employee Matters.

            (a) For a period of one year following the Effective Time, the
Surviving Corporation shall provide, or cause to be provided, to the employees
of the Company immediately prior to the Effective Time who continue employment,
employee benefit programs that are, in the aggregate, generally comparable to
those provided to the employees of the Company as of the date hereof; provided
that, other than as required by applicable law or employment agreements binding
upon the Surviving Corporation or any of its Subsidiaries (in the absence of the
consent of the individuals party to such employment agreements), the Surviving
Corporation may at any time increase or reduce the level of such benefit
programs if such an increase or reduction shall be determined to be advisable in
the sole business judgment of the Surviving Corporation.

            (b) The Company's annual bonuses for the fiscal year ending in 2003
under the Company's Executive Incentive Plan shall be determined based upon the
incentive compensation targets set forth in Section 6.16(b) of the Company
Disclosure Schedule.

            Section 6.17. Merger Sub Charter Amendment. At least five days prior
to the Effective Time, (a) Parent shall cause Merger Sub to amend its
certificate of incorporation to authorize 100,000,000 shares of MS Common Stock,
and (b) Parent shall cause Merger Sub to issue to Parent an additional
84,376,861 shares of MS Common Stock so that immediately prior to

                                      -51-

the Effective Time, Parent shall own all of the outstanding 84,377,861 shares of
MS Common Stock.

                                  ARTICLE VII

                    CONDITIONS TO CONSUMMATION OF THE MERGER

            Section 7.1. Conditions to the Merger.

            (a) The obligation of the Company to consummate the Merger and the
other transactions contemplated hereby is subject to the satisfaction or waiver
(to the extent permitted by applicable law) at or prior to the Effective Time of
each of the following conditions:

            (i) Accuracy of Representations and Warranties. The representations
and warranties made by Parent and Merger Sub herein, disregarding all
qualifications and exceptions contained herein relating to materiality or Parent
Material Adverse Effect or words of similar import, shall be true and correct on
the date hereof and on the Closing Date as if made on and as of such dates
(except for representations and warranties that are made as of a specified date,
which shall be true and correct only as of such specified date) with only such
exceptions as would not, individually or in the aggregate, have a Parent
Material Adverse Effect.

            (ii) Compliance with Covenants. Each of Parent and Merger Sub shall
have performed in all material respects (or with respect to any obligation or
agreement qualified by materiality or Parent Material Adverse Effect, in all
respects) all obligations and agreements, and complied in all material respects
(or with respect to any covenant qualified by materiality or Parent Material
Adverse Effect, in all respects) with all covenants, contained in this Agreement
to be performed or complied with by it prior to or on the Closing Date.

            (iii) Officer's Certificates. The Company shall have received a
certificate of Parent, dated as of the Closing Date, signed by an executive
officer of Parent to evidence satisfaction of the conditions set forth in
Sections 7.1(a)(i) and (ii).

            (iv) Debt Financing.  The Debt Financing shall have been obtained
and, to the extent required, the existing Indebtedness of the Company shall
have been repaid.

            (b) The obligation of Parent and Merger Sub to consummate the Merger
and the other transactions contemplated hereby is subject to the satisfaction or
waiver (to the extent permitted by applicable law) at or prior to the Effective
Time of each of the following conditions:

            (i) Accuracy of Representations and Warranties. The representations
and warranties made by the Company herein (other than in the case of Section
4.8(c)), disregarding all qualifications and exceptions contained herein
relating to materiality or Company Material Adverse Effect or words of similar
import, shall be true and correct on the date hereof and on the Closing Date as
if made on and as of such dates (except for representations and warranties that
are made as of a specified date, which shall be true and correct only as of such
specified date) with only such exceptions as would not have, individually or in
the aggregate, a Company Mate-

                                      -52-

rial Adverse Effect. The representation made by the Company in Section 4.8(c)
shall be true and correct in all respects on the date hereof and on the Closing
Date as if made on and as of such dates.

            (ii) Compliance with Covenants. The Company shall have performed in
all material respects (or with respect to any obligation or agreement qualified
by materiality or Company Material Adverse Effect, in all respects) all
obligations and agreements, and complied in all material respects (or with
respect to any covenant qualified by materiality or Company Material Adverse
Effect, in all respects) with all covenants, contained in this Agreement to be
performed or complied with by it prior to or on the Closing Date.

            (iii) Officer's Certificate. Parent shall have received a
certificate of the Company, dated as of the Closing Date, signed by an executive
officer of the Company to evidence satisfaction of the conditions set forth in
Sections 7.1(b)(i) and (ii).

            (iv) No Litigation. After the date hereof, there shall not be (A)
any new suit, action or proceeding by any Governmental Entity or any other
Person or (B) any development in any existing suit, action or proceeding by any
Governmental Entity or any other Person that, in any such case is more likely
than not, individually or in the aggregate, to have a Company Material Adverse
Effect (for purposes of this clause (iv) only, excluding the reference to the
phrase "or is reasonably expected to be" from the definition of Company Material
Adverse Effect).

            (v) Debt Financing. The proceeds from the credit facility portion of
the Debt Financing under the Financing Commitment Letters, or alternative
financing as permitted pursuant to Section 6.6(d), shall have been obtained
substantially on the terms set forth in the Financing Commitment Letters (or the
alternative commitment letter referred to in Section 6.6(d)) or, if unavailable
on such terms, on such other terms as are not materially less favorable to
Parent than those contemplated by the Financing Commitment Letters (or the
alternative commitment arrangements referred to in Section 6.6(d)). The proceeds
from the senior subordinated note issuance portion of the Debt Financing shall
be an amount not less than $175 million, and on terms that are not materially
less favorable to Parent than those set forth in Section 7.1(b)(v) of the Parent
Disclosure Schedule.

            (vi) Foreign Investment in Real Property Tax Act. Parent shall have
received duly executed and acknowledged affidavits of the Company, in form
substantially identical to those attached as Exhibit G hereto in accordance with
Treasury Regulation Sections 1.1445-2(c)(3), 1.897-2(g), 1.897-2(g) and
1.897-2(h), certifying that each "interest" in the Company (within the meaning
of Section 897(c)(1) of the Code) is not a "United States real property
interest" within the meaning of Section 897(c) of the Code.

                                      -53-

            Section 7.2. Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger and
the other transactions contemplated hereby are further subject to the
satisfaction at or prior to the Effective Time of each of the following
conditions, any and all of which may be waived in whole or in part by the
parties hereto to the extent permitted by applicable law:

            (a) Stockholder Approval. The Company Stockholder Approval (or if
applicable, the Disinterested Stockholder Approval) shall have been validly
obtained under the DGCL and the Company's certificate of incorporation and
bylaws.

            (b) 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 Merger or the
Related Transactions.

            (c)   Contribution Agreement.  The transactions contemplated by
the Contribution Agreement shall have occurred.

            (d) Stock Purchase Closing. All conditions to the Stock Purchase set
forth in Article VII of the Stock Purchase Agreement (other than the condition
requiring the consummation of the Merger) shall have been satisfied or waived
(to the extent permitted by applicable law) and shall be in full force and
effect and the closing of the Stock Purchase shall occur substantially
concurrently with the Closing.

            (e) Competition Approvals. All clearances or approvals required from
any Governmental Entity, including pursuant to any antitrust or trade regulation
laws or regulations, shall have been received in connection with the Merger and
the Related Transactions, other than those clearances or approvals the failure
of which to obtain would not have, individually or in the aggregate, a Company
Material Adverse Effect.

            (f)   Solvency Opinion.  The parties shall have received the
opinion referred to in Section 6.12.


                                  ARTICLE VIII

                         TERMINATION; AMENDMENT; WAIVER

            Section 8.1. Termination.  This Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time
notwithstanding receipt of the Company Stockholder Approval (or if
applicable, the Disinterested Stockholder Approval):

            (a) by mutual written consent duly authorized by the Company Board
(provided such termination has been approved by the Special Committee) and the
board of directors of Parent;

                                      -54-

            (b) by Parent or the Company, if (i) 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 parties hereto
shall use their commercially reasonable efforts to reverse, overturn or lift) or
taken any other final action restraining, enjoining or otherwise prohibiting the
Merger or the Related Transactions and such order, decree, ruling or other
action is or shall have become final and nonappealable, or (ii) the Effective
Time shall not have occurred on or before the Outside Date; provided, however,
that the right to terminate this Agreement under this clause (ii) shall not be
available to any party hereto whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of the Effective
Time to occur on or before the Outside Date;

            (c) by Parent, if (i) there shall have been a material breach of any
of the Company's representations, warranties or covenants, which breach (A)
would give rise to the failure of a condition set forth in Section 7.1(b) or
Section 7.2, and (B) is not capable of being cured prior to the Outside Date or,
if curable, has not been cured within 20 business days following receipt by the
Company of written notice from Parent and Merger Sub of such breach, (ii) the
Special Committee or the Company Board shall withdraw, modify, or change
(including by amendment of the Proxy Statement) its recommendation with respect
to this Agreement and the Merger in a manner adverse to Parent or FPSH or shall
have resolved to do any of the foregoing, (iii) the Special Committee or the
Company Board shall have recommended any proposal in respect of a Company
Competing Transaction or (iv) any Person or group (as defined in Section
13(d)(3) of the Exchange Act) other than Parent or any of its Affiliates shall
have become the beneficial owner of shares of Common Stock representing 15% or
more of the voting power of the Company (either on a primary or a fully-diluted
basis).

            (d) by the Company, if there shall have been a material breach of
any of Parent's or Merger Sub's representations, warranties or covenants, which
breach (i) would give rise to the failure of a condition set forth in Section
7.1(a) or Section 7.2 and (ii) is not capable of being cured prior to the
Outside Date or, if curable, has not been cured within 20 business days
following receipt by Parent and Merger Sub of written notice from the Company of
such breach;

            (e)   by the Company, pursuant to and in compliance with Section
            6.10(e);

            (f) by either Parent or the Company, if at the Stockholders Meeting
(including any postponement or adjournment thereof), (i) the Company Stockholder
Approval shall have not been obtained, or (ii) if applicable, the Disinterested
Stockholder Approval shall not have been obtained; or

            (g) by the Company, if the Stock Purchase Agreement shall have been
terminated pursuant to Section 8.1(a), (b), (c) or (d) of the Stock Purchase
Agreement.

            Section 8.2. Effect of Termination. In the event of the termination
and abandonment of this Agreement pursuant to Section 8.1, written notice
thereof shall forthwith be given to the other party or parties in accordance
with Section 9.4, 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 of the Company or its
Subsidiaries or its

                                      -55-

Affiliates or Parent or its Affiliates or their respective directors, officers,
employees or stockholders, other than the provisions of this Section 8.2 and
Section 8.3; provided, however, that nothing contained in this Section 8.2 shall
relieve any party from liability for any willful and material breach of this
Agreement.

            Section 8.3. Fees and Expenses.

            (a)   In the event that:

            (i) (A)(x) Parent or the Company shall have terminated this
Agreement pursuant to Section 8.1(b)(ii) and the failure of the Company to
fulfill any obligation under this Agreement has been the cause of, or resulted
in, the failure of the Effective Time to occur on or prior to the Outside Date,
(y) Parent shall have terminated this Agreement pursuant to Section 8.1(c)(i) or
(z) either party shall have terminated this Agreement pursuant to Section
8.1(f), (B) on or prior to such time (or in connection with clause (z), on or
prior to the Stockholders Meeting) any entity or group (other than Parent and
its Affiliates or FPSH and its Affiliates) shall have made and not withdrawn a
proposal that is or becomes publicly disclosed for (or publicly disclosed its
intention to make a proposal for) a Company Competing Transaction, and (C)
within 12 months of termination of this Agreement, the Company (1) consummates a
Company Competing Transaction, or (2) enters into a Company Competing
Transaction that is thereafter consummated at any time (including after the
12-month period described in the beginning of this clause (C));

            (ii) (A) Parent shall have terminated this Agreement pursuant to
Section 8.1(c)(ii), (iii) or (iv), and (B) within 12 months of termination of
this Agreement, the Company (1) consummates a Company Competing Transaction, or
(2) enters into a Company Competing Transaction that is thereafter consummated
at any time (including after the 12-month period described in the beginning of
this clause (B)); or

            (iii) the Company shall have terminated this Agreement pursuant
to Section 8.1(e),

            then, in any such event, the Company shall pay to FPSH, a
            termination fee in cash, of $15 million (the "Company Termination
            Fee") (less any amount paid or payable pursuant to Section 8.3(b)).
            Any Company Termination Fee that becomes payable shall be paid (m)
            in the case of clause (i) or clause (ii) above, not later than the
            date on which a Company Competing Transaction is consummated, and
            (n) in the case of clause (iii) above, at or prior to such
            termination pursuant to Section 8.1(e).

            (b) Upon the termination of this Agreement (i) by Parent or the
Company pursuant to Section 8.1(b)(ii) where the failure of the Company to
fulfill any obligation under this Agreement has been the cause of, or resulted
in, the failure of the Effective Time to occur on or before the Outside Date;
(ii) by Parent pursuant to Section 8.1(c)(i), (ii), (iii) or (iv); or (iii) by
Parent or the Company pursuant to Section 8.1(f), the Company shall pay to FPSH
the FPSH Expenses up to, but not exceeding $4.5 million in cash not later than
two business days after
                                      -56-

submission of statements therefor, less any such expenses previously reimbursed
by the Company.

            (c) Except as specifically provided in this Section 8.3, all costs
and expenses incurred in connection with this Agreement, the Related Agreements,
the Merger, the Related Transactions and the other transactions contemplated by
this Agreement and the Related Agreements shall be paid by the party incurring
such expenses, regardless of whether the Merger and the Related Transactions or
any other transaction contemplated by this Agreement or the Related Agreements
is consummated.

            Section 8.4. Amendment. This Agreement may be amended at any time
before or after the Company Stockholder Approval (or if applicable the
Disinterested Stockholder Approval) by an instrument in writing signed by all of
the parties hereto; provided that, in addition to any other approval required by
law, (a) in the case of the Company, this Agreement may only be amended
following approval of such amendment by the Special Committee and (b) in the
case of Parent, this Agreement may only be amended following written approval by
FPSH; provided, further that after the Company Stockholder Approval (or if
applicable the Disinterested Stockholder Approval), no amendment shall be made
that by law requires further approval by the stockholders of the Company without
the further approval of such stockholders.

            Section 8.5. Waiver. At any time prior to the Effective Time, any
party hereto may (i) extend the time for the performance of any of the
obligations or other acts of the other party, (ii) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document, certificate or writing delivered pursuant hereto, or (iii) waive
compliance by the other party with any of the agreements or conditions contained
herein; provided, however, that the Company may only grant such extension or
waiver if it first obtains the written approval of the Special Committee, and
Parent may only grant such extension or waiver if it first obtains the written
approval of FPSH. Any agreement on the part of any party or parties hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party or parties. The failure of any party
hereto to assert any of its rights hereunder shall not constitute a waiver of
such rights. In the event that this Agreement is to be terminated by the
Company, it shall be terminated by the Company following approval by the Special
Committee and may not be terminated without the approval of the Special
Committee.

                                   ARTICLE IX

                                  MISCELLANEOUS

            Section 9.1. Nonsurvival of Representations and Warranties.  The
representations and warranties made herein shall not survive beyond the
Effective Time.

            Section 9.2. Entire Agreement; Assignment. This Agreement and the
Related Agreements (including the schedules and Exhibits hereto and thereto)
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties hereto with

                                      -57-

respect to the subject matter hereof. This Agreement shall not be assigned by
operation of law or otherwise, except that Parent may assign any or all of its
rights and obligations under this Agreement to an Affiliate of Parent, but no
such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.

            Section 9.3. 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 manner
acceptable to all parties hereto.

            Section 9.4. 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:

            (a)  If to Parent or Merger Sub:

                  c/o Savia, S.A. de C.V.
                  Ave. Roble No. 565 Ote. - Piso 4
                  Colonia Valle Del Campestre
                  Garza Garcia, N.L. 66265
                  Mexico
                  Attention:  Bernardo Jimenez Barrera
                  Facsimile: 011-52-818-399-5606

                  With copies, which will not constitute notice, to:

                  Milbank, Tweed, Hadley & McCloy LLP
                  One Chase Manhattan Plaza
                  New York, New York 10005
                  Attention:  Howard S. Kelberg, Esq.
                  Facsimile:  212-822-5530

                  Fox Paine & Company, LLC
                  950 Tower Lane, Suite 1950
                  Foster City, California  94404
                  Attention:  W. Dexter Paine, III
                  Facsimile:  650-525-1396

                  Wachtell, Lipton, Rosen & Katz
                  51 West 52nd Street
                  New York, New York  10019

                                      -58-

                  Attention:  Mitchell S. Presser, Esq.
                  Facsimile:  212-403-2000

            (b)  If to the Company:

                  Seminis, Inc.
                  2700 Camino del Sol
                  Oxnard, California  93030-7967
                  Attention:  Chairman of the Special
                              Committee of the Board of Directors
                  Facsimile:  805-918-2530

                  With copies, which will not constitute notice, to:

                  Seminis, Inc.
                  2700 Camino del Sol
                  Oxnard, California  93030-7967
                  Attention:  General Counsel
                  Facsimile:  805-918-2530

                  Skadden, Arps, Slate, Meagher & Flom LLP
                  Four Times Square
                  New York, New York 10036
                  Attention:  Peter A. Atkins, Esq.
                              David J. Friedman, Esq.
                  Facsimile:  212-735-2000

            Section 9.5. 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 enforce any provision of, or
based on any matter arising out of or in connection with, this Agreement or the
Merger. 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 OF PARENT, MERGER SUB AND THE COMPANY 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 PARENT, MERGER SUB OR THE COMPANY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.

                                      -59-


            Section 9.6. 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 9.7. Interpretation. When a reference is made in this
Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be
to an Article or Section of or Exhibit or Schedule to 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 9.8. Parties in Interest.

            (a) Subject to Section 9.8(b), this Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and except as provided in Section 6.8 and as otherwise
explicitly provided in this Agreement and in the Stock Purchase Agreement,
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other Person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.

            (b) Notwithstanding anything to the contrary contained herein, (i)
FPSH shall be a third party beneficiary of this Agreement and shall have the
right to directly enforce Section 6.10, Section 8.3, Section 8.4 and Section
8.5, (ii) FPSH shall have the right to enforce any right under this Agreement
exercisable by Parent or Merger Sub, (iii) any representations, warranties or
covenants made by the Company to Parent or Merger Sub shall be deemed made to
(and, with respect to covenants, shall be enforceable by) FPSH, (iv) any notice
to Parent, Merger Sub or the Company under this Agreement given (or required to
be given) shall be simultaneously given to FPSH and (v) anything under this
Agreement that must be approved by or acceptable to Parent or Merger Sub must
also be approved or accepted by FPSH (which approval or acceptance shall be
subject to the same standards applicable to Parent and Merger Sub with respect
thereto); provided, however, that none of clauses (i), (ii) or (iii) of this
Section 9.8(b) shall prevent Parent or Merger Sub from directly enforcing its
rights under this Agreement. The Stock Purchase Agreement shall provide that it
may not be amended, modified, supplemented or any terms waived in a manner that
would prevent or delay the Closing without the approval of the Special Committee
(which approval shall not be unreasonably withheld or delayed). The parties to
the Stock Purchase Agreement have acknowledged in such agreement that the
Company would not have entered into this Agreement had the parties not entered
into the Stock Purchase Agreement.

            Section 9.9. Performance by Others. Savia shall cause Parent and
Merger Sub (and, if applicable, their successors or permitted assigns) to comply
with their obligations under this Agreement and the Related Agreements to which
Parent or Merger Sub is a party.

                                      -60-

            Section 9.10. 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.

                                      -61-

      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 ACQUISITION LLC


                             By:     /s/ BERNARDO JIMENEZ
                                     _________________________________
                                     Name:    BERNARDO JIMENEZ
                                     Title:   ATTORNEY IN FACT


                             SEMINIS MERGER CORP.

                             By:     /s/ BERNARDO JIMENEZ
                                     ________________________________
                                     Name:    BERNARDO JIMENEZ
                                     Title:   ATTORNEY IN FACT

                             SEMINIS, INC.



                             By:     /s/ GASPAR ALVAREZ
                                     ________________________________
                                     Name:  GASPAR ALVAREZ
                                     Title: VP WW CORPORATE COMPTROLLER

                             By:     /s/ ENRIQUE OSORIO
                                     ________________________________
                                     Name:  ENRIQUE OSORIO
                                     Title: TREASURER VICE PRESIDENT

For purposes of Section 9.9 only,

SAVIA, S.A. DE C.V.


By:     /s/ BERNARDO JIMENEZ
            ________________________________
            Name:    BERNARDO JIMENEZ
            Title:   ATTORNEY IN FACT

EX-2.2

                                                                  EXECUTION COPY

================================================================================

                            STOCK PURCHASE AGREEMENT

                            dated as of May 30, 2003

                                  by and among

                        FOX PAINE SEMINIS HOLDINGS, LLC,

               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 DE ADMINISTRACION Y PAGO NUMERO 167-5),

                            SEMINIS ACQUISITION LLC,

                                       and

                              SEMINIS MERGER CORP.

================================================================================



                                TABLE OF CONTENTS



                                                                                                                 Page
                                                                                                                 ----
                                                                                                              
ARTICLE I             CERTAIN DEFINITIONS....................................................................      3

ARTICLE II            THE STOCK PURCHASE.....................................................................      7
     Section 2.1.     The Closing............................................................................      7
     Section 2.2.     Purchase and Sale......................................................................      8
     Section 2.3.     ARG Option.............................................................................      8
     Section 2.4.     Delivery of Sale Shares; Payment.......................................................      8

ARTICLE III           REPRESENTATIONS AND WARRANTIES
                       OF PARENT AND MERGER SUB..............................................................      9
     Section 3.1.     Organization...........................................................................      9
     Section 3.2.     Authority..............................................................................      9
     Section 3.3.     Consents and Approvals; No Violations..................................................      9
     Section 3.4.     Contributions to Parent; Distributions from Parent.....................................     10
     Section 3.5.     Capitalization.........................................................................     10
     Section 3.6.     Ownership of Stock.....................................................................     11
     Section 3.7.     Proxy Statement; Information...........................................................     12
     Section 3.8.     Brokers................................................................................     12
     Section 3.9.     Acknowledgment.........................................................................     12

ARTICLE IV            REPRESENTATIONS AND WARRANTIES OF FPSH.................................................     13
     Section 4.1.     Organization...........................................................................     13
     Section 4.2.     Authority..............................................................................     13
     Section 4.3.     Consents and Approvals; No Violations..................................................     13
     Section 4.4.     Proxy Statement........................................................................     14
     Section 4.5.     Brokers................................................................................     14
     Section 4.6.     Purchase For Investment................................................................     14
     Section 4.7      Financial Capability...................................................................     14

ARTICLE V             REPRESENTATIONS AND WARRANTIES OF THE ARG TRUST........................................     14
     Section 5.1.     Organization...........................................................................     14
     Section 5.2.     Authority..............................................................................     15
     Section 5.3.     Consents and Approvals; No Violations..................................................     15
     Section 5.4.     Proxy Statement........................................................................     15
     Section 5.5.     Brokers................................................................................     15
     Section 5.6.     Purchase For Investment................................................................     16

ARTICLE VI            COVENANTS..............................................................................     16
     Section 6.1.     Merger Agreement; Contribution Agreement;
                      Financing Commitment Papers............................................................     16
     Section 6.2.     Pre-Closing Conduct....................................................................     17
     Section 6.3.     Notification of Certain Matters........................................................     17
     Section 6.4.     Additional Agreements, Reasonable Best Efforts.........................................     17




                                                                                                               
     Section 6.5.     Further Assurances.....................................................................     18
     Section 6.6.     Public Announcements...................................................................     19
     Section 6.7.     Capitalization Matters.................................................................     19

ARTICLE VII           CONDITIONS TO CONSUMMATION OF THE STOCK
                      PURCHASE...............................................................................     19
     Section 7.1.     Conditions to Performance by Parent and Merger Sub.....................................     19
     Section 7.2.     Conditions to Performance by FPSH......................................................     20

ARTICLE VIII          TERMINATION; AMENDMENT; WAIVER.........................................................     23
     Section 8.1.     Termination............................................................................     23
     Section 8.2.     Effect of Termination..................................................................     24
     Section 8.3.     Fees and Expenses......................................................................     24
     Section 8.4.     Amendment..............................................................................     25
     Section 8.5.     Waiver.................................................................................     25
     Section 8.6.     Survival...............................................................................     25
     Section 8.7.     Sole Remedy............................................................................     25

ARTICLE IX MISCELLANEOUS.....................................................................................     26
     Section 9.1.     Entire Agreement; Assignment...........................................................     26
     Section 9.2.     Severability...........................................................................     26
     Section 9.3.     Notices................................................................................     26
     Section 9.4.     Governing Law; Consent to Jurisdiction; Waiver of Jury Trial...........................     28
     Section 9.5.     Specific Performance...................................................................     28
     Section 9.6.     Interpretation.........................................................................     29
     Section 9.7.     Parties in Interest....................................................................     29
     Section 9.8.     Counterparts...........................................................................     29



Exhibit A             Form of Stock Purchase Agreement for Additional Purchasers

Exhibit B-1           Form of 15% Co-Investment Rights Agreement

Exhibit B-2           Form of SPC Hurdle Co-Investment Rights Agreement

Exhibit B-3           Form of FPSH Hurdle Co-Investment Rights Agreement

Exhibit C             Form of Parent FIRPTA Affidavit



                            STOCK PURCHASE AGREEMENT

                  THIS STOCK PURCHASE AGREEMENT, dated as of May 30, 2003 (this
"Agreement"), is made by and among FOX PAINE SEMINIS HOLDINGS, LLC, a Delaware
limited liability company ("FPSH"), 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 DE
ADMINISTRACION Y PAGO NUMERO 167-5), a Mexican trust (the "ARG Trust"), SEMINIS
ACQUISITION LLC, a Delaware limited liability company ("Parent") and SEMINIS
MERGER CORP., a Delaware corporation and a wholly-owned subsidiary of Parent
("Merger Sub").

                  WHEREAS, Parent, Merger Sub, and Seminis, Inc., a Delaware
corporation (the "Company"), have entered into an Agreement and Plan of Merger
(the "Merger Agreement"), of even date herewith, pursuant to which Merger Sub
will merge with and into the Company (the "Merger") on the terms and conditions
set forth therein;

                  WHEREAS, after the Stockholders Meeting (as defined in the
Merger Agreement) and immediately prior to the time that the Merger becomes
effective under the DGCL (the "Effective Time"), Parent will have received as a
contribution and Parent will own 41,554,346 shares of Class A Common Stock, par
value $.01 per share, of the Company (the "Company Class A Common Stock") and
42,823,515 shares of Class B Common Stock, par value $.01 per share, of the
Company (the "Company Class B Common Stock," and together with the Company Class
A Common Stock, the "Company Common Stock") pursuant to the Contribution
Agreement;

                  WHEREAS, immediately following the Effective Time, the Company
shall have authority to issue 205,000,000 shares of capital stock consisting of:
(i) 200,000,000 shares of common stock, par value $.01 per share (the "New
Company Common Stock"), 84,377,861 of which shares shall be issued and
outstanding, and (ii) 5,000,000 shares of preferred stock, par value $.01 per
share (the "Company Preferred Stock"), of which (A) 25,000 shares shall be
designated Class A Redeemable Preferred Stock, par value $.01 per share (the
"Company Class A Preferred Stock"), none of which shall be issued or
outstanding, and (B) 25,000 shares shall be designated Class B Redeemable
Preferred Stock, par value $.01 per share (the "Company Class B Preferred
Stock"), 25,000 shares of which shall be issued and outstanding;

                  WHEREAS, as of the date hereof, Merger Sub has authority to
issue (i) 1,000 shares of common stock, par value $.01 per share (the "MS Common
Stock"), 1,000 of which shares of MS Common Stock are issued and outstanding,
and (ii) 1,000 shares of preferred stock, par value $.01 per share (the "MS
Preferred Stock"), none of which shares is issued or outstanding;

                  WHEREAS, immediately prior to the Effective Time, Merger Sub
shall have authority to issue (i) 100,000,000 shares of MS Common Stock,
84,377,861 of which shares



shall be issued and outstanding, and (ii) 1,000 shares of MS Preferred Stock,
none of which shares shall be issued or outstanding;

                  WHEREAS, Parent owns all of the outstanding shares of MS
Common Stock on the date hereof and will own all of the outstanding shares of MS
Common Stock immediately prior to the Effective Time;

                  WHEREAS, in the Merger, each share of Company Common Stock
owned by Parent will be cancelled and each share of MS Common Stock will be
converted into one share of New Company Common Stock;

                  WHEREAS, immediately following the Effective Time, the
84,377,861 shares of New Company Common Stock owned by Parent will represent all
of the issued and outstanding shares of New Company Common Stock;

                  WHEREAS, on the terms and subject to the conditions contained
herein, Parent desires to sell and FPSH desires to purchase all of Parent's
right, title and interest in and to the FPSH Sale Shares for an amount equal to
the FPSH Purchase Price (the "FPSH Stock Purchase");

                  WHEREAS, on the terms and subject to the conditions contained
herein, Parent desires to grant an option to the ARG Trust (the "ARG Option"),
pursuant to which the ARG Trust shall have the right, but not the obligation, to
purchase all of Parent's right, title and interest in and to 900,737 shares of
New Company Common Stock owned by Parent (the "ARG Trust Sale Shares") for an
aggregate purchase price of $3,062,506 (the "ARG Purchase Price") (the "ARG
Trust Stock Purchase");

                  WHEREAS, on the terms and subject to the conditions contained
herein, Parent desires to sell, and Merger Sub (as a constituent party to the
Merger) desires that the Company (as the surviving party in the Merger) purchase
all of Parent's right, title and interest in and to 6,411,953 shares of New
Company Common Stock owned by Parent (the "Company Sale Shares") for an
aggregate purchase price of $21,800,641 (the "Company Purchase Price") (the
"Company Stock Purchase" and together with the FPSH Stock Purchase and the ARG
Trust Stock Purchase, the "Stock Purchase");

                  WHEREAS, after the Closing and the closing of the Debt
Financing (as defined in the Merger Agreement), Parent shall be liquidated
pursuant to the terms of the LLC Agreement (as defined in the Contribution
Agreement) and in such liquidation, Parent will distribute (i) the Cash
Distribution to Savia, S.A. de C.V. ("Savia"), (ii) if the ARG Option is
exercised, the right to receive the ARG Purchase Price to Savia, (iii) the right
to receive the Additional Purchase Amount, if any, to Savia, (iv) shares of New
Company Common Stock to the Persons (and in the amounts) set forth in Section
3.4(b) of the Parent Disclosure Schedule, and (v) all remaining assets, if any,
including shares of New Company Common Stock not purchased pursuant to the ARG
Option, to Savia;

                  WHEREAS, the members of Parent and the board of directors of
Merger Sub have determined that the Stock Purchase is fair to and in the best
interests of their respective

                                       -2-



corporation and stockholders or company and members (as applicable) and have
approved the Stock Purchase and this Agreement;

                  WHEREAS, FPSH, the ARG Trust, Parent and Merger Sub desire to
make certain representations, warranties, covenants and agreements in connection
with the Stock Purchase and also to prescribe various conditions to the Stock
Purchase; and

                  WHEREAS, Parent and Merger Sub desire to grant to FPSH certain
rights with respect to the Merger, the Merger Agreement, the Contribution, the
Contribution Agreement, the Debt Financing (as defined in the Merger Agreement)
and the Financing Commitment Papers;

                  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:

         "Additional Purchase Amount" means such amount, if any, equal to (i)
the Additional Sale Shares, multiplied by (ii) $3.40.

         "Additional Purchaser" means any Person that agrees pursuant to the
form of agreement attached hereto as Exhibit A, between the date hereof and the
Closing Date, to purchase, and that purchases, on the Closing Date, shares of
New Company Common Stock from Parent; provided, however, that the Additional
Purchasers shall be comprised exclusively of bondholders of, and derivatives
holders who are now creditors of, Pulsar Internacional, S.A. de C.V., with such
bondholders entitled to purchase a maximum of 6,429,150 shares of New Company
Common Stock from Parent and such derivatives holders entitled to purchase a
maximum of 6,525,328 shares of New Company Common Stock from Parent.

         "Additional Sale Shares" means the aggregate number of shares of New
Company Common Stock, if any, purchased by the Additional Purchasers; provided,
however, that in no event shall the aggregate number of Additional Sale Shares
exceed 12,954,478 shares of New Company Common Stock.

         "Affiliate" means any Person that directly, or indirectly, through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the applicable Person.

         "Agreement" shall have the meaning set forth in the preamble.

         "ARG Option" shall have the meaning set forth in the recitals.

         "ARG Purchase Price" shall have the meaning set forth in the recitals.

                                       -3-



         "ARG Trust" shall have the meaning set forth in the preamble.

         "ARG Trust Disclosure Schedule" means the schedule of disclosures
delivered to Parent and Merger Sub by the ARG Trust together with the execution
of this Agreement.

         "ARG Trust Material Adverse Effect" shall have the meaning set forth in
Section 5.1.

         "ARG Trust Sale Shares" shall have the meaning set forth in the
recitals.

         "ARG Trust Stock Purchase" shall have the meaning set forth in the
recitals.

         "Buyer Material Adverse Effect" means any event, change, circumstance,
effect or state of facts that is or is reasonably expected to be materially
adverse to FPSH after giving effect to the Stock Purchase and the Related
Transactions, except to the extent that such adverse effect results from (i)
general economic conditions or changes therein, (ii) financial or securities
market fluctuations or conditions, (iii) changes in, or events or conditions
affecting, the industries or businesses in which the Company and its
Subsidiaries operate, or (iv) the announcement of the transactions contemplated
by the Merger Agreement or the Letter of Intent (as defined in the Merger
Agreement).

         "Cash Distribution" shall mean an amount equal to (i) $263,106,832
MINUS (ii) the product of the aggregate number of Additional Sale Shares
multiplied by $3.40.

         "Closing" shall have the meaning set forth in Section 2.1.

         "Closing Date" shall have the meaning set forth in Section 2.1.

         "Code" means the Internal Revenue Code of 1986, as amended.

         "Company" shall have the meaning set forth in the recitals.

         "Company Class A Common Stock" shall have the meaning set forth in the
recitals.

         "Company Class B Common Stock" shall have the meaning set forth in the
recitals.

         "Company Class A Preferred Stock" shall have the meaning set forth in
the recitals.

         "Company Class B Preferred Stock" shall have the meaning set forth in
the recitals.

         "Company Common Stock" shall have the meaning set forth in the
recitals.

         "Company Material Adverse Effect" means any event, change,
circumstance, effect or state of facts that is or is reasonably expected to be
materially adverse to (a) the business, results of operations, condition
(financial or otherwise), assets or liabilities of the Company and its
Subsidiaries, taken as a whole, or (b) the ability of the Company to consummate
any of the transactions contemplated by this Agreement and the Related
Agreements (other than the Indemnification Agreement), including the Stock
Purchase and the Related Transactions (other than the transactions contemplated
by the Indemnification Agreement), except to the extent that such adverse effect
results from (i) general economic conditions or changes therein, (ii) financial

                                       -4-



or securities market fluctuations or conditions, (iii) changes in, or events or
conditions affecting, the industries or businesses in which the Company and its
Subsidiaries operate, or (iv) the announcement of the transactions contemplated
by the Merger Agreement or the Letter of Intent (as defined in the Merger
Agreement).

         "Company Preferred Stock" shall have the meaning set forth in the
recitals.

         "Company Purchase Price" shall have the meaning set forth in the
recitals.

         "Company Sale Shares" shall have the meaning set forth in the recitals.

         "Company Securities" shall have the meaning set forth in Section
3.5(a).

         "Company Stock Purchase" shall have the meaning set forth in the
recitals.

         "Contribution Agreement" means the Contribution Agreement of even date
herewith, among Parent, Mr. Romo (as defined therein), Desarrollo Consolidado de
Negocios, S.A. de C.V., the ARG Trust and the Contributors (as defined therein)
providing for the contribution of Company Common Stock to Parent.

         "DGCL" means the General Corporation Law of the State of Delaware.

         "Effective Time" shall have the meaning set forth in the recitals.

         "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.

         "Financing Commitment Papers" shall mean, collectively, (i) the
Commitment Letter, of even date herewith, from Citicorp North America, Inc.,
Citigroup Global Markets Inc., Harris Trust and Savings Bank, Bank of Montreal,
CIBC World Markets Corp. and Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank International," New York Branch, to Parent, (ii) the Fee Letter,
of even date herewith, from Citicorp North America, Inc., Citigroup Global
Markets Inc., Harris Trust and Savings Bank, Bank of Montreal, CIBC World
Markets Corp. and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank International," New York Branch, to Parent, (iii) the Engagement
Letter, of even date herewith, from Citigroup Global Markets Inc., Harris Trust
and Savings Bank, Bank of Montreal, CIBC World Markets Corp. and Rabo Securities
USA Inc. to Parent, and (iv) the Highly Confident Letter, of even date herewith,
from Citigroup Global Markets Inc. to Parent.

         "FPSH" shall have the meaning set forth in the preamble.

         "FPSH Expenses" means all out-of-pocket fees and expenses actually and
reasonably incurred by FPSH and its Affiliates or on their behalf in connection
with any of the transactions contemplated by this Agreement and the Related
Agreements (including fees and expenses payable to financing sources,
consultants, counsel to any of the foregoing, accountants and legal counsel).

         "FPSH Material Adverse Effect" shall have the meaning set forth in
Section 4.1.

                                       -5-



         "FPSH Purchase Price" shall mean the product of (i) the FPSH Sale
Shares multiplied by (ii) $3.40.

         "FPSH Sale Shares" means (i) 70,972,409 shares of New Company Common
Stock minus (ii) the aggregate number of Additional Sale Shares.

         "FPSH Stock Purchase" shall have the meaning set forth in the recitals.

         "GFA" shall have the meaning set forth in Section 8.3(c).

         "Governmental Entity" means any federal, state, local or foreign court
or tribunal or administrative, governmental or regulatory body, agency or
authority.

         "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.

         "Indemnification Agreement" shall mean the Indemnification Agreement,
of even date herewith, by and among FPSH, the ARG Trust, Desarrollo Consolidado
de Negocios, S.A. de C.V., Desarrollo Empresarial Regiomontano, S.A. de C.V.,
Emprima, S.A. de C.V., Park Financial Group, Ltd (BVI), Savia, S.A. de C.V.,
Alfonso Romo Garza and Parent.

         "Lien" means, with respect to any asset (including any security), any
security interests, liens, claims, charges, title defects, deficiencies or
exceptions, mortgages, pledges, easements, encroachments, restrictions on use,
rights-of-way, 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 in respect of such asset.

         "Merger" shall have the meaning set forth in the recitals.

         "Merger Agreement" shall have the meaning set forth in the recitals.

         "Merger Sub" shall have the meaning set forth in the preamble.

         "Merger Sub Securities" shall have the meaning set forth in Section
3.5(b).

         "MS Common Stock" shall have the meaning set forth in the recitals.

         "MS Preferred Stock" shall have the meaning set forth in the recitals.

         "New Company Common Stock" shall have the meaning set forth in the
recitals.

         "Parent" shall have the meaning set forth in the preamble.

         "Parent Disclosure Schedule" means the schedule of disclosures
delivered by Parent and Merger Sub to FPSH and the ARG Trust together with the
execution of this Agreement.

         "Parent Material Adverse Effect" means any event, change, circumstance,
effect or state of facts that is or is reasonably expected to be materially
adverse to the ability of Parent or

                                       -6-



Merger Sub to consummate the transactions contemplated by this Agreement or the
Related Agreements.

         "Person" means an individual, corporation, limited liability company,
partnership, association, trust, unincorporated organization, other entity or
"group" (as defined in the Exchange Act).

         "Related Agreements" means the Voting Agreement, the Merger Agreement,
the Contribution Agreement, and the Indemnification Agreement.

         "Related Transactions" shall mean the transactions contemplated by the
Related Agreements.

         "Savia" shall have the meaning set forth in the recitals.

         "Stock Purchase" shall have the meaning set forth in the recitals.

         "Stockholders' Agreement" means the Stockholders' Agreement, of even
date herewith, by and among Merger Sub and the Persons listed on the signature
pages thereto.

         "Subsidiary" means, with respect to any Person, any other Person,
whether incorporated or unincorporated or domestic or foreign to the United
States of which (a) such first Person or any other Subsidiary of such first
Person is a general partner (excluding such partnerships where such first Person
or any Subsidiary of such first Person does not have a majority of the voting
interest in such partnership) or (b) at least a majority of the securities or
other interests having by their terms ordinary voting power to elect a majority
of the board of directors or others performing similar functions with respect to
such corporation or other organization is, directly or indirectly, owned or
controlled by such first Person or by any one or more of its Subsidiaries, or by
such first Person and one or more of its Subsidiaries.

         "Voting Agreement" means the voting agreement, of even date herewith,
among FPSH and the other Persons party thereto pursuant to which, among other
things, each Person (other than FPSH) party thereto agrees to vote all shares of
Company Common Stock beneficially owned by such Person in favor of the Merger.

                                   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 Wachtell, Lipton, Rosen & Katz, 51
West 52nd Street, 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 first business day after
satisfaction or waiver of the conditions set forth in Article VII (other than
those conditions that are to be satisfied on the Closing Date, but subject to
the satisfaction or waiver of such other conditions on the Closing Date) (the
"Closing Date").

                                       -7-



         Section 2.2.      Purchase and Sale. Subject to the terms and
conditions set forth herein, at the Closing, (a) Parent shall sell to FPSH (or
one or more of its designated Affiliates) all of Parent's rights, title and
interests in the FPSH Sale Shares, free and clear of any Lien, (b) Parent shall
sell to the Company all of Parent's right, title and interest in the Company
Sale Shares, free and clear of any Lien, and (c) if the ARG Option has been
exercised, Parent shall sell to the ARG Trust all of Parent's right, title and
interest in the ARG Trust Sale Shares, free and clear of any Lien.

         Section 2.3.      ARG Option. Parent hereby grants to the ARG Trust the
right, but not the obligation, to purchase the ARG Trust Sale Shares for the ARG
Purchase Price in accordance with the terms hereof. The ARG Option can be
exercised at any time on or before the third business day prior to the Closing
Date by delivery to Parent of a written notice stating that the ARG Trust
irrevocably exercises the ARG Option to purchase the ARG Trust Sale Shares
pursuant to the terms of this Agreement. Exercise of the ARG Option shall
constitute: (a) acknowledgment by the ARG Trust that Parent shall transfer the
right to receive the ARG Purchase Price to Savia and an agreement by the ARG
Trust that it is obligated to pay the ARG Purchase Price to Savia after such
transfer; and (b) an agreement by the ARG Trust that Savia may receive or retain
any cash dividends on its shares held by the ARG Trust in an amount equal to the
ARG Purchase Price otherwise payable by Savia to ARG Trust in lieu of payment to
Savia of the ARG Purchase Price by ARG Trust.

         Section 2.4.      Delivery of Sale Shares; Payment.

                  (a)      At the Closing, (i) Parent shall deliver or cause to
be delivered to FPSH (or one or more of its designated Affiliates) one or more
stock certificates representing in the aggregate the FPSH Sale Shares, duly
endorsed in blank for transfer or accompanied by duly executed stock powers and
all applicable stock transfer stamps and other instruments requisite to proper
transfer, all in proper form, (ii) Parent shall deliver or cause to be delivered
to the Company one or more stock certificates representing in the aggregate the
Company Sale Shares, duly endorsed in blank for transfer or accompanied by duly
executed stock powers and all applicable stock transfer stamps and other
instruments requisite to proper transfer, all in proper form, (iii) if the ARG
Option has been exercised, Parent shall deliver or cause to be delivered to the
ARG Trust one or more stock certificates representing in the aggregate the ARG
Trust Sale Shares, duly endorsed in blank for transfer or accompanied by duly
executed stock powers and all applicable stock transfer stamps and other
instruments requisite to proper transfer, all in proper form, and (iv) if the
ARG Option has not been exercised, Parent shall deliver or cause to be delivered
to Savia one or more stock certificates representing in the aggregate the ARG
Trust Sale Shares, duly endorsed in blank for transfer or accompanied by duly
executed stock powers and all applicable stock transfer stamps and other
instruments requisite to proper transfer, all in proper form.

                  (b)      At the Closing, (i) FPSH (or one or more of its
designated Affiliates) shall pay to Parent by wire transfer of immediately
available funds (to the account designated by Parent in writing not less than
three days prior to Closing) the FPSH Purchase Price, (ii) Parent shall cause
the Company to pay to Parent by wire transfer of immediately available funds (to
the account designated by Parent in writing not less than three days prior to
Closing) the Company Purchase Price, and (iii) if the ARG Option has been
exercised, the transactions contemplated by the last sentence of Section 2.3
shall occur.

                                       -8-



                                   ARTICLE III

             REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

         Parent and Merger Sub hereby represent and warrant to FPSH and the ARG
Trust as follows:

         Section 3.1.      Organization. Each of Parent and Merger Sub is duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate or similar power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be in good standing or to have such
corporate or similar power and authority would not, in the aggregate, have a
Parent Material Adverse Effect. Each of Parent and Merger Sub was formed solely
for the purpose of engaging in the transactions contemplated by this Agreement,
the Merger Agreement and the Contribution Agreement and the other transactions
contemplated by the Related Agreements. Other than Parent's 100% ownership
interest in Merger Sub and as contemplated by the Contribution Agreement,
neither Parent, nor Merger Sub owns any equity, debt or similar interest in any
Person. Parent and Merger Sub have delivered to FPSH and the ARG Trust accurate
and complete copies of the certificate of incorporation and bylaws (or other
governing documents), as currently in effect, of Parent and Merger Sub. Neither
Parent nor Merger Sub has engaged in any activities, owned any assets or been
subject to any liabilities, except as is necessary to effect the Merger, the
Stock Purchase and the Contribution. Neither Parent nor Merger Sub has any
Indebtedness (as defined in the Merger Agreement) or liabilities, other than as
contemplated by this Agreement, the Related Agreements and the Financing
Commitment Papers.

         Section 3.2.      Authority. Each of Parent and Merger Sub has all
necessary power and authority to execute and deliver this Agreement and any
Related Agreement to which it is a party and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and any Related Agreement to which it is a party and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by the boards of directors (or other governing body) and stockholders
or members (as applicable) of each of Parent and Merger Sub, and no other
corporate or similar proceedings on the part of Parent or Merger Sub are
necessary to authorize this Agreement or any Related Agreement to which it is a
party or to consummate the transactions contemplated hereby or thereby. This
Agreement and any Related Agreement to which it is a party have been duly and
validly executed and delivered by each of Parent and Merger Sub and, assuming
due and valid authorization, execution and delivery by the other party or
parties hereto or thereto, constitute the valid, legal and binding agreements of
each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub
in accordance with their terms.

         Section 3.3.      Consents and Approvals; No Violations. Except as set
forth on Section 3.3 of the Parent Disclosure Schedule, no filing with or notice
to, and no permit, authorization, consent or approval of, any Governmental
Entity or any other Person is necessary for the execution and delivery by Parent
and Merger Sub of this Agreement or the consummation by Parent and Merger Sub of
the transactions contemplated by this Agreement and the Related Agreements,
except where the failure to obtain such permits, authorizations, consents or

                                       -9-



approvals or to make such filings or give such notice would not have a Parent
Material Adverse Effect or a Company Material Adverse Effect. Neither the
execution, delivery and performance of this Agreement by Parent and Merger Sub,
nor the consummation by Parent and Merger Sub of the transactions contemplated
by this Agreement and the Related Agreements will (a) conflict with or result in
any breach of any provision of the certificates of incorporation or bylaws (or
similar governing documents) of Parent or Merger Sub, (b) result in a violation
or breach of, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration, or result in the creation of a Lien on any
property or asset of Parent or Merger Sub, or trigger any rights of first
refusal) under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, license, contract, agreement or other instrument or
obligation to which Parent or Merger Sub is a party or by which either of them
or their respective properties or assets may be bound, or (c) violate any order,
writ, injunction, decree, law, statute, rule or regulation applicable to Parent,
Merger Sub or any of their respective properties or assets, except in the case
of (b) or (c) above for violations, breaches, defaults or other occurrences that
would not, individually or in the aggregate, have a Parent Material Adverse
Effect or a Company Material Adverse Effect.

         Section 3.4.      Contributions to Parent; Distributions from Parent.

                  (a)      On the date hereof, Parent entered into the
Contribution Agreement with the Persons set forth in Section 3.4(a) of the
Parent Disclosure Schedule pursuant to which, immediately prior to the Effective
Time, such Persons have agreed to transfer to Parent all rights, title and
interests in the shares of Company Common Stock set forth next to such Person's
name in Section 3.4(a) of the Parent Disclosure Schedule, in each case, free and
clear of any Lien and in accordance with the terms of the Contribution
Agreement.

                  (b)      Immediately after the Closing and the closing of the
Debt Financing (as defined in the Merger Agreement), Parent shall be liquidated
pursuant to the terms of the LLC Agreement (as defined in the Contribution
Agreement) and in such liquidation, Parent will distribute (i) the Cash
Distribution to Savia, (ii) if the ARG Option is exercised, the right to receive
the ARG Purchase Price to Savia, (iii) the right to receive the Additional
Purchase Amount, if any, to Savia, (iv) shares of New Company Common Stock to
the Persons (and in the amounts) set forth in Section 3.4(b) of the Parent
Disclosure Schedule and (v) all remaining assets, if any, including shares of
New Company Common Stock not purchased pursuant to the ARG Option, to Savia.

         Section 3.5.      Capitalization.

                  (a)      Immediately following the Effective Time and
immediately prior to the Closing, the authorized capital stock of the Company
shall consist of (i) 200,000,000 shares of New Company Common Stock, 84,377,861
shares of which shall be issued and outstanding and owned exclusively by Parent,
and (ii) 5,000,000 shares of Company Preferred Stock, (A) 25,000 shares of which
shall be designated as shares of Company Class A Preferred Stock, none of which
shall be issued or outstanding, and (B) 25,000 shares of which shall be
designated as shares of Company Class B Preferred Stock, 25,000 shares of which
shall be issued and outstanding. Except (w) as set forth in the preceding
sentence, (x) the options to purchase shares of New Company Common Stock granted
under the Amended and Restated Seminis, Inc. 1998

                                      -10-



Stock Option Plan which are or become Retained Options (as defined in the Merger
Agreement) in accordance with any agreements among Parent, FPSH and any
individual owning such Retained Options (as defined in the Merger Agreement),
(y) as contemplated by this Agreement, and (z) as provided in the employment
agreements and letter agreements set forth in Section 3.5 of the Parent
Disclosure Schedule, immediately following the Effective Time and immediately
prior to the Closing, there will be no outstanding (i) shares of capital stock
or other voting securities of the Company, (ii) securities of the Company
convertible into or exchangeable for shares of capital stock or voting
securities of the Company, (iii) options or other rights to acquire from the
Company, or obligations of the Company to issue or sell, any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of the Company, or (iv) equity equivalents, interests
in the ownership or earnings of the Company or other similar rights
(collectively, "Company Securities"). Other than pursuant to this Agreement and
the Related Agreements (including the Stockholders' Agreement to be executed at
the Closing), there are no outstanding obligations of the Company to repurchase,
redeem or otherwise acquire any Company Securities.

                  (b)      As of the date hereof, Merger Sub has authority to
issue (i) 1,000 shares of MS Common Stock, 1,000 of which shares are issued and
outstanding, all of which issued and outstanding shares are owned by Parent, and
(ii) 1,000 shares of MS Preferred Stock, none of which shares is issued or
outstanding. Immediately prior to the Effective Time, (i) Merger Sub shall have
authority to issue 100,000,000 shares of MS Common Stock, 84,377,861 of which
shares shall be issued and outstanding and all of which will be owned by Parent,
and (ii) 1,000 shares of MS Preferred Stock, none of which shares shall be
issued or outstanding. Except as set forth in the preceding sentence, there are
no outstanding (i) shares of capital stock or other voting securities of Merger
Sub, (ii) securities of Merger Sub convertible into or exchangeable for shares
of capital stock or voting securities of Merger Sub, (iii) options or other
rights to acquire from Merger Sub, or obligations of Merger Sub to issue or
sell, any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of Merger Sub, or (iv)
equity equivalents, interests in the ownership or earnings of Merger Sub or
other similar rights (collectively, "Merger Sub Securities"). There are no
outstanding obligations of Merger Sub to repurchase, redeem or otherwise acquire
any Merger Sub Securities.

         Section 3.6.      Ownership of Stock.

                  (a)      On the Closing Date, following the Effective Time and
prior to the Closing, Parent will be the owner, beneficially and of record, of
the FPSH Sale Shares, free and clear of any Lien and will transfer to FPSH (or
one or more of its Affiliates) good and valid title to such FPSH Sale Shares
free and clear of any Lien. Except as set forth in Section 3.6(a) of the Parent
Disclosure Schedule, on the Closing Date, Parent will have no beneficial
interest in any Company Securities other than the FPSH Sale Shares, the Company
Sale Shares, the ARG Trust Sale Shares and the Additional Sale Shares, if any.

                  (b)      On the Closing Date, following the Effective Time and
prior to the Closing, Parent will be the owner, beneficially and of record, of
the Company Sale Shares, free and clear of any Lien and will transfer to the
Company good and valid title to such Company Sale Shares free and clear of any
Lien.

                                      -11-



                  (c)      On the Closing Date, following the Effective Time and
prior to the Closing, Parent will be the owner, beneficially and of record, of
the ARG Trust Sale Shares, free and clear of any Lien and, (i) if the ARG Option
has been exercised, will transfer to the ARG Trust good and valid title to such
ARG Trust Sale Shares free and clear of any Lien, or (ii) if the ARG Option has
not been exercised, will transfer to Savia good and valid title to such ARG
Trust Sale Shares free and clear of any Lien.

         Section 3.7.      Proxy Statement; Information.

                  (a)      None of the information supplied by Parent or Merger
Sub in writing specifically for inclusion in the Proxy Statement (as defined in
the Merger Agreement) will, at the time filed with the SEC (as defined in the
Merger Agreement), at the time first mailed to the Company's stockholders or at
the time of the Stockholders Meeting (as defined in the Merger Agreement),
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.

                  (b)      A copy of all written material non-public financial
information with respect to the Company or any of its Subsidiaries that Parent
or Savia or their respective officers, directors, employees, investment bankers,
attorneys, agents or representatives has provided to FPSH or any of its
Affiliates or their respective investment bankers, attorneys, agents or
representatives, has been provided or made available to the Special Committee
(as defined in the Merger Agreement) or its advisors.

                  (c)      All material information requested in a letter from
the Special Committee to Mr. Alfonso Romo Garza, as Chief Executive Officer and
controlling stockholder (through Savia) of the Company, dated January 7, 2003,
has, to Parent's knowledge, been provided or made available to the Special
Committee (as defined in the Merger Agreement) or its advisors and to FPSH or
its advisors.

         Section 3.8.      Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement and the Related Agreements
based upon arrangements made by or on behalf of Parent or Merger Sub.

         Section 3.9.      Acknowledgment. Each of Parent and Merger Sub hereby
acknowledges that (a) in connection with FPSH entering into the Stock Purchase
Agreement, FPSH is relying upon the representations, warranties and covenants of
(i) each of Parent and Merger Sub contained in this Agreement, and (ii) each of
Parent, the Contributors (as defined in the Contribution Agreement), Mr. Romo
(as defined in the Contribution Agreement), Desarrollo Consolidado de Negocios,
S.A. de C.V. and the ARG Trust contained in the Contribution Agreement, and (b)
FPSH shall be entitled to rely upon and enforce the representations, warranties
and covenants as provided in this Agreement and in the Indemnification
Agreement.

                                      -12-



                                   ARTICLE IV

                     REPRESENTATIONS AND WARRANTIES OF FPSH

         FPSH hereby represents and warrants to Parent and the ARG Trust as
follows:

         Section 4.1.      Organization. FPSH is duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate or similar power and authority to own, lease and operate
its properties and to carry on its business as now being conducted, except where
the failure to be in good standing or to have such corporate or similar power
and authority would not, in the aggregate, have an FPSH Material Adverse Effect.
FPSH was formed solely for the purpose of engaging in the transactions
contemplated by this Agreement. FPSH has not engaged in any activities, owned
any assets or been subject to any liabilities, other than in connection with or
as contemplated by this Agreement, the Related Agreements and the Financing
Commitment Papers. The term "FPSH Material Adverse Effect" means any event,
change, circumstance or effect that is or is reasonably expected to be
materially adverse to the ability of FPSH to consummate the Stock Purchase.

         Section 4.2.      Authority. FPSH has all necessary power and authority
to execute and deliver this Agreement and any Related Agreement to which it is a
party and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and any Related Agreement to which it
is a party and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by the manager and the sole member
of FPSH, and no other corporate or similar proceedings on the part of FPSH are
necessary to authorize this Agreement or any Related Agreement to which it is a
party or to consummate the transactions contemplated hereby or thereby. This
Agreement and any Related Agreement to which it is a party have been duly and
validly executed and delivered by FPSH and, assuming due and valid
authorization, execution and delivery by the other parties hereto or thereto,
constitute valid, legal and binding agreements of FPSH, enforceable against FPSH
in accordance with their terms.

         Section 4.3.      Consents and Approvals; No Violations. No filing with
or notice to, and no permit, authorization, consent or approval of, any
Governmental Entity or any other Person is necessary for the execution and
delivery by FPSH of this Agreement or the consummation by FPSH of the
transactions contemplated hereby, except (a) in connection with the requirements
of the HSR Act and (b) where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings or give such notice would not have
an FPSH Material Adverse Effect. Neither the execution, delivery and performance
of this Agreement by FPSH nor the consummation by FPSH of the transactions
contemplated hereby will (a) conflict with or result in any breach of any
provision of the governing documents of FPSH, (b) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, amendment, cancellation or
acceleration, or result in the creation of a Lien on any property or asset of
FPSH, or trigger any rights of first refusal) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which FPSH is a party
or by which FPSH or its properties or assets may be bound, or (c) violate any
order, writ, injunction, decree, law, statute, rule or regulation applicable to
FPSH or its properties or assets, except in the case of (b) or (c)

                                      -13-



above for violations, breaches, defaults or other occurrences that would not,
individually or in the aggregate, have an FPSH Material Adverse Effect.

         Section 4.4.      Proxy Statement. None of the information supplied by
FPSH in writing specifically for inclusion in the Proxy Statement (as defined in
the Merger Agreement) will, at the time filed with the SEC (as defined in the
Merger Agreement), at the time first mailed to the Company's stockholders or at
the time of the Stockholders Meeting (as defined in the Merger Agreement),
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.

         Section 4.5.      Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement and the Related Agreements
based upon arrangements made by or on behalf of FPSH.

         Section 4.6.      Purchase for Investment. FPSH acknowledges that it
(a) has such knowledge and experience in business and financial matters with
respect to investments in securities to enable it to understand and evaluate the
risks of the investment contemplated hereby and form an investment decision with
respect thereto and is able to bear the risk of such investment for an
indefinite period and to afford a complete loss thereof, (b) is an "accredited
investor" as defined in Rule 501 of Regulation D under the Securities Act of
1933, as amended and (c) has had the opportunity to (i) ask such questions as it
has deemed necessary of, and to receive answers from, representatives of Parent
concerning the terms of its purchase of the FPSH Sale Shares contemplated hereby
and the merits and risks of investing in such securities and (ii) to obtain such
additional information which Parent possesses or can acquire without
unreasonable effort or expense.

         Section 4.7.      Financial Capability. FPSH will have on the Closing
Date sufficient cash and cash equivalents (and has provided Parent with evidence
thereof) to purchase the FPSH Sale Shares and to consummate the transactions
contemplated by this Agreement, including payments of fees and expenses
contemplated hereunder.

                                    ARTICLE V

                 REPRESENTATIONS AND WARRANTIES OF THE ARG TRUST

         The ARG Trust hereby represents and warrants to Parent and FPSH as
follows:

         Section 5.1.      Organization. The ARG Trust is duly created under the
laws of the United Mexican States and has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to have such power and authority would not,
in the aggregate, have an ARG Trust Material Adverse Effect. The term "ARG Trust
Material Adverse Effect" means any event, change, circumstance or effect that is
or is reasonably expected to be materially adverse to the ability of the ARG
Trust to consummate the ARG Trust Stock Purchase.

                                      -14-



         Section 5.2.      Authority. The ARG Trust has all necessary power and
authority to execute and deliver this Agreement and any Related Agreement to
which it is a party and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and any Related Agreement
to which it is a party and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by the technical
committee of the ARG Trust, and, except as set forth in Section 5.2 of the ARG
Trust Disclosure Schedule, no other proceedings on the part of the ARG Trust are
necessary to authorize this Agreement or any Related Agreement to which it is a
party or to consummate the transactions contemplated hereby or thereby. This
Agreement and any Related Agreement to which it is a party have been duly and
validly executed and delivered by the ARG Trust and, assuming due and valid
authorization, execution and delivery by the other parties hereto or thereto,
constitute valid, legal and binding agreements of the ARG Trust, enforceable
against the ARG Trust in accordance with their terms.

         Section 5.3.      Consents and Approvals; No Violations. Except as set
forth in Section 5.3 of the ARG Disclosure Schedule, no filing with or notice
to, and no permit, authorization, consent or approval of, any Governmental
Entity or any other Person is necessary for the execution and delivery by the
ARG Trust of this Agreement or the consummation by the ARG Trust of the
transactions contemplated hereby, except where the failure to obtain such
permits, authorizations, consents or approvals or to make such filings or give
such notice would not have an ARG Trust Material Adverse Effect. Neither the
execution, delivery and performance of this Agreement by the ARG Trust nor the
consummation by the ARG Trust of the transactions contemplated hereby will (a)
conflict with or result in any breach of any provision of the governing
documents of the ARG Trust, (b) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, amendment, cancellation or acceleration,
or result in the creation of a Lien on any property or asset of the ARG Trust,
or trigger any rights of first refusal) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which the ARG Trust is a party or
by which the ARG Trust or its properties or assets may be bound, or (c) violate
any order, writ, injunction, decree, law, statute, rule or regulation applicable
to the ARG Trust or its properties or assets, except in the case of (b) or (c)
above for violations, breaches, defaults or other occurrences that would not,
individually or in the aggregate, have an ARG Trust Material Adverse Effect.

         Section 5.4.      Proxy Statement. None of the information supplied by
the ARG Trust in writing specifically for inclusion in the Proxy Statement (as
defined in the Merger Agreement) will, at the time filed with the SEC (as
defined in the Merger Agreement), at the time first mailed to the Company's
stockholders or at the time of the Stockholders Meeting (as defined in the
Merger Agreement), contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.

         Section 5.5.      Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement and the Related Agreements
based upon arrangements made by or on behalf of the ARG Trust.

                                      -15-



         Section 5.6.      Purchase for Investment. The ARG Trust acknowledges
that its technical committee (a) has such knowledge and experience in business
and financial matters with respect to investments in securities to enable it to
understand and evaluate the risks of the investment contemplated hereby and form
an investment decision with respect thereto and is able to bear the risk of such
investment for an indefinite period and to afford a complete loss thereof, (b)
is an "accredited investor" as defined in Rule 501 of Regulation D under the
Securities Act of 1933, as amended and (c) has had the opportunity to (i) ask
such questions as it has deemed necessary of, and to receive answers from,
representatives of Parent concerning the terms of its purchase of the ARG Trust
Sale Shares contemplated hereby and the merits and risks of investing in such
securities and (ii) to obtain such additional information which Parent possesses
or can acquire without unreasonable effort or expense.

                                   ARTICLE VI

                                    COVENANTS

         Section 6.1.      Merger Agreement; Contribution Agreement; Financing
Commitment Papers.

                  (a)      Parent and Merger Sub hereby acknowledge and agree
that pursuant to this Agreement, Section 9.8(b) of the Merger Agreement and
Section 8.7(b) of the Contribution Agreement, FPSH shall be a third party
beneficiary of the Merger Agreement and the Contribution Agreement. As a third
party beneficiary of the Merger Agreement, FPSH shall have the right to directly
enforce Sections 6.10 (No Solicitation), 8.3 (Fees and Expenses), 8.4
(Amendment) and 8.5 (Waiver) of the Merger Agreement. As a third party
beneficiary of the Merger Agreement and the Contribution Agreement, (i) FPSH
shall have the right to exercise any right (or enforce any obligation, covenant
or condition) under the Merger Agreement and the Contribution Agreement
exercisable (or enforceable) by Parent or Merger Sub (to the extent that Parent
or Merger Sub shall not have exercised or enforced such right, obligation,
covenant or condition), (ii) representations, warranties or covenants made to
Parent or Merger Sub in the Merger Agreement and the Contribution Agreement
shall be deemed made to (and, with respect to covenants, shall be enforceable
(to the extent that Parent or Merger Sub has not enforced such covenant) by)
FPSH, and (iii) anything under the Merger Agreement and the Contribution
Agreement that must be approved by or acceptable to Parent or Merger Sub must
also be approved or accepted by FPSH; provided, however, that the foregoing
shall not grant to FPSH the right to amend or waive any obligation, covenant or
condition under the Merger Agreement or the Contribution Agreement without the
written consent of Parent.

                  (b)      Parent and Merger Sub hereby covenant and agree that
(i) without the prior written consent of FPSH, neither Parent nor Merger Sub
shall waive any obligation, covenant or condition under the Merger Agreement or
the Contribution Agreement, (ii) Parent and Merger Sub shall provide to FPSH any
notice under the Merger Agreement and the Contribution Agreement received from
any other party thereto within one day of receipt of such notice by Parent or
Merger Sub and neither Parent nor Merger Sub shall deliver any notice under the
Merger Agreement or the Contribution Agreement to any other party thereto
without the prior written consent of FPSH, and (iii) upon the request and at the
direction of FPSH, Parent and Merger Sub

                                      -16-



shall exercise or enforce any rights under the Merger Agreement or the
Contribution Agreement specified by FPSH; provided, however, that the foregoing
shall not grant to FPSH the right to amend or waive any obligation, covenant or
condition under the Merger Agreement or the Contribution Agreement without the
written consent of Parent.

                  (c)      Parent hereby acknowledges and agrees that (i) FPSH
(through Parent) shall have the right to exercise any right (or enforce any
obligation, covenant or condition) under the Financing Commitment Papers
exercisable or enforceable by Parent (to the extent that Parent shall not have
exercised or enforced such right), and (ii) anything under the Financing
Commitment Papers that must be approved by or acceptable to Parent must also be
approved or accepted by FPSH. Parent hereby covenants that (x) without the prior
written consent of FPSH, it shall not amend, modify or waive any obligation,
covenant or condition under any of the Financing Commitment Papers, (y) it shall
provide to FPSH any notice under the Financing Commitment Papers received from
any other party thereto within one day of receipt of such notice by Parent and
Parent shall not deliver any notice under any of the Financing Commitment Papers
to any other party thereto without the prior written consent of FPSH, and (z)
upon the request and at the direction of FPSH, Parent shall exercise or enforce
any rights under the Financing Commitment Papers specified by FPSH; provided,
however, that the foregoing shall not grant to FPSH the right to amend or waive
any obligation, covenant or condition under the Financing Commitment Papers
without the written consent of Parent.

         Section 6.2.      Pre-Closing Conduct. Parent, Merger Sub, FPSH and the
ARG Trust hereby covenant and agree that neither FPSH, nor the ARG Trust, nor
Parent, nor Merger Sub shall take any action that would make any of the
representations or warranties of Parent, Merger Sub, the ARG Trust or FPSH
contained in this Agreement or the Related Agreements untrue or incorrect as of
the date hereof or the Closing Date or would result in any of the conditions set
forth in Article VII not being satisfied.

         Section 6.3.      Notification of Certain Matters. The parties hereto
shall give prompt notice to one another of (a) the occurrence or nonoccurrence
of any event the occurrence or nonoccurrence of which would be likely to cause
(i) any representation or warranty contained in this Agreement or the Related
Agreements to be untrue or inaccurate, or (ii) any covenant, condition or
agreement contained in this Agreement or the Related Agreements not to be
complied with or satisfied, and (b) any failure of any party hereto or to any
Related Agreement to comply with or satisfy any covenant, condition or agreement
to be complied with or satisfied by it under this Agreement or the Related
Agreements; provided, however, that the delivery of any notice pursuant to this
Section 6.3 shall not affect the representations, warranties or covenants of the
parties hereto or limit or otherwise affect the remedies available to any party
hereunder.

         Section 6.4.      Additional Agreements, Reasonable Best Efforts.

                  (a)      Prior to the Closing Date, upon the terms and subject
to the conditions of this Agreement, each of FPSH, the ARG Trust, Parent and
Merger Sub agrees to use its reasonable best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary, proper
or advisable under any applicable laws, rules or regulations to consummate and
make effective as promptly as practicable the Stock Purchase and the Related
Transactions and the other transactions contemplated by this Agreement and the
Related Agreements, including

                                      -17-



(i) the preparation and filing of all forms, registrations and notices
required to be filed to consummate the Stock Purchase and the Related
Transactions and the other transactions contemplated hereby and thereby and the
taking of such actions as are necessary to obtain any requisite approvals,
consents, orders, exemptions or waivers by any third party, including any
Governmental Entity, (ii) to make an appropriate filing of a Notification and
Report Form pursuant to the HSR Act (and to make such other filings as are
required under laws, rules and regulations in foreign jurisdictions governing
antitrust or merger control matters) with respect to the transactions
contemplated hereby as promptly as practicable after the date hereof and to
supply as promptly as practicable any additional information and documentary
material that may be requested pursuant to the HSR Act (or pursuant to such
foreign laws, rules or regulations), (iii) the preparation of any Financing
Documents (as defined in the Merger Agreement) reasonably requested by FPSH or
Parent, and (iv) the satisfaction of the conditions to the consummation of the
Stock Purchase and the Related Transactions. In addition, no party hereto shall
take any action after the date hereof that would reasonably be expected to
materially delay the obtaining of, or result in not obtaining, any permission,
approval or consent from any Governmental Entity necessary to be obtained prior
to the consummation of the Stock Purchase and the Related Transactions.

                  (b)      Each of the parties hereto agrees to use its
reasonable efforts to assist the other parties hereto in connection with
structuring or obtaining any financing for Parent and/or the Company and its
Subsidiaries in connection with consummation of the Merger, and each of the
parties shall use its reasonable efforts to obtain such financing for Parent
and/or the Company and its Subsidiaries.

                  (c)      Prior to the Effective Time, each party shall
promptly consult with the other parties hereto with respect to, provide any
necessary information with respect to and provide the other (or its counsel)
copies of, all filings made by such party with any Governmental Entity or any
other information supplied by such party to a Governmental Entity in connection
with this Agreement, the Related Agreements and the transactions contemplated
hereby and thereby. Each party hereto shall promptly inform the other of any
communication from any Governmental Entity regarding the Stock Purchase or any
of the Related Transactions. If any party hereto or Affiliate thereof receives a
request for additional information or documentary material from any such
Governmental Entity with respect to the Stock Purchase or the Related
Transactions, then such party will endeavor in good faith to make, or cause to
be made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.

         Section 6.5.      Further Assurances.

                  (a)      Parent, Merger Sub and the ARG Trust shall use their
reasonable best efforts to implement the provisions of this Agreement, and, for
such purpose, at the request of FPSH, will, at or after the Closing, promptly
execute and deliver, or cause to be so executed and delivered, such documents to
FPSH or the Company and take such further action as FPSH may deem reasonably
necessary or desirable to facilitate or better evidence the consummation of the
transactions contemplated hereby.

                                      -18-



                  (b)      FPSH shall use its reasonable best efforts to
implement the provisions of this Agreement, and, for such purpose, at the
request of Parent or Merger Sub, will, at or after the Closing, promptly execute
and deliver, or cause to be so executed and delivered, such documents to Parent
or Merger Sub, and take such further action as Parent or Merger Sub may deem
reasonably necessary or desirable to facilitate or better evidence the
consummation of the transactions contemplated hereby.

                  (c)      Parent shall cause the Company to become a party to
this Agreement immediately following consummation of the Merger.

         Section 6.6.      Public Announcements. The parties will consult with
each other before issuing any press release or otherwise making any public
statements with respect to this Agreement, the Related Agreements, the Merger,
the Related Transactions or the other transactions contemplated hereby or
thereby, and shall not issue any such press release or make any such public
statement without the prior consent of the other parties hereto (which consent
shall not be unreasonably withheld or delayed), except as may be required by
applicable law or by obligations pursuant to any listing agreement with any
national securities exchange or national market system to which any party or its
Affiliates is a party. The parties hereto have agreed on the text of the joint
press release by which announcement of the execution of this Agreement will be
made.

         Section 6.7.      Capitalization.

                  (a)      Parent shall not permit Merger Sub or commit the
Surviving Corporation (as defined in the Merger Agreement) to, and Merger Sub
shall not, incur, or become responsible for, any Indebtedness (as defined in the
Merger Agreement) or other liabilities, other than as reasonably required to
fulfill their respective obligations under this Agreement, the Related
Agreements or the Financing Commitment Papers.

                  (b)      At least five days prior to the Effective Time, (i)
Parent shall cause Merger Sub to amend its certificate of incorporation to
authorize 100,000,000 shares of MS Common Stock, and (ii) Parent shall cause
Merger Sub to issue to Parent an additional 84,376,861 shares of MS Common Stock
so that immediately prior to the Effective Time, Parent shall own all of the
outstanding 84,377,861 shares of MS Common Stock.

                                   ARTICLE VII

                CONDITIONS TO CONSUMMATION OF THE STOCK PURCHASE

         Section 7.1.      Conditions to Performance by Parent and Merger Sub.
The obligation of Parent and Merger Sub 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 FPSH herein, disregarding all
qualifications and exceptions contained herein relating to materiality or FPSH
Material Adverse Effect or words of similar import, shall be true and correct on
the date hereof and on the Closing Date as if made on and as of such dates
(except

                                      -19-



for representations and warranties that are made as of a specified date, which
shall be true and correct only as of such specified date) with only such
exceptions as would not reasonably be expected to have, individually or in the
aggregate, an FPSH Material Adverse Effect.

                  (b)      Compliance with Covenants. FPSH shall have performed
in all material respects (or with respect to any obligation or agreement
qualified by materiality or FPSH Material Adverse Effect, in all respects) all
obligations and agreements, and complied in all material respects (or with
respect to any covenant qualified by materiality or FPSH Material Adverse
Effect, in all respects) with all covenants, contained in this Agreement to be
performed or complied with by FPSH prior to or on the Closing Date.

                  (c)      Officer's Certificates. Parent shall have received a
certificate of FPSH, dated as of the Closing Date, signed by an executive
officer of FPSH to evidence satisfaction of the conditions set forth in Sections
7.1(a) and (b).

                  (d)      Co-Investment Rights Agreements. The Company and
Desarrollo Consolidado de Negocios, S.A. de C.V. shall have executed and
delivered the 15% Co-Investment Rights Agreement and the SPC Hurdle
Co-Investment Rights Agreement in form and substance substantially identical to
the forms attached hereto as Exhibits B-1 and B-2 and the Company and FPSH shall
have executed and delivered the FPSH Hurdle Co-Investment Rights Agreement in
form and substance identical to the form attached hereto as Exhibit B-3, with
the number of Co-Investment Rights granted pursuant to the SPC Hurdle
Co-Investment Rights Agreement, on the one hand, and FPSH Hurdle Co-Investment
Rights Agreement, on the other hand, determined in accordance with the letter,
of even date herewith, from FPSH to Desarrollo Consolidado de Negocios, S.A. de
C.V.

                  (e)      [Reserved]

                  (f)      Conditions to the Merger. The conditions to the
Merger set forth in Sections 7.1(b) and 7.2 (other than Sections 7.2(c) and
7.2(d)) of the Merger Agreement shall have been satisfied or waived, and the
Effective Time shall have occurred.

                  (g)      Closings of the Merger and the Debt Financing. The
closing of the Merger and the Debt Financing (as defined in the Merger
Agreement) shall occur substantially concurrently with the Closing.

                  (h)      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 Related Transactions.

         Section 7.2.      Conditions to Performance by FPSH. The obligation of
FPSH 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.

                                      -20-



                           (i)      The representations and warranties made
                  herein by Parent, Merger Sub and the ARG Trust, disregarding
                  all qualifications and exceptions contained herein relating
                  to materiality, Parent Material Adverse Effect, ARG Trust
                  Material Adverse Effect and Company Material Adverse Effect
                  or words of similar import, shall be true and correct on the
                  date hereof and on the Closing Date as if made on and as of
                  such dates (except for representations and warranties that
                  are made as of a specified date, which shall be true and
                  correct only as of such specified date) with only such
                  exceptions as would not reasonably be expected to have,
                  individually or in the aggregate, a Parent Material Adverse
                  Effect, an ARG Trust Material Adverse Effect, a Company
                  Material Adverse Effect or a Buyer Material Adverse Effect.

                           (ii)     The representations and warranties made in
                  the Contribution Agreement by Parent, the Contributors (as
                  defined in the Contribution Agreement), Mr. Romo (as defined
                  in the Contribution Agreement), the ARG Trust and Mexican SPC
                  (as defined in the Contribution Agreement), disregarding all
                  qualifications and exceptions contained therein relating to
                  materiality, Parent Material Adverse Effect, Contributor
                  Material Adverse Effect (as defined in the Contribution
                  Agreement) and Company Material Adverse Effect or words of
                  similar import, shall be true and correct on the date hereof
                  and on the Closing Date as if made on and as of such dates
                  (except for representations and warranties that are made as
                  of a specified date, which shall be true and correct only as
                  of such specified date) with only such exceptions as would
                  not reasonably be expected to have, individually or in the
                  aggregate, a Parent Material Adverse Effect, a Contributor
                  Material Adverse Effect (as defined in the Contribution
                  Agreement), a Company Material Adverse Effect or a Buyer
                  Material Adverse Effect.

                      (b)  Compliance with Covenants.

                           (i)      Parent, Merger Sub and the ARG Trust shall
                  have performed in all material respects (or with respect to
                  any obligation or agreement qualified by materiality, Company
                  Material Adverse Effect, Parent Material Adverse Effect or
                  ARG Trust Material Adverse Effect, in all respects) all
                  obligations and agreements, and complied in all material
                  respects (or with respect to any covenant qualified by
                  materiality, Company Material Adverse Effect, Parent Material
                  Adverse Effect or ARG Trust Material Adverse Effect, in all
                  respects) with all covenants contained in this Agreement to
                  be performed or complied with by them prior to or on the
                  Closing Date.

                           (ii)     Parent, each of the Contributors (as defined
                  in the Contribution Agreement), Mr. Romo (as defined in the
                  Contribution Agreement), the ARG Trust and Mexican SPC (as
                  defined in the Contribution Agreement) shall have performed
                  in all material respects (or with respect to any obligation
                  or agreement qualified by materiality, Parent Material
                  Adverse Effect, Company Material Adverse Effect or
                  Contributor Material Adverse Effect (as defined in the
                  Contribution Agreement), in all respects) all obligations and
                  agreements, and complied in all material respects (or with
                  respect to any covenant qualified by materiality, Parent
                  Material Adverse Effect, Company Material Adverse Effect or
                  Contributor Material Adverse Effect (as defined in the
                  Contribution Agreement), in all respects) with all covenants
                  contained in the Contribution Agreement to be performed or
                  complied with by them prior to or on the Closing Date.

                                      -21-




                     (c)   Officer's Certificates.

                           (i)      FPSH shall have received (A) a certificate
                  of Parent, dated as of the Closing Date, signed by an
                  executive officer of Parent, to evidence satisfaction of the
                  conditions set forth in Sections 7.2(a) and (b), and (B) a
                  certificate of the ARG Trust, dated as of the Closing Date,
                  signed by the settlor of the ARG Trust, to evidence
                  satisfaction of the conditions set forth in Sections 7.2(a)
                  and (b).

                           (ii)     FPSH shall have received a certificate of
                  each of the Contributors (as defined in the Contribution
                  Agreement), Mr. Romo (as defined in the Contribution
                  Agreement) and Mexican SPC (as defined in the Contribution
                  Agreement), dated as of the Closing Date, signed by an
                  executive officer of each of the Contributors (as defined in
                  the Contribution Agreement) (other than any Management
                  Contributor) (as defined in the Contribution Agreement), each
                  of whom shall sign in his individual capacity), an executive
                  officer of Mexican SPC (as defined in the Contribution
                  Agreement) and Mr. Romo (as defined in the Contribution
                  Agreement) to evidence satisfaction of the conditions set
                  forth in Sections 7.2(a)(ii) and (b)(ii).

                     (d)   No Litigation. After the date hereof, there shall not
be (i) any new suit, action or proceeding by any Governmental Entity or any
other Person or (ii) any development in any existing suit, action or proceeding
by any Governmental Entity or any other Person that, in any such case, is more
likely than not, individually or in the aggregate, to have a Company Material
Adverse Effect or a Buyer Material Adverse Effect (for purposes of this Section
7.2(d) only, excluding the reference to the phrase "or is reasonably expected to
be" from the definitions of Company Material Adverse Effect and Buyer Material
Adverse Effect).

                     (e)   Co-Investment Rights Agreements. The Company and
Desarrollo Consolidado de Negocios, S.A. de C.V. shall have executed and
delivered the 15% Co-Investment Rights Agreement and the SPC Hurdle
Co-Investment Rights Agreement in form and substance substantially identical to
the forms attached hereto as Exhibits B-1 and B-2 and the Company and FPSH shall
have executed and delivered the FPSH Hurdle Co-Investment Rights Agreement in
from and substance identical to the form attached hereto as Exhibit B-3, with
the number of Co-Investment Rights granted pursuant to the SPC Hurdle
Co-Investment Rights Agreement, on the one hand, and FPSH Hurdle Co-Investment
Rights Agreement, on the other hand, determined in accordance with the letter,
of even date herewith, from FPSH to Desarrollo Consolidado de Negocios, S.A. de
C.V.

                     (f)   [Reserved].

                     (g)   Foreign Investment in Real Property Tax Act. FPSH
shall have received an affidavit of Parent in form substantially identical to
the form attached as Exhibit C hereto duly executed and acknowledged, certifying
facts that would exempt the FPSH Stock Purchase from the provisions of the
Foreign Investment in Real Property Tax Act. FPSH shall have received a duly
executed and acknowledged affidavit of the Company, in form and in substance
reasonably satisfactory to FPSH and in accordance with Treasury Regulation
Sections 1.1445-2(c)(3), 1.897-2(g) and 1.897-2(h), certifying that each
"interest" in the Company (within the meaning of

                                      -22-



Section 897(c)(1) of the Code) is not a "United States real property interest"
within the meaning of Section 897(c) of the Code.

                     (h)   Contribution Agreement. There shall not have occurred
any breach of any of the representations, warranties or covenants under the
Contribution Agreement, that, individually or in the aggregate, would have a
Company Material Adverse Effect. As of the Closing Date, each of the Pre-Closing
Restructuring Steps (as defined in the Contribution Agreement) shall have been
completed and each of the Post-Closing Restructuring Steps (as defined in the
Contribution Agreement) shall occur substantially concurrently with the Closing.
The transactions contemplated by the Contribution Agreement shall have been
consummated.

                     (i)   Conditions to the Merger. The conditions to the
Merger set forth in Sections 7.1(b) and 7.2 (other than Section 7.2(d)) of the
Merger Agreement shall have been satisfied or waived, and the Effective Time
shall have occurred.

                     (j)   Closings of the Merger and the Debt Financing. The
closing of the Merger and the Debt Financing (as defined in the Merger
Agreement) shall occur substantially concurrently with the Closing.

                     (k)   Capitalization. The equity capitalization of the
Company immediately following the Closing, giving effect to the transactions
contemplated by this Agreement and the Related Agreements, shall be as set forth
in Section 7.2(k) of the Parent Disclosure Schedule.

                     (l)   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 Related Transactions.

                                  ARTICLE VIII

                         TERMINATION; AMENDMENT; WAIVER

         Section 8.1.      Termination. This Agreement may be terminated and the
Stock Purchase may be abandoned at any time prior to the Closing:

                     (a)   by mutual written consent of Parent and FPSH, duly
authorized by the boards of directors (or similar governing bodies) of Parent
and FPSH;

                     (b)   by Parent or FPSH, if (i) 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 parties
hereto shall use their reasonable best efforts to reverse, overturn or lift) or
taken any other final action restraining, enjoining or otherwise prohibiting the
Stock Purchase or the Related Transactions and such order, decree, ruling or
other action is or shall have become final and nonappealable, or (ii) the Merger
Agreement shall have been terminated in accordance with its terms;

                                      -23-



                     (c)   by FPSH, if (i) there shall have been a material
breach of any of the representations, warranties or covenants of Parent or
Merger Sub under this Agreement, which breach (A) would give rise to the failure
of a condition set forth in Section 7.2 and (B) is not capable of being cured
prior to the Outside Date (as defined in the Merger Agreement) or, if curable,
has not been cured within 20 business days following receipt by Parent of
written notice from FPSH of such breach, or (ii) there shall have been a breach
of any of the representations, warranties or covenants under the Contribution
Agreement, which breach, individually or in the aggregate would reasonably be
expected to have a Parent Material Adverse Effect, a Contributor Material
Adverse Effect (as defined in the Contribution Agreement), a Company Material
Adverse Effect or a Buyer Material Adverse Effect; provided that in the case of
clause (ii), such breach is not capable of being cured prior to the Outside Date
(as defined in the Merger Agreement) or, if curable, has not been cured within
20 business days following receipt by Parent of written notice from FPSH of such
breach; or

                     (d)   by Parent, if there shall have been a material breach
of any of the representations, warranties or covenants of FPSH which breach (A)
would give rise to the failure of a condition set forth in Section 7.1 and (B)
is not capable of being cured prior to the Outside Date (as defined in the
Merger Agreement) or, if curable, has not been cured within 20 business days
following receipt by FPSH of written notice from Parent of such breach.

         Section 8.2.      Effect of Termination. In the event of the
termination and abandonment of this Agreement pursuant to Section 8.1, 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, other than the provisions of this Section 8.2, Section 8.3(a) and
Article IX of this Agreement; provided, however, that nothing contained in this
Section 8.2 shall relieve any party from liability for any willful and material
breach of this Agreement.

         Section 8.3.      Fees and Expenses.

                     (a)   Except as otherwise provided in the Merger Agreement,
if the transactions contemplated by this Agreement are not consummated for any
reason, all costs and expenses incurred in connection with this Agreement shall
be paid by the party incurring such expenses.

                     (b)   If the transactions contemplated by this Agreement
are consummated, on the Closing Date, the parties hereto shall cause the Company
to pay to FPSH by wire transfer of immediately available funds (to the account
or accounts designated by FPSH in writing not less than one business day prior
to the Closing) (i) a transaction fee equal to the amount paid to Savia in cash
pursuant to Section 2.02 of the Exchange Agreement (as defined in the Merger
Agreement), and (ii) all FPSH Expenses; provided, however, that the FPSH
Expenses shall not exceed $7.5 million.

                     (c)   If the transactions contemplated by this Agreement
are consummated, on the Closing Date, Parent shall cause the Company to pay the
settlement amount to Grupo Financiero Atlantico ("GFA") in accordance with the
Settlement Agreement by and among Savia, the Company, Desarrollo Inmobiliario
Omega, S.A. de C.V., Bionova Holding Corp., Pulsar Inter-

                                      -24-



nacional, S.A. de C.V., Alfonso Romo Garza, Servasa, S.A. de C.V., the ARG
Trust, Fox Paine & Company, LLC and GFA, dated as of April 25, 2003.

         Section 8.4.      Amendment. This Agreement may be amended at any time
by an instrument in writing signed by FPSH and Parent; provided, however, that
any amendment that would prevent or delay the Closing shall also require the
written consent of the Special Committee (as defined in the Merger Agreement),
such consent not to be unreasonably withheld or delayed.

         Section 8.5.      Waiver. At any time prior to the Effective Time: (a)
Parent may (i) extend the time for the performance of any of the obligations or
other acts of FPSH, (ii) waive any inaccuracies in the representations and
warranties of FPSH contained herein or in any document, certificate or writing
delivered pursuant hereto, or (iii) waive compliance by FPSH with any of the
agreements or conditions contained herein, and (b) FPSH may (i) extend the time
for the performance of any of the obligations or other acts of Parent, Merger
Sub or the ARG Trust, (ii) waive any inaccuracies in the representations and
warranties of Parent, Merger Sub or the ARG Trust contained herein or in any
document, certificate or writing delivered pursuant hereto, or (iii) waive
compliance by Parent, Merger Sub or the ARG Trust with any of the agreements or
conditions contained herein; provided, however, that in the case of clauses (a)
and (b), any extension or waiver that would prevent or delay the Closing shall
also require the written consent of the Special Committee (as defined in the
Merger Agreement), such consent not to be unreasonably withheld or delayed. Any
agreement on the part of any party hereto to any such extension or waiver shall
be valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party hereto to assert any of its rights hereunder
shall not constitute a waiver of such rights.

         Section 8.6.      Survival. The parties hereto hereby acknowledge that
indemnification with respect to breaches of representations, warranties and
covenants contained in this Agreement shall be made pursuant to the
Indemnification Agreement and that the representations and warranties in this
Agreement shall survive as provided in this Section 8.6 for such purpose. The
representations and warranties in this Agreement shall survive until the
two-year anniversary of the Closing, provided, however, that the representations
and warranties contained in Section 3.6 of this Agreement shall survive
indefinitely. Any covenants or agreements contained herein or made pursuant
hereto that by their terms are to be performed prior to the Closing Date, shall
not survive beyond the Closing Date. Any covenants or agreements contained
herein or made pursuant hereto that by their terms are to be performed in whole
or in part after the Closing Date, shall survive until fully discharged.

         Section 8.7.      Sole Remedy. After the Closing, and conditioned
thereupon, to the extent permitted by law, the indemnities set forth in the
Indemnification Agreement shall be the exclusive remedies of the parties hereto
and their respective officers, directors, employees, agents and Affiliates for
any misrepresentation, breach of warranty or nonfulfillment or failure to be
performed of any covenant or agreement contained in this Agreement, and the
parties shall not be entitled to rescission of this Agreement or to any further
indemnification rights or claims of any nature whatsoever in respect thereof,
all of which the parties hereto hereby waive.

                                      -25-




                                   ARTICLE IX

                                  MISCELLANEOUS

         Section 9.1.      Entire Agreement; Assignment. This Agreement and the
Related Agreements (including the schedules and Exhibits hereto and thereto)
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties hereto with respect
to the subject matter hereof. This Agreement shall not be assigned by operation
of law or otherwise. Notwithstanding the foregoing, at Closing, FPSH may assign
its rights and obligations under this Agreement to one or more of its Affiliates
who would qualify as an "FPSH Affiliate Transferee" as defined in the
Stockholders' Agreement, and with respect to Section 2.2 of this Agreement, to
any entity co-investing with FPSH who would qualify as a "Co-Investor
Transferee" under the Stockholders' Agreement; provided, however, that FPSH
remains liable for its obligations hereunder until the Closing occurs at which
time such assignees shall be liable.

         Section 9.2.      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 9.3.      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:

                  (a) If to Parent, Merger Sub or the ARG Trust:

                           c/o Savia, S.A. de C.V.
                           Ave. Roble No. 565 Ote. - Piso 4
                           Colonia Valle Del Campestre
                           Garza Garcia, N.L. 66265
                           Mexico
                           Attention: Bernardo Jimenez Barrera
                           Facsimile: 011-52-818-399-5606

                           With a copy, which will not constitute notice, to:

                           Milbank, Tweed, Hadley & McCloy LLP
                           One Chase Manhattan Plaza
                           New York, New York 10005

                                      -26-



                           Attention: Howard S. Kelberg, Esq.
                           Facsimile: 212-822-5530

                           With copies, which will not constitute notice, to:

                           Seminis, Inc.
                           2700 Camino del Sol
                           Oxnard, California 93030-7967
                           Attention: Chairman of the Special Committee
                                        of the Board of Directors
                           Facsimile: 805-918-2530

                           Seminis, Inc.
                           2700 Camino del Sol
                           Oxnard, California 93030-7967
                           Attention: General Counsel
                           Facsimile: 805-918-2530

                           Skadden, Arps, Slate, Meagher & Flom LLP
                           Four Times Square
                           New York, NY 10036
                           Attention: Peter A. Atkins, Esq.
                                      David J. Friedman, Esq.
                           Facsimile: 212-735-2000

                  (b) If to FPSH:

                           Fox Paine & Company, LLC
                           950 Tower Lane, Suite 1950
                           Foster City, California 94404
                           Attention: W. Dexter Paine, III
                           Facsimile: 650-525-1396

                           With a copy, which will not constitute notice, to:

                           Wachtell, Lipton, Rosen & Katz
                           51 West 52nd Street
                           New York, New York 10019
                           Attention: Mitchell S. Presser, Esq.
                           Facsimile: 212-403-2000

                           With copies, which will not constitute notice, to:

                           Seminis, Inc.
                           2700 Camino del Sol
                           Oxnard, California 93030-7967
                           Attention: Chairman of the Special Committee

                                      -27-



                                       of the Board of Directors
                           Facsimile: 805-918-2530

                           Seminis, Inc.
                           2700 Camino del Sol
                           Oxnard, California 93030-7967
                           Attention: General Counsel
                           Facsimile: 805-918-2530

                           Skadden, Arps, Slate, Meagher & Flom LLP
                           Four Times Square
                           New York, NY 10036
                           Attention: Peter A. Atkins, Esq.
                                      David J. Friedman, Esq.
                           Facsimile: 212-735-2000

         Section 9.4.      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)      The ARG Trust irrevocably appoints CT Corporation
Systems, which currently maintains an office at 2711 Centerville Road, Suite
400, Wilmington, Delaware, 19808, as its agent to receive service of process or
other legal summons for purposes of any such action or proceeding. So long as
the ARG Trust has any obligation under this Agreement, it will maintain a duly
appointed agent in the State of Delaware for the service of such process or
summons, and if it fails to maintain such an agent, any such process or summons
may be served by mailing a copy thereof by registered mail, or a form of mail
substantially equivalent thereto, addressed to it at its address as provided for
notices hereunder.

                  (d)      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 9.5.     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

                                      -28-



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 9.6.      Interpretation. When a reference is made in this
Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be
to an Article or Section of or Exhibit or Schedule to 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 9.7.      Parties in Interest.

                  (a)      Subject to Section 9.7(b), except as otherwise
provided in Sections 2.2, 8.5 and 9.1 of this Agreement, this Agreement shall be
binding upon and inure solely to the benefit of each party hereto and its
successors and permitted assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.

                  (b)      Notwithstanding anything to the contrary contained
herein, (i) Savia shall be a third party beneficiary of this Agreement and shall
have the right to enforce any right under this Agreement exercisable by Parent
to the extent such right is not enforced by Parent, and (ii) any
representations, warranties or covenants made by FPSH shall be deemed made to
Savia.

                  (c)      The parties hereto acknowledge that the Company would
not have entered into the Merger Agreement had the parties hereto not entered
into this Agreement.

         Section 9.8.      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.

                                      -29-



         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.

                                        FOX PAINE SEMINIS HOLDINGS, LLC

                                        By: Fox Paine & Company, LLC,
                                            as sole member


                                        By: /S/ Kevin Schwartz
                                            ------------------
                                            Name: Kevin Schwartz
                                            Title: Vice President

                                        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 DE
                                        ADMINISTRACION Y PAGO NUMERO 167-5)

                                        By: /S/ Adrian J. Lozano
                                            --------------------
                                            Name: Adrian J. Lozano
                                            Title: Delegado Fiduciario

                                        By: /S/ Beatriz Garza L.
                                            --------------------
                                            Name: Beatriz Garza L.
                                            Title: Delegado Fiduciario

                                        SEMINIS ACQUISITION LLC

                                        By: /S/ Bernardo Jimenez
                                            --------------------
                                            Name: Bernardo Jimenez
                                            Title:

                                        SEMINIS MERGER CORP.

                                        By: /S/ Bernardo Jimenez
                                            --------------------
                                            Name: Bernardo Jimenez
                                            Title:

                  [SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]

EX-99.1

                                                                  EXECUTION COPY

                                                                    Exhibit 99.1

                                VOTING AGREEMENT

                  Voting Agreement (this "Agreement"), dated as of May 30, 2003,
among Savia, S.A. de C.V., a corporation (sociedad anonima de capital variable)
organized under the laws of the United Mexican States ("Savia"), 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 de Administracion y Pago Numero 167-5), a trust created under the
laws of the United Mexican States ("ARG Trust"), Conjunto Administrativo
Integral, S.A. de C.V., a corporation (sociedad anonima de capital variable)
organized under the laws of the United Mexican States ("CAI"), Emprima, S.A. de
C.V., a corporation (sociedad anonima de capital variable) organized under the
laws of the United Mexican States ("Emprima"), Park Financial Group, Ltd (BVI) a
British Virgin Islands Company ("Park"), Seminis Acquisition LLC, a Delaware
limited liability company ("Parent"), Alfonso Romo Garza, an individual and a
citizen of the United Mexican States ("Mr. Romo," and together with Savia, ARG
Trust, CAI, Emprima, Park and Parent, the "Stockholders," each, a "Stockholder")
and Fox Paine Seminis Holdings, LLC, a Delaware limited liability company
("FPSH").

                  WHEREAS, Parent, Seminis Merger Corp., a Delaware corporation
and a wholly-owned subsidiary of Parent ("Merger Sub"), and Seminis, Inc., a
Delaware corporation (the "Company") have entered into an Agreement and Plan of
Merger (the "Merger Agreement") of even date herewith, pursuant to which Merger
Sub will merge with and into the Company (the "Merger") on the terms and
conditions set forth in the Merger Agreement;

                  WHEREAS, immediately following the Merger, pursuant to the
Stock Purchase Agreement, of even date herewith, among FPSH, Parent, Merger Sub
and the ARG Trust (the "Stock Purchase Agreement"), FPSH will purchase
outstanding shares of New Company Common Stock from Parent in accordance with
the terms of the Stock Purchase Agreement;

                  WHEREAS, in order to induce FPSH to enter into the Stock
Purchase Agreement, FPSH has requested each Stockholder, and each Stockholder
has agreed, to enter into this Agreement; and

                  WHEREAS, capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement.

                  NOW, THEREFORE, the parties hereto agree as follows:

                  1.       During the period (the "Agreement Period") beginning
on the date hereof and ending on the earliest of (a) the Effective Time, (b) to
the extent amounts are payable pursuant to Section 8.3(b) of the Merger
Agreement, the date of payment in full of all amounts payable to FPSH by the
Company pursuant to such section (unless FPSH shall fail to provide to the
Company within two business days of termination of the Merger Agreement any
required statements of expenses), and (c) the date of termination of the Merger
Agreement for any other reason, each Stockholder hereby agrees to vote the
shares of Company Common Stock set forth opposite its name on Schedule A hereto
(with respect to such Stockholder, the "Schedule A Securities") (x) to approve
and adopt the Merger Agreement and the Merger and any actions directly and
reasonably related thereto at any meeting or meetings of the stockholders of the

Company, and at any adjournments or postponements thereof, at or by which such
Merger Agreement, or such other actions, are submitted for the consideration and
vote of the stockholders of the Company so long as such meeting is held and
completed prior to the termination of the Agreement Period, and (y) to help
cause such meeting to be held.

                  2.       During the Agreement Period, each Stockholder hereby
agrees that it will not vote any of the Schedule A Securities in favor of the
approval of any other merger, consolidation, sale of assets, reorganization,
recapitalization, liquidation or winding up of the Company or any other
extraordinary transaction involving the Company or any matters related to or in
connection therewith, or any corporate action that upon consummation would
either frustrate the purposes of, or prevent or delay the consummation of, the
transactions contemplated by the Merger Agreement.

                  3.       As security for each Stockholder's agreements
provided for herein, each Stockholder hereby grants to FPSH a proxy to vote the
Schedule A Securities with respect to the matters specified in, and in
accordance with the provisions of, Paragraphs 1 and 2 of this Agreement. Each
Stockholder agrees that this proxy shall be irrevocable during the Agreement
Period and coupled with an interest and will take such further action or execute
such other instruments as may be reasonably necessary to effectuate the intent
of this proxy and hereby revokes any proxy previously granted by such
Stockholder with respect to the Schedule A Securities.

                  4.       Except as otherwise provided in this Paragraph 4,
during the Agreement Period, each Stockholder agrees that it shall not, and
shall not authorize or permit any of its Subsidiaries to, and shall use
commercially reasonable efforts to cause its or its Subsidiaries' directors,
officers, employees, investment bankers, consultants, attorneys, agents or
representatives, directly or indirectly, not to (a) solicit, initiate or
knowingly encourage or facilitate, or furnish or disclose non-public information
in furtherance of, any inquiries or the making of any proposal with respect to a
Company Competing Transaction or a Savia Competing Transaction, (b) negotiate,
explore or otherwise engage in substantive discussions with any Person (other
than FPSH, Parent, or their respective directors, officers, employees, agents
and representatives) with respect to any Company Competing Transaction or Savia
Competing Transaction or (c) enter into any agreement, arrangement or
understanding with respect to a Company Competing Transaction or a Savia
Competing Transaction. Each Stockholder shall, and shall, if applicable, cause
its Subsidiaries, and shall use commercially reasonable efforts, as applicable,
to cause such Stockholder's and its Subsidiaries' respective directors,
officers, employees, investment bankers, consultants, attorneys, agents and
representatives immediately to cease all existing activities, discussions and
negotiations with any parties conducted prior to the date hereof with respect to
any inquiries or proposals relating to a Company Competing Transaction or a
Savia Competing Transaction. Anything herein to the contrary notwithstanding,
this Agreement shall not limit actions taken, or require actions to be taken, by
any Stockholder or any party related to any Stockholder one or more of whose
affiliates, directors, partners, officers or employees is a director or officer
of the Company, to the extent such actions are taken solely in such Person's
capacity as a director or officer of the Company and such actions are otherwise
permitted to be taken pursuant to the Merger Agreement. From and after the
execution of this Agreement, each Stockholder shall promptly advise FPSH orally
and in writing of any request for information or of any proposal in

                                      -2-

connection with a Savia Competing Transaction or a Company Competing
Transaction, the material terms and conditions of such request or proposal and
the identity of the Person making such request or proposal. Each Stockholder
shall keep FPSH reasonably apprised of the status (including amendments and
proposed amendments) of any proposal relating to a Company Competing Transaction
or a Savia Competing Transaction on a current basis, including promptly
providing to FPSH copies of any written communications between such Stockholder
and any Person relating to a Company Competing Transaction or a Savia Competing
Transaction. The obligations pursuant to the preceding two sentences with
respect to information provided to the Company or learned as a director or
officer of the Company shall be governed by the Merger Agreement. For purposes
of this Agreement, "Savia Competing Transaction" shall mean any
recapitalization, merger, consolidation or other business combination involving
Savia, or direct or indirect acquisition of 15% or more of the voting stock or
equity securities of Savia or any material portion of the assets (except for
acquisitions of assets in the ordinary course of business consistent with past
practice, the Restructuring Steps (as defined in the Contribution Agreement) or
as otherwise permitted by the Merger Agreement) of Savia and its Subsidiaries,
or any combination of the foregoing.

                  5.       Each Stockholder agrees to comply with the terms and
conditions of the Contribution Agreement.

                  6.       Each Stockholder agrees not to exercise any rights
(including, without limitation, under Section 262 of the Delaware General
Corporation Law) to demand appraisal of any shares of Company Common Stock owned
by such Stockholder with respect to the Merger.

                  7.       Each Stockholder hereby represents and warrants to
FPSH that as of the date hereof:

                           (a)      Such Stockholder (i) (A) owns beneficially
and of record all of the Schedule A Securities, free and clear of any claims,
liens, encumbrances and security interests and (B) does not own beneficially or
of record any other shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company,
other than the Schedule A Securities, (ii) has the full and unrestricted legal
power, authority and right to enter into, execute, deliver and perform its
obligations under this Agreement without the consent or approval of any other
Person, (iii) has (on the date hereof), and will have (as of the date of the
Stockholders Meeting), sole voting power with respect to the Schedule A
Securities, and (iv) is not party to any voting agreement, and has not granted
any Person any proxy (revocable or irrevocable), with respect to such shares
(other than pursuant to this Agreement);

                           (b)      assuming the due authorization, execution
and delivery of this Agreement by FPSH, this Agreement is the valid and binding
agreement of such Stockholder; and

                           (c)      other than as disclosed pursuant to the
Merger Agreement, no investment banker, broker or finder is entitled to a
commission or fee from the Company, such Stockholder or their respective
Affiliates in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of such Stockholder.

                                      -3-

                  8.       Each Stockholder agrees that it will not (a) sell,
transfer, pledge, assign, encumber or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to the sale,
transfer, pledge, assignment, encumbrance or other disposition of, or limitation
on the voting rights of, any of the Schedule A Securities (whether to an
Affiliate or otherwise) until the expiration of the Agreement Period, (b) grant
any proxies or powers of attorney, deposit any Schedule A Securities into a
voting trust or enter into a voting agreement with respect to any Schedule A
Securities, (c) take any action that would make any representation or warranty
of such Stockholder contained herein untrue or incorrect or have the effect of
preventing or delaying such Stockholder from performing its obligations under
this Agreement or (d) commit or agree to take any of the foregoing actions,
other than (i) pursuant to this Agreement, the Merger Agreement, the Stock
Purchase Agreement, the Exchange Agreement or the Contribution Agreement, or
(ii) transfers to Parent prior to or concurrent with the consummation of such
transfer that includes such shares as Schedule A Securities thereunder. Any
transfer of Schedule A Securities not permitted hereby shall be null and void.

                  9.       Each Stockholder hereby agrees, while this Agreement
is in effect, to promptly notify FPSH of the number of new shares of Company
Common Stock, if any, acquired by such Stockholder after the date hereof. Any
such shares shall be subject to the terms of this Agreement and shall be
included as Schedule A Securities hereunder.

                  10.      (a) In the event that:

                           (i)      (A)(u) Parent or the Company shall have
terminated the Merger Agreement pursuant to Section 8.1(b)(ii) of the Merger
Agreement and the failure of Parent or the Company to fulfill any obligation
under the Merger Agreement has been the cause of, or resulted in, the failure of
the Effective Time to occur on or prior to the Outside Date, (v) Parent shall
have terminated the Merger Agreement pursuant to Section 8.1(c)(i) of the Merger
Agreement, (w) the Company shall have terminated the Merger Agreement pursuant
to Section 8.1(d) of the Merger Agreement, (x) the Company or Parent shall have
terminated the Merger Agreement pursuant to Section 8.1(f) of the Merger
Agreement (other than in the circumstances described in Paragraph 10(a)(iii) of
this Agreement), (y) FPSH shall have terminated the Stock Purchase Agreement
pursuant to Section 8.1(c) of the Stock Purchase Agreement or (z) any party
shall have terminated the Merger Agreement, the Stock Purchase Agreement or the
Contribution Agreement due to the non-occurrence of any Restructuring Step (as
defined in the Contribution Agreement), which non-occurrence is the result,
directly or indirectly, of a breach by any Romo Entity (as defined in the
Contribution Agreement) or the failure of any Romo Entity (as defined in the
Contribution Agreement) to have used its reasonable best efforts to cause the
Restructuring Steps to have occurred, (B) on or prior to such time any entity or
group (other than FPSH and its Affiliates (together with Parent and its
Affiliates)) shall have made and not withdrawn a proposal that is or becomes
publicly disclosed for (or publicly disclosed its intention to make a proposal
for) a Company Competing Transaction or a Savia Competing Transaction, and (C)
within 12 months of termination of the Merger Agreement or the Stock Purchase
Agreement, Savia consummates a Savia Competing Transaction or enters into a
Savia Competing Transaction that is thereafter consummated at any time
(including after the 12-month period described in the beginning of this clause
(C)) or the Company consummates a Company Competing Transaction or enters into a
Company Competing Transaction that is thereafter consummated at any time
(including after the 12-month period described in the beginning of this clause
(C));

                                      -4-

                           (ii)     (A)Parent shall have terminated the Merger
Agreement pursuant to Section 8.1(c)(ii), (iii) or (iv) of the Merger Agreement,
and (B) within 12 months of termination of the Merger Agreement, Savia
consummates a Savia Competing Transaction or enters into a Savia Competing
Transaction that is thereafter consummated at any time (including after the
12-month period described in the beginning of this clause (B)); or

                           (iii)    either Parent or the Company shall have
terminated the Merger Agreement pursuant to Section 8.1(f) of the Merger
Agreement in a circumstance in which Savia shall have failed to vote the
Schedule A Securities in accordance with Paragraph 1 of this Agreement,

then, Savia shall pay or cause to be paid to FPSH a termination fee in cash, of
$15 million (the "Savia Termination Fee") (less the aggregate amount paid
pursuant to Section 8.3(a) and Section 8.3(b) of the Merger Agreement and
Section 10(b) of this Agreement). Any Savia Termination Fee that becomes payable
shall be paid (m) in the case of clause (i) or clause (ii) above, not later than
the date on which a Company Competing Transaction or Savia Competing Transaction
is consummated, and (n) in the case of clause (iii) above, upon such termination
pursuant to Section 8.1(f) of the Merger Agreement. If the Company pays (and
FPSH receives from the Company) any amounts pursuant to Section 8.3(a) or
Section 8.3(b) of the Merger Agreement after Savia has paid or caused to be paid
the Savia Termination Fee, FPSH shall immediately pay to Savia such amounts
received from the Company pursuant to Section 8.3(a) or Section 8.3(b) of the
Merger Agreement, it being understood that in no event shall FPSH be required to
pay any amounts to Savia if such payment would result in FPSH receiving an
aggregate amount less than the Savia Termination Fee.

                  (b)      (i) Upon the termination of the Merger Agreement (A)
by Parent or the Company pursuant to Section 8.1(b)(ii) of the Merger Agreement
where the failure of Parent to fulfill any obligation under the Merger Agreement
has been the cause of, or resulted in, the failure of the Effective Time to
occur on or before the Outside Date, or (B) by the Company pursuant to Section
8.1(d) of the Merger Agreement;

                           (ii)     Upon the termination of the Stock Purchase
Agreement by FPSH pursuant to Section 8.1(c) of the Stock Purchase Agreement;

                           (iii)    Upon the termination of the Merger
Agreement, the Stock Purchase Agreement or the Contribution Agreement by any
party due to the non-occurrence of any Restructuring Step (as defined in the
Contribution Agreement), which non-occurrence is the result, directly or
indirectly, of a breach by any Romo Entity (as defined in the Contribution
Agreement) or the failure of any Romo Entity (as defined in the Contribution
Agreement) to have used its reasonable best efforts to cause the Restructuring
Steps to have occurred; or

                           (iv) (A) Upon the termination of the Merger
Agreement, the Stock Purchase Agreement or the Contribution Agreement by any
party due to the non-occurrence of any Restructuring Step (as defined in the
Contribution Agreement) which non-occurrence is not the result, directly or
indirectly, of a breach by any Romo Entity (as defined in the Contribution
Agreement) or the failure of any Romo Entity (as defined in the Contribution
Agreement) to have used its reasonable best efforts to cause the Restructuring
Steps to have occurred, (B) on or


                                      -5-

prior to such time any entity or group (other than FPSH and its Affiliates
(together with Parent and its Affiliates)) shall have made and not withdrawn a
proposal that is or becomes publicly disclosed for (or publicly disclosed its
intention to make a proposal for) a Company Competing Transaction or a Savia
Competing Transaction, and (C) within 12 months of termination of the Stock
Purchase Agreement, Savia consummates a Savia Competing Transaction or enters
into a Savia Competing Transaction that is thereafter consummated at any time
(including after the 12-month period described in the beginning of this clause
(C)) or the Company consummates a Company Competing Transaction or enters into a
Company Competing Transaction that is thereafter consummated at any time
(including after the 12-month period described in the beginning of this clause
(C)),

Savia shall pay or cause to be paid to FPSH the FPSH Expenses in cash up to, but
not exceeding $4.5 million (less any amount paid pursuant to Section 8.3(b) of
the Merger Agreement). Any FPSH Expenses that become payable shall be paid (m)
in the case of clause (i), clause (ii) or clause (iii) above, in cash not later
than two business days after submission of statements therefor, less any such
expenses previously reimbursed by the Company, and (n) in the case of clause
(iv) above not later than the date on which a Company Competing Transaction or
Savia Competing Transaction is consummated. If the Company pays (and FPSH
receives from the Company) any amounts pursuant to Section 8.3(a) or 8.3(b) of
the Merger Agreement after Savia has paid or caused to be paid the FPSH
Expenses, FPSH shall immediately pay to Savia such amounts received from the
Company pursuant to Section 8.3(a) or 8.3(b) of the Merger Agreement, it being
understood that in no event shall FPSH be required to pay any amounts to Savia
if such payment would result in FPSH receiving an aggregate amount less than the
FPSH Expenses (subject to the $4.5 million cap).

                  11.      If any provision of this Agreement shall be invalid
or unenforceable under applicable law, such provision shall be ineffective to
the extent of such invalidity or unenforceability only, without in any way
affecting the remaining provisions of this Agreement.

                  12.      This Agreement may be executed in two or more
counterparts each of which shall be an original with the same effect as if the
signatures hereto and thereto were upon the same instrument. This Agreement may
not be modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by all parties hereto. Except for
provisions of this Agreement that by their terms survive the termination hereof,
the provisions of this Agreement shall terminate upon the expiration of the
Agreement Period. Notwithstanding anything to the contrary contained herein, the
parties acknowledge and agree that Section 10 of this Agreement shall survive
until the obligations set forth therein have been fully discharged.

                  13.      The parties hereto agree that if for any reason any
party hereto shall have failed to perform its obligations under this Agreement,
then the party seeking to enforce this Agreement against such non-performing
party shall be entitled to specific performance and injunctive and other
equitable relief, and the parties hereto further agree to waive any requirement
for the securing or posting of any bond in connection with the obtaining of any
such injunctive or other equitable relief. This provision is without prejudice
to any other rights or remedies, whether at law or in equity, that any party
hereto may have against any other party hereto for any failure to perform its
obligations under this Agreement.

                                      -6-

                  14.      (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 laws 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. 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 Stockholder irrevocably appoints CT
Corporation Systems, which currently maintains an office at 2711 Centerville
Road, Suite 400, Wilmington, Delaware, 19808, as its agent to receive service of
process or other legal summons for purposes of any such action or proceeding. So
long as any Stockholder has any obligation under this Agreement, each such
Stockholder will maintain a duly appointed agent in the State of Delaware for
the service of such process or summons, and if it fails to maintain such an
agent, any such process or summons may be served by mailing a copy thereof by
registered mail, or a form of mail substantially equivalent thereto, addressed
to it at its address as provided for notices hereunder.

                           (d)      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.

                  15.      Each Stockholder will, upon reasonable request,
execute and deliver any additional documents deemed by FPSH to be reasonably
necessary or desirable to complete and effectuate the covenants contained
herein.

                  16.      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:

                  If to a Stockholder:

                  Savia, S.A. de C.V.
                  Ave. Roble No. 565 Ote. - Piso 4
                  Colonia Valle Del Campestre
                  Garza Garcia, N.L. 66265
                  Mexico

                                      -7-

                  Attention:  Bernardo Jimenez Barrera
                  Facsimile:  011-52-818-399-5606

                  With a copy, which will not constitute notice, to:

                  Milbank, Tweed, Hadley & McCloy LLP
                  One Chase Manhattan Plaza
                  New York, New York  10005
                  Attention:  Howard S. Kelberg, Esq.
                  Facsimile:  212-822-5530

                  If to FPSH:

                  Fox Paine & Company, LLC
                  950 Tower Lane, Suite 1950
                  Foster City, California  94404
                  Attention:  W. Dexter Paine, III
                  Facsimile:  650-525-1396

                  With a copy, which will not constitute notice, to:

                  Wachtell, Lipton, Rosen & Katz
                  51 West 52nd Street
                  New York, New York  10019
                  Attention:  Mitchell S. Presser, Esq.
                  Facsimile:  212-403-2000

                  Copies of all notices given under this Agreement shall also be
                  provided to:

                  Seminis, Inc.
                  2700 Camino del Sol
                  Oxnard, California  93030-7967
                  Attention: Chairman of the Special Committee
                             of the Board of Directors
                  Facsimile: 805-918-2530

                  and

                  Seminis, Inc.
                  2700 Camino del Sol
                  Oxnard, California  93030-7967
                  Attention: General Counsel
                  Facsimile: 805-918-2530




                                      -8-

                  With a copy, which will not constitute notice, to:

                  Skadden, Arps, Slate, Meagher & Flom LLP
                  Four Times Square
                  New York, New York 10036
                  Attention: Peter A. Atkins, Esq.
                             David J. Friedman, Esq.
                  Facsimile: 212-735-2000





                                      -9-

                  IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.

                                    FOX PAINE SEMINIS HOLDINGS, LLC

                                    By: Fox Paine & Company, LLC,
                                        as sole member

                                    By: /s/ Kevin M. Schwartz
                                        --------------------------
                                        Name:  Kevin M. Schwartz
                                        Title: Vice President


                                     SAVIA, S.A. DE C.V.


                                    By: /s/ Bernardo Jimenez
                                        --------------------------
                                        Name: Bernardo Jimenez
                                        Title: Attorney

                                    SEMINIS ACQUISITION LLC


                                    By: /s/ Bernardo Jimenez
                                        --------------------------
                                        Name: Bernardo Jimenez
                                        Title:



                                      -10-


                                    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 DE
                                    ADMINISTRACION Y PAGO NUMERO 167-5)


                                    By: /s/ ADRIAN J. LOZANO
                                        --------------------------
                                        Name: ADRIAN J. LOZANO
                                        Title: DELEGADO FIDUCIARIO

                                    By: /s/ BEATRIZ GARZA L.
                                        --------------------------
                                        Name: BEATRIZ GARZA L.
                                        Title: DELEGADO FIDUCIARIO


                                    CONJUNTO ADMINISTRATIVO
                                    INTEGRAL, S.A. DE C.V.


                                    By: /s/ HERIBERTO S. MUZZA
                                        --------------------------
                                        Name: HERIBERTO S. MUZZA
                                        Title: ATTORNEY IN FACT

                                    By: /s/ CARLOS G. MAHUAD
                                        --------------------------
                                        Name: CARLOS G. MAHUAD
                                        Title: ATTORNEY IN FACT

                                    EMPRIMA, S.A. DE C.V.


                                    By: /s/ HERIBERTO S. MUZZA
                                        --------------------------
                                        Name: HERIBERTO S. MUZZA
                                        Title: ATTORNEY IN FACT

                                    By: /s/ CARLOS G. MAHUAD
                                        --------------------------
                                        Name: CARLOS G. MAHUAD
                                        Title: ATTORNEY IN FACT


                                    PARK FINANCIAL GROUP

                                    By: /s/ BERNARDO JIMENEZ
                                        --------------------------
                                        Name: BERNARDO JIMENEZ
                                        Title:

                                    By: /s/ ALFONSO ROMO GARZA
                                        --------------------------
                                        Name:  ALFONSO ROMO GARZA






                                      -11-

                                   SCHEDULE A



                                                                   Shares of Company
                              Stockholder                            Common Stock
                              -----------                            ------------
                                                                   
Savia, S.A. de C.V ............................................       40,615,619

Conjunto Administrativo Integral, S.A. de C.V .................       42,000

Park Financial Group, Ltd (BVI) ...............................       1,000,000

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 de Administracion Y
Pago Numero 167-5) ............................................       4,365,257

EX-99.2

                                                                  EXECUTION COPY

                  This AMENDED AND RESTATED EXCHANGE AGREEMENT (amending and
restating in its entirety the Exchange Agreement, dated as of July 1, 2002 (the
"Old Exchange Agreement")) dated as of May 30, 2003 (this "Agreement") is made
and entered into by and between Seminis, Inc., a Delaware corporation
("Seminis"), and Savia, S.A. de C.V., a Mexican corporation ("Savia").

                  WHEREAS, Seminis and Savia have not completed the transactions
contemplated under the Old Exchange Agreement, and Seminis and Savia have agreed
to amend and restate the Old Exchange Agreement;

                  WHEREAS, on July 2, 2002, Savia (a) owned 12,018 shares of
Class C Redeemable PIK Preferred Stock, par value $.01 per share, of Seminis
(the "Class C Preferred Stock") with a liquidation value of $120,181,364 and (b)
had contributed to Seminis $46,695,372 of additional capital contributions,
including accrued in kind obligations thereon ( the "APIC");

                  WHEREAS, by resolution of the Board of Directors of Seminis,
on July 16, 2002, the APIC was determined to have the legal and economic rights
equivalent in all respects to the Class C Preferred Stock;

                  WHEREAS, in accordance with such resolution, on December 31,
2002, Seminis issued 4,669.5372 additional shares of Class C Preferred Stock
(the "Additional Shares") to evidence the interests previously reflected as
APIC;

                  WHEREAS, the interest accrued on the APIC between January 1,
2001 until December 31, 2002 has been treated as a cash obligation of Seminis
(the "Cash Obligation");

                  WHEREAS, Seminis has entered into an Agreement and Plan of
Merger by and among Seminis, Seminis Acquisition LLC and Seminis Merger Corp.
(the "Merger Agreement"), pursuant to which Seminis Merger Corp. will merge with
and into Seminis (the "Merger") with Seminis as the surviving corporation in the
Merger and in connection thereunder, Seminis desires to recapitalize (a) all of
the issued and outstanding shares of Class C Preferred Stock, (b) the accrued
and unpaid dividends on the Class C Preferred Stock through the date of the
Exchange (as defined below), other than $15,000,000 of such accrued and unpaid
dividends, to be paid by the Cash Payment (as defined below), (the "Dividends"),
and (c) the Cash Obligation;

                  WHEREAS, Savia has agreed, in connection with the Merger and
related transactions, to exchange all of the issued and outstanding shares of
Class C Preferred Stock, the Cash Obligation and the Dividends for 37,669,480
shares of Class A Common Stock, par value $.01 per share, of Seminis (the "Class
A Common Stock") and a payment equal to (i) $15,000,000 plus (ii) Interest from
July 1, 2002 until the date of payment minus (iii) $3,000,000 (the "Cash
Payment").



                  NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:

                                    ARTICLE I

                              Exchange AND CLOSING

                  1.01 Exchange. Savia and Seminis hereby agree to exchange all
of the right, title and interest of Savia in and to 16,688 shares of Class C
Preferred Stock, the Cash Obligation and the Dividends, and any other rights or
claims with respect to any of the foregoing through the effective time of the
Merger, for 37,669,480 shares of Class A Common Stock (the "Seminis Shares") and
the Cash Payment (the "Exchange"), on the terms and subject to the conditions
set forth in Section 2.01.

                  1.02 Closing. The Closing will take place at the offices of
Seminis, 2700 Camino del Sol, Oxnard, California 93030, or at such other place
as Seminis and Savia mutually agree, immediately prior to the Merger.

                                   ARTICLE II

                         EXCHANGE OF SHARES AND PAYMENTS

                  2.01 Exchange of Shares.

                  (a)      At the Closing, Seminis will deliver to Savia a
         certificate or certificates representing the Seminis Shares, registered
         in the name of Savia, and

                  (b)      At the Closing, Savia will assign and transfer to
         Seminis all of Savia's right, title and interest in and to 16,688
         shares of Class C Preferred Stock, the Cash Obligation and the
         Dividends by delivering to Seminis (i) a certificate or certificates
         representing the 16,688 shares of Class C Preferred Stock, in genuine
         and unaltered form, duly endorsed in blank or accompanied by duly
         executed stock powers endorsed in blank, with requisite stock transfer
         tax stamps, if any, attached, and (ii) an acknowledgement that the Cash
         Obligation, the Dividends and any other rights or claims with respect
         to the Class C Preferred Stock, Cash Obligation or Dividends through
         the effective time of the Merger have been fully satisfied as part of
         the delivery of the Seminis Shares.

                  2.02 Payment of Cash Payment. At the Closing, Seminis will
         pay to Savia the Cash Payment.



                                   ARTICLE III

                     REPRESENTATIONS AND WARRANTIES OF SAVIA

                  Savia hereby represents and warrants to Seminis as follows:

                  3.01 Organization of Savia. Savia is a corporation duly
organized, validly existing and in good standing under the laws of the United
Mexican States. Savia has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby, including, without limitation,
to own, hold, exchange and transfer the 16,688 shares of Class C Preferred
Stock, the Cash Obligation and the Dividends.

                  3.02 Title to Class C Preferred Stock. Savia owns 16,688
shares of Class C Preferred Stock, beneficially and of record, free and clear of
all liens, except for the lien under the Pledge and Security Agreement dated as
of June 27, 2001 between Savia and JP Morgan Chase Bank (formerly known as The
Chase Manhattan Bank), as collateral agent (the "Pledge Agreement"). At or prior
to the Closing, Savia will provide to Seminis a copy of all documentation
evidencing the release of the 16,688 shares of Class C Preferred Stock from the
lien pursuant to the Pledge Agreement, and upon such release, Savia shall have
the right to transfer the 16,688 shares of Class C Preferred Stock free and
clear of all liens. The delivery of a certificate or certificates at the Closing
representing the shares of Class C Preferred Stock in the manner provided in
Section 2.01(b) will transfer to Seminis good and valid title to the shares of
Class C Preferred Stock, free and clear of all liens. Upon the Closing, Seminis
shall acquire all of Savia's right, title and interest in and to the Cash
Obligation and Dividends free and clear of all liens.

                                   ARTICLE IV

                    REPRESENTATIONS AND WARRANTIES OF SEMINIS

                  Seminis hereby represents and warrants to Savia as follows:

                  4.01 Organization. Seminis is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Seminis has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby.

                  4.02 Class A Common Stock. Upon issuance and delivery of the
Seminis Shares in accordance with this Agreement, the Seminis Shares will be
duly authorized, validly issued, fully paid and nonassessable.



                                    ARTICLE V

                               COVENANTS OF SAVIA

                  Savia covenants and agrees with Seminis that, at all times
from and after the date hereof until the Closing, Savia will not sell, dispose,
or otherwise transfer, or incur any lien or other interest on, the 16,688 shares
of Class C Preferred Stock, the Cash Obligation or the Dividends, other than
pursuant to the Pledge Agreement. Savia will comply with all covenants and
provisions of this Article V, except to the extent Seminis may otherwise consent
in writing.

                                   ARTICLE VI

                 CONDITIONS TO OBLIGATIONS OF SEMINIS AND SAVIA

                  The obligations of Seminis hereunder to deliver the Seminis
Shares and the Cash Payment and the obligations of Savia hereunder to exchange
the 16,688 shares of Class C Preferred Stock, the Cash Obligation and the
Dividends are subject to the consummation of the Merger. Such conditions may be
waived in whole or in part by Seminis and Savia.

                                   ARTICLE VII

                                   TERMINATION

                  7.01 Termination. This Agreement may be terminated, and the
transactions contemplated herein may be abandoned:

                  (a)      at any time before the Closing, by mutual written
         agreement of Savia, Seminis and Fox Paine Seminis Holdings, LLC
         ("FPSH");

                  (b)      at any time, by either party upon termination of the
         Merger Agreement; or

                  (c)      by either party, if the Closing has not occurred on
         or before the six-month anniversary of the date hereof.

                  7.02 Effect of Termination. If this Agreement is validly
terminated pursuant to Section 7.01, this Agreement will forthwith become null
and void, and there will be no liability or obligation on the part of Savia or
Seminis (or any of their respective officers, directors, employees, agents or
other representatives or affiliates) pursuant hereto.



                                  ARTICLE VIII

                                   DEFINITIONS

                  8.01 Definitions. As used in this Agreement, the following
defined terms have the meanings indicated below:

                  "Closing" means the closing of the transactions contemplated
by Article II.

                  "Interest" means a rate of interest of 10% per year,
compounded quarterly.

                                   ARTICLE IX

                                  MISCELLANEOUS

                  9.01 Notices. All notices and other communications in
connection with this Agreement must be in writing and given by hand delivery,
airmail (postage prepaid) or telex or facsimile transmission, in each case
addressed as specified below or in any subsequent notice from the intended
recipient to the party sending the notice. Such notices and communications will
be effective upon delivery if delivered by hand, upon receipt if sent by mail,
upon transmission with answerback confirmed if sent by telex or upon receipt if
sent by facsimile transmission.

                  If to Seminis, to:
                           Seminis, Inc.
                           2700 Camino del Sol
                           Oxnard, California 93030
                           Facsimile No.: 805-918-2553
                           Attn: Enrique Osorio

                  With copies to:
                           Skadden, Arps, Slate, Meagher & Flom LLP
                           Four Times Square
                           New York, New York 10036
                           Facsimile No.: 212-735-2000
                           Attn:    Peter A. Atkins, Esq.
                                    David J. Friedman, Esq.

                  If to Savia, to:
                           Savia, S.A. de C.V.
                           Rio Sena No. 500 Pte.
                           Col. Del Valle
                           Entre Humberto Lobo y Tamesis
                           San Pedro Garza Garcia, Nuevo Leon 66220
                           Mexico
                           Facsimile No.:  011 528181735508
                           Attn: Francisco Garza



                  With copies to:
                           Milbank, Tweed, Hadley & McCloy LLP
                           1 Chase Manhattan Plaza
                           New York, New York 10005
                           Facsimile No.:  212-822-5530
                           Attn:  Howard S. Kelberg, Esq.

                           Fox Paine & Company, LLC
                           950 Tower Lane, Suite 1150
                           Foster City, California 94404
                           Facsimile No.:  650-525-1396
                           Attn: W. Dexter Paine, III

                           Wachtell, Lipton, Rosen & Katz
                           51 West 52nd Street
                           New York, New York 10019
                           Facsimile No. 212-403-2000
                           Attn: Mitchell S. Presser, Esq.

All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.

                  9.02 Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.

                  9.03 Expenses. Except as otherwise expressly provided in this
Agreement (including, without limitation, as provided in Section 7.02), whether
or not the transactions contemplated hereby are consummated, each party will pay
its own costs and expenses.

                  9.04 Waiver. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a



waiver of the same or any other term or condition of this Agreement on any
future occasion. All remedies, either under this Agreement or by law or
otherwise afforded, will be cumulative and not alternative.

                  9.05 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto provided, however, that any amendment that would prevent, delay or
alter the terms of the Merger, shall require the written consent of FPSH (such
consent not to be unreasonably withheld or delayed).

                  9.06 Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.

                  9.07 Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (a) such provision will be
fully severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
and (c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.

                  9.08 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to a
contract executed and performed in the State of Delaware, without giving effect
to the conflicts of laws principles thereof.

                  9.09 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.



                  IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first written above.

                                            SAVIA, S.A. DE C.V.

                                            /S/ Bernardo Jimenez
                                            ---------------------------------
                                            Name: Bernardo Jimenez
                                            Title:

                                            SEMINIS, INC.

                                            /S/ Gaspar Alvarez
                                            ---------------------------------
                                            Name: Gaspar Alvarez
                                            Title: VPWW Corporate Comptroller

                                            /S/ Enrique Osorio
                                            ---------------------------------
                                            Name: Enrique Osorio
                                            Title: Treasurer Vice President

EX-99.3

                                                                  EXECUTION COPY

================================================================================

                             CONTRIBUTION AGREEMENT

                            dated as of May 30, 2003

                                  by and 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 DE ADMINISTRACION Y PAGO NUMERO 167-5)

                 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 (BVI),

                               ALFONSO ROMO GARZA,

                                       AND

                           CERTAIN MEMBERS OF SEMINIS
                              AND SAVIA MANAGEMENT

================================================================================



                                                 TABLE OF CONTENTS



                                                                                                                 Page
                                                                                                                 ----
                                                                                                              
ARTICLE I             CERTAIN DEFINITIONS......................................................................   3

ARTICLE II            THE CONTRIBUTION.........................................................................   8
         Section 2.1.      The Closing.........................................................................   8
         Section 2.2.      Contribution........................................................................   8
         Section 2.3.      Delivery of Contribution Shares.....................................................   8
         Section 2.4.      Distribution of Parent Assets.......................................................   9

ARTICLE III           REPRESENTATIONS AND WARRANTIES OF PARENT.................................................   9
         Section 3.1       Organization........................................................................   9
         Section 3.2.      Authority...........................................................................   9
         Section 3.3.      Consents and Approvals; No Violations...............................................  10
         Section 3.4.      Membership Interests................................................................  10
         Section 3.5.      Capitalization......................................................................  10
         Section 3.6.      Brokers.............................................................................  11
         Section 3.7.      Acknowledgment......................................................................  11

ARTICLE IV            REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS, MR. ROMO, EMPRIMA AND MEXICAN
                      SPC......................................................................................  11
         Section 4.1.      Representations and Warranties with Respect to the Contribution Shares..............  11
         Section 4.2.      Representations and Warranties of Savia.............................................  14
         Section 4.3.      Representations and Warranties with Respect to the Restructurings...................  15

ARTICLE V             COVENANTS................................................................................  16
         Section 5.1.      Pre-Closing Conduct.................................................................  16
         Section 5.2.      Further Assurances..................................................................  17
         Section 5.3.      Notification of Certain Matters.....................................................  17
         Section 5.4.      Public Announcements................................................................  17
         Section 5.5.      Additional Agreements, Reasonable Best Efforts......................................  18

ARTICLE VI            CONDITIONS TO CONSUMMATION OF THE CONTRIBUTION...........................................  19

ARTICLE VII           TERMINATION; AMENDMENT; WAIVER...........................................................  19
         Section 7.1.      Termination.........................................................................  19
         Section 7.2.      Effect of Termination...............................................................  19
         Section 7.3.      Fees and Expenses...................................................................  19
         Section 7.4.      Amendment...........................................................................  19
         Section 7.5.      Waiver..............................................................................  20
         Section 7.6.      Survival............................................................................  20
         Section 7.7.      Indemnification by Management Contributors..........................................  20
         Section 7.8.      Sole Remedy.........................................................................  20




                                                                                                              
ARTICLE VIII          MISCELLANEOUS............................................................................  21
         Section 8.1.      Entire Agreement; Assignment........................................................  21
         Section 8.2.      Severability........................................................................  21
         Section 8.3.      Notices.............................................................................  21
         Section 8.4.      Governing Law; Consent to Jurisdiction; Waiver of Jury Trial........................  23
         Section 8.5.      Specific Performance................................................................  24
         Section 8.6.      Interpretation......................................................................  24
         Section 8.7.      Parties in Interest.................................................................  24
         Section 8.8.      Counterparts........................................................................  25



Exhibit A         Management Contributors

Exhibit B         Form of Stock Purchase Agreement for Additional Purchasers

Exhibit C         Amended and Restated Limited Liability
                  Company Agreement of Seminis Acquisition LLC

Exhibit D         Legal Opinion of Milbank, Tweed, Hadley & McCloy LLP

Exhibit E         Legal Opinion of Mancera Ernst & Young



                             CONTRIBUTION AGREEMENT

                  THIS CONTRIBUTION AGREEMENT, dated as of May 30, 2003 (this
"Agreement"), is made by and among SEMINIS ACQUISITION LLC, a Delaware limited
liability company ("Parent"), SAVIA, S.A. DE C.V., a corporation (sociedad
anonima de capital variable) organized under the laws of the United Mexican
States ("Savia"), 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 DE ADMINISTRACION Y PAGO NUMERO
167-5), a trust created under the laws of the United Mexican States ("ARG
Trust"), CONJUNTO ADMINISTRATIVO INTEGRAL, S.A. DE C.V., a corporation (sociedad
anonima de capital variable) organized under the laws of the United Mexican
States ("CAI"), 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 ("Mexican SPC"), EMPRIMA, S.A. DE C.V., a corporation (sociedad
anonima de capital variable) organized under the laws of the United Mexican
States ("Emprima"), PARK FINANCIAL GROUP, LTD (BVI) a British Virgin Islands
Company ("Park"), ALFONSO ROMO GARZA, an individual and a citizen of the United
Mexican States ("Mr. Romo") and CERTAIN MEMBERS OF SEMINIS, INC. AND SAVIA
MANAGEMENT as listed on Exhibit A hereto ("Management Contributors," and
together with Savia, the ARG Trust, CAI, and Park, the "Contributors").

                  WHEREAS, Parent, Seminis Merger Corp., a Delaware corporation
("Merger Sub"), and Seminis, Inc., a Delaware corporation (the "Company"), have
entered into an Agreement and Plan of Merger (the "Merger Agreement") of even
date herewith, pursuant to which Merger Sub will merge with and into the Company
(the "Merger") on the terms and subject to the conditions set forth therein with
the Company as the surviving corporation in the Merger;

                  WHEREAS, (i) Savia owns, as of the date hereof, and will own,
immediately prior to the Closing, (A) Class C Redeemable PIK Preferred Stock,
par value, $.01 per share, exchangeable into 37,669,480 shares of Class A Common
Stock, par value $.01 per share of the Company (the "Class A Common Stock") (the
"Exchange" (as defined in the Merger Agreement) is contemplated to occur after
the date hereof and prior to the Closing), and (B) 40,615,619 shares of Class B
Common Stock, par value $.01 per share of the Company (the "Class B Common
Stock," together with the Class A Common Stock, the "Old Company Common Stock")
(the 37,669,480 shares of Class A Common Stock and the 40,615,619 shares of
Class B Common Stock, taken together, the "Savia Old Company Shares"), (ii) the
ARG Trust owns, as of the date hereof, and will own, as of the Closing Date,
2,157,361 shares of Class A Common Stock and 2,207,896 shares of Class B Common
Stock (the "ARG Trust Old Company Shares"), (iii) CAI owns, as of the date
hereof, and will own, as of the Closing Date, 42,000 shares of Class A Common
Stock (the "CAI Old Company Shares"), (iv) Park owns, as of the date hereof, and
will own, as of the Closing Date, 1,000,000 shares of Class A Common Stock (the
"Park Old Company Shares"), and (v) each of the Management Contributors owns, as
of the date hereof, and will own, as of the Closing Date, the shares of Old
Company Common Stock set forth on Exhibit A (with respect to each such
Management Contributor, the "Management Old Company Shares," together with the
Savia Old Company Shares, the ARG Trust Old Company



Shares, the CAI Old Company Shares and the Park Old Company Shares, the
"Contribution Shares");

                  WHEREAS, on the terms and subject to the conditions contained
herein, Parent desires to acquire and (i) Savia desires to contribute its right,
title and interest in and to the Savia Old Company Shares, (ii) the ARG Trust
desires to contribute its right, title and interest in and to the ARG Trust Old
Company Shares that it will own as of the Closing Date, (iii) CAI desires to
contribute its right, title and interest in and to the CAI Old Company Shares,
(iv) Park desires to contribute its right, title and interest in and to the Park
Old Company Shares, and (v) each of the Management Contributors desires to
contribute his right, title and interest in and to his Management Old Company
Shares in exchange for membership interests in Parent (collectively, the
"Contribution");

                  WHEREAS, immediately prior to the time that the Merger becomes
effective under the DGCL (the "Effective Time"), Parent will own the
Contribution Shares;

                  WHEREAS, as of the date hereof, Merger Sub has authority to
issue (i) 1,000 shares of common stock, par value $.01 per share (the "MS Common
Stock"), 1,000 of which shares of MS Common Stock are issued and outstanding,
and (ii) 1,000 shares of preferred stock, par value $.01 per share (the "MS
Preferred Stock"), none of which shares is issued or outstanding;

                  WHEREAS, immediately prior to the Effective Time, Merger Sub
shall have authority to issue (i) 100,000,000 shares of MS Common Stock,
84,377,861 of which shares shall be issued and outstanding, and (ii) 1,000
shares of MS Preferred Stock, none of which shares shall be issued or
outstanding;

                  WHEREAS, Parent owns all of the outstanding shares of MS
Common Stock on the date hereof and will own all of the outstanding shares of MS
Common Stock immediately prior to the Effective Time;

                  WHEREAS, pursuant to the Merger, each share of Old Company
Common Stock owned by Parent will be cancelled and each share of MS Common Stock
will be converted into one share of common stock, par value $.01 per share of
the surviving corporation in the Merger (the "New Company Common Stock");

                  WHEREAS, after the Merger, on the terms and subject to the
conditions in the Stock Purchase Agreement, (i) FPSH will purchase the FPSH Sale
Shares (as defined in the Stock Purchase Agreement), (ii) the Company will
purchase 6,411,953 shares of New Company Common Stock owned by Parent and (iii)
if the ARG Option (as defined in the Stock Purchase Agreement) is exercised, the
ARG Trust will purchase 900,737 shares of New Company Common Stock owned by
Parent (collectively, the "Stock Purchase");

                  WHEREAS, after the closing of the Stock Purchase and the Debt
Financing (as defined in the Stock Purchase Agreement), Parent shall be
liquidated pursuant to the terms of the LLC Agreement and in such liquidation,
Parent will distribute (i) the Cash Distribution to Savia, (ii) if the ARG
Option is exercised, the right to receive the ARG Purchase Price (as defined in
the Stock Purchase Agreement) to Savia, (iii) such additional amount (the
"Additional Purchase

                                      -2-



Amount"), if any, to Savia, equal to (A) the aggregate number of shares of New
Company Common Stock purchased by the Additional Purchasers, multiplied by (B)
$3.40, (iv) 4,365,257 shares of New Company Common Stock to the ARG Trust, (v)
42,000 shares of New Company Common Stock to CAI, (vi) 1,000,000 shares of New
Company Common Stock to Park, (vii) an aggregate of 685,505 shares of New
Company Common Stock to the Management Contributors as set forth on Exhibit A
hereto, and (viii) all remaining assets, including shares not purchased pursuant
to the ARG Option, if any, to Savia;

                  WHEREAS, Parent, Mr. Romo and the Contributors desire to make
certain representations, warranties, covenants and agreements in connection with
the transactions described herein;

                  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:

                  "Additional Purchase Amount" shall have the meaning set forth
in the recitals.

                  "Additional Purchaser" shall mean any Person that agrees
pursuant to the form of agreement attached hereto as Exhibit B, between the date
hereof and the Closing Date, to purchase, and that purchases, on the Closing
Date, shares of New Company Common Stock from Parent, provided, however, that
the Additional Purchasers shall be comprised exclusively of bondholders of, and
derivatives holders who are now creditors of, Pulsar Internacional, S.A. de C.V.
with such bondholders entitled to purchase a maximum of 6,429,150 shares of New
Company Common Stock from Parent and such derivatives holders entitled to
purchase a maximum of 6,525,328 shares of New Company Common Stock from Parent.

                  "Additional Sale Shares" means the aggregate number of shares
of New Company Common Stock, if any, purchased by the Additional Purchasers,
provided, however, that in no event shall the aggregate number of Additional
Sale Shares exceed 12,954,478 shares of New Company Common Stock.

                  "Affiliate" means any Person that directly, or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the applicable Person.

                  "Agreement" shall have the meaning set forth in the preamble.

                  "ARG Option" shall have the meaning set forth in the recitals.

                  "ARG Purchase Price" shall have the meaning set forth in the
recitals.

                                      -3-



                  "ARG Trust" shall have the meaning set forth in the recitals.

                  "ARG Trust Old Company Shares" shall have the meaning set
forth in the recitals.

                  "CAI" shall have the meaning set forth in the preamble.

                  "CAI Old Company Shares" shall have the meaning set forth in
the recitals.

                  "Cash Distribution" shall mean an amount equal to (i)
$263,106,832 MINUS (ii) the product of the aggregate number of Additional Sale
Shares multiplied by $3.40.

                  "Class A Common Stock" shall have the meaning set forth in the
recitals.

                  "Class B Common 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 recitals.

                  "Company Material Adverse Effect" means any event, change,
circumstance, effect or state of facts that is or is reasonably expected to be
materially adverse to (a) the business, results of operations, condition
(financial or otherwise), assets or liabilities of the Company and its
Subsidiaries, taken as a whole, or (b) the ability of the Company to consummate
any of the transactions contemplated by this Agreement and the Related
Agreements (other than the Indemnification Agreement), except to the extent that
such adverse effect results from (i) general economic conditions or changes
therein, (ii) financial or securities market fluctuations or conditions, (iii)
changes in, or events or conditions affecting, the industries or businesses in
which the Company and its Subsidiaries operate, or (iv) the announcement of the
transactions contemplated by the Merger Agreement or the Letter of Intent (as
defined in the Merger Agreement).

                  "Company Securities" shall have the meaning set forth in
Section 3.5.

                  "Contribution" shall have the meaning set forth in the
recitals.

                  "Contribution Shares" shall have the meaning set forth in the
recitals.

                  "Contributor Disclosure Schedule" means the schedule of
disclosures delivered by the Contributors to Parent together with the execution
of this Agreement.

                  "Contributor Material Adverse Effect" shall have the meaning
set forth in Section 4.1.

                  "Contributors" shall have the meaning set forth in the
preamble.

                  "Debt Financing" shall have the meaning set forth in the
Merger Agreement.

                                      -4-



                  "DGCL" means the General Corporation Law of the State of
Delaware.

                  "Effective Time" shall have the meaning set forth in the
recitals.

                  "Emprima" shall have the meaning set forth in the preamble.

                  "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.

                  "FPSH" means Fox Paine Seminis Holdings, LLC.

                  "FPSH Sale Shares" means (i) 70,972,409 shares of New Company
Common Stock minus (ii) the Additional Sale Shares.

                  "Governmental Entity" means any federal, state, local or
foreign court or tribunal or administrative, governmental or regulatory body,
agency or authority.

                  "Indebtedness" of any Person means (a) all obligations of such
Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices, and excluding
ordinary operating leases), (b) any other obligations of such Person that are
evidenced by a note, bond, debenture or similar instrument, (c) all obligations
under conditional sale or other title retention agreements relating to property
purchased, (d) capital lease or sale-leaseback obligations, (e) all liabilities
secured by any Lien on any property (other than ordinary operating leases), and
(f) any guarantee or assumption of any of the foregoing in clauses (a) through
(e) above or guaranty of minimum equity or capital or any make-whole or similar
obligation or any other guarantee of indebtedness of a third party.

                  "Indemnification Agreement" shall mean the Indemnification
Agreement, of even date herewith, by and among FPSH, the ARG Trust, Mexican SPC,
Desarrollo Empresarial Regiomontano, S.A. de C.V., Emprima, Park, Savia, Mr.
Romo and Parent.

                  "Lien" means, with respect to any asset (including any
security), any security interests, liens, claims, charges, title defects,
deficiencies or exceptions, mortgages, pledges, easements, encroachments,
restrictions on use, rights-of-way, 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 in respect of such asset.

                  "LLC Agreement" shall have the meaning set forth in Section
2.3(b).

                  "Management Contributors" shall have the meaning set forth in
the preamble.

                  "Management Old Company Shares" shall have the meaning set
forth in the recitals.

                  "Membership Interests" shall have the meaning set forth in
Section 2.3(b).

                                      -5-



                  "Merger" shall have the meaning set forth in the recitals.

                  "Merger Agreement" shall have the meaning set forth in the
recitals.

                  "Merger Sub" shall have the meaning set forth in the recitals.

                  "Mexican SPC" shall have the meaning set forth in the
preamble.

                  "Mr. Romo" shall have the meaning set forth in the preamble.

                  "MS Common Stock" shall have the meaning set forth in the
recitals.

                  "MS Preferred Stock" shall have the meaning set forth in the
recitals.

                  "New Company Common Stock" shall have the meaning set forth in
the recitals.

                  "Old Company Common Stock" shall have the meaning set forth in
the recitals.

                  "Parent" shall have the meaning set forth in the preamble.

                  "Parent Disclosure Schedule" means the schedule of disclosures
delivered by Parent to the Contributors together with the execution of this
Agreement.

                  "Parent Material Adverse Effect" means any event, change,
circumstance, effect or state of facts that is or is reasonably expected to be
materially adverse to the ability of Parent or Merger Sub to consummate the
transactions contemplated by this Agreement or the Related Agreements.

                  "Park" shall have the meaning set forth in the preamble.

                  "Park Old Company Shares" shall have the meaning set forth in
the recitals.

                  "Person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or "group" (as defined in the Exchange Act).

                  "Pre-Closing Restructuring Steps" shall mean the items
specified under the heading "Pre-Closing Restructuring Steps" in Section 4.3(c)
of the Contributor Disclosure Schedule.

                  "Post-Closing Restructuring Steps" shall mean the items
specified under the heading "Post-Closing Restructuring Steps" in Section 4.3(c)
of the Contributor Disclosure Schedule.

                  "Related Agreements" means the Merger Agreement, the Voting
Agreement, the Stock Purchase Agreement and the Indemnification Agreement.

                  "Related Transactions" shall mean the transactions
contemplated by the Related Agreements.

                                      -6-



                  "Restructuring Steps" shall mean the items set forth in
Section 4.3(c) of the Contributor Disclosure Schedule.

                  "Romo Entities" shall mean Mr. Romo, Alejandro Garza Laguerra,
Savia, the ARG Trust, Pulsar Internacional, S.A. de C.V., CAI, Desarrollo
Empresarial Regiomontano, S.A. de C.V., Mexican SPC, Emprima, Impulsora, S.A. de
C.V., Park, Servasa, S.A. de C.V. and each of their respective Affiliates, not
including the Company and its Subsidiaries.

                  "Romo Entity Consents" shall have the meaning set forth in
Section 4.3(c).

                  "Romo Entity Matters" means (a) any Indebtedness of any Romo
Entity or any liabilities related thereto, (b) any restructuring or settlement
of any Indebtedness or equity or assets of any Romo Entity or any liabilities
related thereto, (c) any sale, transfer, pledge, assignment, encumbrance or
other disposition by any Romo Entity of any shares of Company Common Stock or
New Company Common Stock or any equity securities of Savia, (d) the
Restructuring Steps (including the making and consummation of offers to purchase
shares of New Company Common Stock to Persons (other than the Management
Contributors) pursuant to any written or oral communications with, or consent
solicitations of, such Persons), and (e) any other transactions contemplated by
this Agreement.

                  "Savia" shall have the meaning set forth in the preamble.

                  "Savia Expenses" means all out-of-pocket fees and expenses
actually and reasonably incurred by Savia or on its behalf in connection with
any of the transactions contemplated by this Agreement and the Related
Agreements (including fees and expenses of accountants and legal counsel);
provided, however, that "Savia Expenses" shall not include (a) any financing
charges, (b) any charges related to any Romo Entity Matters (other than the fees
and expenses of its US counsel relating solely to the transactions contemplated
by this Agreement and the Related Agreements), or (c) the fees and expenses of
any financial advisors or investment bankers of the Romo Entities (including
Grupo Financiero Atlantico or any of its Affiliates).

                  "Savia Old Company Shares" shall have the meaning set forth in
the recitals.

                  "Stock Purchase" shall have the meaning set forth in the
recitals.

                  "Stock Purchase Agreement" shall mean the Stock Purchase
Agreement by and among FPSH, the ARG Trust, Parent and Merger Sub of even date
herewith.

                  "Stockholders' Agreement" means the Stockholders' Agreement,
to be entered into at Closing, by and among the Company and the Persons to be
listed on the signature pages thereto.

                  "Subsidiary" means, with respect to any Person, any other
Person, whether incorporated or unincorporated or domestic or foreign to the
United States of which (a) such first Person or any other Subsidiary of such
first Person is a general partner (excluding such partnerships where such first
Person or any Subsidiary of such first Person does not have a majority of the
voting interest in such partnership) or (b) at least a majority of the
securities or other interests

                                      -7-



having by their terms ordinary voting power to elect a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization is, directly or indirectly, owned or
controlled by such first Person or by any one or more of its Subsidiaries, or
by such first Person and one or more of its Subsidiaries.

                  "Voting Agreement" means the voting agreement, of even date
herewith, among FPSH and the other Persons party thereto pursuant to which,
among other things, each Person (other than FPSH) party thereto agrees to vote
all shares of Old Company Common Stock beneficially owned by such Person in
favor of the Merger.

                                   ARTICLE II

                                THE CONTRIBUTION

         Section 2.1       The Closing. The closing of the Contribution (the
"Closing") will be held at the offices of Wachtell, Lipton, Rosen & Katz, 51
West 52nd Street, 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 first business day after
satisfaction or waiver of the conditions set forth in Article VI (other than
those conditions that are to be satisfied on the Closing Date, but subject to
the satisfaction or waiver of such other conditions on the Closing Date) (the
"Closing Date").

         Section 2.2       Contribution. Subject to the terms and conditions
set forth herein, at the Closing, (a) Savia shall contribute to Parent all of
Savia's right, title and interests in the Savia Old Company Shares, free and
clear of any Lien, (b) the ARG Trust shall contribute to Parent all of its
right, title and interests in the ARG Trust Old Company Shares, free and clear
of any Lien, (c) CAI shall contribute to Parent all of CAI's right, title and
interests in the CAI Old Company Shares, free and clear of any Lien, (d) Park
shall contribute to Parent all of Park's right, title and interests in the Park
Old Company Shares, free and clear of any Lien, and (e) each of the Management
Contributors shall contribute to Parent all of his right, title and interests in
his Management Old Company Shares, free and clear of any Lien.

         Section 2.3       Delivery of Contribution Shares.

                  (a)      At the Closing, (i) Savia shall deliver or cause to
be delivered to Parent one or more stock certificates representing in the
aggregate the Savia Old Company Shares, (ii) the ARG Trust shall deliver or
cause to be delivered to Parent one or more stock certificates representing in
the aggregate the ARG Trust Old Company Shares, (iii) CAI shall deliver or cause
to be delivered to Parent one or more stock certificates representing in the
aggregate the CAI Old Company Shares, (iv) Park shall deliver or cause to be
delivered to Parent one or more stock certificates representing in the aggregate
the Park Old Company Shares, and (v) each of the Management Contributors shall
deliver or cause to be delivered to Parent one or more stock certificates
representing in the aggregate his Management Old Company Shares, in each case
duly endorsed in blank for transfer or accompanied by duly executed stock powers
and all applicable stock transfer stamps and other instruments requisite to
proper transfer, all in proper form.

                                      -8-



                  (b)      At the Closing, each of the Contributors and Parent
shall enter into the Amended and Restated Limited Liability Agreement of Parent
(the "LLC Agreement") substantially identical to the form set forth on Exhibit
C, which shall provide that each of the Contributors shall have a membership
interest representing such member's proportionate percentage ownership in Parent
as set forth in the LLC Agreement.

         Section 2.4       Distribution of Parent Assets. Immediately after the
closing of the Merger, the Stock Purchase and the Debt Financing, Parent shall
distribute (a) all of Parent's rights, title and interests in (i) 4,365,257
shares of New Company Common Stock to the ARG Trust, (ii) 42,000 shares of New
Company Common Stock to CAI, (iii) 1,000,000 shares of New Company Common Stock
to Park, and (iv) an aggregate of 685,505 shares of New Company Common Stock to
the Management Contributors as set forth on Exhibit A hereto, and (b) to Savia
(i) by wire transfer of immediately available funds (to the account designated
by Savia in writing not less than three days prior to the closing of the Merger)
an amount equal to the Cash Distribution, (ii) if the ARG Option is exercised,
the right to receive the ARG Purchase Price, (iii) the Additional Purchase
Amount, if any, and (iv) all remaining assets, including shares of New Company
Common Stock, if any. After such distribution, Parent shall be dissolved in
accordance with the terms of the LLC Agreement and the provisions of the
Delaware Limited Liability Company Act.

                                  ARTICLE III

                    REPRESENTATIONS AND WARRANTIES OF PARENT

      Parent hereby represents and warrants to the Contributors as follows:

         Section 3.1       Organization. Parent is duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate or similar power and authority to own, lease and operate
its properties and to carry on its business as now being conducted, except where
the failure to be in good standing or to have such corporate or similar power
and authority would not, in the aggregate, have a Parent Material Adverse
Effect. Parent was formed solely for the purpose of engaging in the transactions
contemplated by this Agreement, the Merger Agreement and the Stock Purchase
Agreement. Other than Parent's 100% ownership interest in Merger Sub, on the
date hereof, Parent does not own any equity, debt or similar interest in any
Person. Parent has delivered to the Contributors accurate and complete copies of
the certificate of formation and other governing documents, as currently in
effect, of Parent. Parent has not engaged in any activities, owned any assets or
been subject to any liabilities, except as is necessary to effect the Merger,
the Contribution, the Stock Purchase and the other transactions contemplated by
the Related Agreements.

         Section 3.2       Authority. Parent has all necessary power and
authority to execute and deliver this Agreement and any Related Agreement to
which it is a party and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and any Related Agreement
to which it is a party and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by the sole member of
Parent and no other corporate or similar proceedings on the part of Parent is
necessary to

                                      -9-



authorize this Agreement or any Related Agreement to which it is a party or to
consummate the transactions contemplated hereby or thereby. This Agreement and
any Related Agreement to which it is a party have been duly and validly executed
and delivered by Parent and, assuming due and valid authorization, execution and
delivery by the other parties hereto or thereto, constitute the valid, legal and
binding agreements of Parent, enforceable against Parent in accordance with
their terms.

         Section 3.3       Consents and Approvals; No Violations. Except as set
forth on Section 3.3 of the Parent Disclosure Schedule, no filing with or notice
to, and no permit, authorization, consent or approval of, any Governmental
Entity or any other Person is necessary for the execution and delivery by Parent
of this Agreement or the consummation by Parent of the transactions contemplated
by this Agreement or the Related Agreements except where the failure to obtain
such permits, authorizations, consents or approvals or to make such filings or
give such notice would not have a Parent Material Adverse Effect. Except as set
forth in Section 3.3 of the Parent Disclosure Schedule, neither the execution,
delivery and performance of this Agreement by Parent, nor the consummation by
Parent of the transactions contemplated by this Agreement and the Related
Agreements will (a) conflict with or result in any breach of any provision of
the certificate of formation of Parent or the LLC Agreement, (b) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration, or result in the creation of a Lien on any
property or asset of Parent, or trigger any rights of first refusal) under, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to which
Parent is a party or by which its respective properties or assets may be bound,
or (c) violate any order, writ, injunction, decree, law, statute, rule or
regulation applicable to Parent or its respective properties or assets, except
in the case of (b) or (c) above for violations, breaches, defaults or other
occurrences that would not, individually or in the aggregate, have a Parent
Material Adverse Effect or a Company Material Adverse Effect.

         Section 3.4       Membership Interests.

                  (a)      On the Closing Date, the Membership Interests to be
issued pursuant to the transactions contemplated hereby will be duly authorized
and validly issued, fully paid and nonassessable and Parent will transfer to
each of the Contributors good and valid title to such Contributor's Membership
Interests free and clear of any Lien.

                  (b)      The shares of New Company Common Stock to be
distributed pursuant Section 2.4 hereof will be duly authorized and validly
issued, fully paid and non-assessable and Parent will transfer to each of the
Contributors good and valid title to such shares of New Company Common Stock
free and clear of any Lien.

         Section 3.5       Capitalization. Immediately following the Effective
Time and immediately prior to the closing of the Stock Purchase, the authorized
capital stock of the Company shall consist of (i) 200,000,000 shares of New
Company Common Stock, 84,377,861 shares of which shall be issued and outstanding
and owned exclusively by Parent, and (ii) 5,000,000 shares of Company Preferred
Stock, (A) 25,000 shares of which shall be designated as shares of Company Class
A Preferred Stock, none of which shall be issued or outstanding, and (B) 25,000

                                      -10-



shares of which shall be designated as shares of Company Class B Preferred
Stock, 25,000 shares of which shall be issued and outstanding. Except (w) as set
forth in the preceding sentence, (x) the options to purchase shares of New
Company Common Stock granted under the Amended and Restated Seminis, Inc. 1998
Stock Option Plan which are or become Retained Options (as defined in the Merger
Agreement) in accordance with any agreements among Parent, FPSH and any
individual owning such Retained Options (as defined in the Merger Agreement),
(y) as contemplated by this Agreement, and (z) as provided in the employment
agreements and letter agreements set forth in Section 3.5 of the Parent
Disclosure Schedule, immediately following the Effective Time and immediately
prior to the closing of the Stock Purchase, there will be no outstanding (i)
shares of capital stock or other voting securities of the Company, (ii)
securities of the Company convertible into or exchangeable for shares of capital
stock or voting securities of the Company, (iii) options or other rights to
acquire from the Company, or obligations of the Company to issue or sell, any
capital stock, voting securities or securities convertible into or exchangeable
for capital stock or voting securities of the Company, or (iv) equity
equivalents, interests in the ownership or earnings of the Company or other
similar rights (collectively, "Company Securities"). Other than pursuant to this
Agreement and the Related Agreements (including the Stockholders' Agreement to
be executed at the closing of the Stock Purchase), there are no outstanding
obligations of the Company to repurchase, redeem or otherwise acquire any
Company Securities.

         Section 3.6       Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Parent.

         Section 3.7       Acknowledgment. Parent hereby acknowledges that (i)
FPSH is relying upon the representations, warranties and covenants of Parent
contained in this Agreement in connection with FPSH entering into the Stock
Purchase Agreement, and (ii) FPSH shall be entitled to rely upon and enforce
such representations, warranties and covenants as provided in this Agreement and
in the Indemnification Agreement.

                                   ARTICLE IV

          REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS, MR. ROMO,
                             EMPRIMA AND MEXICAN SPC

         Section 4.1       Representations and Warranties with Respect to the
Contribution Shares. Each of the Contributors, Emprima, Mexican SPC and Mr.
Romo, severally and not jointly, hereby represents and warrants to Parent with
respect to itself or himself as set forth below:

                  (a)      Organization. Other than as set forth in Section
4.1(a) of the Contributor Disclosure Schedule with respect to the good standing
of CAI, such Contributor (other than the Management Contributors) and Mexican
SPC is duly organized, validly existing and in good standing under the laws of
its respective jurisdiction of incorporation or formation and has all requisite
corporate or similar power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, except where the
failure to be in good standing or

                                      -11-



to have such corporate or similar power and authority would not have a
Contributor Material Adverse Effect. The ARG Trust is duly created under the
laws of the United Mexican States and has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be in good standing or to have such
corporate or similar power and authority would not have a Contributor Material
Adverse Effect. The term "Contributor Material Adverse Effect" means any event,
change, circumstance or effect that is or is reasonably expected to be
materially adverse to the ability of such Contributor (or in the case of Mr.
Romo, Emprima, or Mexican SPC, such Person) to consummate the transactions
contemplated by this Agreement.

                  (b)      Authority. Such Contributor, Mr. Romo, Emprima and
Mexican SPC has all necessary power and authority to execute and deliver this
Agreement and any Related Agreement to which it is a party and to consummate the
transactions contemplated hereby or thereby. The execution and delivery of this
Agreement and any Related Agreement to which it is a party and the consummation
of the transactions contemplated hereby or thereby have been duly and validly
authorized by the board of directors (or other governing body) and stockholders
or beneficiaries, if necessary, of such Contributor (other than the ARG Trust
and the Management Contributors) and Mexican SPC and the technical committee of
the ARG Trust, and except as set forth in Section 4.1(b) of the Contributor
Disclosure Schedule, no other corporate or similar proceedings on the part of
such Contributor, Mr. Romo, Emprima or Mexican SPC is necessary to authorize
this Agreement or any Related Agreement to which it is a party or to consummate
the transactions contemplated hereby or thereby. This Agreement and any Related
Agreement to which it is a party have been duly and validly executed and
delivered by such Contributor, Mr. Romo, Emprima and Mexican SPC and, assuming
due and valid authorization, execution and delivery by the other parties hereto
and thereto, constitute valid, legal and binding agreements of such Contributor,
Mr. Romo, Emprima and Mexican SPC, enforceable against such Contributor, Mr.
Romo, Emprima and Mexican SPC in accordance with their terms.

                  (c)      Consents and Approvals; No Violations. Except as set
forth in Section 4.1(c) or (d) of the Contributor Disclosure Schedule, no filing
with or notice to, and no permit, authorization, consent or approval of, any
Governmental Entity or any other Person is necessary for the execution and
delivery by such Contributor, Mr. Romo, Emprima or Mexican SPC of this Agreement
or any Related Agreement to which it is a party or the consummation by such
Contributor, Mr. Romo, Emprima or Mexican SPC of the transactions contemplated
by this Agreement, the Related Agreements or the Restructuring Steps, except
where the failure to obtain such permits, authorizations, consents or approvals
or to make such filings or give such notice would not have a Contributor
Material Adverse Effect or a Company Material Adverse Effect. Except as set
forth in Section 4.1(c) of the Contributor Disclosure Schedule, neither the
execution, delivery and performance of this Agreement or any Related Agreement
to which it is a party by such Contributor, Mr. Romo, Emprima or Mexican SPC,
nor the consummation by such Contributor, Mr. Romo, Emprima or Mexican SPC of
the transactions contemplated by this Agreement, the Related Agreements or the
Restructuring Steps will (i) conflict with or result in any breach of any
provision of the governing documents of such Contributor, Emprima or Mexican
SPC, (ii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration, or result in the creation
of a Lien on any property or asset of such Contributor, Mr. Romo, Emprima or
Mexican SPC, or trigger any rights of first refusal) under, any of the

                                      -12-



terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which such
Contributor, Mr. Romo, Emprima or Mexican SPC is a party or by which such
Contributor, Mr. Romo, Emprima or Mexican SPC or its respective properties or
assets may be bound, or (iii) violate any order, writ, injunction, decree, law,
statute, rule or regulation applicable to such Contributor, Mr. Romo, Emprima or
Mexican SPC or its respective properties or assets, except in the case of (ii)
or (iii) above for violations, breaches, defaults or other occurrences that
would not, individually or in the aggregate, have a Contributor Material Adverse
Effect or a Company Material Adverse Effect.

                  (d)      Ownership of Stock. Subject to the consents set forth
in Sections 4.1(b) and 4.1(c) and except as set forth in Section 4.1(d) of the
Contributor Disclosure Schedule, (i) Savia is and at all times through the
Closing will be the owner, beneficially and of record, of the Savia Old Company
Shares, free and clear of any Lien and will transfer to Parent good and valid
title to such Savia Old Company Shares free and clear of any Lien, (ii) (A) the
ARG Trust is and at all times will be the owner beneficially and of record of
the ARG Trust Old Company Shares, free and clear of any Lien and will transfer
to Parent good and valid title to such ARG Trust Old Company Shares free and
clear of any Lien, (iii) CAI is and at all times through the Closing will be the
owner, beneficially and of record, of the CAI Old Company Shares, free and clear
of any Lien and will transfer to Parent good and valid title to such CAI Old
Company Shares free and clear of any Lien, (iv) Park is and at all times through
the Closing will be the owner, beneficially and of record, of the Park Old
Company Shares, free and clear of any Lien, and will transfer to Parent good and
valid title to such Park Old Company Shares free and clear of any Lien, and (v)
each of the Management Contributors is and at all times through the Closing will
be the owner, beneficially and of record, of his Management Old Company Shares,
free and clear of any Lien and will transfer to Parent good and valid title to
such Management Old Company Shares, free and clear of any Lien.

                  (e)      Purchase for Investment. The Membership Interests to
be acquired by each Contributor will be acquired for its or his own account for
the purpose of investment. Such Contributor will refrain from transferring or
otherwise disposing of any of the Membership Interests, or any interest therein
other than pursuant to this Agreement.

                  (f)      Accredited Investor. Such Contributor acknowledges
that it or he (i) has such knowledge and experience in business and financial
matters with respect to investments in securities to enable it or him to
understand and evaluate the risks of such investment and form an investment
decision with respect thereto and is able to bear the risk of such investment
for an indefinite period and to afford a complete loss thereof, (ii) is an
"accredited investor" as defined in Rule 501 of Regulation D under the
Securities Act of 1933, as amended and (iii) has had the opportunity to (x) ask
such questions as it or he has deemed necessary of, and to receive answers from,
representatives of Parent concerning the terms of its purchase of the Membership
Interests contemplated hereby and the merits and risks of investing in such
securities and (y) to obtain such additional information which Parent possesses
or can acquire without unreasonable effort or expense.

                  (g)      Brokers. Other than Grupo Financiero Atlantico, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection

                                      -13-



with the transactions contemplated by this Agreement or the Related Agreements
based upon arrangements made by or on behalf of each of the Contributors or any
Romo Entity.

                  (h)      Acknowledgment. Each of the Contributors, Mexican
SPC, Emprima and Mr. Romo hereby acknowledges that (i) FPSH is relying upon the
representations, warranties and covenants of each of such Contributors, Mexican
SPC, Emprima and Mr. Romo contained in this Agreement in connection with FPSH
entering into the Stock Purchase Agreement and (ii) FPSH shall be entitled to
rely upon and enforce such representations, warranties and covenants as provided
in this Agreement and in the Indemnification Agreement.

         Section 4.2       Representations and Warranties of Savia. Savia hereby
represents and warrants to Parent as follows:

                  (a)      Completeness of Assets. For purposes of this Section
4.2, Subsidiaries of Savia shall not include the Company and its Subsidiaries.

                           (i)      Except as disclosed in Section 4.2(a)(i) of
the Contributor Disclosure Schedule, neither Savia nor any of its Subsidiaries
owns any asset, property or right, tangible or intangible, that is used in, or
for the benefit of, the business conducted by the Company and its Subsidiaries.

                           (ii)     Except as disclosed in the Company SEC
Documents (as defined in the Merger Agreement) or in Section 4.2(a)(ii) of the
Contributor Disclosure Schedule, (x) neither Savia nor any of its Subsidiaries
provides or causes or permits to be provided and, since September 30, 1999,
neither Savia nor any of its Subsidiaries has provided or caused or permitted to
be provided, to the Company or any of its Subsidiaries, any assets, loans,
advances, services or facilities and (y) neither the Company nor any of its
Subsidiaries provides or causes to be provided to Savia or any of its
Subsidiaries any assets, loans, advances, services or facilities, and, since
September 30, 1999, neither the Company nor any of its Subsidiaries has provided
or caused to be provided, to Savia or any of its Subsidiaries, any assets,
loans, advances, services or facilities.

                           (iii)    Except as disclosed in the Company SEC
Documents (as defined in the Merger Agreement) or in Section 4.2(a)(iii) of the
Contributor Disclosure Schedule, (x) neither the Company nor any of its
Subsidiaries purchases from or sells to, and, since September 30, 1999, neither
the Company nor any of its Subsidiaries has purchased from or sold to, Savia or
any of its Subsidiaries, goods or services, (y) neither the Company nor any of
its Subsidiaries, jointly with Savia and any of its Subsidiaries, purchases or
sells goods and services, and, since September 30, 1999, neither the Company nor
any of its Subsidiaries, jointly with Savia or any of its Subsidiaries, has
purchased or sold goods or services and (z) neither the Company nor any of its
Subsidiaries has, and, since September 30, 1999, neither the Company nor any of
its Subsidiaries has had, any other significant business relationship with Savia
or any of its Subsidiaries.

                  (b)      No Undisclosed Liabilities. Except as disclosed in
Section 4.2(b) of the Contributor Disclosure Schedule, neither Savia nor any of
its Subsidiaries (excluding the Company and its Subsidiaries) has, or has
incurred or has permitted to be incurred any liabilities

                                      -14-



or obligations of any nature, whether or not absolute, accrued, contingent or
otherwise, that have become or may become liabilities of the Company or any of
its Subsidiaries. Except as disclosed in Section 4.3(b) of the Contributor
Disclosure Schedule, neither the Company, nor its Subsidiaries, is responsible
for any liabilities or obligations of any nature, whether or not absolute,
accrued, contingent or otherwise, of Savia or any of its Subsidiaries.

         Section 4.3       Representations and Warranties with Respect to the
Restructurings. Mr. Romo, Mexican SPC, Emprima, and Park, jointly and severally,
hereby represent and warrant to Parent:

                  (a)      Completeness of Assets.

                           (i)      Except as disclosed in Section 4.3(a)(i) of
the Contributor Disclosure Schedule, none of the Romo Entities owns any asset,
property or right, tangible or intangible, that is used in, or for the benefit
of, the business conducted by the Company and its Subsidiaries.

                           (ii)     Except as disclosed in the Company SEC
Documents (as defined in the Merger Agreement) or in Section 4.3(a)(ii) of the
Contributor Disclosure Schedule, (x) no Romo Entity provides or causes to be
provided and, since September 30, 1999, no Romo Entity has provided or caused to
be provided, to the Company or any of its Subsidiaries, any assets, loans,
advances, services or facilities and (y) neither the Company nor any of its
Subsidiaries provides or causes to be provided to any Romo Entity any assets,
loans, advances, services or facilities, and, since September 30, 1999, neither
the Company nor any of its Subsidiaries has provided or caused to be provided,
to any Romo Entity, any assets, loans, advances, services or facilities.

                           (iii)    Except as disclosed in the Company SEC
Documents (as defined in the Merger Agreement) or in Section 4.3(a)(iii) of the
Contributor Disclosure Schedule, (x) neither the Company nor any of its
Subsidiaries purchases from or sells to, and, since September 30, 1999, neither
the Company nor any of its Subsidiaries has purchased from or sold to, any Romo
Entity, goods or services, (y) neither the Company nor any of its Subsidiaries,
jointly with any Romo Entity, purchases or sells goods and services, and, since
September 30, 1999, neither the Company nor any of its Subsidiaries, jointly
with any Romo Entity, has purchased or sold goods or services and (z) neither
the Company nor any of its Subsidiaries has, and, since September 30, 1999,
neither the Company nor any of its Subsidiaries has had, any other significant
business relationship with any Romo Entity.

                  (b)      No Undisclosed Liabilities. Except as disclosed in
Section 4.3(b) of the Contributor Disclosure Schedule, none of the Romo Entities
has, or has incurred any liabilities or obligations of any nature, whether or
not absolute, accrued, contingent or otherwise, that have become or may become
liabilities of the Company or any of its Subsidiaries. Except as disclosed in
Section 4.3(b) of the Contributor Disclosure Schedule, neither the Company, nor
its Subsidiaries, is responsible for any liabilities or obligations of any
nature, whether or not absolute, accrued, contingent or otherwise, of any Romo
Entity.

                                      -15-



                  (c)      Romo Entity Matters.

                           (i)      The Romo Entities have obtained the written
consents and/or amendments set forth in Section 4.3(c) of the Contributor
Disclosure Schedule (the "Romo Entity Consents"). True and complete copies of
the Romo Entity Consents have been provided to FPSH. Except as set forth in
Section 4.3(c) of the Contributor Disclosure Schedule, other than the Romo
Entity Consents, no filing with or notice to, and no permit, authorization,
consent or approval of, any Governmental Entity or any other Person is necessary
for the consummation by any Romo Entity of the transactions contemplated by this
Agreement, the Related Agreements or the Restructuring Steps, except where the
failure to obtain such permits, authorizations, consents or approvals or to make
such filings or give such notice would not have a Contributor Material Adverse
Effect or a Company Material Adverse Effect.

                           (ii)     Except as set forth in Section 4.3(c) of the
Contributor Disclosure Schedule, the consummation by any Romo Entity of the
transactions contemplated by this Agreement, the Related Agreements or the
Restructuring Steps will not (A) conflict with or result in any breach of any
provision of the governing documents of any Romo Entity, (B) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration, or result in the creation of a Lien on any
property or asset of any Romo Entity, or trigger any rights of first refusal)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or obligation
to which any Romo Entity is a party or by which any Romo Entity or its
respective properties or assets may be bound, or (C) violate any order, writ,
injunction, decree, law, statute, rule or regulation applicable to such Romo
Entity or its properties or assets, except in the case of (B) or (C) above for
violations, breaches, defaults or other occurrences that would not, individually
or in the aggregate, have a Contributor Material Adverse Effect or a Company
Material Adverse Effect.

                  (d)      Restructuring Steps. To the extent necessary, the
applicable Romo Entities have entered into valid, legal and binding agreements
providing for the Restructuring Steps.

                  (e)      Legal Opinions. Attached hereto as Exhibit D and
Exhibit E are true and complete copies of written opinions dated the date hereof
from Milbank, Tweed, Hadley & McCloy LLP and Mancera Ernst & Young.

                                   ARTICLE V

                                   COVENANTS

         Section 5.1       Pre-Closing Conduct. Each party hereby covenants and
agrees that it shall not take any action that would make any of such party's
representations or warranties contained in this Agreement or the Related
Agreements untrue or incorrect as of the date hereof or the Closing Date or
would result in any of the conditions set forth in Article VI not being
satisfied. Moreover, each of Mr. Romo and Savia hereby covenants and agrees that
it shall not approve

                                      -16-



any action that will result in the Company violating the Merger Agreement or any
Related Agreement and will take all actions to cause the Romo Entities to take
such actions necessary to consummate the transactions contemplated by this
Agreement and the Related Agreements.

         Section 5.2       Further Assurances.

                  (a)      Parent shall use its best efforts to implement the
provisions of this Agreement, and, for such purpose, at the request of any of
the Contributors, will, at or after the Closing, promptly execute and deliver,
or cause to be so executed and delivered, such documents to any of the
Contributors and take such further action as any of the Contributors may deem
reasonably necessary or desirable to facilitate or better evidence the
consummation of the transactions contemplated hereby.

                  (b)      Each of Savia and Mr. Romo shall use its best efforts
to implement the provisions of this Agreement, and, for such purpose, at the
request of Parent, will, at or after the Closing, promptly execute and deliver,
or cause to be so executed and delivered, such documents to Parent, and to take
such further action as Parent may deem reasonably necessary or desirable to
facilitate or better evidence the consummation of the transactions contemplated
hereby, including such action as is required to rectify any breach of the
representations contained in Section 4.2 and Section 4.3(a) and (b) of this
Agreement. Without limiting the foregoing, to the extent that any contract or
agreement to which any Romo Entity is a party, is used in, or for the benefit
of, the business conducted by the Company and its Subsidiaries, and is not
assignable without the consent of another party, (i) Savia and Mr. Romo shall
use reasonable best efforts to obtain the consent of such other party to the
assignment of any such contract or agreement to the Company in all cases in
which such consent is or may be required for such assignment, and (ii) if such
consent shall not be obtained, Savia and Mr. Romo shall cause the Romo Entities
to cooperate to put into place a reasonable arrangement designed to provide for
the Company the benefits intended to be assigned to the Company or one of its
Subsidiaries under the relevant contract or agreement, including enforcement at
the cost and for the account of the Company or one of its Subsidiaries of any
rights of any Romo Entity against the other party thereto arising out of the
breach or cancellation thereof by such other party or otherwise.

         Section 5.3       Notification of Certain Matters. The parties hereto
shall give prompt notice to one another of (i) the occurrence or nonoccurrence
of any event the occurrence or nonoccurrence of which would be likely to cause
(A) any representation or warranty contained in this Agreement or the Related
Agreements to be untrue or inaccurate, or (B) any covenant, condition or
agreement contained in this Agreement or the Related Agreements not to be
complied with or satisfied, and (ii) any failure of any party hereto to comply
with or satisfy any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement or the Related Agreements; provided,
however, that the delivery of any notice pursuant to this Section 5.3 shall not
affect the representations, warranties or covenants of the parties hereto or
limit or otherwise affect the remedies available to any party hereunder.

         Section 5.4       Public Announcements. Parent and the Contributors, as
the case may be, will consult with each other before issuing any press release
or otherwise making any public statements with respect to this Agreement, the
Related Agreements or the other transactions contemplated hereby or thereby, and
shall not issue any such press release or make any such

                                      -17-



public statement without the prior consent of the other parties hereto (which
consent shall not be unreasonably withheld or delayed), except as may be
required by applicable law or by obligations pursuant to any listing agreement
with any national securities exchange or national market system to which Parent,
the Contributors or their Affiliates is a party. The parties hereto have agreed
on the text of the joint press release by which announcement of the execution of
this Agreement will be made.

         Section 5.5       Additional Agreements, Reasonable Best Efforts.

                  (a)      Prior to the Closing Date, upon the terms and subject
to the conditions of this Agreement, each of Parent, Emprima, Mexican SPC, Mr.
Romo and the Contributors agrees to use its reasonable best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under any applicable laws, rules or regulations
to consummate and make effective as promptly as practicable the Contribution and
the Related Transactions and the other transactions contemplated by this
Agreement and the Related Agreements, including, but not limited to, (i) the
preparation and filing of all forms, registrations and notices required to be
filed to consummate the Contribution and the Related Transactions and the other
transactions contemplated hereby and thereby and the taking of such actions as
are necessary to obtain any requisite approvals, consents, orders, exemptions or
waivers by any third party, including any Governmental Entity, and (ii) the
satisfaction of the conditions to the consummation of the Contribution and the
Related Transactions. In addition, no party hereto shall take any action after
the date hereof that would reasonably be expected to materially delay the
obtaining of, or result in not obtaining, any permission, approval or consent
from any Governmental Entity necessary to be obtained prior to the consummation
of the Contribution and the Related Transactions.

                  (b)      Prior to the Effective Time, each party shall
promptly consult with the other parties hereto with respect to, provide any
necessary information with respect to and provide the other (or its counsel)
copies of, all filings made by such party with any Governmental Entity or any
other information supplied by such party to a Governmental Entity in connection
with this Agreement, the Related Agreements and the transactions contemplated
hereby and thereby. Each party hereto shall promptly inform the other of any
communication from any Governmental Entity regarding the Contribution or any of
the Related Transactions. If any party hereto or Affiliate thereof receives a
request for additional information or documentary material from any such
Governmental Entity with respect to the Contribution or the Related
Transactions, then such party will endeavor in good faith to make, or cause to
be made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.

                  (c)      Each of Emprima, the ARG Trust, CAI, Park, Mr. Romo,
Mexican SPC and the Management Contributors hereby covenants, and if the ARG
Option is not exercised, Savia covenants, that upon the consummation of the
transactions contemplated by this Agreement, the Merger Agreement and the Stock
Purchase Agreement, each such party shall execute the Stockholders' Agreement.

                                      -18-



                                   ARTICLE VI

                 CONDITIONS TO CONSUMMATION OF THE CONTRIBUTION

         The obligation of Parent, on the one hand, and the Contributors and Mr.
Romo, on the other hand, to consummate the Contribution is subject to (a) the
satisfaction or waiver of the conditions to the Merger set forth in Sections
7.1(b) and 7.2 (other than Section 7.2(c)) of the Merger Agreement, (b) the
Pre-Closing Restructuring Steps having occurred and (c) the Post-Closing
Restructuring Steps occurring substantially concurrently with the Closing;
provided, however, that no party hereto shall have the right to assert the
nonfulfillment of the condition set forth in clause (b) or clause (c) as a basis
for failing to consummate the Contribution, if (x) the non-occurrence of any
Restructuring Step is the result of a breach by any Romo Entity, or (y) any of
Parent, the Contributors or Mr. Romo shall have failed to use its reasonable
best efforts to cause the Restructuring Steps to have occurred.

                                  ARTICLE VII

                         TERMINATION; AMENDMENT; WAIVER

         Section 7.1       Termination. This Agreement may be terminated by any
party hereto and the Contribution may be abandoned at any time prior to the
Closing if the Merger Agreement is terminated in accordance with its terms.

         Section 7.2       Effect of Termination. In the event of the
termination and abandonment of this Agreement pursuant to Section 7.1, written
notice thereof shall forthwith be given to the other party or parties, 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, other than the provisions of this Section 7.2 and Section 7.3(a)
of this Agreement; provided, however, that nothing contained in this Section
7.2, shall relieve any party from liability for any breach of this Agreement.

         Section 7.3       Fees and Expenses.

                  (a)      If the transactions contemplated by this Agreement
are not consummated for any reason, all costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such
expenses.

                  (b)      If the transactions contemplated by this Agreement
and the Related Agreements are consummated, on the Closing Date, Parent shall
cause the Company to pay to Savia by wire transfer of immediately available
funds (to the account or accounts designated by Savia in writing not less than
one business day prior to Closing) all Savia Expenses; provided, however, that
the Savia Expenses shall not exceed $3.5 million.

         Section 7.4       Amendment. This Agreement may be amended at any time
with the prior written consent of FPSH by an instrument in writing signed by
each party hereto; provided, however, that any amendment that would prevent or
delay the Closing shall also require the written consent of the Special
Committee (as defined in the Merger Agreement), such consent not to be
unreasonably withheld or delayed.

                                      -19-



         Section 7.5       Waiver. Subject to the prior written consent of FPSH,
at any time prior to the Effective Time, any party hereto may (a) extend the
time for the performance of any of the obligations or other acts of the other
party, (b) waive any inaccuracies in the representations and warranties of the
other party contained herein or in any document, certificate or writing
delivered pursuant hereto, or (c) waive compliance by the other party with any
of the agreements or conditions contained herein; provided, however, that in the
case of clauses (a) and (c), that any extension or waiver that would prevent or
delay the Closing shall also require the written consent of the Special
Committee (as defined in the Merger Agreement), such consent not to be
unreasonably withheld or delayed. Any agreement on the part of any party hereto
to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of any party
hereto to assert any of its rights hereunder shall not constitute a waiver of
such rights.

         Section 7.6       Survival. The parties hereto hereby acknowledge that
indemnification of FPSH with respect to breaches of representations, warranties
and covenants contained in this Agreement shall be made pursuant to the
Indemnification Agreement and that the representations and warranties in this
Agreement shall survive as provided in this Section 7.6 for such purpose. The
representations and warranties in this Agreement shall survive until the
two-year anniversary of the Closing; provided, however, that the representations
and warranties contained in Section 4.1(d) of this Agreement shall survive
indefinitely. Any covenants or agreements contained herein or made pursuant
hereto that by their terms are to be performed prior to the Closing Date, shall
not survive beyond the Closing Date. Any covenants or agreements contained
herein or made pursuant hereto that by their terms are to be performed in whole
or in part after the Closing Date, shall survive until fully discharged.

         Section 7.7       Indemnification by Management Contributors. Each of
the Management Contributors shall, severally and not jointly, indemnify the
Company and hold it harmless from and against any loss, liability, claim, cost,
damage or expense (including reasonable legal fees and expenses) suffered or
incurred by the Company to the extent arising from any breach or inaccuracy of
any representation or warranty made by such Management Contributor pursuant to
Section 4.1 or the nonfulfillment by such Management Contributor of any covenant
or agreement of such Management Contributor under this Agreement. For purposes
of this Section 7.7, the Company shall be a third party beneficiary of this
Agreement.

         Section 7.8       Sole Remedy. Except as otherwise provided in Section
7.7, after the Closing, and conditioned thereupon, to the extent permitted by
law, the indemnities set forth in the Indemnification Agreement shall be the
exclusive remedies of the parties hereto and their respective officers,
directors, employees, agents and Affiliates for any misrepresentation, breach of
warranty or nonfulfillment or failure to be performed of any covenant or
agreement contained in this Agreement, and the parties shall not be entitled to
rescission of this Agreement or to any further indemnification rights or claims
of any nature whatsoever in respect thereof, all of which the parties hereto
hereby waive.

                                      -20-



                                  ARTICLE VIII

                                  MISCELLANEOUS

         Section 8.1       Entire Agreement; Assignment. This Agreement and the
Related Agreements (including the schedules and Exhibits hereto and thereto)
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties hereto with respect
to the subject matter hereof. This Agreement shall not be assigned by operation
of law or otherwise.

         Section 8.2       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 8.3       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:

                  (a)      If to Parent:

                           c/o Savia, S.A. de C.V.
                           Ave. Roble No. 565 Ote. - Piso 4
                           Colonia Valle Del Campestre
                           Garza Garcia, N.L. 66265
                           Mexico
                           Attention: Bernardo Jimenez Barrera
                           Facsimile: 011-52-818-399-5606

                           With a copy, which will not constitute notice, to:

                           Milbank, Tweed, Hadley & McCloy LLP
                           One Chase Manhattan Plaza
                           New York, New York 10005
                           Attention: Howard S. Kelberg, Esq.
                           Facsimile: 212-822-5530

                           With a copy, which will not constitute notice, to:

                           Fox Paine & Company, LLC
                           950 Tower Lane, Suite 1950

                                      -21-



                           Foster City, California 94404
                           Attention: W. Dexter Paine, III
                           Facsimile: 650-525-1396

                           With a copy, which will not constitute notice, to:

                           Wachtell, Lipton, Rosen & Katz
                           51 West 52nd Street
                           New York, New York 10019
                           Attention: Mitchell S. Presser, Esq.
                           Facsimile: 212-403-2000

                           With copies, which will not constitute notice, to:

                           Seminis, Inc.
                           2700 Camino del Sol
                           Oxnard, California 93030-7967
                           Attention: Chairman of the Special Committee
                                               of the Board of Directors
                           Facsimile: 805-918-2530

                           Seminis, Inc.
                           2700 Camino del Sol
                           Oxnard, California 93030-7967
                           Attention: General Counsel
                           Facsimile: 805-918-2530

                           Skadden, Arps, Slate, Meagher & Flom LLP
                           Four Times Square
                           New York, NY 10036
                           Attention: Peter A. Atkins, Esq.
                                      David J. Friedman, Esq.
                           Facsimile: 212-735-2000

                  (b)      If to the Contributors, Mr. Romo, Mexican SPC or
Emprima:

                           Savia, S.A. de C.V.
                           Ave. Roble No. 565 Ote. - Piso 4
                           Colonia Valle Del Campestre
                           Garza Garcia, N.L. 66265
                           Mexico
                           Attention: Bernardo Jimenez Barrera
                           Facsimile: 011-52-818-399-5606

                           With a copy, which will not constitute notice, to:

                           Fox Paine & Company, LLC
                           950 Tower Lane, Suite 1950

                                      -22-



                           Foster City, California 94404
                           Attention: W. Dexter Paine, III
                           Facsimile: 650-525-1396

                           With a copy, which will not constitute notice, to:

                           Wachtell, Lipton, Rosen & Katz
                           51 West 52nd Street
                           New York, New York 10019
                           Attention: Mitchell S. Presser, Esq.
                           Facsimile: 212-403-2000

                           With a copy, which will not constitute notice, to:

                           Milbank, Tweed, Hadley & McCloy LLP
                           One Chase Manhattan Plaza
                           New York, New York 10005
                           Attention: Howard S. Kelberg, Esq.
                           Facsimile: 212-822-5530

                           With copies, which will not constitute notice, to:

                           Seminis, Inc.
                           2700 Camino del Sol
                           Oxnard, California 93030-7967
                           Attention: Chairman of the Special Committee
                                               of the Board of Directors
                           Facsimile: 805-918-2530

                           Seminis, Inc.
                           2700 Camino del Sol
                           Oxnard, California 93030-7967
                           Attention: General Counsel
                           Facsimile: 805-918-2530

                           Skadden, Arps, Slate, Meagher & Flom LLP
                           Four Times Square
                           New York, NY 10036
                           Attention: Peter A. Atkins, Esq.
                                      David J. Friedman, Esq.
                           Facsimile: 212-735-2000

         Section 8.4       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.

                                      -23-



                  (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 Contribution. 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 of the Contributors, Mr. Romo, Emprima and
Mexican SPC irrevocably appoints CT Corporation Systems, which currently
maintains an office at 2711 Centerville Road, Suite 400, Wilmington, Delaware,
19808, as its agent to receive service of process or other legal summons for
purposes of any such action or proceeding. So long as any party hereto has any
obligation under this Agreement, it will maintain a duly appointed agent in the
State of Delaware for the service of such process or summons, and if it fails to
maintain such an agent, any such process or summons may be served by mailing a
copy thereof by registered mail, or a form of mail substantially equivalent
thereto, addressed to it at its address as provided for notices hereunder.

                  (d)      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 8.5       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 8.6       Interpretation. When a reference is made in this
Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be
to an Article or Section of or Exhibit or Schedule to 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 8.7       Parties in Interest.

                  (a)      Subject to Section 8.7(b), this Agreement shall be
binding upon and inure solely to the benefit of each party hereto and its
successors and permitted assigns, and except as provided in Section 7.4, 7.5 and
Section 7.7, nothing in this Agreement, express or implied, is

                                      -24-



intended to or shall confer upon any other Person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.

                  (b)      Notwithstanding anything to the contrary contained
herein, (i) FPSH shall be a third party beneficiary of this Agreement and shall
have the right to enforce any right under this Agreement exercisable by Parent,
the Contributors, Mr. Romo, Emprima or Mexican SPC to the extent such right is
not enforced by Parent, the Contributors, Mr. Romo, Mexican SPC or Emprima (ii)
any representations, warranties or covenants made by Parent, any Contributor,
Mr. Romo, Emprima or Mexican SPC shall be deemed made to (and, with respect to
covenants, shall be enforceable (to the extent such right is not enforced by any
Contributor, Mr. Romo, the ARG Trust, Mexican SPC or Parent) by FPSH, (iii) any
notice under this Agreement given (or required to be given) to Parent, any
Contributor, Mr. Romo, the ARG Trust or Mexican SPC shall be simultaneously
given to FPSH and to the Special Committee (as defined in the Merger Agreement),
and (iv) anything under this Agreement that must be approved by or acceptable to
Parent, any Contributor, Mr. Romo, the ARG Trust or Mexican SPC must also be
approved or accepted by FPSH. The parties hereto acknowledge that the Company
would not have entered into the Merger Agreement had the parties hereto not
entered into this Agreement.

         Section 8.8       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.

                                      -25-



                  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 ACQUISITION LLC

                                           By: /S/ Bernardo Jimenez
                                               ---------------------------------
                                               Name: Bernardo Jimenez
                                               Title:

                                           SAVIA, S.A. DE C.V.

                                           By: /S/ Bernardo Jimenez
                                               ---------------------------------
                                               Name: Bernardo Jimenez
                                               Title: Attorney in Fact

                                           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 DE
                                           ADMINISTRACION Y PAGO NUMERO 167-5)

                                           By: /S/ Adrian J. Lozano
                                               ---------------------------------
                                               Name: Adrian J. Lozano
                                               Title: Delegado Fiduciario

                                           By: /S/ Beatriz Garza L
                                               ---------------------------------
                                               Name: Beatriz Garza L.
                                               Title: Delegado Fiduciario

                                           CONJUNTO ADMINISTRATIVO INTEGRAL,
                                              S.A. DE C.V.

                   [SIGNATURE PAGE TO CONTRIBUTION AGREEMENT]



                                           By: /S/ Carlos G. Mahuad
                                               ---------------------------------
                                               Name: Carlos G. Mahuad
                                               Title: Attorney in Fact

                                           By: /S/ Heriberto S. Muzza
                                               ---------------------------------
                                               Name: Heriberto S. Muzza
                                               Title: Attorney in Fact

                                           DESARROLLO CONSOLIDADO DE
                                              NEGOCIOS, S.A. DE C.V.

                                           By: /S/ Gustavo Adolfo Romo Garza
                                               ---------------------------------
                                               Name: Gustavo Adolfo Romo Garza
                                               Title: Attorney in Fact

                                           EMPRIMA, S.A. DE C.V.

                                           By: /S/ Carlos G. Mahuad
                                               ---------------------------------
                                               Name: Carlos G. Mahuad
                                               Title: Attorney in Fact

                                           By: /S/ Heriberto S. Muzza
                                               ---------------------------------
                                               Name: Heriberto S. Muzza
                                               Title: Attorney in Fact

                                           PARK FINANCIAL GROUP

                                           By: /S/ Bernardo Jimenez
                                               ---------------------------------
                                               Name: Bernardo Jimenez
                                               Title:

                   [SIGNATURE PAGE TO CONTRIBUTION AGREEMENT]



                                           By: /S/ Alfonso Romo Garza
                                               ---------------------------------
                                               Name: Alfonso Romo Garza

                                           By: /S/ Bruno Ferrari
                                               ---------------------------------
                                               Name: Bruno Ferrari

                                           By: /S/ Gaspar Alvarez
                                               ---------------------------------
                                               Name: Gaspar Alvarez

                                           By: /S/ Charles Edward Green
                                               ---------------------------------
                                               Name: Charles Edward Green

                                           By: /S/ Franco Campana
                                               ---------------------------------
                                               Name: Franco Campana

                                           By: /S/ Jean Pierre Posa
                                               ---------------------------------
                                               Name: Jean Pierre Posa

                                           By: /S/ Luis Maiz
                                               ---------------------------------
                                               Name: Luis Maiz

                                           By: /S/ Mateo Mazal Beja
                                               ---------------------------------
                                               Name: Mateo Mazal Beja

                                           By: /S/ Bernardo Jimenez
                                               ---------------------------------
                                               Name: Bernardo Jimenez

                                           By: /S/ Adrian Rodriguez
                                               ---------------------------------
                                               Name: Adrian Rodriguez

                   [SIGNATURE PAGE TO CONTRIBUTION AGREEMENT]

EX-99.4

exv99w4