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EXHIBIT 10.42
THE SHARES BEING ACQUIRED FOR HEREIN HAVE NOT BEEN REGISTERED WITH THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED, (THE "1933 ACT") OR THE SECURITIES COMMISSION OF ANY STATE UNDER ANY
STATE SECURITIES LAW. THEY ARE BEING OFFERED PURSUANT TO AN EXEMPTION FROM
REGISTRATION PURSUANT TO SECTION 4(2) OF THE 1933 ACT. THE SHARES MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS THE SHARES ARE REGISTERED UNDER
THE 1933 ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL IS
OBTAINED WHICH IS REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH OFFERS, SALES
AND TRANSFERS MAY BE MADE PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
STOCK ACQUISITION AGREEMENT
THIS STOCK ACQUISITION AGREEMENT (the "Agreement") is made as
of the 28th day of October, 2000, by and between Bionutrics, Inc., a Nevada
corporation (the "Company"), and Macropower Development Limited (the
"Investor").
RECITALS
WHEREAS, the Company and Investor entered into that certain Bridge Loan
Agreement (the "Bridge Loan") as of April 7, 2000; and
WHEREAS, under the terms of the Bridge Loan the Company is obligated to
pay Investor $150,000 upon the occurrence of certain events; and
WHEREAS, Investor is willing to release the Company from such
obligation in consideration for the issuance to Investor of 150,000 shares of
common stock of the Company in accordance with the terms and provisions of this
Agreement; and
WHEREAS, the parties desire to set forth their agreements with respect
to the foregoing recitals.
AGREEMENTS
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Acquisition of Stock.
1.1 Acquisition and Issuance of Stock. On the basis of the
representations, warranties and agreements contained herein and subject to the
terms and conditions herein set forth, the Company agrees to issue 150,000 (one
hundred fifty thousand) shares of its Common Stock, $.001 par value, (the
"Shares"), and the Investor hereby agrees to acquire the Shares.
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1.2 Consideration. The consideration for the Shares is the
release of the Company from its obligation under the Bridge Loan to pay $150,000
to Investor and the cancellation of the Bridge Loan.
1.3 Closing. The closing of the transaction contemplated by
this Agreement (the "Closing") shall be held immediately following the execution
and delivery of this Agreement by both the Investor and the Company. If at the
Closing any of the conditions specified in Section 6 hereof shall not have been
fulfilled to the reasonable satisfaction of Investor, then Investor shall, at
its election, be relieved of all of its obligations under this Agreement,
without thereby waiving any other rights it may have by reason of such failure
or unfulfillment. If at the Closing any of the conditions specified in Section 5
hereof shall not have been fulfilled to the reasonable satisfaction of the
Company, the Company shall, at its election, be relieved of all of its
obligations under this Agreement, without thereby waiving any other rights it
may have by reason of such failure or unfulfillment. At the Closing the Company
shall deliver the certificates evidencing the Shares and Investor shall deliver
the Bridge Loan to be marked cancelled.
2. Representation and Warranties of the Company. The Company
hereby represents and warrants to the Investor as follows:
2.1 Organization, Good Standing and Qualification. The
Company is a corporation validly existing and in good standing under the laws of
the State of Nevada and has all requisite power and authority to own or lease
and operate its properties and assets and to carry on its business as now
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure to so qualify would have a
material adverse effect on its business, operations, prospects, condition
(financial or other), or properties.
2.2 Capitalization. The authorized capital of the Company
consists of:
(i) Common Stock. 45,000,000 shares of common stock
("Common Stock"), par value $.001, of which 21,741.252 shares are issued and
outstanding as of the date hereof and the Company has entered into a stock
purchase agreement for 500,000 shares of Common Stock as of October 25, 2000.
(ii) Preferred Stock. 5,000,000 shares of preferred stock
("Preferred Stock"), par value $.001, none of which is outstanding. The
Preferred Stock may be issued from time to time in one or more series and the
Board of Directors is authorized to fix the rights and terms relating to
dividends, conversion, voting, redemption, liquidation preferences and any other
rights, preferences, privileges and restrictions applicable to each such series.
The Company has entered into a stock acquisition agreement as of October 27,
2000 for the issuance of 591,850 shares of Series A Convertible Preferred Stock.
(iii) Warrants and Options. As of the date hereof, there
were outstanding warrants to purchase up to 1,480,000 shares of Common Stock. As
of the date hereof, options in the amount of 1,825,144 shares were outstanding
and held by current employees, officers and directors pursuant to the Company's
Stock Option Plan and 686,667 were outstanding and held by former directors and
employees and others.
2.3 Valid Issuance of Shares. All of the outstanding shares
of the Company's stock have been duly and validly authorized and issued, are
fully paid and nonassessable, and no further approval or authority of the
stockholders or the directors of the Company will be required by the Company for
the
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issuance of the Shares. The Shares when issued and paid for in accordance with
the terms of this Agreement will be duly and validly issued, fully paid and
nonassessable and will be free of restrictions on transfer other than
restrictions on transfer under applicable state and federal securities laws.
2.4 Financial Statements. Except as otherwise stated in the
notes thereto, the audited financial statements contained in the Form 10-K for
the year ended October 31, 1999 and the unaudited financial statements contained
in the Forms 10-Q filed subsequent thereto have been prepared in conformity with
United States generally accepted accounting principles applied, except as stated
therein, on a consistent basis. The financial statements fairly present the
financial position and result of operations and changes in financial position of
the Company as of the dates and for the periods indicated.
Except as reflected in such financial statements and the notes thereto,
the Company has no liabilities, absolute or contingent, material to the
operations, business, prospects, assets, properties or condition (financial or
other) of the Company, other than (i) ordinary course liabilities incurred since
the last date of such financial statements in connection with the conduct of the
business of the Company, and (ii) obligations under contracts and commitments
incurred in the ordinary course of business and not required under United States
generally accepted accounting principles to be reflected in the financial
statements, which, in both cases, individually or in the aggregate, are not
material to the financial condition or operating results of the Company.
2.5 No Conflict with Other Instruments. Neither the issuance
of the Shares nor the consummation of the transactions herein contemplated,
will: (i) conflict with or constitute a breach of, permit the termination of,
constitute a default under, or violation of (A) the Articles of Incorporation,
as amended, or bylaws of the Company, (B) any material agreement, indenture,
mortgage, deed of trust or other material instrument or agreement or undertaking
by which the Company is bound or to which any of its properties is subject, or,
(C) to the knowledge of the Company, a violation of any law, administrative
regulation, or court decree to which the properties or assets of the Company is
subject; or (ii) result in the creation or imposition of any material lien,
charge or encumbrance upon the property or assets of the Company.
2.6 Authorization. The Company has the corporate power and
authority to enter into this Agreement and to perform all of its obligations
hereunder. The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all necessary corporate actions, and this
Agreement constitutes a legal, valid, binding and enforceable obligation of the
Company. No consent, approval, authorization or order of any court or
governmental agency or board or any other third party, or registration,
qualification, designation or filing with any Federal, state or local authority
is required to consummate the transactions contemplated by this Agreement.
3. Representations and Warranties of Investor. By executing
this Agreement, Investor hereby represents and warrants to and covenants with
the Company as follows:
3.1 Authorization. Investor has the power and authority to
enter into this Agreement and to perform all of its obligations hereunder and
this Agreement constitutes a valid, binding and enforceable obligation of
Investor.
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3.2 Legal Investment and Compliance with Laws. The
acquisition of the Shares by Investor is legally permitted by all laws and
regulations to which Investor is subject and all consents, approvals,
authorizations of or designations, declarations, or filings in connection with
the valid execution and delivery of this Agreement by Investor or the purchase
of the Shares by Investor has been obtained, or will be obtained. Investor
hereby represents that it has satisfied itself as to the full observance of the
laws of its jurisdiction in connection with its acquisition of the Shares or any
use of this Agreement, including (i) any foreign exchange restrictions
applicable to such acquisition, and (ii) the income tax and other tax
consequences, if any, which may be relevant to the acquisition, holding,
redemption, sale, or transfer of the Shares. Such Investor's acquisition and
payment for, and its continued beneficial ownership of the Shares, will not
violate any applicable securities or other laws of its jurisdiction.
3.3 Access to Information. Investor acknowledges that it has
received the Company's Form 10-K for the period ended October 31, 1999 and the
Forms 10-Q filed subsequent thereto (the "Offering Documents"), and is familiar
with and understands the operations of the Company.
(a) Investor understands and acknowledges that the
Offering Documents provided in connection with this investment have been
prepared by the Company. Accordingly, Investor understands and acknowledges that
no independent investment banking firm or legal counsel have passed upon or
assumed any responsibility for the accuracy, completeness or fairness of the
information contained in the Offering Documents.
(b) Investor understands and acknowledges that any
financial projections provided in connection with this investment and have not
been prepared by independent accountants and are based on numerous assumptions
regarding sales, revenues and expenses and other factors which may not be
realized in the future.
(c) Investor acknowledges that it has been encouraged to
rely upon the advice of its legal counsel and accountants or other financial
advisers with respect to the financial, tax and other considerations relating to
the acquisition of the Shares and has been offered, during the course of
discussions concerning the acquisition of the Shares, the opportunity to ask
such questions and inspect such documents concerning the Company and its
business and affairs as Investor has requested so as to understand more fully
the nature of the investment and to verify the accuracy of the information
supplied.
(d) Investor represents and warrants that, in determining
to acquire the Shares, it has relied solely upon the documents provided and the
advice of its advisors with respect to the tax, foreign and U.S., and other
consequences involved in acquiring the Shares.
3.4 Acquisition for Investment and Unregistered Nature of
the Shares.
(a) Investor represents and warrants that the Shares
being acquired are being acquired for its own account without a view to public
distribution or resale and that Investor has no contract, understanding,
agreement or arrangement to sell or otherwise transfer or dispose of the Shares
or any portion thereof to any other person.
(b) Investor represents and warrants that it (i) is
experienced in evaluating and investing in securities of companies in the
developmental stage and acknowledges that it can fend for
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itself, (ii) can bear the economic risk of the acquisition of the Shares
including the total loss of its investment, and (iii) has such knowledge and
experience in business and financial matters as to be capable of evaluating the
merits and risks of an investment in the Shares.
(c) Investor understands that the Shares have not been
registered under the 1933 Act, or the securities laws of any state and are
subject to substantial restrictions on resale or transfer.
(d) Investor agrees that it will not sell or otherwise
transfer or dispose of the Shares or any portion thereof unless such Shares are
registered under the 1933 Act and any applicable state securities laws, or
unless Investor obtains an opinion of counsel which is reasonably satisfactory
to the Company that such Shares may be sold in reliance on an exemption from
such registration requirements.
(e) Investor understands that (i) the Company may place a
legend on any certificates representing the Shares indicating that the Shares
may not be transferred except in accordance with an exemption from the 1933 Act;
(ii) the Company will not register a transfer not made in accordance with an
exemption from the 1933 Act; and (iii) Investor therefore may be precluded from
selling or otherwise transferring or disposing of any of the Shares or any
portion thereof for an indefinite period of time or at any particular time.
3.5 Further Representations and Understandings.
(a) Investor understands that no federal or state agency
including the Securities and Exchange Commission, the Arizona Corporation
Commission or the securities commission or authorities of any other state has
approved or disapproved the Shares, passed upon or endorsed the merits of the
offering or the accuracy or adequacy of the documents, or made any finding or
determination as to the fairness of the Shares for public investment and any
representation to the contrary is a criminal offense.
(b) Investor understands that the Shares are being
offered and sold in reliance on specific exemptions or exclusions from the
registration requirements of federal and state laws and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings set forth herein in order to
determine the suitability of Investor to acquire the Shares.
(c) Investor represents and warrants that the information
set forth herein concerning Investor is true and correct.
4. Right of Repurchase.
4.1 Repurchase. At any time and for a period of three years
from the date hereof, the Company may repurchase the Shares at fair market
value. In no event shall the fair market value be less than $1.00 per share nor
more than $3.00 per share. The fair market value shall be determined based on
the 10 day average of the closing price of the common stock as quoted on the
Nasdaq SmallCap Market prior to the date of notice to Investor that the Company
is exercising its right of repurchase.
4.2 Notice. Upon receipt of notice that the Company is
exercising its right of repurchase, Investor shall promptly deliver the
certificates for the Shares together with wire instructions for payment.
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4.3 Cancellation of Shares. If Investor fails to deliver
the Shares within 10 days of receipt of the notice, the Company may cancel the
Shares and forward payment to the last known address for Investor or hold such
payment for the benefit of Investor pending instructions.
5. Conditions to Obligations of the Company. The obligations
of the Company under this Agreement are subject to satisfaction of the following
conditions at or prior to the Closing, any of which may be waived by the
Company:
5.1 Representations and Warranties Correct. All of the
representations and warranties of Investor contained in this Agreement shall be
true and correct in all material respects as of the Closing with the same effect
as if made on the date of Closing.
5.2 Performance of Covenants and Agreements. All of the
covenants and agreements of Investor contained in this Agreement and required to
be performed on or before the date of Closing shall have been performed in all
material respects to the reasonable satisfaction of the Company.
5.3 Legal Action.
(a) There shall not have been instituted any material
legal proceeding seeking to prohibit the consummation of the transactions
contemplated by this Agreement.
(b) None of the parties hereto shall be prohibited in any
order, writ, injunction or decree of any governmental body of competent
jurisdiction from consummating the transactions contemplated by this Agreement,
and no material action or proceeding shall then be pending which questions the
validity of this Agreement, any of the transactions contemplated hereby or any
action which has been taken by any of the parties in connection herewith or in
connection with any of the transactions contemplated hereby.
6. Conditions to Obligations of Investor. The obligations of
Investor under this Agreement are subject to satisfaction of the following
conditions at or prior to the Closing, any of which may be waived by Investor.
6.1 Representations and Warranties Correct. All of the
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects as of the Closing with the same
effect as if made on the date of Closing.
6.2 Legal Action.
(a) There shall not have been instituted or threatened
any legal proceedings seeking to prohibit the consummation of the transactions
contemplated by this Agreement, or to obtain damages from Investor with respect
thereto.
(b) None of the parties hereto shall be prohibited by any
order, writ, injunction or decree of any governmental body of competent
jurisdiction from consummating the transactions contemplated by this Agreement,
and no action or proceeding shall then be pending which questions the validity
of this Agreement, any of the transactions contemplated hereby or any action
which
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has been taken by any of the parties in connection herewith or in connection
with any of the transactions contemplated hereby.
7. Legends. The certificates evidencing any of the Shares shall
be endorsed with the legend set forth below, and Investor covenants that
Investor shall not transfer the shares represented by any such certificate
without complying with the restrictions on transfer described in the legend
endorsed on such certificate:
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED, (THE "1933 ACT") OR THE SECURITIES COMMISSION OF
ANY STATE UNDER ANY STATE SECURITIES LAW. THEY WERE OFFERED PURSUANT TO
AN EXEMPTION FROM REGISTRATION PURSUANT TO SECTION 4(2) OF THE 1933
ACT. THE SHARES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
UNLESS THE SHARES ARE REGISTERED UNDER THE 1933 ACT AND APPLICABLE
STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL IS OBTAINED WHICH IS
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH OFFERS, SALES AND
TRANSFERS MAY BE MADE PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
8. Miscellaneous.
8.1 Notices. All notices or other communications given or
made hereunder shall be in writing and shall be deemed delivered personally to
the party being given notice or by facsimile, overnight courier service or by
registered or certified mail, return receipt requested, postage prepaid if to
Investor at its address set forth herein or if to the Company at 2425 East
Camelback Road, Suite 650, Phoenix, Arizona 85016 or at such other address as
may have been furnished by the Company to Investor.
8.2 Construction. Notwithstanding the place where this
Agreement may be executed by any of the parties hereto, the parties expressly
agree that all terms and provisions hereof shall be construed in accordance with
and governed by the laws of the State of Arizona without giving effect to
principles of conflicts of law.
8.3 Entire Agreement; Amendments and Waiver. This Agreement
sets forth the entire understanding of the parties with respect to the
transactions contemplated hereby, and neither party shall be bound by nor deemed
to have made any representations and/or warranties except those contained herein
or incorporated herein by reference. The provisions of this Agreement may be
amended and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company has
obtained the written consent of Investor.
8.4 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective heirs, estate, successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies,
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obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
8.5 Headings. The terms used in this Agreement shall be
deemed to include the masculine and the feminine in the singular and the plural
as the context requires. The headings in this Agreement are for reference
purposes only and shall not be deemed to have any substantive effect.
8.6 Survival of Representations and Warranties. All
representations and warranties contained herein will survive the execution and
delivery of this Agreement and delivery of and payment for the Shares regardless
of any investigation made by or on behalf of the parties.
8.7 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.8 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
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IN WITNESS WHEREOF, the parties hereby have executed this
Agreement as of the date indicated above.
INVESTOR
Macro Power Development Limited Nalin Rathod
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Exact Name in which Shares PRINT Name of Individual with authority to
are to be registered acquire the Shares on behalf of Investor
and state capacity in which signing
/s/ Nalin Rathod
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SIGNATURE of Individual with Authority
DELIVERY INSTRUCTIONS
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BIONUTRICS, INC. Type or print address where certificates
are to be delivered
/s/ Ronald H. Lane Wisma Bakrie 6th Floor
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By: Ronald H. Lane J.L. H.R. Rasuna Said Kav B-1
Its: President ------------------------------------------
Street
Jakarta, Indonesia
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City, State or Province, Country
(62-21) 525 7862
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Telephone Number
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