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EXHIBIT 10.48
NEITHER THIS WARRANT, NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF, HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAW. SUCH SECURITIES MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME
EFFECTIVE WITH REGARD THERETO OR (II) IN THE OPINION OF COUNSEL IN FORM AND
SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER THE
SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN
CONNECTION WITH A PROPOSED SALE OR TRANSFER.
COMMON STOCK
PURCHASE WARRANT
For the Purchase of Shares of
Common Stock of
BIONUTRICS, INC.
(Par Value $0.001 Per Share)
(Incorporated under the Laws of the State of Nevada)
VOID AFTER 5:00 P.M. PST ON DECEMBER 19, 2003
Date of Original Issuance: December 20, 2000
This is to certify that, for value received, Ropart Investments LLC, or
assigns (the "Warrantholder"), is entitled, subject to the terms and conditions
hereinafter set forth, to purchase 70,000 shares of common stock, par value
$0.001 per share (the "Common Stock"), of BIONUTRICS, INC., a Nevada corporation
(the "Company"), for the Warrant Price (as defined below), and to receive a
certificate or certificates for the shares of Common Stock so purchased. This
Warrant is being issued in connection with the terms of that certain Stock
Purchase Agreement dated December 20, 2000, by and between the Warrantholder and
the Company.
1. TERMS AND EXERCISE OF WARRANT.
(a) WARRANT SHARES. Warrant Shares (as defined below) may
be acquired in accordance with the terms of this Warrant until the Termination
Date (as defined below). The Warrantholder may exercise this Warrant with
respect to all Warrant Shares effective immediately.
(b) EXERCISE PERIOD. Subject to the terms of this
Warrant, the Warrantholder shall have the right, at any time during the Exercise
Period (as defined below), to exercise this Warrant for any or all Warrant
Shares and to purchase from the Company up to the number of fully paid and
nonassessable shares of Common Stock which the Warrantholder may at the time be
entitled to purchase pursuant to this Warrant. The 70,000 shares of Common Stock
subject to this Warrant and any other securities that the
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Company may be required by the operation of Section 3 to issue upon the exercise
hereof are referred to herein as the "Warrant Shares." The "Exercise Period"
shall mean the period commencing on the Date of Original Issuance for such
Warrant Shares and ending at 5:00 P.M., Mountain Standard Time, on December ___,
2003 (the "Termination Date"), or if such date is a day on which banking
institutions are authorized by law to close, then on the next succeeding day
which shall not be such a day. If this Warrant is not exercised on or prior to
the Termination Date, this Warrant shall become void and all rights of the
Warrantholder hereunder shall cease.
(c) METHOD OF EXERCISE. The Warrantholder may exercise
this Warrant by surrender of this Warrant to the Company at its principal office
in Phoenix, Arizona (or at such other address as the Company may designate by
notice in writing to the Warrantholder at the address of the Warrantholder
appearing on the books of the Company or such other address as the Warrantholder
may designate in writing), together with the form of Election to Purchase
included as Exhibit A hereto, duly completed and signed, and upon payment to the
Company of the Warrant Price (as defined in Section 2) multiplied by the number
of Warrant Shares being purchased upon such exercise (the "Aggregate Warrant
Price"), together with all taxes applicable upon such exercise. Payment of the
Aggregate Warrant Price shall be made in cash or by certified check or cashier's
check, payable to the order of the Company.
(d) PARTIAL EXERCISE. At the election of the
Warrantholder, this Warrant shall be exercisable in whole or in part at any
time, and from time to time, during the Exercise Period.
(e) SHARE ISSUANCE UPON EXERCISE. Upon the exercise and
surrender of this Warrant certificate and payment of the Aggregate Warrant
Price, the Company shall issue and cause to be delivered with all reasonable
dispatch to the Warrantholder, in such name or names as the Warrantholder may
designate in writing, a certificate or certificates for the number of full
Warrant Shares so purchased upon the exercise of the Warrant, together with
cash, as provided in Section 4 hereof, with respect to any fractional Warrant
Shares otherwise issuable upon such surrender and, if applicable, the Company
shall issue and deliver a new Warrant to the Warrantholder for the number of
Warrant Shares not so exercised. 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 a holder of such Warrant Shares as of the close
of business on the date of the surrender of the Warrant and payment of the
Aggregate Warrant Price, notwithstanding that the certificates representing such
Warrant Shares shall not actually have been delivered or that the stock transfer
books of the Company shall then be closed.
2. WARRANT PRICE. The price per share at which Warrant Shares
shall be purchasable upon the exercise of this Warrant shall be $1.00 per share,
subject to adjustment pursuant to Section 3 hereof (originally and as ---------
adjusted, the "Warrant Price").
3. ADJUSTMENT OF NUMBER OF WARRANT SHARES AND WARRANT PRICE. The
Company agrees to reserve and shall keep reserved for issuance the number of
shares of Common Stock issuable upon exercise of this Warrant. The number of
Warrant Shares purchasable upon the exercise of this Warrant and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) In case the Company shall (1) pay a dividend or make
a distribution in shares of its Common Stock, (2) subdivide its outstanding
Common Stock into a greater number of shares, (3) combine its outstanding Common
Stock into a smaller number of shares, or (4) issue by reclassification of its
Common Stock any shares of capital stock of the Company (other than a change in
par value, or from par value to no par value, or from no par value to par
value), the number of Warrant Shares issuable upon
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exercise of this Warrant and the Warrant Price in effect immediately prior
thereto shall be adjusted as follows:
(i) The number of Warrant Shares issuable upon
exercise of this Warrant shall be adjusted by multiplying the number of Warrant
Shares issuable upon exercise of this Warrant immediately prior to such
adjustment by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding immediately after such adjustment, and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such adjustment; and
(ii) The Warrant Price shall be adjusted by
multiplying the Warrant Price in effect immediately prior to such adjustment by
a fraction, the numerator of which shall be the number of Warrant Shares
issuable upon exercise of this Warrant immediately prior to such adjustment, and
the denominator of which shall be the number of Warrant Shares as so adjusted.
An adjustment made pursuant to this Section 3(a) shall become effective
immediately after the record date in the case of a dividend or distribution
(provided, however, that such adjustments shall be reversed if such dividends or
distributions are not actually paid) and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant to this Section
3(a), the Warrantholder shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors (whose
determination shall be conclusive and shall be evidenced by a resolution) shall
determine the allocation of the adjusted Warrant Price between or among the
shares of such classes of capital stock.
(b) In case of any reclassification of the outstanding
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision,
combination or stock dividend), or in case of any consolidation of the Company
with, or merger of the Company into, another corporation wherein the Company is
not the surviving entity, or in case of any sale of all, or substantially all,
of the property, assets, business and goodwill of the Company, the Company, or
such successor or purchasing corporation, as the case may be, shall provide, by
a written instrument delivered to the Warrantholder, that the Warrantholder
shall thereafter be entitled, upon exercise of this Warrant, to the kind and
amount of shares of stock or other equity securities, or other property or
assets which would have been receivable by such Warrantholder upon such
reclassification, consolidation, merger or sale, if this Warrant had been
exercised immediately prior thereto. Such corporation, which thereafter shall be
deemed to be the "Company" for purposes of this Warrant, shall provide in such
written instrument for adjustments to the Warrant Price which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
3.
(c) No adjustment in the number of securities purchasable
hereunder shall be required unless such adjustment would require an increase or
decrease of at least five percent (5%) in the number of securities (calculated
to the nearest full share or unit thereof) then purchasable upon the exercise of
this Warrant; provided, however, that any adjustment which by reason of this
Section 3(c) is not required to be made immediately shall be carried forward and
taken into account in any subsequent adjustment.
(d) For the purpose of this Section 3, the term "Common
Stock" shall mean (i) the class of stock designated as Common Stock of the
Company at October 31, 2000, or (ii) any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting solely
of changes in par value, or from par value to no par value, or from no par value
to par value. In the event that at any time, as a result of an adjustment made
pursuant to this Section 3, the Warrantholder shall become entitled to purchase
any shares of the Company's capital stock other than Common Stock, thereafter
the
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number of such other shares so purchasable upon the exercise of this Warrant and
the Warrant Price of such shares shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares contained in this Section 3.
(e) Whenever the number of shares of Common Stock and/or
other securities purchasable upon the exercise of this Warrant or the Warrant
Price is adjusted as herein provided, the Company shall cause to be promptly
mailed to the Warrantholder by first class mail, postage prepaid, notice of such
adjustment and a certificate of the Company's chief financial officer setting
forth the number of shares of Common Stock and/or other securities purchasable
upon the exercise of this Warrant, the Warrant Price after such adjustment, a
brief statement of the facts requiring such adjustment, and the computation by
which such adjustment was made.
(f) Irrespective of any adjustments in the Warrant Price
or the number or kind of securities purchasable upon the exercise of this
Warrant, the Warrant certificate or certificates theretofore or thereafter
issued may continue to express the same price or number or kind of securities
stated in this Warrant initially issuable hereunder.
4. FRACTIONAL INTEREST. The Company shall not be required to
issue fractional shares upon exercise of this Warrant, but shall pay an amount
in cash equal to the closing price of the Company's Common Stock on the Nasdaq
SmallCap Market or other trading market on the day preceding the date of the
surrender of this Warrant pursuant to Section 1(c) hereof, or if there is no
public market, cash equal to the then fair market value of the shares as
reasonably determined by the Board of Directors of the Company, in its sole
discretion, multiplied by such fraction.
5. TRANSFER PROHIBITION. Neither this Warrant nor any rights
hereunder may be sold, exchanged, conveyed, assigned, given, pledged,
hypothecated or otherwise transferred by the Warrantholder.
6. NO RIGHTS AS SHAREHOLDER; NOTICES TO WARRANTHOLDER. Prior to
the exercise of this Warrant pursuant to the terms hereof, nothing contained in
this Warrant shall be construed as conferring upon the Warrantholder any rights
as a shareholder of the Company, either at law or in equity, including the right
to vote, receive dividends, consent or receive notices as a shareholder with
respect to any meeting of shareholders for the election of directors of the
Company or for any other matter.
7. NOTICES. Any notice given pursuant to this Warrant by the
Company or by the Warrantholder shall be in writing and shall be deemed to have
been duly given upon (a) personal delivery, (b) transmitter's confirmation of
the receipt of a facsimile transmission, (c) confirmed delivery by a standard
overnight carrier, or (d) the expiration of three business days after the day
when mailed by United States Postal Service by certified or registered mail,
return receipt requested, postage prepaid at the following addresses:
If to the Company:
Bionutrics, Inc.
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
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with a copy to:
Xxxxxxxxx Traurig, LLP
Xxx X. Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
If to the Warrantholder:
Ropart Investments LLC
000 Xxxxx Xxxxx xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
with a copy to:
Xxxx Xxxxx & Xxxxxxx
0 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx III, Esq.
Each party hereto may, from time to time, change the address to which
notices to it are to be transmitted, delivered or mailed hereunder by notice in
accordance herewith to the other party.
8. INVESTMENT REPRESENTATION. The Warrantholder hereby represents
to the Company that it is acquiring this Warrant for its own account, as
principal, for investment and not with a view to or the intent to participate
in, directly or indirectly, the resale, assignment, distribution or
fractionalization of all or any part hereof. Further, the Warrantholder shall
furnish the Company an investment letter, in form and substance satisfactory to
the Company, prior to the issuance of any Warrant Shares or other securities
issuable upon the exercise hereof, to the effect that such securities, and any
additional securities of the Company for which such securities may be exercised
or exchanged or into which they may ultimately be converted, if not registered
pursuant to applicable state and federal securities laws, will be acquired for
investment and not with a view to the sale or distribution thereof. The
Warrantholder hereby further represents that it has been provided with, or given
reasonable access to, full and fair disclosure of all material information
regarding the Company, this Warrant, and the Common Stock.
9. GENERAL PROVISIONS.
(a) SUCCESSORS. All covenants and provisions of this
Warrant shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto.
(b) CHOICE OF LAW. This Warrant and the rights of the
parties hereunder shall be governed by and construed in accordance with the laws
of the State of Arizona, including all matters of construction, validity,
performance, and enforcement, and without giving effect to the principles of any
Arizona or other conflict-of-law provisions to the contrary.
(c) ENTIRE AGREEMENT. Except as provided herein, this
Warrant, including exhibits, contains the entire agreement of the parties, and
supersedes all existing negotiations, representations or
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agreements and all other oral, written, or other communications between them
concerning the subject matter of this Warrant.
(d) SEVERABILITY. If any provision of this Warrant is
unenforceable, invalid, or violates applicable law, such provision shall be
deemed stricken and shall not affect the enforceability of any other provisions
of this Warrant.
(e) CAPTIONS. The captions in this Warrant are inserted
only as a matter of convenience and for reference and shall not be deemed to
define, limit, enlarge, or describe the scope of this Warrant or the
relationship of the parties, and shall not affect this Warrant or the
construction of any provisions herein.
IN WITNESS WHEREOF, the Company caused this Warrant to be duly executed
as of the date first above written.
BIONUTRICS, INC., a Nevada corporation
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
President
The Warrantholder hereby agrees to and accepts the terms and conditions
of this Warrant this _____ day of December, 2000.
FOR ROPART INVESTMENTS LLC
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxxx
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Its: Managing Member
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EXHIBIT A
ELECTION TO PURCHASE
Bionutrics, Inc.
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
The undersigned hereby irrevocably elects to exercise the
right of purchase set forth in the attached Warrant to purchase thereunder
____________________ shares of the Common Stock (the "Warrant Shares") provided
for therein and requests that the Warrant Shares be issued in the name of
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(Please Print Name, Address and SSN or EIN of Shareholder above)
Dated:
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Name of Warrantholder or Assignee:
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(Please Print)
Signature:
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(Signature must conform in all respects to name of
holder as specified on the face of the Warrant.)
Address:
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Aggregate Warrant Price Paid: $
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Method of payment:
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(Please Print)
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Medallion Signature Guarantee (required if an assignment of Warrant Shares
acquired on exercise is made upon exercise.)
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