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EXHIBIT 10.30(b)
BIONUTRICS, INC.
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
February 20, 2001
Justicia Holdings Limited
X/X Xxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx, 0xx Floor
Waterfront Drive
Road Town, Tortola
British Virgin Islands
Attn.: Mr. Xxxxx Xxxx
Re: Amendment to Common Stock Purchase Agreement
Gentlemen:
Reference is made to that certain Common Stock Purchase Agreement
(the "Purchase Agreement"), dated September 7, 2000, between Bionutrics, Inc.
(the "Company") and Justicia Holdings Limited (the "Purchaser"). It has recently
come to the attention of the parties that in order to register for resale the
Common Stock to be purchased pursuant to the Purchase Agreement, certain
provisions of the Purchase Agreement must be deleted or revised. The Company and
the Purchaser hereby agree to delete or revise said provisions from the Purchase
Agreement.
In consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. To restate the following sections of the Purchase Agreement as set
forth below:
Section 1.1(g) "Principal Market" shall mean initially the
Nasdaq SmallCap Market and shall include the American Stock Exchange,
Nasdaq National Market or the New York Stock Exchange if the Company
is listed and trades on such market or exchange.
Section 1.1(p) "Warrants" shall mean the Initial Warrant
as that term in defined in Section 5.2(f) hereof.
Section 5.2(f) Warrants. In lieu of a minimum Draw Down
commitment by the Company, the Purchaser shall receive, at the
Initial Closing, a warrant certificate to purchase up to 200,000
shares of Common Stock (the "Initial Warrant"). The Initial Warrant
shall have a term from its date of issuance of three (3) years. The
exercise price of the Initial Warrant shall be 120% of the average
VWAP on the fifteen Trading
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Days immediately prior to the Initial Closing Date. The Common Stock
underlying the Warrants will be registered in the Registration
Statement referred to in Section 4.3 hereof. The Warrants shall be in
the form of Exhibit E hereto.
Section 5.3(f) Future Financing. The Company shall have
not completed any financing prohibited by Section 4.11 unless, prior
to the Company delivering the first Draw Down Notice after any such
financing as a condition to the Purchaser's obligations hereunder,
the Company pays the Purchaser the sum of $100,000 as liquidated
damages.
Section 7.2 Other Termination. This Agreement shall
terminate upon one (1) Trading Day's notice if (i) an event resulting
in a Material Adverse Effect has occurred that is not cured in sixty
(60) days, or (iii) the Company files for protection from creditors
under any applicable law.
2. Section 9.4 is hereby revised, with respect to the Purchaser's address,
to the address set forth above.
3. The parties hereby agree to add the following provision to Section 3 of
the Initial Warrant issued pursuant to the Purchase Agreement:
(d) Notwithstanding anything herein to the contrary, in no event
shall the holder be permitted to exercise this Warrant for shares of
Common Stock to the extent that (x) the number of shares of Common
Stock owned by such Holder (other than shares of Common Stock
issuable upon exercise of this Warrant) plus (y) the number of shares
of Common Stock issuable upon exercise of this Warrant, would be
equal to or exceed 9.9% of the number of shares of Common Stock then
issued and outstanding, including shares issuable upon exercise of
this Warrant held by such holder after application of this Section
3(d). As used herein, beneficial ownership shall be determined in
accordance with Section 13(d) of the Exchange Act. To the extent that
the limitation contained in this Section 3(d) applies, the
determination of whether this Warrant is exercisable (in relation to
other securities owned by the holder) and of which a portion of this
Warrant is exercisable shall be in the sole discretion of such
holder, and the submission of a Notice of Exercise shall be deemed to
be such holder's determination of whether this Warrant is exercisable
(in relation to other securities owned by such holder) and of which
portion of this Warrant is exercisable, in each case subject to such
aggregate percentage limitation, and the Company shall have no
obligation to verify or confirm the accuracy of such determination.
Nothing contained herein shall be deemed to restrict the right of a
holder to exercise this Warrant into shares of Common Stock at such
time as such exercise will not violate the provisions of this Section
3(d). The provisions of this Section 3(d) may be waived by the Holder
of this Warrant upon, at the election of the Holder, with 61 days'
prior notice to the Company, and the provisions of this Section 3(d)
shall continue to apply until such 61st day (or such later date
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as may be specified in such notice of waiver). No exercise of this
Warrant in violation of this Section 3(d) but otherwise in accordance
with this Warrant shall affect the status of the Common Stock issued
upon such exercise as validly issued, fully-paid and nonassessable.
Except as specifically amended by the terms of this amendment, the Purchase
Agreement and its exhibits shall remain unmodified and in full force and effect,
and shall not be in any way changed, modified or superseded by the terms set
forth herein. All terms used but not defined in this amendment shall have the
meanings set forth in the Purchase Agreement.
This amendment may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and shall become
effective when counterparts have been signed by each party and delivered to the
other parties hereto, it being understood that all parties need not sign the
same counterpart. Execution of this amendment may be made by delivery by
facsimile.
If the foregoing correctly sets forth our understanding and agreement,
please so indicate by signing where indicated below.
BIONUTRICS, INC.
By: /s/Xxxxxx X. Xxxx
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Xxxxxx Xxxx, President & CEO
ACCEPTED AND AGREED TO:
JUSTICIA HOLDINGS LIMITED
By: /s/Xxxxx Xxxx
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Xxxxx Xxxx, Authorized Signatory
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