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EXHIBIT 10.28
Warrant Agreement effective as of November 23, 1998, between
Bionutrics, Inc., a Nevada corporation (the "Company"), and Cameron Associates,
Inc. ("Holder").
Whereas Holder and the Company are parties to a certain letter
agreement dated November 23, 1998;
Whereas pursuant to the terms of such letter agreement the Company has
agreed to issue Holder warrants to purchase shares of the Company's common
stock, par value $.001 ("Common Stock"), in consideration for and as part of
Holder's compensation in connection with Holder's financial advisory services;
and
Now therefore, in consideration of the services to be provided pursuant
to such letter agreement, the parties hereto agree as follows:
1 Grant. Holder is hereby granted the right to purchase up to an
aggregate of 100,000 shares of Common Stock ("Warrants") at the Exercise Price
(as defined in Section 2), subject to adjustment as provided in Section 8,
during the exercise period, which shall be the period commencing on the date
hereof and ending at 5:30 p.m. Eastern Standard Time five years thereafter (the
"Exercise Period").
2. Exercise Price. The term "Exercise Price" shall mean $2 per share of
Common Stock as may be adjusted from time to time pursuant to Section 8.
3. Warrant Certificates. The warrant certificates delivered pursuant to
this Warrant Agreement shall be in the form set forth in exhibit A with such
appropriate amendments as required or permitted by this Warrant Agreement (the
"Warrant Certificates").
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4. Exercise of Warrant. The Warrants are exercisable at the Exercise
Price and payable to the Company at its executive offices located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attn: Chief Financial Officer (or
such other officer as designated to Holder by the Company), by certified or
official bank check in New York Clearing House funds or wire transfer. Upon
surrender of the Warrant Certificate, submission of an executed Form of Election
to Purchase in the form set forth in exhibit B and payment of the Exercise
Price, Holder shall be entitled to receive a certificate for the shares of
Common Stock so purchased. The purchase rights represented by the Warrant
Certificate are exercisable at the option of Holder in whole or in part, but not
as to fractional shares of the Common Stock underlying the Warrants or in
increments of less than 1,000 shares of Common Stock underlying the Warrants.
5. Issuance of Certificates. Upon the exercise of Warrants the Company
shall promptly issue to Holder a certificate for the shares of Common Stock
underlying the Warrant certificate provided that if Holder purchases less than
all the shares of Common Stock purchasable under the Warrant Certificate, the
Company shall cancel the Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the shares of Common Stock. Subject to the terms and conditions of
this Warrant Agreement, Holder shall be deemed the record holder of the shares
of Common Stock on the date of exercise of the Warrant, irrespective of the date
of delivery of the Common Stock certificate.
6. Restriction on Transfer of Warrants. Holder may not sell, assign,
pledge, hypothecate or otherwise transfer any rights under a Warrant, except to
an affiliate or pursuant to the express written consent of the Company.
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7. Registration Under the Securities Act of 1933.
(a) Legend. Neither the Warrants nor the shares of Common Stock
issuable upon exercise of the Warrants have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), or any applicable state
securities or blue sky laws. Upon exercise of the Warrants, the Company may
cause a legend in substantially the form set forth below to be placed on each
certificate representing the shares of Common Stock issued.
The securities represented by this certificate have not been
registered for public resale under the Securities Act of 1933,
as amended ("Securities Act"), and may not be offered,
transferred or sold except pursuant to (i) an effective
registration statement under the Securities Act and any
applicable state securities or blue sky laws, (ii) to the
extent applicable, Rule 144 under the Securities Act (or any
similar rule under the Securities Act relating to the
disposition of securities) together with an opinion of
counsel, if such opinion shall be reasonably satisfactory to
issuer's counsel, that such transfer is permitted or (iii) an
opinion of counsel, if such opinion shall be reasonably
satisfactory to issuer's counsel, that an exemption from
registration under the Securities Act and any applicable state
securities or blue sky laws is available.
(b) Piggyback Registration Rights.If the Company decides to
register any of its securities (either for its own account or the account of a
security holder or holders) on a registration statement that would be suitable
for registration of the Common Stock underlying the Warrants, the Company shall
(a) promptly give Holder written notice thereof and (b) use reasonable efforts,
including subject to underwriter cutback and subject to Holder's cooperation in
furnishing information required in connection with registration and standard
indemnification relating to such information or omissions therefrom, to include
such common stock in such registration prior to the date on which the Company
supplies to Holder an opinion of counsel, or the Holder receives an
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opinion of counsel reasonably satisfactory to the Company, that the shares
underlying the Warrants may be sold by non-affiliates under the provisions of
Rule 144 under the Securities Act (subject to volume and manner of sale
restrictions).
8. Adjustments to Exercise and Number of Securities.
(a) Recapitalization and Reclassifications. If the Company effects
a recapitalization or reclassification of such character that the shares of
Common Stock are changed into or become exchangeable for a larger or smaller
number of shares, then upon the effective date thereof the number of shares of
Common Stock that Holder shall be entitled to purchase upon exercise of the
Warrants shall be increased or decreased, as the case may be, in direct
proportion to the increase or decrease in the number of shares of Common Stock
by reason of such recapitalization or reclassification, and the Exercise Price
shall be, in the case of an increase in the number of shares, proportionately
decreased and, in the case of a decrease in the number of shares,
proportionately increased.
(b) Sale; Merger; Consolidation. Upon a transfer or sale of all or
substantially all the capital stock or assets of the Company or in the case of
any consolidation or merger of the Company with another entity (other than a
consolidation or merger that does not result in any reclassification or change
of the outstanding Common Stock), the transferee, purchaser or entity formed by
or surviving a consolidation or merger, as the case may be, shall execute and
deliver to Holder a supplemental warrant agreement confirming that Holder shall
have the right during the Exercise Period to receive, upon exercise of a
Warrant, the kind and amount of shares of stock and/or other securities
receivable upon such transfer, sale, consolidation or merger, as the case
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may be, by a holder of the number of shares of Common Stock for which such
Warrant might have been exercised immediately prior to such transfer, sale,
consolidation or merger. Such supplemental warrant agreement shall provide for
adjustments that shall be identical to the adjustments provided in this Section
8.
(c) No Adjustment of Exercise Price in Certain Cases. No adjustment
of the Exercise Price shall be made if the amount of an adjustment is less than
$0.05 per share of Common Stock provided that any adjustment that would
otherwise be required then to be made shall be carried forward and shall be made
at the time of and together with the next subsequent adjustment that, together
with any such adjustment, amounts to at least $0.05 per share of Common Stock.
(d) Dividends and Other Distributions. If the Company declares a
dividend or dividends payable in shares of Common Stock, Holder shall be
entitled to receive upon exercise of the Warrant, in addition to the number of
shares of Common Stock as to which the Warrant is exercised, such additional
shares of Common Stock as Holder would have received had the Warrant been
exercised immediately prior to the record date for the first such dividend, and
the Common Stock that would have been issuable thereupon held until such actual
exercise. If the Company declares a dividend or dividends other than of Common
Stock, Holder shall thereafter be entitled to receive, in addition to the shares
of Common Stock receivable upon the exercise thereof, upon the exercise of such
Warrants, such non-Common Stock dividends as Holder would have received had the
Warrant been exercised immediately prior to the record date for the first such
dividend, and the Common Stock that would have been issuable thereupon if held
until such actual exercise.
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(e) Further Conforming Charges. If, as a result of an adjustment
made pursuant to this Section 8, Holder shall upon exercise of the Warrants
become entitled to receive securities or assets other than Common Stock then,
wherever appropriate, all references herein to shares of Common Stock shall be
deemed to refer to and include such other securities or assets and thereafter
the number of such other securities or assets shall be subject to adjustment
from time to time in a manner and upon terms as nearly equivalent as practicable
to the provisions of this Section 8.
9. Issuance of New Warrant Certificate. Upon receipt by the Company of
evidence reasonably satisfactory to it of a loss, theft, destruction or
mutilation of a Warrant Certificate, reimbursement by Holder to the Company of
all incidental expenses and, in the case of loss, theft or destruction, receipt
of indemnity or security from Holder reasonably satisfactory to it, or, in the
case of mutilation, upon surrender and cancellation of the mutilated Warrant
Certificate by Holder, the Company shall deliver a new Warrant Certificate to
Holder of like tenor in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants. The Company shall have the option to make
payment in cash in respect of any fractional shares or to round any fraction up
to the nearest whole number of shares of Common Stock.
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11. Reservation and Listing of Securities. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock as shall be issuable upon the exercise thereof.
12. Representations and Warranties.
(a) Holder represents and warrants to the Company that the Warrants
are being acquired solely for Holder's own account, for investment, not for the
interest of any other and are not being acquired with a view to or for resale,
distribution, assignment, subdivision or fractionalization thereof, and Holder
has no present plans to enter into any contract, undertaking, agreement or
arrangement for such purpose.
(b) Holder represents and warrants to the Company that it is an
"accredited investor" as defined by Regulation D under the Securities Act
13. Notice to Warrant Holders. Nothing contained in this Warrant
Agreement shall be construed as conferring upon Holder the right to vote,
consent or receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors or any other matter, or as having any
rights whatsoever as a stockholder of the Company.
14. Notices. Any notice or demand pursuant to this Warrant Agreement
shall be in writing and shall be deemed sufficiently given or made (i) upon
personal delivery; (ii) the day following delivery to a reputable overnight
courier, or (iii) three days following mailing by certified or registered mail,
return receipt requested, postage prepaid, and addressed, until the other party
is notified of another address, as follows:
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If to the Company:
Bionutrics, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇, Chief Executive Officer
with a copy to:
▇▇▇▇▇▇▇▇ Siegelbaum LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to Holder:
Cameron Associates
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▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: C. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
15. Supplements and Amendments. Except as otherwise expressly provided
herein, the provisions of this Warrant Agreement may be amended or waived at any
time only by the written agreement of the parties hereto. Any waiver, permit,
consent or approval of kind or character on the part of each Company or Holder
of any provisions or conditions of this Warrant Agreement must be made in
writing and shall be effective only to the extent specifically set forth in such
writing.
16. Successors. All the covenants and provisions of this Warrant
Agreement shall be binding upon and inure to the benefit of the Company, Holder
and its respective successors and permitted assigns hereunder.
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17. Governing Law; Submission to Jurisdiction.
(a) This Warrant Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of New York and
for all the purposes shall be construed in accordance with the laws thereof
without giving effect to the its rules governing conflicts of laws.
(b) Arbitration. This Warrant Agreement and all controversies that
may arise between Holder and the Company hereunder shall be determined by
arbitration conducted in Phoenix, Arizona. The parties stipulate or stipulate to
their understanding that;
(i) arbitration is final and binding on the parties;
(ii) the parties waive their right to seek remedies in court,
including the right to a jury trial;
(iii) pre-arbitration discovery is generally more limited than
and different from court proceedings;
(iv) the arbitrator's award is not required to include factual
findings or legal reasoning and each party's right to appeal or to seek
modifications or rulings by the arbitrators is strictly limited; and
(v) the panel of arbitrators typically includes a minority or
arbitrators who were or are affiliated with the securities industry.
18. Entire Agreement; Modification. This Warrant Agreement contains the
entire understanding between the parties with respect to the subject matter
hereof and may not be modified or amended except by both parties.
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19. Severability. If any provision of this Warrant Agreement shall be
held to be invalid or unenforceable, such invalidity or unenforceability shall
not affect any other provision hereof.
20. Captions. The caption headings of the Sections of this Warrant
Agreement are for convenience of reference only and are not intended, nor may
they be construed as, a part of this Warrant Agreement and shall be given no
substantive effect.
21. Benefits of this Warrant Agreement. Nothing in this Warrant
Agreement shall be construed to give to any person or entity other than the
Company and Holder any legal or equitable right, remedy or claim hereunder; and
this Warrant Agreement shall be for the sole and exclusive benefit of the
Company and Holder.
22. Counterparts. This Warrant Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF the parties hereto have caused this Warrant
Agreement to be duly executed, as of the day and year first above written.
BIONUTRICS, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Executive Officer and President
CAMERON ASSOCIATES, INC.
By: /s/ C. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
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Name: C. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
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Exhibit A
FORM OF WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF STOCK ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), FOR PUBLIC RESALE AND MAY NOT BE OFFERED,
TRANSFERRED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR BLUE SKY LAWS,
(ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE SECURITIES ACT (OR ANY SIMILAR
RULE UNDER THE SECURITIES ACT RELATING TO THE DISPOSITION OF SECURITIES)
TOGETHER WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO ISSUER"S COUNSEL
THAT SUCH TRANSFER IS PERMITTED OR (iii) AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO ISSUER"S COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR BLUE SKY LAWS IS
AVAILABLE.
THE EXERCISE, TRANSFER AND EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE WARRANT AGREEMENT BETWEEN BIONUTRICS, INC. AND
CAMERON ASSOCIATES, INC.
100,000 Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that Cameron Associates, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ is the registered holder of 100,000
Warrants to purchase, at any time from the date hereof, until 5:30 p.m. Eastern
Standard Time on November 23, 2003 ("Expiration Date"), up to 100,000 fully-paid
and non-assessable shares of common stock, par value $.001 per share ("Common
Stock"), of Bionutrics, Inc. (the "Company") at an exercise price of $2 per
share of Common Stock ("Exercise Price"), upon surrender of this Warrant
Certificate and payment of the Exercise Price to the Company and subject to the
warrant agreement dated November 23, 1998, between the Company and Cameron
Associates (the "Warrant Agreement").
At 5:31 p.m. Eastern Standard Time on the Expiration Date all Warrants
evidenced hereby, unless exercised prior thereto, shall be void.
The Warrant Agreement is hereby incorporated by reference and made a
part of this Warrant Certificate and is hereby referred to for a description of
the rights, obligations, duties and restrictions of the Company and holder of
the Warrants.
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In witness whereof the Company has caused this Warrant Certificate to
be duly executed as of this 23rd day of November, 1998.
Bionutrics, Inc.
By: ___________________________
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Form of Election to Purchase
The undersigned hereby irrevocably elects to exercise the right
represented by the attached Warrant Certificate to purchase ______ shares of
common stock, par value $.001, of Bionutrics, Inc. at an exercise price of $2
per share and herewith tenders in payment for such common stock by wire transfer
payable in New York Clearing House Funds to the order of Bionutrics, Inc. in the
amount of $______________.
Cameron Associates, Inc.
by ___________________________________
C. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
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