EXHIBIT 10.10
AGREEMENT
IT IS AGREED the first day of August 2001, by, between and among
LoTayLingKyur, Inc. ("LTLK"), Xxxxx Xxxxx Rollover XXX ("KSIRA"), Xxxx X.
Xxxxx Rollover XXX ("MASIRA"), Xxxx X. Xxxxx ("MAS"), Xxxxx Xxxxx ("KS"),
LoTayLingKyur Foundation ("F"), and Dublin Holding, Ltd. ("DHL") (collectively
"FIRST PARTIES") and Bion Environmental Technologies, Inc. ("BION") as
follows:
WHEREAS BION is entering into agreements with various note holders and with
D2CO, LLC ("D2") concerning simplifications of BION's capital structure i
preparation for subsequent financing transactions by BION;
AND WHEREAS FIRST PARTIES consider such changes to BION's capital structure to
be in the best interests of BION and FIRST PARTIES;
NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants herein:
1) FIRST PARTIES AND BION agree to execute the Stock Voting Agreement
attached hereto as Exhibit A ("Stock Voting Agreement")
2) DHL, MASIRA and KSIRA hereby amend the convertible promissory notes
attached hereto as Exhibits X-0, X-0 and B-3 ("NOTES") to provide that
such NOTES, shall be automatically and fully converted (all principal
plus interest calculated as if NOTES were held to maturity) into common
stock of BION upon the conversion of BION's outstanding Convertible
Bridge Notes and 2001 Convertible Notes ("CV Notes") which conversion
shall take place at the lower of: 1) $1.80 per share, or ii) the
conversion price of the CV Notes;
3) MAS resigns as Chairman of BION's Board of Directors effective September
6, 2001. MAS shall continue as a Director of BION and as a member of the
Executive Committee.
4) FIRST PARTIES and BION agree that restrictions on the ability of Xxx
Xxxxxxxx to sell securities of BION set forth in the Shareholders'
Agreement (dated December 23, 1999), as amended, ("Shareholder
Agreement") shall be vacated effective August 31, 2001.
5) FIRST PARTIES and BION agree that:
a) The restrictions on sale/transfer of BION securities set forth in
the Shareholder Agreement shall be extended until 12/31/03 as to
FIRST PARTIES and D2CO, LLC;
b) Provided, however that:
i) From 8/1/01 thru the date on which MAS ceases to be a Director
of BION, FIRST PARTIES may:
A) Make charitable donations/gift transfers of up to 240,000
shares of BION common stock; and
B) Gifts to family members of up to 200,000 shares of BION
common stock (which shares shall be subject to the Stock
Voting Agreement);
free from restrictions of the Shareholder Agreement; and
ii) After MAS ceases to be a Director of BION, FIRST PARTIES, may
sell/transfer up to 1/3 of the BION securities owned by FIRST
PARTIES (including for calculation purposes any BION securities
transferred pursuant to paragraph 5 b)i) above) free from the
restrictions of the Shareholder Agreement, provided that before
any such sale for cash, FIRST PARTIES offer to D2 the right to
"place" any blocks of BION stock of 20,000 shares or more which
"FIRST PARTIES" want to sell;
iii) Transfers of BION securities by LTLK and/or DHL, if any, in
connection with cessation of business, liquidation and/or
dissolution shall be permitted, provided that, if such
transfers:
A) Take place while MAS is a Director of BION; or
B) Are in excess of the volume limitation set forth above,
the transference of such securities shall agree to be
bound by the terms of the Shareholder Agreement and the
Stock Voting Agreement as to BION securities transference
under this paragraph 5) b) iii) A) or B).
6) FIRST PARTIES and BION agree to execute such other documents as may be
necessary to properly carry out the transactions set forth herein.
7) The Agreement is subject to ratification by BION's Board of Directors on
or before September 15, 2001.
BION Environmental Technologies, Inc. LoTayLingKyur, Inc.
By: By: /s/
---------------------------------- ------------------------------
Authorized Officer Authorized Officer
By: /s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx Rollover XXX
By: /s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
LoTayLingKyur Foundation
By: /s/
------------------------------
Authorized Officer
Dublin Holding, Ltd.
By: /s/
------------------------------
Authorized Officer
EXHIBIT A
STOCK VOTING AGREEMENT
THIS STOCK VOTING AGREEMENT (the "Agreement"), effective the first day of
August 2001, between and among Bion Environmental Technologies, Inc. ("BION"),
Dublin Holding, Ltd. ("DHL"), LoTayLingKyur, Inc. ("LTLK"), Xxxx X. Xxxxx
("MAS"), Xxxxx Xxxxx ("KS"), LoTayLingKyur Foundation ("F"), Xxxxx Xxxxx
Rollover XXX ("KSIRA"), Xxxx X. Xxxxx Rollover XXX ("MASIRA"),(collectively
"DHL, LTLK, F, KS, MS, KSIRA and MASIRA are the "Shareholder"), and D2CO, LLC
("D2").
WHEREAS Shareholder owns shares of the issued and outstanding common
stock of BION and promissory notes convertible into shares of common stock of
BION (collectively the "Securities")
NOW THEREFORE, in consideration of the mutual agreements of the parties
hereto and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
1. Shareholder hereby constitutes and appoints D2 with full power of
substitution, for the period commencing on the date hereof and ending on
December 31, 2005, to vote the Securities as the proxy of Shareholder, at any
and all meetings, regular or special of the Shareholders of BION, or at any
adjournments thereof, which may be held during such period, hereby granting to
said D2 (the "Proxy"), as Shareholder's attorney and Proxy, all powers
Shareholder would possess if personally present at any such meetings. The
Proxy granted hereby is expressly acknowledged to be coupled with an interest
and shall be irrevocable to the full extent permitted by law until December
31, 2005, except to the extent specifically provided in Paragraph 3 below, and
except as to vote on the sale of all or substantially all of BION's assets or
a merger of BION.
2. During the entire term of the Agreement, the Proxy shall have full
and absolute discretion as to the manner in which Securities are to be voted
as to any matter whatsoever, except as set forth elsewhere herein, all without
any liability or obligation of any kind to Shareholder.
3. Nothing contained herein shall be construed in such a manner so as
to prohibit or preclude the sale or exchange of all or any part of the
Securities by Shareholder in accordance with the provisions of this Paragraph
3. In the event that all or any portion of the Securities are sold, assigned,
transferred, gifted, donated or exchanged by Shareholder (and/or its assigns)
to non-affiliated persons or entities prior to December 31, 2005, then
transferred portion of the Securities shall no longer be subject in any manner
whatsoever to the terms of this Agreement set forth above, and shall be
entirely released from same, unless otherwise agreed to in writing, provided,
however, no private "non-market" transfer of any portion of the Securities
shall take place which reduces the Securities for which D2 is Proxy to less
than 2/3 of the initial Securities for which D2 is Proxy, unless the
transferee of such transferred portion of the Securities is willing to appoint
D2 as Proxy for the transferred portion of the Securities on the terms set
fort herein.
4. A counterpart of this Agreement shall forthwith be deposited with
BION at its principal place of business.
5. This Agreement shall be construed in accordance with the laws of the
State of Colorado and shall be binding upon the successors and assigns of each
party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date set forth above.
Dublin Holding, Ltd. D2CO, LLC
By: /s/ Xxxx X. Xxxxx By:
-------------------------- ---------------------------
Authorized Officer Authorized Officer
LoTayLingKyur, Inc. Bion Environmental Technologies, Inc.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
-------------------------- ---------------------------
Authorized Officer Authorized Officer
/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
By: /s/ Xxxx X. Xxxxx,
Attorney in Fact
------------------------------
Xxxxx Xxxxx
LoTayLingKyur Foundation
/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx Rollover XXX
By: /s/ Xxxx X. Xxxxx,
Attorney in Fact
------------------------------
Xxxxx Xxxxx Rollover XXX
EXHIBIT B-1
Initial Principal: $1,650,000
Date Due: December 31, 2002
PROMISSORY NOTE ("Note")
FOR VALUE RECEIVED, the undersigned, Bion Environmental Technologies,
Inc., a Colorado corporation ("MAKER"), hereby promises to pay to the order of
Dublin Holding Ltd. ("HOLDER"), and its successors and assignees, at 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the HOLDER
of this Note may from time to time designate in writing, all sums due under
this Note (plus interest) in lawful and immediately available money of the
United States. The initial principal of this loan is $1,650,000. Interest
shall be accrued and added to principal at one percent (1.0%) per month from
date owed by MAKER. All outstanding principal and interest shall be due and
payable on or before December 31, 2001, if not previously paid. If this Note
or interest due hereunder is not paid when due or declared due hereunder, the
principal shall draw interest at the rate of one and one half percent (1.5%)
per month.
The outstanding principal and interest due hereunder shall be
convertible, in whole or in part, at the option of the HOLDER, into shares of
MAKER's common stock ("Shares") at a price of $1.80 per share (equitably
adjusted for subsequent stock splits, dividends, mergers, etc.) at any time
prior to payment by MAKER of such principal and interest. MAKER shall not
prepay this Note without permission of HOLDER. However, MAKER and HOLDER
agree that MAKER shall convert this Note to the number of shares which would
be due on maturity upon the events set forth in paragraph 1 of the Agreement
to which this Note is attached as Exhibit A. Upon issuance, MAKER represents
that all shares received as a result of conversion of this Note shall be
fully-paid and non-assessable.
Upon default by the MAKER of the timely payment of principal or interest
due hereunder or upon any Event of Default as hereinafter defined, the HOLDER
may, in its sole discretion, withhold any payments due and payable to MAKER
and apply same to the MAKER's obligations hereunder. In addition, upon any
Event of Default, the HOLDER may declare the full amount of this Note due and
payable.
If any one or more of the following events ("Events of Default") shall
occur for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law,
pursuant to or in compliance with any judgment, decree of order of any court,
or any order, rule or regulation of any administrative or governmental body,
or otherwise) the HOLDER of this Note may, at its option, upon written notice
to MAKER, declare this Note and any other promissory note issued by MAKER to
HOLDER (whether or not then due in accordance with its terms) to be due and
payable, whereupon the entire balance of this Note shall forthwith become and
be due and payable:
(a) MAKER fails to make payment of principal or of interest on this
Note or any other obligation of MAKER when such shall become due and payable,
whether at the stated maturity thereof or by acceleration or otherwise;
(b) MAKER (1) admits its inability to pay its debts as they become
due; (2) files a petition in bankruptcy or makes a petition to take advantage
of an insolvency act; (3) makes an assignment for the benefit of creditors;
(4) commences a proceeding for the appointment of a receiver, trustee,
liquidator, or conservator of itself or of the whole or any substantial part
of its properties; (5) files a petition or answer seeking reorganization or
arrangement or similar relief under the federal bankruptcy laws or any other
applicable law or statute or the United States or any State;
(c) MAKER (1) is adjudged as bankrupt, (2) a court enters an order,
judgment or decree, appointing a receiver, trustee, liquidator or conservator
of MAKER or of the whole or any substantial part of its properties, or approve
a petition filed against MAKER seeking reorganization or similar relief under
the federal bankruptcy laws or any other applicable law or statute of the
United States or any state; (3) under the provisions of any other law for the
relief or aid of debtors, a court assumes custody or control of MAKER or the
whole or any substantial part of its properties; (4) there is commenced
against MAKER any proceeding for any of the foregoing relief; (5) a petition
in bankruptcy is filed against MAKER; or (6) MAKER by any act indicates its
consent to approval of or acquiescence in any such proceeding or petition.
Except as otherwise hereinabove expressly provided, MAKER hereby waives
diligence, demand, protest, presentment and all notices (whether of
nonpayment, dishonor, protest, acceleration or otherwise) and consents to
acceleration of the time of payment, surrender or substitution of security or
forbearance, or other indulgence, without notice.
Jurisdiction and venue shall be in a court of general jurisdiction
located in Boulder, Colorado. In the event that litigation is necessary to
collect the principal (and interest) of the Note, HOLDER shall be entitled to
reasonable attorneys' fees and litigation costs associated therewith.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxxxxx
---------------------------------
Authorized Officer
Date: December 20, 1999
Initial Principal: $915,000
Date Due: December 31, 2002
PROMISSORY NOTE ("Note")
FOR VALUE RECEIVED, the undersigned, Bion Environmental Technologies,
Inc., a Colorado corporation ("MAKER"), hereby promises to pay to the order of
Dublin Holding Ltd. ("HOLDER"), and its successors and assignees, at 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the HOLDER
of this Note may from time to time designate in writing, all sums due under
this Note (plus interest) in lawful and immediately available money of the
United States. The initial principal of this loan is $915,000. Interest
shall be accrued and added to principal at one percent (1.0%) per month from
date owed by MAKER. All outstanding principal and interest shall be due and
payable on or before December 31, 2001, if not previously paid. If this Note
or interest due hereunder is not paid when due or declared due hereunder, the
principal shall draw interest at the rate of one and one half percent (1.5%)
per month.
The outstanding principal and interest due hereunder shall be
convertible, in whole or in part, at the option of the HOLDER, into shares of
MAKER's common stock ("Shares") at a price of $1.80 per share (equitably
adjusted for subsequent stock splits, dividends, mergers, etc.) at any time
prior to payment by MAKER of such principal and interest. MAKER shall not
prepay this Note without permission of HOLDER. However, MAKER and HOLDER
agree that MAKER shall convert this Note to the number of shares which would
be due on maturity upon the events set forth in paragraph 1 of the Agreement
to which this Note is attached as Exhibit A. Upon issuance, MAKER represents
that all shares received as a result of conversion of this Note shall be
fully-paid and non-assessable.
Upon default by the MAKER of the timely payment of principal or interest
due hereunder or upon any Event of Default as hereinafter defined, the HOLDER
may, in its sole discretion, withhold any payments due and payable to MAKER
and apply same to the MAKER's obligations hereunder. In addition, upon any
Event of Default, the HOLDER may declare the full amount of this Note due and
payable.
If any one or more of the following events ("Events of Default") shall
occur for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law,
pursuant to or in compliance with any judgment, decree of order of any court,
or any order, rule or regulation of any administrative or governmental body,
or otherwise) the HOLDER of this Note may, at its option, upon written notice
to MAKER, declare this Note and any other promissory note issued by MAKER to
HOLDER (whether or not then due in accordance with its terms) to be due and
payable, whereupon the entire balance of this Note shall forthwith become and
be due and payable:
(a) MAKER fails to make payment of principal or of interest on this
Note or any other obligation of MAKER when such shall become due and payable,
whether at the stated maturity thereof or by acceleration or otherwise;
(b) MAKER (1) admits its inability to pay its debts as they become
due; (2) files a petition in bankruptcy or makes a petition to take advantage
of an insolvency act; (3) makes an assignment for the benefit of creditors;
(4) commences a proceeding for the appointment of a receiver, trustee,
liquidator, or conservator of itself or of the whole or any substantial part
of its properties; (5) files a petition or answer seeking reorganization or
arrangement or similar relief under the federal bankruptcy laws or any other
applicable law or statute or the United States or any State;
(c) MAKER (1) is adjudged as bankrupt, (2) a court enters an order,
judgment or decree, appointing a receiver, trustee, liquidator or conservator
of MAKER or of the whole or any substantial part of its properties, or approve
a petition filed against MAKER seeking reorganization or similar relief under
the federal bankruptcy laws or any other applicable law or statute of the
United States or any state; (3) under the provisions of any other law for the
relief or aid of debtors, a court assumes custody or control of MAKER or the
whole or any substantial part of its properties; (4) there is commenced
against MAKER any proceeding for any of the foregoing relief; (5) a petition
in bankruptcy is filed against MAKER; or (6) MAKER by any act indicates its
consent to approval of or acquiescence in any such proceeding or petition.
Except as otherwise hereinabove expressly provided, MAKER hereby waives
diligence, demand, protest, presentment and all notices (whether of
nonpayment, dishonor, protest, acceleration or otherwise) and consents to
acceleration of the time of payment, surrender or substitution of security or
forbearance, or other indulgence, without notice.
Jurisdiction and venue shall be in a court of general jurisdiction
located in Boulder, Colorado. In the event that litigation is necessary to
collect the principal (and interest) of the Note, HOLDER shall be entitled to
reasonable attorneys' fees and litigation costs associated therewith.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxxxxx
---------------------------------
Authorized Officer
Date: August 9, 2000
EXHIBIT B-2
Initial Principal: $124,857.01
Date Due: December 31, 2002
PROMISSORY NOTE ("Note")
FOR VALUE RECEIVED, the undersigned, Bion Environmental Technologies,
Inc., a Colorado corporation ("MAKER"), hereby promises to pay to the order of
Xxxx X. Xxxxx Rollover XXX ("HOLDER"), and its successors and assignees, at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the
HOLDER of this Note may from time to time designate in writing, all sums due
under this Note (plus interest) in lawful and immediately available money of
the United States. The initial principal of this loan is $124,857.01.
Interest shall be accrued and added to principal at one percent (1.0%) per
month from date owed by MAKER. All outstanding principal and interest shall
be due and payable on or before December 31, 2001, if not previously paid. If
this Note or interest due hereunder is not paid when due or declared due
hereunder, the principal shall draw interest at the rate of one and one half
percent (1.5%) per month.
The outstanding principal and interest due hereunder shall be
convertible, in whole or in part, at the option of the HOLDER, into shares of
MAKER's common stock ("Shares") at a price of $1.80 per share (equitably
adjusted for subsequent stock splits, dividends, mergers, etc.) at any time
prior to payment by MAKER of such principal and interest. MAKER shall not
prepay this Note without permission of HOLDER. However, MAKER and HOLDER
agree that MAKER shall convert this Note to the number of shares which would
be due on maturity upon the events set forth in paragraph 1 of the Agreement
to which this Note is attached as Exhibit A. Upon issuance, MAKER represents
that all shares received as a result of conversion of this Note shall be
fully-paid and non-assessable.
Upon default by the MAKER of the timely payment of principal or interest
due hereunder or upon any Event of Default as hereinafter defined, the HOLDER
may, in its sole discretion, withhold any payments due and payable to MAKER
and apply same to the MAKER's obligations hereunder. In addition, upon any
Event of Default, the HOLDER may declare the full amount of this Note due and
payable.
If any one or more of the following events ("Events of Default") shall
occur for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law,
pursuant to or in compliance with any judgment, decree of order of any court,
or any order, rule or regulation of any administrative or governmental body,
or otherwise) the HOLDER of this Note may, at its option, upon written notice
to MAKER, declare this Note and any other promissory note issued by MAKER to
HOLDER (whether or not then due in accordance with its terms) to be due and
payable, whereupon the entire balance of this Note shall forthwith become and
be due and payable:
(a) MAKER fails to make payment of principal or of interest on this
Note or any other obligation of MAKER when such shall become due and payable,
whether at the stated maturity thereof or by acceleration or otherwise;
(b) MAKER (1) admits its inability to pay its debts as they become
due; (2) files a petition in bankruptcy or makes a petition to take advantage
of an insolvency act; (3) makes an assignment for the benefit of creditors;
(4) commences a proceeding for the appointment of a receiver, trustee,
liquidator, or conservator of itself or of the whole or any substantial part
of its properties; (5) files a petition or answer seeking reorganization or
arrangement or similar relief under the federal bankruptcy laws or any other
applicable law or statute or the United States or any State;
(c) MAKER (1) is adjudged as bankrupt, (2) a court enters an order,
judgment or decree, appointing a receiver, trustee, liquidator or conservator
of MAKER or of the whole or any substantial part of its properties, or approve
a petition filed against MAKER seeking reorganization or similar relief under
the federal bankruptcy laws or any other applicable law or statute of the
United States or any state; (3) under the provisions of any other law for the
relief or aid of debtors, a court assumes custody or control of MAKER or the
whole or any substantial part of its properties; (4) there is commenced
against MAKER any proceeding for any of the foregoing relief; (5) a petition
in bankruptcy is filed against MAKER; or (6) MAKER by any act indicates its
consent to approval of or acquiescence in any such proceeding or petition.
Except as otherwise hereinabove expressly provided, MAKER hereby waives
diligence, demand, protest, presentment and all notices (whether of
nonpayment, dishonor, protest, acceleration or otherwise) and consents to
acceleration of the time of payment, surrender or substitution of security or
forbearance, or other indulgence, without notice.
Jurisdiction and venue shall be in a court of general jurisdiction
located in Boulder, Colorado. In the event that litigation is necessary to
collect the principal (and interest) of the Note, HOLDER shall be entitled to
reasonable attorneys' fees and litigation costs associated therewith.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxxxxx
---------------------------------
Authorized Officer
Date: September 20, 2000 (re-issue date)
Initial Principal: $149,237.12
Date Due: December 31, 2002
PROMISSORY NOTE ("Note")
FOR VALUE RECEIVED, the undersigned, Bion Environmental Technologies,
Inc., a Colorado corporation ("MAKER"), hereby promises to pay to the order of
Xxxx X. Xxxxx Rollover XXX ("HOLDER"), and its successors and assignees, at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the
HOLDER of this Note may from time to time designate in writing, all sums due
under this Note (plus interest) in lawful and immediately available money of
the United States. The initial principal of this loan is $149,237.12.
Interest shall be accrued and added to principal at one percent (1.0%) per
month from date owed by MAKER. All outstanding principal and interest shall
be due and payable on or before December 31, 2001, if not previously paid. If
this Note or interest due hereunder is not paid when due or declared due
hereunder, the principal shall draw interest at the rate of one and one half
percent (1.5%) per month.
The outstanding principal and interest due hereunder shall be
convertible, in whole or in part, at the option of the HOLDER, into shares of
MAKER's common stock ("Shares") at a price of $1.80 per share (equitably
adjusted for subsequent stock splits, dividends, mergers, etc.) at any time
prior to payment by MAKER of such principal and interest. MAKER shall not
prepay this Note without permission of HOLDER. However, MAKER and HOLDER
agree that MAKER shall convert this Note to the number of shares which would
be due on maturity upon the events set forth in paragraph 1 of the Agreement
to which this Note is attached as Exhibit A. Upon issuance, MAKER represents
that all shares received as a result of conversion of this Note shall be
fully-paid and non-assessable.
Upon default by the MAKER of the timely payment of principal or interest
due hereunder or upon any Event of Default as hereinafter defined, the HOLDER
may, in its sole discretion, withhold any payments due and payable to MAKER
and apply same to the MAKER's obligations hereunder. In addition, upon any
Event of Default, the HOLDER may declare the full amount of this Note due and
payable.
If any one or more of the following events ("Events of Default") shall
occur for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law,
pursuant to or in compliance with any judgment, decree of order of any court,
or any order, rule or regulation of any administrative or governmental body,
or otherwise) the HOLDER of this Note may, at its option, upon written notice
to MAKER, declare this Note and any other promissory note issued by MAKER to
HOLDER (whether or not then due in accordance with its terms) to be due and
payable, whereupon the entire balance of this Note shall forthwith become and
be due and payable:
(a) MAKER fails to make payment of principal or of interest on this
Note or any other obligation of MAKER when such shall become due and payable,
whether at the stated maturity thereof or by acceleration or otherwise;
(b) MAKER (1) admits its inability to pay its debts as they become
due; (2) files a petition in bankruptcy or makes a petition to take advantage
of an insolvency act; (3) makes an assignment for the benefit of creditors;
(4) commences a proceeding for the appointment of a receiver, trustee,
liquidator, or conservator of itself or of the whole or any substantial part
of its properties; (5) files a petition or answer seeking reorganization or
arrangement or similar relief under the federal bankruptcy laws or any other
applicable law or statute or the United States or any State;
(c) MAKER (1) is adjudged as bankrupt, (2) a court enters an order,
judgment or decree, appointing a receiver, trustee, liquidator or conservator
of MAKER or of the whole or any substantial part of its properties, or approve
a petition filed against MAKER seeking reorganization or similar relief under
the federal bankruptcy laws or any other applicable law or statute of the
United States or any state; (3) under the provisions of any other law for the
relief or aid of debtors, a court assumes custody or control of MAKER or the
whole or any substantial part of its properties; (4) there is commenced
against MAKER any proceeding for any of the foregoing relief; (5) a petition
in bankruptcy is filed against MAKER; or (6) MAKER by any act indicates its
consent to approval of or acquiescence in any such proceeding or petition.
Except as otherwise hereinabove expressly provided, MAKER hereby waives
diligence, demand, protest, presentment and all notices (whether of
nonpayment, dishonor, protest, acceleration or otherwise) and consents to
acceleration of the time of payment, surrender or substitution of security or
forbearance, or other indulgence, without notice.
Jurisdiction and venue shall be in a court of general jurisdiction
located in Boulder, Colorado. In the event that litigation is necessary to
collect the principal (and interest) of the Note, HOLDER shall be entitled to
reasonable attorneys' fees and litigation costs associated therewith.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxxxxx
---------------------------------
Authorized Officer
Date: September 20, 2000 (re-issue date)
EXHIBIT B-3
Initial Principal: $128,879.01
Date Due: December 31, 2002
PROMISSORY NOTE ("Note")
FOR VALUE RECEIVED, the undersigned, Bion Environmental Technologies,
Inc., a Colorado corporation ("MAKER"), hereby promises to pay to the order of
Xxxxx Xxxxx Rollover XXX ("HOLDER"), and its successors and assignees, at 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the HOLDER
of this Note may from time to time designate in writing, all sums due under
this Note (plus interest) in lawful and immediately available money of the
United States. The initial principal of this loan is $128,879.01. Interest
shall be accrued and added to principal at one percent (1.0%) per month from
date owed by MAKER. All outstanding principal and interest shall be due and
payable on or before December 31, 2001, if not previously paid. If this Note
or interest due hereunder is not paid when due or declared due hereunder, the
principal shall draw interest at the rate of one and one half percent (1.5%)
per month.
The outstanding principal and interest due hereunder shall be
convertible, in whole or in part, at the option of the HOLDER, into shares of
MAKER's common stock ("Shares") at a price of $1.80 per share (equitably
adjusted for subsequent stock splits, dividends, mergers, etc.) at any time
prior to payment by MAKER of such principal and interest. MAKER shall not
prepay this Note without permission of HOLDER. However, MAKER and HOLDER
agree that MAKER shall convert this Note to the number of shares which would
be due on maturity upon the events set forth in paragraph 1 of the Agreement
to which this Note is attached as Exhibit A. Upon issuance, MAKER represents
that all shares received as a result of conversion of this Note shall be
fully-paid and non-assessable.
Upon default by the MAKER of the timely payment of principal or interest
due hereunder or upon any Event of Default as hereinafter defined, the HOLDER
may, in its sole discretion, withhold any payments due and payable to MAKER
and apply same to the MAKER's obligations hereunder. In addition, upon any
Event of Default, the HOLDER may declare the full amount of this Note due and
payable.
If any one or more of the following events ("Events of Default") shall
occur for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law,
pursuant to or in compliance with any judgment, decree of order of any court,
or any order, rule or regulation of any administrative or governmental body,
or otherwise) the HOLDER of this Note may, at its option, upon written notice
to MAKER, declare this Note and any other promissory note issued by MAKER to
HOLDER (whether or not then due in accordance with its terms) to be due and
payable, whereupon the entire balance of this Note shall forthwith become and
be due and payable:
(a) MAKER fails to make payment of principal or of interest on this
Note or any other obligation of MAKER when such shall become due and payable,
whether at the stated maturity thereof or by acceleration or otherwise;
(b) MAKER (1) admits its inability to pay its debts as they become
due; (2) files a petition in bankruptcy or makes a petition to take advantage
of an insolvency act; (3) makes an assignment for the benefit of creditors;
(4) commences a proceeding for the appointment of a receiver, trustee,
liquidator, or conservator of itself or of the whole or any substantial part
of its properties; (5) files a petition or answer seeking reorganization or
arrangement or similar relief under the federal bankruptcy laws or any other
applicable law or statute or the United States or any State;
(c) MAKER (1) is adjudged as bankrupt, (2) a court enters an order,
judgment or decree, appointing a receiver, trustee, liquidator or conservator
of MAKER or of the whole or any substantial part of its properties, or approve
a petition filed against MAKER seeking reorganization or similar relief under
the federal bankruptcy laws or any other applicable law or statute of the
United States or any state; (3) under the provisions of any other law for the
relief or aid of debtors, a court assumes custody or control of MAKER or the
whole or any substantial part of its properties; (4) there is commenced
against MAKER any proceeding for any of the foregoing relief; (5) a petition
in bankruptcy is filed against MAKER; or (6) MAKER by any act indicates its
consent to approval of or acquiescence in any such proceeding or petition.
Except as otherwise hereinabove expressly provided, MAKER hereby waives
diligence, demand, protest, presentment and all notices (whether of
nonpayment, dishonor, protest, acceleration or otherwise) and consents to
acceleration of the time of payment, surrender or substitution of security or
forbearance, or other indulgence, without notice.
Jurisdiction and venue shall be in a court of general jurisdiction
located in Boulder, Colorado. In the event that litigation is necessary to
collect the principal (and interest) of the Note, HOLDER shall be entitled to
reasonable attorneys' fees and litigation costs associated therewith.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxxxxx
---------------------------------
Authorized Officer
Date: September 20, 2000 (re-issue date)
