AGREEMENT
This Agreement, dated as of January 2, 2000 (the "Agreement"), among
Village Farms of Presidio, L.P., a Delaware limited partnership (the
"Partnership"), Village Farms of Delaware, LLC, a Delaware limited liability
company ("VF Delaware"), Village Farms, LLC, a Delaware limited liability
company ("VF"), Village Farms, L.P., a Delaware limited partnership ("VFLP"),
Agrorent A, LLC, a Delaware limited liability company ("Agrorent A"), Agrorent
B, LLC, a Delaware limited liability company ("Agrorent B"), Agrorent Holdings
Inc., a Delaware corporation ("Holdings"), New Amsterdam Joint Venture, LLC, a
New Jersey limited liability company ("New Amsterdam"), Agrorent B.V., a
Netherlands corporation ("ABV"), Kwekerij Nic Poot B.V., a Netherlands
corporation ("KNP"), Nic Poot, an individual residing in the Netherlands
("Poot"), New Amsterdam Management, Co., a New Jersey corporation
("Management"), and EcoScience Corporation, a Delaware corporation
("EcoScience").
WHEREAS, Agrorent A is a general partner and Agrorent B is a limited
partner of the Partnership;
WHEREAS, Agrorent A and Agrorent B wish to exchange their general and
limited partnership interests in the Partnership for common stock, $0.01 par
value, of EcoScience (the "Common Stock");
WHEREAS, ABV owns a 50% membership interest in New Amsterdam and
Management also owns a 50% membership interest in New Amsterdam;
WHEREAS, ABV wishes to sell its membership interest in New Amsterdam to
Management;
WHEREAS, the Partnership is indebted to KNP in an amount of $9,597.90
(the "KNP Debt") for certain materials provided to it by KNP and certain
expenditures made by KNP on its behalf;
WHEREAS, the Partnership is indebted to ABV in an amount of $214,498.33
(the "ABV Debt") for certain materials provided to it by ABV and certain
expenditures made by ABV on its behalf;
WHEREAS, New Amsterdam is indebted to KNP in an amount of $21,812.65
(the "New Amsterdam Debt") for certain materials provided to it by KNP and
certain expenditures made by KNP on its behalf;
WHEREAS, ABV is entitled to a distribution of $171,629.33 (the "New
Amsterdam Distribution") under the Operating Agreement of New Amsterdam;
WHEREAS, the transactions contemplated by this Agreement have been
agreed upon in connection with the refinancing on the date hereof (the
"Refinancing") by CoBank, ACB of the Partnership's current indebtedness under
that certain Loan Agreement, dated as of August 31, 1998, by and between the
Partnership and Village Farms International Finance Association, a Delaware
corporation;
WHEREAS, the Refinancing is conditioned upon the merger of the
Partnership and certain other entities with and into VFLP (the "Merger"); and
WHEREAS, it is the intention of the parties hereto that this Agreement
become effective immediately prior to the effectiveness of the Merger.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be equally bound,
the parties hereto agree as follows:
1. Assignment of Partnership Interests. Upon the terms and subject to the
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conditions set forth in this Agreement:
(a) Agrorent A hereby transfers, assigns and conveys its entire 1%
general partnership interest in the Partnership to VF
Delaware.
(b) Agrorent B hereby transfers, assigns and conveys its entire
12.75% limited partnership interest in the Partnership to VF.
2. Issuance of EcoScience Common Stock.
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(a) In consideration for the assignment of partnership interest
made pursuant to Section 1(a) above, VF Delaware hereby
transfers, assigns and conveys to Agrorent A stock
certificates representing 19,535 shares of Common Stock.
(b) In consideration for the assignment of partnership interest to
be made pursuant to Section 1(b) above, VF hereby transfers,
assigns and conveys to Agrorent B stock certificates
representing 249,069 shares of Common Stock.
3. Transfer of New Amsterdam Membership Interest. Upon the terms and
subject to the conditions set forth in this Agreement, ABV hereby
transfers, assigns and conveys its entire 50% membership interest in
New Amsterdam to Management. In consideration for such transfer,
assignment and conveyance, Management hereby pays ABV $1.00.
4. Assignment of KNP Debt. KNP hereby transfers, assigns and conveys its
right to receive payment of the KNP Debt to ABV. Each of the parties
hereto hereby irrevocably consents to such transfer, assignment and
conveyance.
5. Assignment of New Amsterdam Debt. (i) KNP hereby transfers, assigns and
conveys its right to receive payment of the New Amsterdam Debt to ABV
and (ii) New Amsterdam hereby transfers, assigns and conveys its
obligation to pay the New Amsterdam Debt to the Partnership, which
hereby assumes such obligation. Each of the parties hereto hereby
irrevocably consents to each such transfer, assignment, conveyance and
assumption.
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6. Assignment of New Amsterdam Distribution. New Amsterdam hereby transfers,
assigns and conveys its obligation to pay the New Amsterdam Distribution to
the Partnership, which hereby assumes such obligation. Each of the parties
hereto hereby irrevocably consents to such transfer, assignment,
conveyance and assumption.
7. Treatment of Debt. Pursuant to the Merger, the obligation of the
Partnership to pay the New Amsterdam Distribution, the KNP Debt, the ABV
Debt and the New Amsterdam Debt shall be assumed by VFLP. From and after
the Effective Time (as defined in Section 11 below), (a) the KNP Debt, the
ABV Debt and the New Amsterdam Debt shall be represented by and repaid in
accordance with a Promissory Note in the principal amount of $245,908.88
issued by VFLP to ABV in substantially the form annexed hereto as Exhibit A
("Note A") and (b) the amount of the New Amsterdam Distribution shall be paid
to ABV by VFLP pursuant to and in accordance with a Promissory Note in the
principal amount of $171,629.33 issued by VFLP to ABV in substantially the
form annexed hereto as Exhibit B ("Note B" and together with Note A, the
"Notes").
8. Representations and Warranties.
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(a) EcoScience, VF Delaware, VF, the Partnership, Management, VFLP and
New Amsterdam (collectively, the "EcoScience Parties") hereby
jointly and severally represent and warrant to each of Agrorent A,
Agrorent B, Holdings, Poot, ABV and KNP (collectively, the
"Agrorent Parties") that (i) each EcoScience Party has the full
legal right, power and authority to execute and deliver this
Agreement and the Notes, and to fully perform its obligations
hereunder and thereunder;(ii) the execution, delivery and
performance of this Agreement and the Notes by the EcoScience
Parties and the consummation by them of the transactions
contemplated hereby and thereby (A) have been duly authorized by
all necessary action on their part and (B) will not result in a
violation or breach of any term or provision of, or constitute a
default or accelerate the performance required under (I) the
organizational documents of any EcoScience Party or any affiliate
thereof or (II) any indenture, mortgage, deed of trust, security
agreement, loan agreement, other agreement, contract, document,
instrument,obligation, promise or undertaking (whether written or
oral) that is legally binding under which any EcoScience Party or
any affiliate thereof has any right, obligation or liability or by
which it or any of the assets owned or used by it is bound, and
(iii) this Agreement constitutes the valid and binding obligation
of each EcoScience Party, enforceable against it in accordance with
its terms.
(b) The Agrorent Parties hereby jointly and severally represent and
warrant to each EcoScience Party that (i) each Agrorent Party has
the full legal right, power and authority to execute and deliver
this Agreement and to fully perform its obligations hereunder; (ii)
the execution,delivery and performance of this Agreement by the
Agrorent Parties (other than Poot) and the consummation by them of
the transactions contemplated hereby (A) have been duly authorized
by all necessary action on their part and (B) will not result in a
violation or breach of any term or provision of, or constitute a
default or accelerate the performance required under (I) the
organizational documents of any such Agrorent Party or any
affiliate thereof or (II) any indenture, mortgage, deed of trust,
security agreement, loan agreement, other agreement,contract,
document, instrument, obligation, promise or undertaking (whether
written or oral) that is legally binding under which any such
Agrorent Party or any affiliate thereof has any right, obligation
or liability or by which it or any of the assets owned or used by
it is bound, and (iii) this Agreement constitutes the valid and
binding obligation of each Agrorent Party, enforceable against it
in accordance with its terms.
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(c) EcoScience represents and warrants to Agrorent A and Agrorent B
that the Common Stock issued to Agrorent A and Agrorent B pursuant
to this Agreement has been duly authorized and validly issued, is
fully paid and non-assessable, and the issuance thereof was not
subject to any pre-emptive or similar right. EcoScience represents
and warrants to ABV that the Common Stock to be issued to ABV
pursuant to this Agreement and the Notes has been duly authorized,
and when issued and delivered in accordance with the terms of this
Agreement and the Notes, will have been validly issued and will be
fully paid and non-assessable, and the issuance thereof is, nor
will be, not subject to any pre-emptive or similar right.
(d) Agrorent A represents and warrants to VF Delaware that it has
good and marketable title to the 1% general partnership
interest in the Partnership being assigned to VF Delaware
pursuant to this Agreement and that such partnership interest
free and clear of all liens, claims, charges and encumbrances.
(e) Agrorent B represents and warrants to VF that it has good and
marketable title to the 12.75% limited partnership interest in
the Partnership being assigned to VF pursuant to this
Agreement and that such partnership interest is free and clear
of all liens, claims, charges and encumbrances.
9. Satisfaction of Obligations.
(a) The Agrorent Parties hereby acknowledge and agree that the Notes
issued pursuant to Section 7 of this Agreement are being issued in
full satisfaction of all amounts owed by the Partnership and New
Amsterdam to the Agrorent Parties and their respective members,
owners and affiliates and the acceptance (i) by ABV of the Notes
and (ii) by Agrorent A and Agrorent B of the Common Stock to be
issued to them pursuant to Section 2 hereof constitutes a complete
release and discharge by the Agrorent Parties of all EcoScience
Parties from all liabilities, damages,obligations and claims that
any of the Agrorent Parties may have against any of the EcoScience
Parties with respect to matters existing or arising out of events
occurring prior to the Closing, except for the obligations under
this Agreement and the Notes.
(b) The EcoScience Parties hereby acknowledge and agree that
acceptance by VF and VF Delaware of the interests in the
Partnership to be assigned by Agrorent A and Agrorent B
pursuant to Section 1 of this Agreement constitutes a complete
release and discharge by the EcoScience Parties of all
Agrorent Parties from all liabilities, damages, obligations
and claims that they may have against any of the Agrorent
Parties with respect to matters existing or arising out of
events occurring prior to the Closing, except for the
obligations under this Agreement.
10. Right to Acquire Stock.
(a) VFLP and EcoScience agree that ABV shall have the option, at any
time from the issuance of Note B until January 30, 2001, by giving
written notice to EcoScience, to convert its right to receive
payment of the amounts due under Note B (including any accrued
interest thereon) into a number of shares of Common Stock that
shall be calculated in accordance with paragraph (c)below. Within
eight business days after such notice, EcoScience shall deliver a
stock certificate representing the applicable number of shares of
Common Stock to ABV. Upon such delivery, ABV shall be deemed to
have assigned and transferred to EcoScience all of its right,
title and interest in Note B.
(b) VFLP and EcoScience agree that in the event any monthly
installment of principal under Note A or Note B is not paid within
thirty (30) days of when due, ABV shall have the option, at any
time until the full payment and satisfaction of such overdue
amount (including any accrue interest thereon), by giving written
notice to EcoScience, to convert its right to receive payment of
the overdue amount (including any accrued interest thereon) into a
number of shares of Common Stock that shall be calculated in
accordance with paragraph (d) below. Within eight business days
after such notice, EcoScience shall deliver a stock certificate
representing the applicable number of shares of Common Stock to
ABV. Upon such delivery, ABV shall be deemed to have assigned and
transferred to EcoScience all of its right to collect the overdue
amount of principal and interest thereon under the applicable
Note.
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(c) The number of shares of Common Stock into which ABV shall have
the right to convert its rights under Note B pursuant to
paragraph (a) shall be calculated by dividing (i) the amount
due under Note B (including any accrued interest thereon) at
the time of conversion by (ii) $1.12 (the "Note B Conversion
Price").
(d) The number of shares of Common Stock into which ABV shall have
the right to convert its right to receive any overdue amount
(including interest thereon) pursuant to paragraph (b) shall
be calculated by dividing (i) the amount of overdue principal
and interest thereon at the time of conversion by (ii) $1.00
(the "Default Conversion Price").
(e) The Note B Conversion Price and the Default Conversion Price
shall be equitably adjusted to reflect the terms of any stock
split, reverse stock split, stock dividend, reclassification,
reorganization or similar transaction. No fractional shares
shall be issued pursuant to this Section 10; rather, the
number of shares issuable pursuant to this Section 10 shall be
rounded to the nearest whole share.
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(f) Contemporaneous with this Agreement, EcoScience is executing
and delivering to Agrorent A, Agrorent B and ABV Registration
Rights Agreements with respect to the shares of Common Stock
issuable pursuant to Section 2(a), 2(b) and this Section 10 in
substantially the form of Exhibit C.
11. Effective Date. The transactions contemplated by this Agreement shall be
deemed to be effective immediately prior to the Merger (the "Effective
Time").
12. Guarantee. EcoScience hereby absolutely, unconditionally and
irrevocably guarantees to each Agrorent Party the full and prompt
performance by each EcoScience Party of its obligations pursuant to this
Agreement and the Notes, in accordance with and subject only to the terms
and conditions of this Agreement and the Notes, irrespective of the
validity, regularity or enforceability of any of the Agreement and the
Notes or any provision thereof,the absence of any action to enforce the
Agreement or any Note, or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
EcoScience hereby waives diligence, presentment, demand for payment, the
filing of claims with a court or other governmental authority having
jurisdiction over any EcoScience Party or any property of any such party,
any right to require a proceeding first against any EcoScience Party,
protest or notice with respect to the Agreement or any Note and all demands
whatsoever.
13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if (a) delivered personally, (b) sent
by reputable overnight courier service on the third business day after
mailing, (c) telecopied (which is confirmed) (if confirmed during
business hours) at the time of such confirmation or (if confirmed
outside of business hours) the next business day or (d) mailed by
registered or certified air mail (return receipt requested) ten days
after being so mailed, in each case to the parties at the following
addresses (or at such other address for a party as shall be specified
by like notice):
(i) If to any EcoScience Party, to:
EcoScience Corporation
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
X.X.X.
Attention: Xxxxxxx X. XxXxxxxx
President and Chief Executive Officer
Telephone: x0-000-000-0000
Telecopy: x0-000-000-0000
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with a copy to:
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
XX Xxx 000 Middletown, New Jersey 07748
U.S.A.
Attention: Xxxxxx X. Xxxxxxxx
Telephone: x0-000-000-0000
Telecopy: x0-000-000-0000
(ii) If to any Agrorent Party, to:
Kwekerij Nic Poot B.V.
Xxxxxxxxx 00
0000 XX Xxxxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Nic Poot
Managing Director
Telephone: x00-00-000-0000
Telecopy: x00-00-000-0000
with a copy to:
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Jan X.X. Xxxxxxx
Telephone: x0-000-000-0000
Telecopy: x0-000-000-0000
14. Miscellaneous. This Agreement (including the documents and instruments
referred to herein) (a) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter
hereof; and (b) shall not be assigned by operation of law or otherwise
without the prior written consent of the other parties hereto. Any
assignment in violation of the terms of this Agreement shall be null
and void ab initio.
15. Counterparts; Effect. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
16. Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective
successors and permitted assigns, and nothing in this Agreement.,
express or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
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17. Waiver of Jury Trial. Each party to this Agreement waives, to the
fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any action, suit or proceeding arising out
of this Agreement.
18. Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement
in any court of the United States located in the State of New Jersey or
in New Jersey, this being in addition to any other remedy to which they
are entitled at law or in equity.
19. Construction of Agreement. The terms and provisions of this Agreement
represent the results of negotiations between the parties and their
representatives, each of which has been represented by counsel of its
own choosing, and neither of which has acted under duress or
compulsion, whether legal,economic or otherwise. Accordingly,
the terms and provisions of this Agreement shall be interpreted and
construed in accordance with their usual and customary meanings, and
each of the parties hereto hereby waives the application in connection
with the interpretation and construction of this Agreement of any rule
of law to the effect that ambiguous or conflicting terms or provisions
contained in this Agreement shall be interpreted or construed against
the party whose attorney prepared the executed draft or any earlier
draft of this Agreement.
20. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New Jersey and the parties
hereby agree that in the event of any dispute arising out of the terms
and provisions of this Agreement, such a dispute shall be submitted to
a court of competent jurisdiction in the State of New Jersey.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VILLAGE FARMS OF PRESIDIO, L.P.
By: Village Farms of Delaware, LLC
General Partner
By: Agro Power Development, Inc.
Managing Member
By: ______________________________
Name:
Title:
VILLAGE FARMS OF DELAWARE, LLC
By: Agro Power Development, Inc.
Managing Member
By: ______________________________
Name:
Title:
VILLAGE FARMS, LLC
By: Agro Power Development, Inc.
Managing Member
By: ______________________________
Name:
Title:
AGRORENT A, LLC
By: ______________________________
Name: Nic Poot
Title: President
AGRORENT B, LLC
By: ________________________________
Name: Nic Poot
Title: President
AGRORENT HOLDINGS INC.
By: _______________________________
Name: Nic Poot
Title: President
ECOSCIENCE CORPORATION
By: _______________________________
Name:
Title:
NEW AMSTERDAM JOINT VENTURE, LLC
By: _______________________________
Name:
Title:
NEW AMSTERDAM MANAGEMENT, CO.
By: _______________________________
Name:
Title:
AGRORENT B.V.
By: _______________________________
Name: Nic Poot
Title: Managing Director
KWEKERIJ NIC POOT B.V.
By: _______________________________
Name: Nic Poot
Title: Managing Director
VILLAGE FARMS, L.P.,
By: Village Farms of Delaware, LLC
General Partner
By: Agro Power Development, Inc.
Managing Member
By: _______________________________
Name:
Title:
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Nic Poot
