Exhibit 10.2
CASH SUPPORT AGREEMENT
CASH SUPPORT AGREEMENT (this "Agreement"), dated as of December 28,
2000, between Bionova Holding Corporation, a Delaware corporation ("Bionova"),
and Xxxxx, X.X. de C.V., a corporation organized under the laws of the United
Mexican States ("Savia").
WHEREAS, Bionova and Savia are entering into a Purchase Agreement dated
of even date herewith (the "Purchase Agreement");
WHEREAS, Bionova and Savia desire to enter into this Agreement relating
to the ongoing capital requirements of Bionova both prior to the consummation of
the transactions contemplated by the Purchase Agreement and for a limited period
thereafter; and
WHEREAS, it is a condition to Bionova's entering into the Purchase
Agreement that Savia enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Bionova and Savia hereby agree as follows:
1. DEFINITIONS.
(a) Capitalized terms used but not defined herein have the meanings
assigned to such terms in the Purchase Agreement.
(b) As used in this Agreement, each of the following terms has the
meaning given it below:
"Current Funding Requirements" means the anticipated operating
expenses, general and administrative expenses and capital requirements of
Bionova and its subsidiaries for the 60 days following the date on which the
notice required by Section 3(a) or 4(a), as applicable, is given, to the extent
not expected to be funded from other sources and to the extent not expected to
be incurred after December 31, 2001, as determined in good faith by the Chief
Executive Officer or Chief Financial Officer of Bionova; provided, however, that
for purposes of Section 3, Current Funding Requirements shall be only those
relating to the Technology Business and any corporate activities related
thereto, including general and administrative expenses.
"Current Market Price" means, in respect of a share of Common Stock on
any date herein specified, (a) if there shall then be a public market for the
Common Stock, the average Price per share for the 10 trading days preceding such
date; or (b) at any time that there is no public market for the Common Stock,
the fair market value per share of Common Stock on such date as determined
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reasonably and in good faith by the Independent Directors (determined without
giving effect to any discount for a minority interest, any restrictions on
transferability or any lack of liquidity of the Common Stock or to the fact that
Bionova has no class of equity registered under the Exchange Act), such fair
market value to be determined by reference to the cash price that would be paid
between a fully informed buyer and seller under no compulsion to buy or sell.
"Independent Directors" shall mean the "independent directors" (within
the meaning of Part I, Section 121 of the Listing Standards, Policies and
Requirements of the American Stock Exchange) of Bionova. Any act required in
this Agreement to be made or approved by the Independent Directors shall be
deemed made or approved if such act is approved by the vote or consent of a
majority of the Independent Directors.
"Price" means the closing price as reported in THE WALL STREET
JOURNAL's listing for a day (corrected for obvious typographical errors) or if
such shares are not reported in such listing, the average of the reported "high"
and "low" sales prices on the largest national securities exchange (based on the
aggregate dollar value of securities listed) on which such shares are listed or
traded, or if such shares are not listed or traded on any national securities
exchange, then the average of the reported "high" and "low" sales prices for
such shares in the over-the-counter market, as reported on the National
Association of Securities Dealers Automated Quotations System, or, if such
prices shall not be reported thereon, the average of the closing bid and asked
prices so reported, or, if such prices shall not be reported, then the average
of the closing bid and asked prices reported by the National Quotations Bureau
Incorporated. The "average" Price per share for any period shall be determined
by dividing the sum of the Prices determined for the individual trading days in
such period by the number of trading days in such period.
"Shares" means the shares of Common Stock to be issued pursuant to this
Agreement.
"Share Purchase Price" means (i) if the applicable Closing Date occurs
prior to the expiration of the Rights, $2.50 or (ii) otherwise, an amount equal
to the greater of (A) $2.50 and (B) the Current Market Price on the applicable
Closing Date.
"Technology Business" means the business operations of Bionova,
including those conducted by its subsidiaries, DNA Plant Technology Corporation
and VPP Corporation, relating to functional and advanced trait genomics, the
development and application of genetic engineering and transformation
technologies in plants, and the conduct of the strawberry business.
2. EFFECTIVENESS. This Agreement shall be effective as of the date
hereof and shall terminate on December 31, 2001. Nothing contained in this
Section shall relieve either party from liability for damages actually incurred
as a result of any breach of this Agreement or the Purchase Agreement by such
party, or shall relieve Bionova of its obligation to repay any advances made by
Savia to and accepted by Bionova.
3. FUNDING PRIOR TO THE SALE OF BIONOVA'S FRESH PRODUCE BUSINESS
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(a) On the terms and subject to the conditions set forth in this
Agreement, from the date hereof until the earlier of the Second Closing Date and
December 31, 2001, Savia will advance funds to Bionova which are requested by
Bionova to finance the Technology Business and any corporate activities related
thereto, including any general and administrative expenses. Bionova shall notify
Savia in writing prior to 12:00 p.m. (Dallas, Texas time) on a Business Day of
its request to receive an advance of funds pursuant to this Section 3. Bionova
shall specify in such notice the Current Funding Requirements and the amount of
the requested advance; provided, however, that the amount of any one requested
advance shall not be less than $50,000 nor more than the Current Funding
Requirements. Savia shall advance such funds to Bionova no later than the fifth
Business Day after receipt by Savia of such notification or (if applicable) the
date specified in Section 5, or at such other time as the parties hereto shall
agree. Such funds shall be paid to Bionova in immediately available funds by
confirmed wire transfer to a bank account to be designated by Bionova in its
notice.
(b) The parties acknowledge that advances made pursuant to this
Section 3 will be made in anticipation of the Second Closing, and that such
advances will be applied to the purchase of the Common Shares if and when the
Second Closing occurs pursuant to Section 2.2 of the Purchase Agreement. If
the Second Closing has not occurred by June 30, 2001, and Savia so requests,
Bionova shall issue a Promissory Note, substantially in the form of the one
attached hereto as EXHIBIT A, to Savia or its designee in the aggregate
amount of the advances that remain outstanding (i.e., that have not been
repaid or exchanged for assets or securities of Bionova) at that time. If the
Second Closing has still not occurred by December 31, 2001, Bionova shall
issue a Promissory Note, substantially in the form of the one attached hereto
as EXHIBIT A, to Savia or its designee in the aggregate amount of the
advances that remain outstanding (i.e., that have not been repaid or
exchanged for assets or securities of Bionova or evidenced by a promissory
note) at that time.
(c) Savia acknowledges that Bionova does not intend to provide the
Fresh Produce Companies with additional funding prior to the Second Closing (or
termination of the Purchase Agreement). Savia agrees that from the date hereof
until the earlier of the Second Closing Date or the termination of the Purchase
Agreement, Savia will be responsible for providing or arranging financing to the
Fresh Produce Companies in such amounts as Savia and Bionova shall reasonably
agree is necessary for the operation of the businesses of the Fresh Produce
Companies. The parties agree that any such amounts shall not be advances to be
applied to the purchase of the Common Shares or Subject Stock (as each of such
terms is defined in the Purchase Agreement).
4. EQUITY FINANCING FOLLOWING SALE OF BIONOVA'S FRESH PRODUCE
BUSINESS.
(a) AGREEMENT TO PURCHASE. On the terms and subject to the conditions
set forth in this Agreement, Savia hereby agrees from time to time to purchase
shares of Common Stock, from Bionova. This Section 4 shall be effective only
from and after the Second Closing, if and when it occurs.
(b) REQUESTS FOR CLOSING. Bionova shall notify Savia in writing prior
to 12:00 p.m. (Dallas, Texas time) on a Business Day of its request to
consummate a sale of Common Stock pursuant to this Section 4. The consummation
of such purchase and sale (a "Closing") shall take place on the fifth Business
Day after receipt by Savia of such notification or (if applicable) the date
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specified in Section 5, or at such other time or place as the parties hereto
shall agree. The date on which a Closing is required to take place is herein
referred to as a "Closing Date."
(c) SHARES TO BE PURCHASED. Bionova shall specify in the notice
required by Section 4(a) the Current Funding Requirements, as well as the amount
of such Current Funding Requirements it desires to be applicable at the Closing
(the "Funding Amount"); provided that the Funding Amount to be used at any
Closing shall not be less than $10,000 (unless the Current Funding Requirements
are less than $10,000). At the applicable Closing, on the terms and subject to
the conditions set forth in this Agreement, Savia shall purchase from Bionova a
number of shares of Common Stock equal to (x) the applicable Funding Amount
divided by (y) the applicable Share Purchase Price.
(d) CLOSING. On the Closing Date, Savia shall pay to Bionova for the
Shares an amount equal to the Share Purchase Price times the number of Shares.
Such amount shall be paid to Bionova in immediately available funds by confirmed
wire transfer to a bank account to be designated by Bionova (such designation to
occur no later than the two Business Day prior to the Closing Date). Bionova
shall cause a certificate representing the Shares to be delivered to Savia as
soon as practicable following the Closing. Fees and expenses relating to any
Closing shall be paid by the party incurring such fee or expense.
5. DISPUTE OF CURRENT FUNDING REQUIREMENTS. If Savia provides Bionova
with written notice within three Business Days after its receipt of Bionova's
request notice pursuant to Section 3 or 4 that Savia disputes the amount of
Current Funding Requirements specified in such request notice, then Savia's
obligations with respect to such request shall be suspended until such time as
the Independent Directors shall determine the Current Funding Requirements. The
Independent Directors' determination shall be binding on Savia. Bionova shall
provide Savia with a replacement request notice, and the required advance or
Closing shall take place on the third Business Day after receipt by Savia of
such new request notice, or at such other time or place as the parties hereto
shall agree.
6. REPRESENTATIONS AND WARRANTIES OF BIONOVA.
(a) CORPORATE ORGANIZATION; QUALIFICATION. Bionova is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware and has all requisite corporate power and corporate authority
to own, lease, and operate its properties and to carry on its business as now
being conducted. No actions or proceedings to dissolve Bionova are pending or,
to the best knowledge of Bionova, threatened.
(b) CAPITALIZATION OF BIONOVA. On the date of this Agreement, the
authorized capital stock of Bionova consists of (i) 50,000,000 shares of Common
Stock, of which 23,588,031 shares are issued and outstanding, and (ii) 5,000
shares of preferred stock, par value $.01 per share, no shares of which are
issue and outstanding.
(c) AUTHORITY RELATIVE TO THIS AGREEMENT. Bionova has full corporate
power and corporate authority to execute, deliver and perform this Agreement and
to consummate the transactions contemplated hereby (subject to Stockholder
Approval and filing of the Charter
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Amendment). The execution, delivery, and performance by Bionova of this
Agreement, and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action of
Bionova (subject to Stockholder Approval and filing of the Charter Amendment).
(d) VALID ISSUANCES.
Subject to Stockholder Approval and filing of the Charter Amendment,
the Shares will have been duly authorized for such issuance and, when issued and
delivered by Bionova in accordance with the provisions of this Agreement, will
be validly issued, fully paid and nonassessable. The issuance of the Shares
under this Agreement is not subject to any preemptive or similar rights.
7. REPRESENTATIONS AND WARRANTIES OF SAVIA.
(a) CORPORATE ORGANIZATION. Savia is a SOCIEDAD ANONIMA DE CAPITAL
VARIABLE duly incorporated and validly existing under the laws of Mexico.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Savia has full corporate
power and corporate authority to execute, deliver and perform this Agreement and
to consummate the transactions contemplated hereby. The execution, delivery and
performance by Savia of this Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action of Savia.
(c) PURCHASE ENTIRELY FOR OWN ACCOUNT. Savia understands that the
Shares being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon Savia's representations
contained in the Agreement. The Shares will be acquired for investment for
Savia's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and Savia has no present intention
of selling, granting any participation in, or otherwise distributing the same.
Savia has no contract, undertaking, agreement, or arrangement with any person to
sell, transfer or grant participations to the person or to any third person,
with respect to any of the Shares.
(d) DISCLOSURE OF INFORMATION. Savia believes it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Shares. Savia further represents that it has had an opportunity to
ask questions and receive answers from Bionova regarding the terms and
conditions of the offering of the Shares and the business, properties, prospects
and financial condition of Bionova. The foregoing, however, does not limit or
modify the representations and warranties of Bionova in Section 6 of this
Agreement or the right of Savia to rely thereon.
(e) INVESTMENT EXPERIENCE. Savia acknowledges that it is able to fend
for itself, can bear the economic risk of its investment, and has such knowledge
and experience in financial or business matters that it is capable of evaluating
the merits and risks of the investment in the Shares. Savia also represents it
has not been organized for the purpose of acquiring the Shares.
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(f) RESTRICTED SECURITIES. Savia understands that the Shares it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from Bionova in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may not be resold without registration
under the Securities Act, except in certain limited circumstances.
8. CONDITIONS PRECEDENT TO ANY CLOSING.
(a) CONDITIONS PRECEDENT TO OBLIGATIONS OF BIONOVA. The obligations of
Bionova hereunder are, at the option of Bionova, subject to the satisfaction, on
or prior to the applicable Closing Date, of each of the following conditions
unless waived in writing by Bionova:
(i) PAYMENT OF PURCHASE PRICE. Savia shall have delivered to
Bionova the Purchase Price for the Shares in the amount and manner
described in Section 4 hereof.
(ii) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Savia contained in this Agreement shall be true and
correct in all material respects as of the Closing Date as though such
representations and warranties had been made on and as of such Closing
Date, and Bionova shall not have discovered any material error,
misstatement or omission therein.
(iii) COMPLIANCE WITH AGREEMENT. Savia shall have performed
and complied with all agreements or conditions required by this
Agreement to be performed and complied with by Savia prior to or on the
Closing Date.
(iv) GOVERNMENTAL APPROVALS. There shall have been obtained
any and all material permits, consents, and approvals of Governmental
Entities that reasonably may be deemed necessary so that the
consummation of the transactions contemplated hereby to be performed at
the Closing will be in compliance with Applicable Law, the failure to
comply with which would have a material adverse effect on Savia.
(b) CONDITIONS PRECEDENT TO OBLIGATIONS OF SAVIA. The obligations of
Savia hereunder are, at the option of Savia, subject to the satisfaction on or
prior to the applicable Closing date of each of the following conditions unless
waived in writing by Savia:
(i) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Bionova contained in this Agreement shall be true and
correct in all material aspects when made and on and as of the Closing
Date as though such representations and warranties had been made on and
as of the Closing Date (except to the extent that any such
representation or warranty is made as of a specified date, in which
case such representation or warranty shall have been true and correct
in all material respects as of such specified date); and Savia shall
not have discovered any material error, misstatement or omission
therein.
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(ii) COMPLIANCE WITH AGREEMENT. Bionova shall have performed and
complied with all agreements or conditions required by this Agreement to be
performed and complied with by Bionova prior to or on the Closing Date.
(iii) GOVERNMENTAL APPROVALS. There shall have been obtained any and
all material permits, consents, and approvals of Governmental Entities that
reasonably may be deemed necessary so that the consummation of the transactions
contemplated hereby to be performed at the Closing will be in compliance with
Applicable Law, the failure to comply with which would have a material adverse
effect on Savia.
9. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, without
regard to the principles of conflicts of laws thereof.
(b) AMENDMENT; ENTIRE AGREEMENT; BINDING EFFECT; ASSIGNMENT. No
amendment or modification of this Agreement shall be deemed effective unless
made in writing and signed by the parties hereto. This Agreement contains the
entire agreement of the parties hereto relating to the subject matter hereof and
supersedes all prior agreements and understandings, whether oral or written,
with respect to the subject matter hereof. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either party
without the prior written consent of the other party, except that Savia may
assign or delegate its rights hereunder to any of its affiliates (as defined in
Rule 405 under the Securities Act) if such affiliate shall have furnished BHC
with the representations contained in Section 7(c) through 7(f) of this
Agreement. This Agreement shall be binding on and inure to the benefits of the
parties to it and their respective successors and permitted assigns.
(c) SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, this Agreement shall be considered divisible and such provision
shall be deemed inoperative to the extent it is deemed unenforceable, and in all
other respects this Agreement shall remain in full force and effect; provided,
however, that if any such provision may be made enforceable by limitation
thereof, then such provision shall be deemed to be so limited and shall be
enforceable to the maximum extent permitted by Applicable Law.
(d) FURTHER ASSURANCES. At the request of either party hereto and
without further consideration, the other party or parties hereto shall execute
and deliver to such requesting party such instruments and documents and take
such other action (but without incurring any material financial obligation) as
such requesting party may reasonably request in order to effectuate and carry
out the transactions contemplated hereby.
(e) NOTICES. Notices shall be given in the manner provided in the
Purchase Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed by their duly authorized representatives, all as
of the day and year first above written.
BIONOVA HOLDING CORPORATION
By: /s/ XXXXXXXX XXXXXXX
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Name: Xxxxxxxx Xxxxxxx
Title: Chief Executive Officer
XXXXX, X.X. DE C.V.
By: /s/ XXXXX XXXXXXXX DONDE
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Name: Xxxxx Xxxxxxxx Donde
Title: Attorney-in-fact
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