EXHIBIT C
AGREEMENT TO BE BOUND
Reference is hereby made to that certain Purchase Agreement dated as of
December 28, 2000 by and between Bionova Holding Corporation, a Delaware
corporation ("BHC"), Bionova International, Inc., a Delaware corporation
("BII"), and ▇▇▇▇▇, ▇.▇. de C.V., a corporation organized under the laws of the
United Mexican States ("Savia"), providing for, among other things, certain
conditions to any transfer by BII of its shares of Series A Convertible
Preferred Stock, par value $0.01 per share ("Preferred Stock"), of BHC (the
"Purchase Agreement"). All capitalized terms used but not defined in this
Agreement to be Bound shall have the respective meanings ascribed to such terms
in the Purchase Agreement.
Reference is further made to that certain Stock Purchase Agreement
dated as of November 27, 2001 between BII and Ag-Biotech Capital, LLC, a
Delaware limited liability company ("Ag-Biotech"), providing for, among other
things, the sale by BII of its shares of Preferred Stock to Ag-Biotech (the
"Stock Purchase Agreement").
As a condition to the effectiveness of the transfer of Preferred Stock
from BII to Ag-Biotech pursuant to the terms of the Stock Purchase Agreement,
Ag-Biotech hereby makes the following representations and warranties to, and
agreements with, BHC:
1. Representations and Warranties.
(a) Purchase Entirely for Own Account. Ag-Biotech understands
that the Preferred Shares, the Conversion Shares and the Common Shares
(the "Securities") are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon
Ag-Biotech's representations contained in this Agreement to be Bound.
The Preferred Shares, the Conversion Shares and the Common Shares will
be acquired for investment for the Ag-Biotech's own account, not as a
nominee or agent, and not with a view to the resale or distribution of
any part thereof, and Ag-Biotech has no present intention of selling,
granting any participation in, or otherwise distributing the same.
Ag-Biotech does not have any 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
Securities.
(b) Disclosure of Information. Ag-Biotech believes it has
received all the information it considers necessary or appropriate for
deciding whether to purchase the Securities. Ag-Biotech further
represents that it has had an opportunity to ask questions and receive
answers from BHC regarding the business, properties, prospects and
financial condition of BHC.
(c) Investment Experience. Ag-Biotech 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 Securities. Ag-Biotech also represents it has not been organized
for the purpose of acquiring the Securities.
(d) Restricted Securities. Ag-Biotech understands that the
Securities it is purchasing are characterized as "restricted
securities" under the federal securities laws inasmuch as they are
being acquired from BII, and were acquired by BII from BHC, in
transactions 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. Ag-Biotech acknowledges and agrees that the Preferred
Shares, the Conversion Shares and the Common Shares are subject to
restrictions on transfer as set forth in Section 7.13 of the Purchase
Agreement and Sections 3 and 4 of this Agreement to be Bound.
2. Agreement to be Bound. Ag-Biotech hereby agrees with BHC to be
subject to the terms of the Purchase Agreement to the same extent as if it was
an original holder of Preferred Shares pursuant thereto.
3. Securities Law Compliance. Ag-Biotech will not, directly or
indirectly, sell, assign, transfer, pledge, encumber, or otherwise dispose of
any of the Preferred Shares, the Conversion Shares or the Common Shares except:
(a) In compliance with Rule 144; provided, however, that
Ag-Biotech shall provide BHC with copies of all filings made with the
SEC with respect to sales of securities under Rule 144 and with such
other information and documents as BHC shall reasonably require in
order to assure full compliance with Rule 144;
(b) Pursuant to a no-action letter or other interpretive
statement or release of the SEC to the effect that the proposed sale or
other disposition may be effected without registration under the
Securities Act;
(c) Pursuant to an applicable exemption (other than Rule 144)
under the Securities Act; provided, however, that Ag-Biotech shall have
furnished BHC with evidence satisfactory to BHC (which, in the
discretion of BHC, may include an opinion of counsel, which opinion and
counsel shall be reasonably acceptable to BHC) to the effect that such
disposition does not require registration of such securities under the
Securities Act; or
(d) Pursuant to an effective registration statement filed
under the Securities Act.
4. Transfer Restriction. Ag-Biotech further agrees that it will not,
directly or indirectly, sell, assign, transfer, pledge, encumber, or otherwise
dispose of any of the Preferred Shares, without the prior written consent of
BHC; provided, however that Ag-Biotech shall be permitted to transfer the
Preferred Shares to an affiliate (as defined in Rule 405 under the Securities
Act) of Ag-Biotech if such affiliate shall have furnished BHC with the
representations contained in Sections 5.5 through 5.8 and Section 7.13 of the
Purchase Agreement and shall have agreed with BHC to be subject to the terms of
the Purchase Agreement to the same extent as if it was an original holder of
Preferred Shares pursuant hereto. Any attempted transfer in violation of Section
7.13 of the Purchase Agreement shall be void.
IN WITNESS WHEREOF, Ag-Biotech has caused this Agreement to be Bound to
be executed by its duly authorized representative as of the 27th day of
November, 2001.
AG-BIOTECH CAPITAL, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ MUZZA
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▇▇▇▇▇▇▇▇▇ Muzza, Manager
AGREED AND ACCEPTED by
BIONOVA HOLDING CORPORATION
By: /s/ ART ▇▇▇▇▇▇
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Name: Art ▇▇▇▇▇▇
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Title:
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Date: November 27, 2001
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