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Exhibit 4.1
CERTIFICATE OF DESIGNATIONS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
(PAR VALUE $.01 PER SHARE)
OF
BIONOVA HOLDING CORPORATION
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PURSUANT TO SECTION 151
OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
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Bionova Holding Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), DOES HEREBY
CERTIFY that, pursuant to the authority conferred on the Board of Directors
of the Corporation by the Certificate of Incorporation of the Corporation, as
amended, and in accordance with Section 151 of the General Corporation Law of
the State of Delaware, the Board of Directors of the Corporation on December
28, 2000 duly adopted the following preamble and resolution establishing and
creating a series of 200 shares of Preferred Stock, par value $.01 per share,
of the Corporation:
RESOLVED, that pursuant to the authority vested in the Board
of Directors of the Corporation (the "Board of Directors") in
accordance with the provisions of its Certificate of Incorporation, as
amended, a series of Preferred Stock, par value $.01 per share, of the
Corporation is hereby created, and that the designation and number of
shares thereof and the preferences, limitations and relative rights
thereof are as follows:
SECTION 1. DESIGNATION AND NUMBER OF SHARES OF SERIES A
CONVERTIBLE PREFERRED STOCK. There is hereby authorized and established a
series of Preferred Stock that shall be designated as "Series A Convertible
Preferred Stock" (the "Series A Preferred"), and the number of shares
constituting such series shall be Two Hundred (200). Such number of shares
may be increased or decreased, but not to a number less than the number of
shares of Series A Preferred then issued and outstanding, by resolution
adopted by the full Board of Directors.
SECTION 2. DEFINITIONS. In addition to the definitions set forth
elsewhere herein, the following terms shall have the meanings indicated:
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in New York, New York are authorized or
obligated by law or executive order to close.
"Charter Amendment" means an amendment of the Corporation's
Certificate of Incorporation, as
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amended, increasing the authorized number of shares of Common Stock to a
least 70,000,000 shares.
"Common Stock" shall mean the common stock, par value $.01 per
share, of the Corporation.
"Junior Securities" means the Common Stock or any other series of
stock issued by the Corporation ranking junior as to the Series A Preferred
upon liquidation, dissolution or winding up of the Corporation.
"Parity Security" means any class or series of stock issued by the
Corporation ranking on a parity with the Series A Preferred upon liquidation,
dissolution or winding up of the Corporation.
"Person" means any individual, corporation, association,
partnership, joint venture, limited liability company, trust, estate, or
other entity or organization, other than the Corporation, any subsidiary of
the Corporation, any employee benefit plan of the Corporation or any
subsidiary of the Corporation, or any entity holding shares of Common Stock
for or pursuant to the terms of any such plan.
"Preference Amount" shall mean $10,000 per share of Series A
Preferred Stock.
"Senior Securities" means any class or series of stock issued by the
Corporation ranking senior to the Series A Preferred upon liquidation,
dissolution or winding up of the Corporation.
SECTION 3. CERTAIN COVENANTS AND RESTRICTIONS.
(a) So long as any shares of Series A Preferred are outstanding;
(i) At all times after the effective date of the Charter
Amendment, the Corporation shall reserve and keep available for
issuance upon the conversion of the shares of Series A Preferred such
number of its authorized but unissued shares of Common Stock as will be
sufficient to permit the conversion of all outstanding shares of Series
A Preferred, and all other securities and instruments convertible into
shares of Common Stock, and shall take all reasonable action within its
power required to increase the authorized number of shares of Common
Stock necessary to permit the conversion of all such shares of Series A
Preferred and all other securities and instruments convertible into
shares of Common Stock.
(ii) The Corporation represents, warrants and agrees that all
shares of Common Stock that may be issued upon exercise of the
conversion rights of shares of Series A Preferred will, upon issuance,
be fully-paid and nonassessable.
(iii) The Corporation shall pay all taxes and other
governmental charges (other than any income or franchise taxes) that
may be imposed with respect to the issue or delivery of shares of
Common Stock upon conversion of Series A Preferred as provided herein.
The Corporation shall not be required, however, to pay any tax or other
charge imposed in connection with any transfer involved in the issue of
any certificate for shares of Common Stock in any name other than that
of the registered holder of the shares of the Series A Preferred
surrendered in connection with the conversion thereof, and in such case
the Corporation shall not be required to issue or deliver any stock
certificate until such tax or other charge has been paid, or it has
been established to the Corporation's satisfaction that no tax or other
charge is due.
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SECTION 4. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation (in connection with the bankruptcy or insolvency of the
Corporation or otherwise), whether voluntary or involuntary, before any
payment or distribution of the assets of the Corporation (whether capital or
surplus) shall be made to or set apart for the holders of shares of any
Junior Securities, the holders of the shares of Series A Preferred shall be
entitled to receive an amount equal to the Preference Amount, plus the amount
of any accrued and unpaid dividends on the Series A Preferred, multiplied by
the number of shares of Series A Preferred held by them. To the extent the
available assets are insufficient to fully satisfy such amounts, then the
holders of the Series A Preferred shall share ratably in such distribution in
the proportion that the number of each holder's Series A Preferred shares
bears to the total number of shares of Series A Preferred outstanding. No
further payment on account of any such liquidation, dissolution or winding up
of the Corporation shall be paid to the holders of the shares of Series A
Preferred or the holders of any Parity Securities unless there shall be paid
at the same time to the holders of the shares of Series A Preferred and the
holders of any Parity Securities proportionate amounts determined ratably in
proportion to the full amounts to which the holders of all outstanding shares
of Series A Preferred and the holders of all such outstanding Parity
Securities are respectively entitled with respect to such distribution. For
purposes of this Section 4, neither a consolidation or merger of the
Corporation with one or more partnerships, corporations or other entities nor
a sale, lease, exchange or transfer of all or any substantial part of the
Corporation's assets for cash, securities or other property shall be deemed
to be a liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary.
(b) Written notice of any liquidation, dissolution or winding up
of the Corporation, stating the payment date or dates when and the place or
places where the amounts distributable in such circumstances shall be
payable, shall be given by first class mail, postage prepaid, not less than
15 days prior to any payment date stated therein, to the holders of record of
the shares of Series A Preferred at their respective addresses as the same
shall appear in the records of the Corporation.
SECTION 5. DIVIDENDS. Holders of the Series A Preferred will be
entitled to receive, when, as and if declared by the Board of Directors, out
of funds legally available therefor, dividends payable at such rate as may be
determined by the Board of Directors; provided, however, that no dividend
shall be paid on Common Stock unless dividends shall have been paid to or
declared and set apart upon all shares of the Series A Preferred, at a rate
per share at least equal to the dividend payment on the Common Stock into
which each share of Series A Preferred is then convertible.
SECTION 6. REACQUIRED SHARES. Any shares of Series A Preferred
repurchased, converted or otherwise acquired by the Corporation shall be
retired and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of
Preferred Stock, without designation as to series.
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SECTION 7. VOTING RIGHTS.
(a) Except as otherwise required by law and as specified in this
Section 7, the holders of shares of Series A Preferred shall not have any
right or power to vote on or consent with respect to any matter or in any
proceeding or to be represented at any meeting of stockholders of the
Corporation. On any matters on which the holders of shares of Series A
Preferred shall be entitled to vote, they shall be entitled to one vote for
each share held.
(b) So long as any shares of Series A Preferred remain
outstanding, the affirmative vote or consent of the holders of a majority of
the shares of Series A Preferred outstanding at the time, given in person or
by proxy, either in writing or at a meeting, shall be necessary to permit,
effect or validate (i) the authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class or series of Senior
Security or (ii) the amendment, alteration or repeal of any of the provisions
of the Certificate of Incorporation, as amended, of the Corporation which
would materially and adversely affect any right, preference, privilege or
voting power of shares of Series A Preferred or of the holders thereof. The
increase in the amount of authorized Preferred Stock of the Corporation or
the creation and issuance, or increase in amount of authorized shares of
other series of Parity Security or Junior Security shall not be deemed to
affect materially and adversely such rights, preferences, privileges or
voting power.
SECTION 8. CONVERSION RIGHTS. Holders of shares of Series A
Preferred shall have the right to convert, in whole or in part and without
the payment of any additional consideration by the holder, any or all of such
shares into Common Stock, as follows:
(a) At any time after the effective date of the Charter
Amendment, each share of Series A Preferred shall be convertible at the
option of the holder thereof into fully paid, non-assessable shares of Common
Stock. The number of shares of Common Stock deliverable upon conversion of
each share of Series A Preferred shall be 115,780.58, subject to adjustment
as provided in this Section.
(b) In case at any time the Corporation shall (i) subdivide the
outstanding shares of Common Stock into a greater number of shares, (ii)
combine the outstanding shares of Common Stock into a smaller number of
shares or (iii) pay a dividend in Common Stock on its outstanding shares of
Common Stock, then the number of shares of Common Stock that each share of
Series A Preferred in convertible into under Section 8(a) shall be multiplied
by the fraction obtained:
by dividing
(X), the actual total number of issued and outstanding shares of Common
Stock immediately after the occurrence of such subdivision, combination
or dividend,
by
(Y), the total number of issued and outstanding shares of Common Stock
immediately prior to the the occurrence of such subdivision,
combination or dividend.
Such adjustment shall become effective immediately after the occurrence of a
subdivision, combination or stock dividend.
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(c) The conversion of any share of Series A Preferred may be
effected by the holder thereof by the surrender of the certificate or
certificates therefor, duly endorsed, at the principal offices of the
Corporation or to such agent or agents of the Corporation as may be
designated by the Board of Directors and by giving written notice to the
Corporation that such holder elects to convert the same.
(d) As promptly as practicable after the surrender of shares of
Series A Preferred for conversion, the Corporation shall issue and deliver or
cause to be issued and delivered to the holder of such shares certificates
representing the number of fully paid and non-assessable shares of Common
Stock into which such shares of Series A Preferred have been converted in
accordance with the provisions of this Section 8. Subject to the following
provisions of this Section, such conversion shall be deemed to have been made
as of the close of business on the date on which the shares of Series A
Preferred shall have been surrendered for conversion in the manner herein
provided, so that the rights of the holder of the shares of Series A
Preferred so surrendered shall cease at such time, and the person or persons
entitled to receive the shares of Common Stock upon conversion thereof shall
be treated for all purposes as having become the record holder or holders of
such shares of Common Stock at such time; PROVIDED, HOWEVER, that any such
surrender on any date when the stock transfer books of the Corporation are
closed shall be deemed to have been made, and shall be effective to terminate
the rights of the holder or holders of the shares of Series A Preferred so
surrendered for conversion and to constitute the person or persons entitled
to receive such shares of Common Stock as the record holder or holders
thereof for all purposes, at the opening of business on the next succeeding
day on which such transfer books are open.
(e) The Corporation shall not be required to issue fractional
shares of stock upon the conversion of the Series A Preferred. As to any
final fraction of a share which the holder of one or more shares of Series A
Preferred would otherwise be entitled to receive upon conversion, the
Corporation shall, in lieu of issuing any fractional share, pay the holder
otherwise entitled to such fraction a sum in cash equal to the same fraction
of $2.75 on the day of conversion, subject to appropriate adjustment for any
of the transactions described in Section 8(b).
(f) In case the Corporation shall be a party to any transaction
(including without limitation, a merger, consolidation, statutory share
exchange, sale of all or substantially all of the Corporation's assets or
recapitalization of the Common Stock), in each case as a result of which
shares of Common Stock shall be converted into the right to receive stock,
securities or other property (including cash or any combination thereof)
(each of the foregoing transactions being referred to as a "Fundamental
Change Transaction"), then the shares of Series A Preferred remaining
outstanding will thereafter no longer be subject to conversion into Common
Stock pursuant to this Section, but instead each share shall be convertible
into the kind and amount of stock and other securities and property
receivable (including cash) upon the consummation of such Fundamental Change
Transaction by a holder of that number of shares of Common Stock into which
one share of Series A Preferred was convertible immediately prior to such
Fundamental Change Transaction (including an immediate adjustment of the
Conversion Price if by reason of or in connection with such merger,
consolidation, statutory share exchange, sale or recapitalization any
securities are issued or event occurs which would, under the terms hereof,
require an adjustment of the Conversion Price). The provisions of this
Section 8(f) shall similarly apply to successive Fundamental Change
Transactions.
(g) If the Corporation proposes to take any action specified in
this Section 8 which requires any adjustment of the number of shares of
Common Stock that each share of Series A Preferred is convertible into under
Section 8(a) or proposes to effect a Fundamental Change Transaction, then and
in
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each such case the Corporation shall at least 30 days prior to any such
event, and within five Business Days after it has knowledge of any such
pending transaction, provide to the Series A Preferred holders written notice
of the date on which the books of the Corporation shall close or a record
shall be taken for such dividend or for determining rights to vote in respect
of any such consolidation or merger. Such notice shall also specify, as
applicable, the date on which the holders of capital stock shall be entitled
thereto or the date on which the holders of capital stock shall be entitled
to exchange their stock for securities deliverable upon such Fundamental
Change Transaction, as the case may be. Such notice shall also state that the
action in question or the record date is subject to the effectiveness of a
registration statement under the Securities Act of 1933, as amended, or to a
favorable vote of security holders, if either is required. Furthermore, any
notice shall state the Conversion Price resulting from such adjustment and
the increase or decrease, if any, in the number of shares obtainable at such
price upon exercise, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. The failure
to give notice of any action or transaction as required under this Section
8(g) shall not affect the validity of any such action or transaction.
SECTION 9. RANKING. For purposes of the distribution of assets
upon liquidation, dissolution or winding up of the Corporation, (i) the
Junior Securities shall rank junior to the Series A Preferred and (ii) the
Parity Securities shall rank on a parity with the Series A Preferred.
SECTION 10. RECORD HOLDERS. The Corporation may deem and treat
the record holder of any shares of Series A Preferred as the true and lawful
owner thereof for all purposes, and the Corporation shall not be affected by
any notice to the contrary.
SECTION 11. NOTICE. Except as may otherwise be provided by law or
provided for herein, all notices referred to herein shall be in writing, and
all notices hereunder shall be deemed to have been given upon receipt, in the
case of a notice of conversion given to the Corporation, or, in all other
cases, upon the earlier of receipt of such notice or three Business Days
after the mailing of such notices sent by registered mail (unless first-class
mail shall be specifically permitted for such notice under the terms hereof)
with postage prepaid, addressed: If to the Corporation, to its principal
executive offices; or if to a holder of the Series A Preferred, to such
holder at the address of such holder of the Series A Preferred as listed in
the stock record books of the Corporation, or to such other address as the
Corporation or holder, as the case may be, shall have designated by notice
similarly given.
SECTION 12. SUCCESSORS AND TRANSFEREES. The provisions applicable
to shares of Series A Preferred shall bind and inure to the benefit of and be
enforceable by the Corporation, the respective successors to the Corporation,
and by any record holder of shares of Series A Preferred.
RESOLVED FURTHER, that the officers of the Corporation be, and
they are hereby, authorized and directed from time to time to execute
such certificates, instruments or other documents and do all such
things as may be necessary or advisable in their discretion in order to
carry out the terms hereof, including the filing with the Secretary of
State for the State of Delaware of a copy of the foregoing resolution
executed by an officer of the Corporation.
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Dated: December 28, 2000
BIONOVA HOLDING CORPORATION
By: /s/ Joe Rudberg
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Joe Rudberg, Secretary
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