EXHIBIT 4.1
FORM OF RIGHTS AGREEMENT
This RIGHTS AGREEMENT (the "Agreement") is dated as of _____________
,1999, between DNAP Holding Corporation, a Delaware corporation (the "Company"),
and The Bank of New York Company, Inc., a ___________ corporation, as Rights
Agent (the "Rights Agent").
RECITALS
WHEREAS, the Company proposes to issue Rights (the "Rights") entitling
the holders thereof to purchase an aggregate of up to 17,691,023 shares of the
Company's Common Stock, $.01 par value (the "Common Stock"), plus 12,000
additional shares that may be issued as a result of rounding the number of
Rights; and
WHEREAS, Bionova International, Inc., a Delaware corporation and the
Company's largest stockholder ("Bionova International"), has agreed to surrender
to the Company (at no cost to the Company) Rights to purchase 9,130,435 shares
of Common Stock; and
WHEREAS, the Rights Agent, at the request of the Company, has agreed to
act as the agent of the Company in connection with the issuance, registration,
transfer, exchange and exercise of the Rights;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereto agree as follows:
AGREEMENT
1. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the
Rights Agent to act as agent for the Company in accordance with the instructions
hereinafter set forth; and the Rights Agent hereby accepts such appointment,
upon the terms and conditions hereinafter set forth.
2. AMOUNT ISSUED. Subject to the provisions of this Agreement, the
Company shall issue transferable Rights to purchase 17,691,023 shares of Common
Stock plus 12,000 additional shares that may be issued as a result of rounding
the number of Rights distributed to Record Holders (as defined below) (9,130,435
of which will be immediately surrendered by Bionova International to the
Company). The Company shall distribute to holders of Common Stock (the "Record
Holders") as of __________ (the "Record Date") three (3) Rights for every four
(4) shares of Common Stock held of record on the Record Date. No fractional
rights or cash in lieu thereof will be issued or paid. The number of Rights
distributed to each Record Holder will be rounded up to the nearest whole
number. Each Right shall entitle the holder thereof to purchase one share of
Common Stock at a price of $5.75 per share upon exercise of the Right as herein
provided.
3. FORM OF RIGHTS CERTIFICATES.
(a) The Rights shall be evidenced by certificates (the "Rights
Certificates") to be delivered pursuant to this Agreement in registered
form only. The Rights Certificates and the forms of election to purchase
shares of Common Stock and of assignment to be printed on the reverse
thereof shall be in substantially the form set forth in EXHIBIT A hereto
together with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement, and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with
any law or with any rules made pursuant thereto or with any rules of any
securities exchange, any agreement between the Company and any holder of
a Right (a "Rightholder"), or as may, consistently herewith, be
determined by the officers executing such Rights Certificates, as
evidenced by their execution of such Rights Certificates.
(b) No Rights Certificate may be divided in such a way as to
permit the holder to receive a greater number of Rights than the number
to which such Rights Certificate entitles its holder, except that a
depositary, bank, trust company, and securities broker or dealer holding
shares of Common Stock on the Record Date for more than one beneficial
owner may by delivering a written request by 5:00 p.m., New York City
time, on a date which is fifteen (15) business days from the effective
date of the Registration Statement, as hereinafter defined, and, upon
proper showing to the Rights Agent, exchange its Rights Certificate to
obtain a Rights Certificate for the number of Rights to which all such
beneficial owners in the aggregate would have been entitled had each been
a Record Holder. The Company reserves the right to refuse to issue any
such Rights Certificate if such issuance would be inconsistent with the
principle that each beneficial owner's holdings will be rounded up to the
nearest whole Right.
4. EXECUTION OF RIGHTS CERTIFICATES. Rights Certificates shall be
signed on behalf of the Company by its Chief Executive Officer, an Executive
Vice President or its Treasurer and attested by its Secretary or Assistant
Secretary. Each such signature upon the Rights Certificates may be in the form
of a facsimile signature of the current or any future Chief Executive Officer,
Executive Vice President, Treasurer, Secretary or Assistant Secretary and may be
imprinted or otherwise reproduced on the Rights Certificates and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been Chief Executive Officer, Executive Vice President, Treasurer,
Secretary or Assistant Secretary, notwithstanding the fact that at the time the
Rights Certificates shall be delivered or disposed of, such person shall have
ceased to hold such office.
If any officer of the Company who shall have signed any of the Rights
Certificates shall cease to be such officer before the Rights Certificates so
signed shall have been delivered by the Rights Agent or disposed of by the
Company, such Rights Certificates nevertheless may be delivered or disposed of
as though such person had not ceased to be such officer of the Company; and any
Rights Certificate may be signed on behalf of the Company by any person who, at
the actual date of the execution of such Rights Certificate, shall be a proper
officer of the Company to sign such Rights
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Certificate, although at the date of the execution of this Agreement any such
person was not such officer.
5. REGISTRATION. The Rights Certificates shall be numbered and shall
be registered in a register (the "Rights Register") to be maintained by the
Rights Agent. The Company and the Rights Agent may deem and treat the
registered holder of a Rights Certificate as the absolute owner thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for the purpose of any exercise thereof or any distribution to the
holder thereof and for all other purposes, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary.
6. CERTAIN RIGHTS ISSUED TO BIONOVA INTERNATIONAL NOT EXERCISABLE OR
TRANSFERABLE. Pursuant to a Stock Purchase Agreement dated as of October 1,
1998, among the Company and Bionova International, Bionova International has
agreed that it will immediately surrender to the Company at no cost to the
Company 9,130,435 of the 13,557,630 Rights it will receive pursuant to Section 2
of this Agreement. The Rights Agent hereby agrees that it will not accept for
exercise, exchange or transfer any Rights Certificate issued in the name of, or
to be issued in the name of Bionova International, if such Rights Certificate
pertains to any of the 9,130,435 Rights surrendered to the Company by Bionova
International, and that it will notify the Company immediately upon receipt of
any such Rights Certificate.
7. REGISTRATION OF TRANSFERS AND EXCHANGES. Subject to Section 6
hereof, until the Close of Business on the Expiration Date (as hereinafter
defined), the Rights Agent shall from time to time register the transfer of any
outstanding Rights Certificates in the Rights Register, upon surrender of such
Rights Certificates, duly endorsed, and, if not surrendered by or on behalf of
an original holder of Rights Certificates or a transferee thereof, accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Rights Agent, duly signed by the registered holder or holders thereof or by the
duly appointed legal representative thereof or by a duly authorized attorney,
such signature to be guaranteed by (a) a bank or trust company, (b) a broker or
dealer that is a member of the National Association of Securities Dealers, Inc.
(the "NASD"), (c) a member of a national securities exchange or (d) by an
"eligible guarantor institution" as defined under Rule 17Ad-15 promulgated under
the Securities Exchange Act of 1934, as amended. Upon any such registration of
transfer, a new Rights Certificate shall be issued to the transferee.
Rights Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Rights Agent at its offices or agency
maintained in New York, New York (or at such other offices or agencies as may be
designated by the Agent) for the purpose of exchanging, transferring and
exercising the Rights (a "Rights Agent Office,") or at the offices of any
successor Rights Agent as provided in Section 18 hereof, for another Rights
Certificate or other Rights Certificates of like tenor and representing in the
aggregate a like number of Rights.
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8. DURATION AND EXERCISE OF RIGHTS; SUBSCRIPTION PRICE.
(a) The Rights shall expire at (i) 5:00 p.m. New York City Time
(the "Close of Business") on May 31, 2000, subject to extension by up to
10 days, in the sole discretion of the Company in a written statement to
the Rights Agent and with notice to registered Rightholders in the manner
provided for in Section 15 (such date of expiration being hereinafter
referred to as the "Expiration Date"). At such time as the Rights become
exercisable, and thereafter until the Close of Business on the Expiration
Date, the Rights may be exercised on any business day. After the Close of
Business on the Expiration Date, the Rights will become void and of no
value.
(b) Subject to the provisions of this Agreement, each Right
shall entitle the holder thereof to purchase from the Company (and the
Company shall issue and sell to such holder of a Right) one fully paid
and nonassessable share of Common Stock at the price of $5.75 (U.S.) per
share (the "Subscription Price") (the "Subscription Right").
(c) A Rightholder shall exercise such Holder's right to
purchase shares of Common Stock by depositing with the Rights Agent at a
Rights Agent Office, the Rights Certificate evidencing such Right with
the form of election to purchase on the reverse thereof duly completed
and signed by the registered holder or holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney,
such signature (if not signed by or on behalf of an original holder of
Rights) to be guaranteed in the manner described in Section 6 hereof, and
paying to the Rights Agent in lawful money of the United States of
America by check or bank draft drawn upon a United States bank or a
postal, telegraphic or express money order of an amount equal to the
Subscription Price multiplied by the number of shares of Common Stock in
respect of which the Rights are being exercised. Once a Rightholder
exercises a Right, that exercise may not be revoked.
(d) If a Rightholder wishes to exercise its Rights, but time
will not permit such holder to cause the Rights Certificate or Rights
Certificates evidencing such Rights to reach the Rights Agent on or prior
to the Expiration Date, such Rights may nevertheless be exercised if all
of the following conditions (the "Guaranteed Delivery Procedures") are
met:
(i) such holder has caused payment in full of the
Subscription Price for each share of Common Stock being subscribed
to be received (in the manner set forth in subsection (c) above)
by the Rights Agent on or prior to the Expiration Date;
(ii) the Rights Agent receives, on or prior to the
Expiration Date, a guarantee notice (a "Notice of Guaranteed
Delivery"), substantially in the form provided with the
Instruction for Use of the Bionova Holding Corporation Rights
Certificates (the "Instructions") distributed with the Rights
Certificates, from a member firm of a registered national
securities exchange or a member of the National Association of
Securities Dealers, Inc. (the "NASD"), or from a commercial bank
or
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trust company having an office or correspondent in the United
States (each, an "Eligible Institution"), stating the name of the
exercising Rightholder, the number of Rights represented by the
Rights Certificate or Rights Certificates held by such exercising
Rightholder, the number of shares of Common Stock being subscribed
for pursuant to the Subscription Right, and guaranteeing the
delivery to the Rights Agent of any Rights Certificate evidencing
such Rights within three (3) Nasdaq trading days following the
date of the Notice of Guaranteed Delivery; and
(iii) the properly completed Rights Certificate or Rights
Certificates evidencing the Rights being exercised, with any
required signatures guaranteed, is received by the Rights Agent
within three (3) Nasdaq trading days following the date of the
Notice of Guaranteed Delivery relating thereto. The Notice of
Guaranteed Delivery may be delivered to the Rights Agent in the
manner set forth in Section 21 hereof.
Unless a Rights Certificate (i) provides that the shares of Common Stock
to be issued pursuant to the exercise of Rights represented thereby are to be
delivered directly to the holder of such Rights or (ii) is submitted for the
account of an Eligible Institution, signatures on such Rights Certificate must
be guaranteed by an Eligible Institution.
(e) Subject to Sections 6 and 9, upon such surrender of a
Rights Certificate and payment of the Subscription Price, and as soon as
practicable after the Expiration Date the Rights Agent, in its capacity
as the Company's transfer agent (the "Transfer Agent"), shall requisition
for issuance and delivery to or upon the written order of the registered
holder of such Rights Certificate and in such name or names as such
registered holder may designate, a certificate or certificates for the
share or shares of Common Stock issuable upon the exercise of the
Subscription Right evidenced by such Rights Certificate. Such certificate
or certificates shall be deemed to have been issued and any person so
designated to be named therein shall be deemed to have become the holder
of record of such share or shares of Common Stock as of the Expiration
Date.
The Subscription Price will be deemed to have been received by the Rights
Agent only upon (i) clearance of any uncertified check, or (ii) receipt by the
Rights Agent of any certified check or bank draft drawn upon a U.S. bank or any
postal, telegraphic or express money order.
(f) The Rights evidenced by a Rights Certificate shall be
exercisable, at the election of the registered holder thereof, either as
an entirety or from time to time for a portion of the number of Rights
specified in the Rights Certificate. If less than all of the Rights
evidenced by a Rights Certificate surrendered upon the exercise of Rights
are exercised at any time prior to the Expiration Date, a new Rights
Certificate or Certificates shall be issued for the number of Rights
evidenced by the Rights Certificate so surrendered that have not been
exercised.
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(g) The Rights Agent shall account promptly to the Company with
respect to Rights exercised and concurrently pay or deliver to the
Company all moneys and other consideration received by it upon the
purchase of shares of Common Stock through the exercise of the
Subscription Rights.
(h) If either the number of Rights being exercised is not
specified on a Rights Certificate, or the payment delivered is not
sufficient to pay the full aggregate Subscription Price for all shares of
Common Stock stated to be subscribed for, the Rightholder will be deemed
to have exercised the maximum number of Rights that could be exercised
for the amount of the payment delivered by such Rightholder. If the
payment delivered by the Rightholder exceeds the aggregate Subscription
Price for the number of Rights evidenced by the Rights Certificate(s)
delivered by such Rightholder, the payment will be applied, until the
Right is depleted, to subscribe for shares of Common Stock. Any excess
payment remaining after the foregoing allocation will be returned to such
Rightholder.
9. CANCELLATION OF RIGHTS. If the Company shall purchase or
otherwise acquire Rights, the Rights Certificates representing such Rights shall
thereupon be delivered to the Rights Agent and be canceled by it and retired.
The Rights Agent shall cancel all Rights Certificates surrendered for exchange,
substitution, transfer or exercise in whole or in part.
10. PAYMENT OF TAXES. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Rights and of shares of Common
Stock upon the exercise of Rights; provided, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Rights Certificates or any certificates for shares
of Common Stock in a name other than the registered holder of a Rights
Certificate surrendered upon the exercise of a Right, and the Company shall not
be required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid or adequate provision has been made for the payment
thereof.
11. MUTILATED OR MISSING RIGHTS CERTIFICATES. If any of the Rights
Certificates shall be mutilated, lost, stolen or destroyed, the Company may in
its discretion issue, and the Rights Agent shall deliver, in exchange and
substitution for and upon cancellation of the mutilated Rights Certificate, or
in lieu of and substitution for the Rights Certificate lost, stolen or
destroyed, a new Rights Certificate of like tenor and representing an equivalent
number of Rights, but only upon receipt of evidence satisfactory to the Company
and the Rights Agent of such loss, theft or destruction of such Rights
Certificate and indemnity or bond, if requested, also satisfactory to them.
Applicants for such substitute Rights Certificates shall also comply with such
other reasonable regulations and pay such other reasonable charges as the
Company or the Rights Agent may prescribe.
12. RESERVATION OF SHARES OF COMMON STOCK. For the purpose of
enabling it to satisfy any obligation to issue shares of Common Stock upon
exercise of Rights, the Company will at all
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times through the Close of Business on the Expiration Date, reserve and keep
available, free from preemptive rights and out of its aggregate authorized but
unissued shares of Common Stock, the number of shares of Common Stock
deliverable upon the exercise of all outstanding Rights (except for the
9,130,435 Rights under which Bionova International will surrender to the
Company) and the Transfer Agent is hereby irrevocably authorized and directed at
all times to reserve such number of authorized and unissued shares of Common
Stock as shall be required for such purpose. The Rights Agent, in its capacity
as Transfer Agent, is hereby irrevocably authorized to requisition from time to
time stock certificates issuable upon exercise of outstanding Rights.
Before taking any action that would cause an adjustment pursuant to
Section 14(b) reducing the Subscription Price below the then par value (if any)
of the shares of Common Stock issuable upon exercise of the Rights, the Company
will take any corporate action that may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock at the Subscription Price as so adjusted.
The Company covenants that all shares of Common Stock issued upon
exercise of the Rights will, upon issuance in accordance with the terms of this
Agreement, be fully paid and nonassessable and free from all liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance thereof.
13. REGISTRATION OF RIGHTS AND SHARES OF COMMON STOCK. The Company
has filed with the SEC a registration statement, on Form S-3 (the "Registration
Statement") which has been or will be declared effective. The Company will use
its best efforts to keep the Registration Statement continuously effective from
the date hereof through the Close of Business ten (10) business days following
the Expiration Date. So long as any unexpired Rights remain outstanding, the
Company will take all necessary action to obtain and keep effective any and all
permits, consents and approvals of government agencies and authorities and to
make filings under federal and state securities acts and laws, which may be or
become necessary in connection with the issuance, sale, transfer and delivery of
the Rights Certificates, the exercise of the Rights and the issuance, sale,
transfer and delivery of the shares of Common Stock issued upon exercise of
Rights.
14. ADJUSTMENT OF SUBSCRIPTION PRICE AND NUMBER OF SHARES OF COMMON STOCK
PURCHASABLE OR NUMBER OF RIGHTS.
(a) Except as provided in subsection (b) below, the
Subscription Price and the number of shares of Common Stock purchasable
upon the exercise of each Right shall not be adjusted during the term of
the Rights Offering or upon exercise of any Right or Rights.
(b) If the Company shall (i) pay a dividend on its shares of
Common Stock in shares of Common Stock, (ii) subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock or (iv) reclassify
the Common Stock (including any such reclassification in connection with
a consolidation or merger in which the Company is the continuing
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corporation), the number of shares of Common Stock purchasable upon
exercise of each Right immediately prior thereto shall be adjusted so
that the holder of each Right shall be entitled upon exercise to receive
the kind and number of shares of Common Stock or other securities of the
Company which such holder would have owned or have been entitled to
receive after the happening of any of the events described above, had
such Right been exercised immediately prior to the happening of such
event or any record date with respect thereto. An adjustment made
pursuant to this subparagraph (b) shall become effective immediately
after the effective date of such event retroactive to the record date, if
any, for such event. In addition, in the event of any reclassification of
the Common Stock, references in this Agreement to Common Stock shall
thereafter be deemed to refer to the securities into which the Common
Stock shall have been reclassified.
(c) In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety or the Company is a party to a
merger or binding share exchange which reclassifies or changes its
outstanding shares of Common Stock, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the Rights
Agent an agreement, in form and substance substantially equivalent to
this Agreement, that each holder of a Rights Certificate shall have the
right thereafter, subject to terms and conditions substantially
equivalent to those contained in this Agreement, upon payment of the
Subscription Price in effect immediately prior to such action to purchase
upon exercise of each Right the kind and amount of shares and other
securities and property which such holder would have owned or have been
entitled to receive after the happening of such consolidation, merger,
sale or conveyance had such Right been exercised immediately prior to
such action. The Company shall mail by first-class mail, postage
prepaid, to each registered holder of a Right, notice of the execution of
any such agreement. Such agreement shall provide for adjustments, which
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 14. The provisions of this subparagraph (c)
shall similarly apply to successive consolidations, mergers, sales or
conveyances. The Rights Agent shall be under no duty or responsibility to
determine the correctness of any provisions contained in any such
agreement relating either to the kind or amount of shares of stock or
other securities or property receivable upon exercise of Rights or with
respect to the method employed and provided therein for any adjustments
and shall be entitled to rely upon the provisions contained in any such
agreement.
15. NOTICES TO RIGHTHOLDERS.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution
(other than a cash dividend declared in the ordinary course) to the
holders of its shares of Common Stock, or
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(b) the Company shall offer to the holders of its shares of
Common Stock any additional shares of Common Stock or securities
convertible or exchangeable into shares of Common Stock or any right to
subscribe for or purchase Common Stock, or
(c) there shall be a dissolution, liquidation or winding up of
the Company (other than in connection with a consolidation, merger or
sale of all or substantially all of its property, assets and business as
an entirety),
(d) then the Company shall (i) cause written notice of such
event to be filed with the Rights Agent and shall cause written notice of
such event to be given to each of the registered holders of the Rights
Certificates at such holder's address appearing on the Rights Register,
by first-class mail, postage prepaid, and (ii) make a public announcement
in a daily morning English language newspaper of general circulation in
New York City, New York, of such event, such giving of notice and
publication to be completed at least ten (10) calendar days (or twenty
(20) calendar days in any case specified in clause (c) above) prior to
the date fixed as a record date or the date of closing the transfer books
for the determination of the stockholders entitled to such dividend,
distribution or subscription rights, or for the determination of
stockholders entitled to vote on such proposed dissolution, liquidation
or winding up. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. The failure to give the
notice required by this Section 15 or any defect therein shall not affect
the legality or validity of any dividend, distribution, right, option,
warrant, dissolution, liquidation or winding up or the vote upon or any
other action taken in connection therewith.
16. MERGER, CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT. Any
corporation into which the Rights Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Rights Agent shall be a party, or any corporation
succeeding to the shareholder services business of the Rights Agent, shall be
the successor to the Rights Agent hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided
that such corporation would be eligible for appointment as a successor Rights
Agent under the provisions of Section 18.
17. RIGHTS AGENT. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Rights Certificates to be complied with by the
Company nor shall it at any time be under any duty or responsibility to
any holder of a Right to make or cause to be made any adjustment in the
Subscription Price or in the number of shares of Common Stock issuable
upon exercise of any Rights (except as instructed by the Company);
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(b) The Company agrees to indemnify the Rights Agent and save
it harmless against any and all losses, liabilities and expenses,
including judgments, costs and reasonable counsel fees and expenses, for
anything done or omitted by the Rights Agent arising out of or in
connection with this Agreement except as a result of its gross negligence
or bad faith;
(c) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for the carrying out or
performing the provisions of this Agreement; and
(d) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chief Executive Officer, Executive Vice President, the
Treasurer or an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for
any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer or in good faith
reliance upon any statement signed by any one of such officers of the
Company with respect to any fact or matter (unless other evidence in
respect thereof is herein specifically prescribed) which may be deemed to
be conclusively proved and established by such signed statement.
18. CHANGE OF RIGHTS AGENT. If the Rights Agent shall resign (such
resignation to become effective not earlier than sixty (60) days after the
giving of written notice thereof to the Company and the registered holders of
Rights Certificates) or shall become incapable of acting as Rights Agent or if
the Board of Directors of the Company shall by resolution remove the Rights
Agent (such removal to become effective not earlier than thirty (30) days after
the filing of a certified copy of such resolution with the Rights Agent and the
giving of written notice of such removal to the registered holders of Rights
Certificates), the Company shall appoint a successor to the Rights Agent. If
the Company shall fail to make such appointment within a period of thirty (30)
days after such removal or after it has been so notified in writing of such
resignation or incapacity by the Rights Agent or by the registered holder of a
Rights Certificate (in the case of incapacity), then the registered holder of
any Rights Certificate may apply to any court of competent jurisdiction for the
appointment of a successor to the Rights Agent. Pending appointment of a
successor to the Rights Agent, either by the Company or by such a court, the
duties of the Rights Agent shall be carried out by the Company. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be a
bank or trust company, in good standing, incorporated under the laws of any
state or of the United States of America. As soon as practicable after
appointment of the successor Rights Agent, the Company shall cause written
notice of the change in the Rights Agent to be given to each of the registered
holders of the Rights Certificates at such holder's address appearing on the
Rights Register. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed. The former Rights
Agent shall deliver and transfer to the successor Rights Agent, the Rights
Register and any other property at the time held by it hereunder and execute and
deliver, at
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the expense of the Company, any further assurance, conveyance, act or deed
necessary for the purpose. Failure to give any notice provided for in this
Section 18 or any defect therein, shall not affect the legality or validity of
the removal of the Rights Agent or the appointment of a successor Rights Agent,
as the case may be.
19. RIGHTHOLDER NOT DEEMED A STOCKHOLDER. Nothing contained in this
Agreement or in any of the Rights Certificates shall be construed as conferring
upon the holders thereof the right to vote or to receive dividends or to consent
or to receive notice as stockholders in respect of the meetings of stockholders
or for the election of directors of the Company or any other matter, or any
rights whatsoever as stockholders of the Company.
20. DELIVERY OF PROSPECTUS. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Rights, the Company will furnish to the Rights Agent sufficient
copies of a prospectus, and the Rights Agent agrees that upon the exercise of
any Rights Certificate by the holder thereof, the Rights Agent will deliver to
such holder, prior to or concurrently with the delivery of the certificate or
certificates for the shares of Common Stock issued upon such exercise, a copy of
the prospectus.
21. NOTICES TO COMPANY AND RIGHTS AGENT. Any notice or demand
authorized by this Agreement to be given or made by the Rights Agent or by any
registered holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by mail, first-class or registered, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Rights Agent), as follows:
Bionova Holding Corporation
0000 Xxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
If the Company shall fail to maintain such office or agency or shall fail
to give such notice of any change in the location thereof, presentation may be
made and notices and demands may be served at the principal office of the Rights
Agent.
Any notice pursuant to this Agreement to be given by the Company or by
any registered holder of any Rights Certificate to the Rights Agent shall be
sufficiently given if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing by the Rights Agent with the
Company), as follows:
The Bank of New York Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxx Xxxxxxx
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22. SUPPLEMENTS AND AMENDMENTS. The Company and the Rights Agent may
from time to time supplement or amend this Agreement without the approval of any
holders of Rights Certificates in order to cure any ambiguity, manifest error or
other mistake in this Agreement, or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provision
herein, or to make any other provisions in regard to matters or questions
arising hereunder that the Company and the Rights Agent may deem necessary or
desirable and that shall not adversely affect, alter or change the interests of
the holders of the Rights in any material respect.
Any supplement or amendment of this Agreement which may not be made by
the Company and the Rights Agent without the approval of holders of Rights
Certificates pursuant to the preceding paragraph shall require the approval of
the holders of Rights Certificates entitled to purchase upon exercise thereof a
majority of the shares of Common Stock which may be purchased upon the exercise
of all outstanding Rights Certificates at the time that such amendment or
supplement is to be made. Notwithstanding the foregoing, any amendment or
supplement to this Agreement which would provide for an adjustment to either (i)
the number of shares of Common Stock purchasable upon exercise of a Right or
(ii) the exercise price for which shares of Common Stock are purchasable upon
exercise of a Right, in either case, in a manner not provided for in this
Agreement and in a manner that would have a substantial negative impact on the
holders of Rights Certificates, then such amendment or supplement shall require
the consent of the holders of seventy five percent (75%) of the Rights
Certificates.
23. SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
24. TERMINATION. This Agreement shall terminate the Close of
Business on the date which is fifteen (15) Nasdaq trading days after the
Expiration Date. Upon termination of the Agreement, the Rights Agent shall
retain all canceled Rights Certificates and related documentation as required
by applicable law.
25. GOVERNING LAW. This Agreement and each Rights Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be construed in accordance with the internal
laws of the State of Delaware without regard to principles of conflict of law or
choice of laws of the State of Delaware or any other jurisdiction which would
cause the application of any laws other than of the State of Delaware.
26. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Rights Agent and the registered holders of the Rights Certificates any legal or
equitable right, remedy or claim under this Agreement, and this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates.
27. COUNTERPARTS. This Agreement may be executed in a number of
counterparts and each
12
of such counterparts shall all for purposes be deemed to be an original, and
such counterparts shall together constitute but one and the same instrument.
28. HEADINGS. The headings of sections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
13
IN WITNESS WHEREOF the parties hereto have caused this Rights Agreement
to be executed and delivered as of the day and year first above written.
BIONOVA HOLDING CORPORATION
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
By:
----------------------------
Name:
-----------------------
Title:
----------------------
THE BANK OF NEW YORK COMPANY, INC.
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
By:
----------------------------
Name:
-----------------------
Title:
----------------------
14
EXHIBIT A
FORM OF RIGHTS CERTIFICATE
CONTROL No. _________ Number of Rights ___________
VOID IF NOT RECEIVED BY THE RIGHTS AGENT
BEFORE 5:00 P.M. NEW YORK CITY TIME
ON MAY 31, 2000
BIONOVA HOLDING CORPORATION
SUBSCRIPTION RIGHTS FOR COMMON STOCK
Dear Stockholder:
As the registered owner of this Rights Certificate, you are the owner
of the number of Rights shown above. Each Right entitles you to subscribe
for one share of common stock, par value $.01 per share, of Bionova Holding
Corporation. You may subscribe for such shares at the subscription price of
$5.75 per share. The other terms and conditions of these Rights are set forth
in the enclosed Prospectus.
You have been issued three (3) Rights every four (4) shares of common
stock that you held on __________, 1999. You have not been issued fractional
Rights, but instead your number of Rights was rounded up to the nearest whole
Right.
-------------------------------------------------------------------------------
SAMPLE CALCULATION OF SUBSCRIPTION RIGHT
Shares of Common Stock owned on ____________, 1999: ___ x .75 = _____ shares you
are entitled to purchase (round up fractions of shares)
-------------------------------------------------------------------------------
THIS SUBSCRIPTION RIGHT IS TRANSFERABLE
The Rights are transferable but there is currently no active trading
market for the Rights. The Company does not intend to apply for a listing or
quotation of the Rights on any stock exchange or stock market.
You have three choices:
1. You can subscribe for all of the new shares listed in the box
above.
2. You can subscribe for less than the number of new shares listed in
the box above and transfer the rest of your Rights or allow them
to expire; or
3. If you do not want to purchase any additional shares, you can
transfer all of your Rights or disregard this material.
TO SUBSCRIBE, FULL PAYMENT OF THE SUBSCRIPTION PRICE IS REQUIRED FOR EACH
SHARE OF COMMON STOCK. YOU MUST COMPLETE THE REVERSE SIDE OF THIS FORM TO
SUBSCRIBE FOR NEW SHARES OR TRANSFER YOUR RIGHTS.
Attest: BIONOVA HOLDING CORPORATION
By: By:
--------------------------- -------------------------------------
Name: Name:
---------------------- -------------------------------
Title: Title:
--------------------- ------------------------------
Control No.
---------------
Account No.
---------------
No. of Rights:
------------
[REVERSE SIDE OF RIGHTS CERTIFICATE]
DELIVERY OPTIONS FOR RIGHTS CERTIFICATE
BY FIRST CLASS MAIL: BY HAND OR OVERNIGHT COURIER:
The Bank of New York Company, Inc. The Bank of New York Company, Inc.
Tender & Exchange Department Tender & Exchange Department
P.O. Box 11248 101 Xxxxxxx Street
Church Street Station Receive and Deliver Window
Xxx Xxxx, Xxx Xxxx 00000-0000 Xxx Xxxx, Xxx Xxxx 00000
Delivery to an address other than one of the addresses listed above will
not constitute valid delivery.
Delivery by facsimile will not constitute valid delivery.
PLEASE PRINT ALL INFORMATION CLEARLY AND LEGIBLY
IF YOU WISH TO SUBSCRIBE FOR YOUR FULL SUBSCRIPTION RIGHT OR A PORTION THEREOF:
I apply for shares X $5.75 = $
------------- -----------------
(No. of new shares) (Amount Enclosed)
TO SUBSCRIBE: I acknowledge that I have received the Prospectus for this offer
and I hereby irrevocably subscribe for the number of shares indicated above on
the terms and conditions specified in the Prospectus. I hereby agree that if I
fail to pay for the shares of common stock for which I have subscribed, the
Company may exercise its legal remedies against me.
TO TRANSFER RIGHTS: For value received, ____ of the Rights represented by this
Subscription Certificate are assigned to:
------------------------------------
(Print Full Name of Assignee)
----------------------------------- ------------------------------------
(Print Full Address)
-----------------------------------
Signature(s) of Subscriber(s) ------------------------------------
Signature(s) of Assignor(s)
Please give your telephone number: IMPORTANT: The Signature(s) must
( ) correspond in every particular, without
---------------------- alteration, with the name(s) as printed
on the reverse of this Rights
Certificate.
-----------------------------------
Your Signature must be guaranteed by:
----------------------------------- (a) a commercial bank or trust
company, (b) a member firm of a
----------------------------------- domestic stock exchange, or (c) a
Address for delivery of shares if credit union.
other than shown on front.
Signature Guaranteed:
----------------------
(Name of Bank or Firm)
By:
---------------------------------
(Signature of Officer)
YOU MUST HAVE YOUR SIGNATURE
GUARANTEED IF YOU WISH TO HAVE YOUR
SHARES DELIVERED TO AN ADDRESS
OTHER THAN THAT SHOWN ON THE FRONT
OF THIS CERTIFICATE.
If permanent change of address,
check here [_]
FULL PAYMENT FOR THE SHARES MUST ACCOMPANY THIS FORM AND MUST BE MADE PAYABLE IN
UNITED STATES DOLLARS IN A CHECK OR BANK DRAFT DRAWN UPON A U.S. BANK OR POSTAL,
TELEGRAPHIC OR EXPRESS MONEY ORDER AND PAYABLE TO THE BANK OF NEW YORK COMPANY,
INC., AS RIGHTS AGENT.
STOCK CERTIFICATES FOR THE SHARES SUBSCRIBED TO PURSUANT TO THE RIGHTS OFFERING
WILL BE DELIVERED AS SOON AS PRACTICABLE AFTER THE DATE UPON WHICH YOU EXERCISE
YOUR RIGHTS.
ANY REFUND IN CONNECTION WITH YOUR SUBSCRIPTION WILL BE DELIVERED AS SOON AS
PRACTICABLE THEREAFTER.
