EXHIBIT 99.4
AMENDMENT NO. 2
TO
STOCK PURCHASE AGREEMENT
AMENDMENT NO. 2 (this "AMENDMENT") dated as of October 31, 2001 to Stock
Purchase Agreement (the "STOCK PURCHASE AGREEMENT") dated as of August 23, 2001
between HEALTHSTAR HOLDINGS LLC, a New Jersey limited liability Corporation
("HOLDINGS") and BIONUTRICS, INC., a Nevada corporation ("BNRX" or the
"CORPORATION") as amended by Amendment No. 1 dated as of August 23, 2001 (the
"FIRST AMENDMENT") by and among Holdings, BNRX and the purchasers of shares of
Common Stock of the Corporation whose names appear on that certain accession
agreement who will agree to be bound by the Stock Purchase Agreement, as amended
(collectively, the "INVESTORS").
BACKGROUND
A. Section 10.9 of the Stock Purchase Agreement provides that Holdings
and BNRX may amend the Stock Purchase Agreement by an agreement in writing
signed by both parties.
B. Further, the parties hereto have agreed to certain additional
matters in connection with the Closing of the Stock Purchase Agreement which
they desire to formalize and reduce to writing as set forth in this Amendment.
NOW THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. Unless otherwise set forth herein, all capitalized
terms shall have the meaning ascribed to them in the Stock Purchase Agreement
and the First Amendment.
2. SHAREHOLDERS AGREEMENT. The form of the Shareholders Agreement
referred to in Section 7.1(b) of the Stock Purchase Agreement shall be in the
form as the parties hereto shall mutually agree on or before the Initial
Closing.
3. RANGE OF PURCHASED SHARES TO BE SOLD; MULTIPLE CLOSINGS. Sections
1.1, 1.2 and 1.3 of the Stock Purchase Agreement, as amended by the First
Amendment, are hereby further amended and restated to read in their entirety as
follows:
"1.1 Sale of Purchased Shares. Subject to the
terms and conditions to closing set forth in the Stock
Purchase Agreement, as amended, BNRX does hereby agree to
issue, sell, convey, transfer and deliver to (A) Holdings, at
the Initial Closing (as defined below), 5,227,000 shares of
BNRX common stock, together with the right to purchase up to
95,333 shares at $1.00 per share upon the exercise of any
currently outstanding options or warrants exercisable at
$20.00 or above
but only to the extent that such exercise would cause the
total number of shares outstanding (excluding the investment
by the Investors and conversion of certain outstanding debt)
to exceed 5,227,000 shares before taking into consideration
the shares sold to Holdings (as defined)(the "HOLDINGS
SHARES") and (B) the Investors, at the Initial Closing or at a
Subsequent Closing (as defined below), such number of shares
of BNRX common stock as shall equal a collective minimum of
6,500,000 shares (the "MINIMUM PURCHASED SHARES") up to a
collective maximum of 10,000,000 shares (collectively referred
to herein as the "INVESTOR PURCHASED SHARES"). The Holdings
Shares and the Investor Purchased Shares are collectively
referred to as the "PURCHASED SHARES"). At the Initial
Closing, the Corporation shall deliver to Holdings a
certificate representing the Holdings Shares. The certificates
representing the Investor Purchased Shares shall be delivered
to the Investors at the Initial Closing or at one or more
Subsequent Closings, as the case may be, in such denominations
as shall be designated on the signature page to the Accession
Agreement."
"1.2 Purchase Price and Payment. The purchase
price for the Purchased Shares is $1.00 per share. In full
consideration for the sale of the Purchased Shares, and the
representations, covenants and agreements of BNRX set forth in
the Stock Purchase Agreement, as amended, at the Initial
Closing, Holdings shall execute and deliver to BNRX a full
recourse, five year, interest-bearing promissory note in the
principal amount of $5,227,000, in such form as the parties
hereto shall mutually agree on or prior to the Initial Closing
and the Investors shall pay to BNRX at the Initial or any
Subsequent Closing $1.00 for each Purchased Share in cash by
wire transfer."
"1.3 Closing. The initial closing of the
transactions contemplated by the Stock Purchase Agreement, as
amended, in an amount of at least the Holdings Shares and the
Minimum Purchased Shares (the "INITIAL CLOSING") shall occur
on or before November 30, 2001 (as may be extended pursuant to
Section 9.1(b) but no later than January 1, 2002) or such
other time and date as the parties hereto shall designate in
writing (the "INITIAL CLOSING Date"). Thereafter, one or more
subsequent closings of the transactions contemplated by the
Stock Purchase Agreement, as amended, each of an amount of no
less than one hundred thousand (100,000) Purchased Shares,
shall occur on or before January 30, 2002 (each a "SUBSEQUENT
CLOSINGS"); provided however that Holdings may extend the
Initial Closing Date in its sole discretion if any of the
conditions to Holdings' obligation to close set forth in
Article
2
V of the Stock Purchase Agreement, as amended, are not
satisfied in Holding's sole and absolute discretion. Closings
shall occur at Holdings' offices located at 000 Xxxxxxxxxx
Xxxxxx Xxxxx Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000 or such
other location as Holdings may advise the Corporation in
writing.
4. STOCK OPTION ELIMINATED. Section 4.9 of the Stock Purchase Agreement
is hereby deleted in its entirety, including any references to the Holdings
Option as may appear in the Stock Purchase Agreement, as amended.
5. CORPORATION TO BE DIRECT PARTY TO HEALTHSTAR COMMUNICATIONS, INC.
STRATEGIC AGREEMENTS. Paragraph 4 of Amendment No. 1 to the Stock Purchase
Agreement is hereby amended and restated to read in its entirety as follows:
"At the Initial Closing, BNRX agrees to enter into each of
that certain Acquisition Agreement, the Co-Promotion
Agreement, and Resources Services Agreement (collectively, the
"STRATEGIC AGREEMENTS"), in each case with HealthSTAR
Communications, Inc. in the form as the parties hereto shall
mutually agree on or before the Initial Closing."
6. PURCHASE OF ASSETS IN THE FIELD OF PHARMACEUTICAL MARKETING
SERVICES. The BNRX Board of Directors has approved an acquisition of an
affiliate of HealthSTAR Communications Inc.("HCI") and Holdings by which BNRX
will acquire certain assets in the field of pharmaceutical marketing services
(the "INITIAL ACQUISITION"). It shall be a condition to the obligation of
Holdings and the Investors to close the Stock Purchase Agreement, as amended,
that: (i) the Corporation shall have entered into an asset purchase agreement
for the Initial Acquisition on terms acceptable to Holdings; and (ii) the Board
shall have received the fairness opinion contemplated by Section 6.5 of the
Stock Purchase Agreement, as amended.
7. ALL OTHER TERMS. All other terms of the Agreement and the First
Amendment shall remain in full force and effect.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
HEALTHSTAR HOLDING LLC BIONUTRICS, INC.
By: By:
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Name: Xxxxx Xxxxxx Name: Xxxxxx Xxxxxx Lane, Ph.D.
Title: Chairman Title: Chairman and Chief
Executive Officer
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