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EXHIBIT 10.44
FIRST MODIFICATION OF MEMBERS AGREEMENT
This FIRST MODIFICATION OF MEMBERS AGREEMENT (this "Modification
Agreement") is entered into as of October 30, 2000, by and among ACH FOOD
COMPANIES, INC. (formerly, AC HUMKO CORP.), a Delaware corporation ("ACH"),
INCON TECHNOLOGIES, INC., a Delaware corporation ("InCon"), and BIONUTRICS,
INC., a Nevada corporation ("Bionutrics"). All of the parties listed above are
herein collectively called the "Parties".
RECITALS
WHEREAS, ACH and InCon entered into that certain Members Agreement for
Incon Processing, L.L.C. dated as of June 25, 1999 (the "Agreement"); and
WHEREAS, all of the obligations of InCon under the Agreement are
guaranteed by Bionutrics under the terms and provisions of that certain Guaranty
from Bionutrics dated June 25, 1999, in favor of ACH (the "Guaranty"); and
WHEREAS, under the terms of Section 4.7 of the Agreement, InCon is
obligated to pay to ACH an amount not to exceed US$600,000 upon the occurrence
of certain events; and
WHEREAS, InCon has requested that the Agreement be modified to delete
any obligation on the part of InCon under Section 4.7 of the Agreement; and
WHEREAS, InCon is a wholly owned subsidiary of Bionutrics, and ACH is
willing to release InCon from its obligations under Section 4.7 of the Agreement
in consideration for Bionutrics issuance to ACH of 300,000 shares of common
stock of Bionutrics in accordance with the terms and provisions of the Stock
Acquisition Agreement attached hereto as Exhibit A (the "Stock Acquisition
Agreement"); and
WHEREAS, the Parties desire to set forth their agreements with respect
to the foregoing recitals.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
1. From and after the date hereof, InCon is released from, and shall
have no further obligations under, the terms and provisions of Section 4.7 of
the Agreement. Accordingly, Section 4.7 of the Agreement is hereby deleted in
its entirety.
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2. Notwithstanding the release of InCon and the modification of the
Agreement in accordance with the foregoing provisions, InCon shall remain fully
liable for all of its obligations under the Agreement except for its obligations
under Section 4.7 of the Agreement.
3. ACH and Bionutrics hereby agree that from and after the date hereof,
the Guaranty shall not cover any of the obligations of InCon set forth in
Section 4.7 of the Agreement.
4. Bionutrics hereby consents to the release of InCon and to the
modification of the Agreement as set forth herein and agrees (i) that each of
the obligations of InCon under the Agreement, except for the obligations of
InCon under Section 4.7 of the Agreement, shall remain unmodified by this
Modification Agreement, (ii) that Bionutrics shall remain fully liable for all
of the obligations of InCon under the Agreement, as modified hereby, all in
accordance with the terms and provisions of the Guaranty, (iii) nothing
contained herein shall release Bionutrics from any of its obligations under the
Guaranty, except with respect to the obligations of InCon set forth in Section
4.7 of the Agreement, and (iv) the Guaranty is and shall remain in full force
and effect and is and shall remain enforceable against Bionutrics in accordance
with its terms.
5. Contemporaneously herewith Bionutrics and ACH have entered into the
Stock Acquisition Agreement and Bionutrics has issued the common stock covered
by the Stock Acquisition Agreement, all in consideration for ACH's execution of
this Modification Agreement and that certain First Modification of Master
Formation Agreement of even date herewith by and among ACH, Bionutrics, InCon,
InCon International, Inc. and Nutrition Technology Corporation, and but for the
occurrence of all of same, ACH would not have entered into this Modification
Agreement.
6. The terms of this Modification Agreement shall be governed by and
construed in accordance with the laws of Delaware.
7. Except as set forth herein, all of the terms and provisions of the
Agreement shall remain in full force and effect and are unmodified hereby.
8. This Modification Agreement may be executed in counterparts, each of
which shall constitute an original and all of which shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties below have executed this Modification
Agreement as of the date first set forth above.
ACH FOOD COMPANIES (formerly, AC HUMKO
CORP.), a Delaware corporation
By: /s/ Wayne Briesemeister
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Wayne Briesemeister
Vice President
"ACH"
INCON TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Stephen Bradshaw
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Stephen Bradshaw
President & COO
"InCon"
BIONUTRICS, INC.,
a Nevada corporation
By: /s/ Ronald H. Lane
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Ronald H. Lane
President and Chief Executive Officer
"Bionutrics"
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