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Exhibit 10.46
Warrant Agreement dated as of October 30, 2000 between Bionutrics,
Inc., a Nevada corporation (the "Company"), and ACH Food Companies, Inc.
(formerly known as AC HUMKO CORP.), a Delaware corporation and its permitted
transferees (hereinafter referred to as "Holder").
Whereas Holder holds a certain warrant dated August 14, 1998 (the
"Warrant"), which was issued pursuant to that certain Warrant Agreement dated
August 14, 1998 by and between the Company and Holder and which has expired
pursuant to its terms; and
Whereas the Company desires to extend the period under the Warrant
during which Holder may obtain an additional equity interest in the Company as
an incentive for Holder to continue to provide valuable services to the Company
which have been performed by Holder after the expiration of the initial period
under the Warrant and which are presently being performed by Holder; and
Whereas, the Company desires to extend the period during which Holder
may obtain an additional equity interest in the Company under the Warrant in
accordance with the foregoing.
Now therefore for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agrees as
follows:
1. Grant. The Company hereby grants to Holder warrants to purchase up
to an aggregate of two million shares of Common Stock ("Warrants") at the
Exercise Price (as defined in Section 2), subject to adjustment as provided in
Section 8, during the period commencing on the date hereof and ending at 5:30
p.m. Eastern Standard Time one year thereafter ("Exercise Period").
2. Exercise Price. The term "Exercise Price" for 2 million shares of
Common Stock shall be $2.00 per share as may be adjusted from time to time
pursuant to Section 8.
3. Warrant Certificate. The warrant certificate delivered pursuant to
this Warrant Agreement shall be in the form set forth in Exhibit A with such
appropriate insertions, omissions,
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substitutions and other variations as required or permitted by this Warrant
Agreement (the "Warrant Certificate").
4. Exercise of Warrant. The Warrants are exercisable at the Exercise
Price and payable to the Company at its executive offices located at 0000 Xxxx
Xxxxxxxxx Xxxx, Xxx. 000, Xxxxxxx, Xx 00000, Attn: Chief Financial Officer (or
such other officer as designated to Holder by the Company) by certified or
official bank check in New York Clearing House funds or wire transfer. Upon
surrender of a Warrant Certificate, submission of an executed Form of Election
to Purchase in the form set forth in Exhibit B and payment of the Exercise
Price, Holder shall be entitled to receive a certificate for the shares of
Common Stock so purchased. The purchase rights represented by the Warrant
Certificate are exercisable at the option of Holder in whole or in part, but not
as to fractional shares of the Common Stock underlying the Warrants provided the
Company shall pay cash in respect of any fraction of a share that would
otherwise be issuable in an amount equal to the same fraction of the market
price per share of the shares of Common Stock underlying the Warrants on the
date of the exercise, as reasonably determined by the Company.
5. Issuance of Certificate. Upon the exercise of Warrants the Company
shall promptly issue to Holder a certificate for the shares of Common Stock
underlying the Warrant Certificate. If Holder purchases less than all the shares
of Common Stock purchasable under the Warrant Certificate, the Company shall
cancel the Warrant Certificate upon the surrender thereof and shall execute and
deliver a new Warrant Certificate of like tenor for the balance of the shares of
Common Stock. Holder shall be deemed the record holder of the shares of Common
Stock on the date of exercise of the Warrant pursuant to Section 4, irrespective
of the date of delivery of the Common Stock certificate.
6. Restriction On Transfer of Warrants. Holder may not sell, assign,
pledge, hypothecate or otherwise transfer any rights under the Warrants except
in compliance with all securities laws. Subject to the above, this Warrant
Agreement and the Warrants are transferable in the same manner and with the same
effect as in the case of a negotiable instrument payable to a specified person.
The Company, however, may treat the registered holder thereof as the owner
hereof for all purposes until the Warrant Certificate is surrendered for
transfer as hereinafter
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provided. Upon surrender of the Warrant Certificate at the principal office of
the Company, together with a written assignment thereof duly executed by the
holder hereof or his agent or attorney, the Company shall execute and deliver a
new Warrant Certificate in the name of the assignee or assignees and in the
denominations specified in such instrument of assignment. The Company shall pay
all expenses, taxes and other charges payable in connection with the
preparation, execution and delivery of the Warrant Certificate under this
section, except that in case such new Warrant is registered in a name or names
other than the name of the holder of this Warrant Agreement all stock transfer
taxes payable upon the execution and delivery of such Warrant Certificate shall
be paid by the holder hereof at the time of the presentation thereof. In such
case the holder hereof shall deliver at the time of such presentation evidence,
satisfactory to the Company, that such taxes have been paid.
7. Restrictive Legend; Registration Under the Securities Act of 1933.
7.1 Restrictive Legend. Neither the Warrants nor the shares of
Common Stock issuable upon exercise of the Warrants have been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities or blue sky laws.
Upon exercise of the Warrants, the Company may cause a legend in
substantially the form set forth below to be placed on each certificate
representing the shares of Common Stock issued.
The shares of stock represented by this certificate have not
been registered under the Securities Act of 1993, as amended (the
"Securities Act"), for public resale and may not be offered,
transferred or sold except pursuant to (i) an effective registration
statement under the Securities Act and any applicable state securities
or blue sky laws, (ii) to the extent applicable, Rule 144 under the
securities act (or any similar rule under the securities act relating
to the disposition of securities) together with an opinion of counsel
reasonably satisfactory to issuer's counsel that such transfer is
permitted or (iii) an opinion of counsel reasonably satisfactory to
issuer's counsel that an exemption from registration under the
securities act and any applicable state securities or blue sky laws is
available.
7.2 Registration Rights. The shares of stock issuable upon the
exercise of the Warrants shall be included in the Registrable Securities that
are the subject of
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certain registration rights as set out in that certain Stock Acquisition
Agreement by and between the Company and Holder, dated as of October 30, 2000.
8. Adjustments to Exercise and Number of Securities.
8.1 Recapitalization and Reclassifications. If upon a
recapitalization or reclassification the shares of Common Stock are changed into
or become exchangeable for a larger or smaller number of shares, then upon the
effective date thereof the number of shares of Common Stock that Holder shall be
entitled to purchase upon exercise of the Warrants shall be increased or
decreased, as the case may be, in direct proportion to the increase or decrease
in the number of shares of Common Stock by reason of such recapitalization or
reclassification, and the Exercise Price shall be, in the case of an increase in
the number of shares, proportionately decreased and, in the case of a decrease
in the number of shares, proportionately increased.
8.2 Sale; Merger; Consolidation. Subject to the notice
provisions set forth in Section 13, upon a transfer or sale of all or
substantially all the capital stock or assets of the Company or in the case of
any consolidation or merger of the Company with another entity (other than a
consolidation or merger that does not result in any reclassification or change
of the outstanding Common Stock), the transferee, purchaser or entity formed by
or surviving the consolidation or merger, as the case may be, shall execute and
deliver to Holder a supplemental warrant agreement giving Holder the right
during the Exercise Period to receive, upon exercise of the Warrants, the kind
and amount of shares of stock and/or other securities receivable upon such
transfer, sale, consolidation or merger, as the case may be, by a holder of the
number of shares of Common Stock for which such Warrants could have been
exercised immediately prior to such transfer, sale, consolidation or merger. If
such transfer, sale, consolidation or merger results in the shareholders of the
Company receiving cash or publicly traded securities having a value in excess of
the Exercise Price, this Warrant Agreement shall terminate if not exercised
prior to the closing date of such transaction. Such supplemental warrant
agreement shall provide for adjustments identical to the adjustments provided in
this Section 8.
8.3 No Adjustment of Exercise Price in Certain Cases. No
adjustment of the Exercise Price shall be made if the amount of an adjustment is
less than $.02 per share of
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Common Stock provided that any adjustment that would otherwise be required then
to be made shall be carried forward and shall be made at the time of and
together with the next subsequent adjustment that, together with any such
adjustment, amounts to at least $.02 per share of Common Stock.
8.4 Dividends and Other Distributions. If the Company declares
a dividend payable in shares of Common Stock, Holder shall be entitled to
receive upon exercise of the Warrant, in addition to the number of shares of
Common Stock as to which the Warrant is exercised, such additional shares of
Common Stock as Holder would have received had the Warrant been exercised
immediately prior to such record date for the dividend. If the Company declares
a dividend of securities other than a dividend of Common Stock, Holder shall
thereafter be entitled to receive upon the exercise of such Warrants in addition
to the shares of Common Stock receivable upon the exercise of such Warrants,
such non-Common Stock dividend as Holder would have received had the Warrant
been exercised immediately prior to such record date for the dividend. At the
time of any such dividend or distribution, the Company shall make appropriate
reserves to ensure the timely performance of this Section 8. Holder shall not be
entitled to receive any cash dividend declared by the Company.
8.5 If the Company issues in a public offering any shares of
Common Stock for a consideration per share less than the prevailing Exercise
Price, then (a) the Exercise Price in effect immediately prior to each such
instance shall be adjusted to a price equal to the quotient obtained by dividing
(i) an amount equal to the sum of the total number of shares of Common Stock
outstanding on a fully diluted basis immediately prior to such issuance
multiplied by the Exercise Price in effect immediately prior to such issuance
(the "Old Common Stock Number"), plus the consideration received by the Company
upon such issuance, by (ii) the total number of shares of Common Stock
outstanding on a fully diluted basis immediately after such issuance (the "New
Common Stock Number"), and (b) the number of shares of Common Stock then
issuable upon the exercise of the Warrants outstanding immediately prior to each
such issuance shall forthwith be adjusted by multiplying such number so issuable
by the quotient obtained by dividing (i) the New Common Stock Number by (ii) the
Old Common Stock Number.
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8.6 Except as provided in Section 8.5, if the Company issues
shares of Common Stock, or convertible preferred stock, warrants, options,
rights, or other securities only to the extent the aforementioned securities are
convertible into or exchangeable or exercisable for shares of Common Stock, or
rights to subscribe for or to purchase Common Stock or any stock or securities
convertible into or exchangeable or exercisable for Common Stock, without
consideration or for a consideration per share less than the prevailing Exercise
Price then, the Exercise Price in effect immediately prior to each such issuance
shall be decreased and the number of shares of Common Stock issuable upon the
exercise of the Warrants shall be increased pursuant to the formula set forth in
Section 8.5 counting as consideration received by the Company the consideration
actually received plus that deemed to be received upon such conversion or
exchange as provided in Section 8.7(c).
8.7 For the purposes of any adjustment of the Exercise Price
and the number of shares of Common Stock issuable upon exercise of the Warrants
pursuant to Sections 8.5 and 8.6, the following provisions shall be applicable:
(a) In the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash received by the
Company therefor.
(b) In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the "fair value" of such
consideration as determined in the good faith judgment of the board of
directors of the Company.
(c) In the case of the issuance of (x) options to purchase or
rights to subscribe for Common Stock, (y) securities by their terms
convertible into or exchangeable for Common Stock or (z) options to
purchase or rights to subscribe for such convertible or exchangeable
securities:
(i) the aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options to purchase or
rights to subscribe for Common Stock shall be deemed
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to have been issued at the time such options or rights were
issued and for a consideration equal to the consideration
(determined in the manner provided in subsections (a) and (b)
above), if any, received by the Company upon the issuance of
such options or rights plus the minimum purchase price
provided in such options or rights for the Common Stock
covered thereby;
(ii) the aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities or upon the
exercise of options to purchase or rights to subscribe for
such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been
issued at the time such securities were issued or such options
or rights were issued and for a consideration equal to the
consideration received by the Company for any such securities
and related options or rights (excluding any cash received on
account of accrued interest or accrued dividends), plus the
additional consideration, if any, to be received by the
Company upon the conversion or exchange of such securities or
the exercise of any related options or rights (the
consideration in each case to be determined in the manner
provided in subsections (a) and (b) above);
(iii) on any change in the number of shares or
exercise price of Common Stock deliverable upon exercise of
any such options or rights or conversions of or exchange for
such convertible or exchangeable securities, other than a
change resulting from the antidilution provisions thereof, the
Exercise Price and the number of shares of Common Stock
issuable upon exercise of the Warrants shall forthwith be
readjusted to such Exercise Price and to such number of shares
as would have
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obtained had the adjustment made at the time of the issuance
of such options, rights or securities not converted prior to
such change been made upon the basis of such change; and
(iv) on the expiration of any such option or rights,
the termination of any such rights to convert or exchange or
the expiration of any options or rights related to such
convertible or exchangeable securities, the Exercise Price and
the number of shares of Common Stock issuable upon exercise of
the Warrants shall forthwith be readjusted to such Exercise
Price and to such number of shares as would have obtained had
such options, rights, securities or options or rights related
to such securities not been issued.
8.8 Definition of Common Stock. The term "Common Stock" shall
mean:
(a) the class of stock designated as Common Stock in the
Company's Articles of Incorporation, as may be amended, or any other
class of stock resulting from successive changes or reclassifications
of such Common Stock; and
(b) if, as a result of an adjustment made pursuant to this
Section 8, Holder shall upon exercise of the Warrants become entitled
to receive securities or assets other than Common Stock then, wherever
appropriate, all references herein to shares of Common Stock shall be
deemed to refer to and include such other securities or assets and
thereafter the number of such other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as
nearly equivalent as practicable to the provisions of this section.
9. Issuance of New Warrant Certificate. Upon receipt by the Company of
evidence reasonably satisfactory to it of a loss, theft, destruction or
mutilation of a Warrant Certificate, reimbursement by Holder to the Company of
all incidental expenses and, in the case of loss, theft or destruction, receipt
of indemnity or security from Holder reasonably satisfactory to it or, in the
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case of a mutilated Warrant Certificate, upon surrender and cancellation
thereof, the Company shall make and deliver a new Warrant Certificate to Holder.
10. Elimination of Fractional Interest. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants. The Company shall have the option to make
payment in cash in respect of any fractional shares or to round any fraction up
to the nearest whole number of shares of Common Stock.
11. Reservation and Listing of Securities. The Company shall at all
times reserve and keep available out of its authorized shares of Common, Stock,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock as shall be issuable upon the exercise thereof.
The Company covenants and agrees that, upon exercise of the Warrants and payment
of the Exercise Price by Holder, all shares of Common Stock issuable upon such
exercise shall be duly and validly issued, fully paid and non-assessable. The
Company shall immediately undertake to obtain, and shall within a reasonable
period of time after the date of this Warrant Agreement obtain, approval for
listing on the NASDAQ (Small Cap Market) of the shares issuable upon exercise of
the Warrants.
12. Representations and Warranties.
12.1 Holder represents and warrants to the Company that the
Warrants are being acquired solely for Holder's own account, for investment, not
for the interest of any other and are not being acquired with a view to or for
resale, distribution, assignment, subdivision or fractionalization thereof, and
Holder has no present plan to enter into any contract, undertaking, agreement or
arrangement for such purpose.
12.2 Holder represents and warrants to the Company that it is
an "accredited investor" and a "sophisticated investor," each as defined in the
Regulation D promulgated under the Securities Act.
13. Advance Notice to Warrant Holder re Dividend, Exchange, Merger.
etc. Nothing contained in this Warrant Agreement shall be construed as
conferring upon Holder the right to vote, consent or receive notice as a
stockholder in respect of any meeting of stockholders for the
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election of directors or any other matter, or as having any right as a
stockholder of the Company. If, however, at any time prior to the expiration of
the Warrants and their exercise, any of the following events shall occur:
(a) the Company takes a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable other than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment (which treatment
shall be in accordance with generally accepted accounting principles)
of such dividend or distribution on the books of the Company; or
(b) the Company offers to all the holders of its Common Stock
any additional shares of capital stock of the Company or securities
convertible into or exchangable for shares of capital stock of the
Company, or any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation, winding up, transfer,
consolidation, merger or a sale of all or substantially all its
property, assets and business as an entirety is proposed;
the Company shall give notice of such event at least 15 days prior to the date
fixed as a record date or the date of the closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, or entitled to
vote on such proposed dissolution, liquidation, winding up or sale. Such notice
shall specify such record date or the date of closing the transfer books, as the
case may be. Failure to give such notice or any defect therein shall not affect
the validity of any action taken in connection with the declaration or payment
of any such dividend, or the issuance of any convertible or exchangeable
securities, or subscription rights, options or warrants, or any proposed
dissolution, liquidation, winding up or sale.
14. Notices. Any notice or demand pursuant to this Warrant Agreement
shall be in writing and shall be deemed sufficiently given or made (a) upon
personal delivery (b) the next business day following delivery to a reputable
overnight courier or (c) three days following
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mailing by certified or registered mail, return receipt requested, postage
prepaid, and addressed, until the other party is notified of another address, as
follows:
If to the Company:
Bionutrics, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Chief Executive Officer
with a copy to:
Xxxxxxxxx Traurig LLP
Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
If to Holder:
AC Food Companies, Inc.
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
with a copy to:
Xxxxxx & Xxxxxx LLP
0000 Xxxxxx Xxxxxx (Suite 2900)
Xxxxxxx, XX 00000
Attn: J. Xxxxx Xxxxxxx, Esq.
15. Successors. All the covenants and provisions of this Warrant
Agreement shall be binding upon and inure to the benefit of the Company, Holder
and their respective successors and permitted assigns hereunder.
16. Governing Law; Submission to Jurisdiction. (a) This Warrant
Agreement and each Warrant Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of New York and for all the purposes
shall be construed in accordance with the laws of said State without giving
effect to the rules thereof governing conflicts of laws.
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(b) Any action, proceeding or claim against either party hereto arising
out of, or relating in any way to, this Warrant Agreement shall be brought and
enforced in the courts of the State of New York or of the United States of
America for the Southern District of New York, and the parties hereto
irrevocably submit to such jurisdiction, which jurisdiction shall be exclusive.
The parties irrevocably waive any objection to such exclusive jurisdiction
including on the ground of inconvenient forum. Any such process or summons to be
served upon either party hereto may (at the option of any party bringing such
action, proceeding or claim) be served in accordance with Section 14. The
prevailing party in any such action or proceeding shall be entitled to recover
from the other party its reasonable legal costs and expense incurred in
connection with such action or proceeding.
17. Entire Agreement; Modification. This Warrant Agreement contains the
entire understanding between the parties with respect to the subject matter
hereof and may not be modified or amended except in writing by both parties.
18. Severability. If any provision of this Warrant Agreement shall be
held to be invalid or unenforceable, such invalidity or unenforceability shall
not affect any other provision hereof.
19. Captions. The caption headings of the sections of this Warrant
Agreement are for convenience of reference only and are not intended, nor should
they be construed as, a part of this Warrant Agreement and shall be given no
substantive effect.
20. Benefits of this Warrant Agreement. Nothing in this Warrant
Agreement shall be construed to give to any person or entity other than the
Company and Holder any legal or equitable right, remedy or claim hereunder and
this Warrant Agreement shall be for the sole and exclusive benefit of the
Company and Holder.
21. Counterparts. This Warrant Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and such counterparts shall together constitute but one and
the same instrument.
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In Witness Whereof the parties hereto have caused this Warrant
Agreement to be duly executed, as of the day date in the preamble hereof.
Bionutrics, Inc.
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Xxxxxx X. Xxxx, Chief Executive Officer
ACH Food Companies, Inc.
By: /s/ Xxxxx Xxxxxxxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxxxxxxx, Vice President
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Warrant Certificate
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF STOCK ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), FOR PUBLIC RESALE AND MAY NOT BE OFFERED,
TRANSFERRED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR BLUE SKY LAWS,
(ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE SECURITIES ACT (OR ANY SIMILAR
RULE UNDER THE SECURITIES ACT RELATING TO THE DISPOSITION OF SECURITIES)
TOGETHER WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO ISSUER'S COUNSEL
THAT SUCH TRANSFER IS PERMITTED OR (iii) AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO ISSUER'S COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR BLUE SKY LAWS IS
AVAILABLE.
THE EXERCISE, TRANSFER AND EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE WARRANT AGREEMENT BETWEEN BIONUTRICS, INC. AND
ACH FOOD COMPANIES, INC.
2,000,000 Warrants
Warrant Certificate
This Warrant Certificate certifies that ACH Food Companies, Inc., a
Delaware corporation, is the registered holder of 2,000,000 warrants to
purchase, at any time from October 30, 2000, until 5:30 p.m. Eastern Standard
Time on October 30, 2001 ("Expiration Date"), up to 2,000,000 fully-paid and
non-assessable shares of common stock, par value $.001 per share ("Common
Stock"), of Bionutrics, Inc. (the "Company") at an exercise price determined
pursuant to Section 2 of the Warrant Agreement dated as of October 30, 2000,
between the Company and ACH Food Companies, Inc. (the "Warrant Agreement"), upon
surrender of this Warrant Certificate and payment of such exercise price to the
Company and subject to the Warrant Agreement.
At 5:31 p.m. Eastern Standard Time on the Expiration Date all Warrants
evidenced hereby, unless exercised prior thereto, shall be void.
The Warrant Agreement is hereby incorporated by reference and made a
part of this Warrant Certificate and is hereby referred to for a description
of the rights, obligations, duties and restrictions of the Company and holder
of the Warrants.
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In Witness Whereof, the Company has caused this Warrant Certificate
to be duly executed as of the 30th day of October, 2000.
Bionutrics, Inc., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Xxxxxx X. Xxxx, Chief Executive Officer
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Exhibit B
Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise the right
represented by the attached Warrant Certificate to purchase _______ shares of
common stock, par value $.001, of Bionutrics, Inc. at an exercise price of
$_______ per share and herewith tenders in payment for such stock a certified or
official bank check payable in New York Clearing House Funds to the order of
Bionutrics, Inc. or if so indicated below had arranged for wire transfer to
Bionutrics's account as set forth on the attached wire transfer information in
the amount of $__________.
ACH Food Companies, Inc.
By:
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Name:
------------------------------------------
Title:
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