EXHIBIT 10.1
SUBSCRIPTION AGREEMENT
by and between
BION ENVIRONMENTAL TECHNOLOGIES, INC.
and
CENTERPOINT CORPORATION
dated as of
January 10, 2002
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of January 10, 2002 (this "Agreement"),
by and between Centerpoint Corporation, a Delaware corporation (the
"Subscriber") and Bion Environmental Technologies, Inc., a Colorado
corporation (the "Issuer").
WHEREAS, upon the terms and subject to the conditions set forth herein,
the Issuer desires to issue to the Subscriber, and the Subscriber desires to
subscribe for 19,000,000 shares (the "Shares") as subject to adjustment in
Section 2.4 below, of common stock of the Issuer, no par value per share (the
"Issuer Common Stock");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sale of Shares. Upon the terms and subject to
the conditions of this Agreement, at the closing contemplated by this
Agreement (the "Closing"), being held simultaneously with the execution
herewith, the Issuer is issuing to the Subscriber, and the Subscriber is
subscribing for the Shares for a consideration of $14,250,000 to consist of:
(a) $8,500,000 in cash;
(b) assignment of the $4.2 million principal and all accrued and
unpaid interest as of the Closing Date, represented by that certain note dated
June 13, 2001, by Trident Rowan Group Inc., a Maryland corporation ("TRG"), in
favor of the Subscriber and its transferees and assigns (the "TRG Note");
(c) assignment of 65% of Subscriber's right, title and net interest
in and to certain claims of Subscriber against Banca di Intermediazione
Mobiliare IMI S.p.A., an Italian corporation ("IMI"). In connection with such
assignment, the parties agree that OAM S.p.A., an Italian corporation which is
Subscriber's parent ("OAM"), shall administer any litigation related to,
settlement of, or other resolution of such action and the assigned interest,
to the best of its ability, on behalf of both Subscriber and Issuer and/or its
assigns as the duly authorized agent of all parties;
(d) assignment of 65% of the Subscriber's right to funds originally
held in escrow by IMI pursuant to the Escrow Agreement by and among the
Subscriber, IMI and Aprilia, S.p.A., an Italian corporation (the "Subscriber's
portion of the Escrow"). In connection with such assignment, the parties
agree that OAM shall administer any litigation related to, settlement of, or
other resolution of such action and the assigned interest, to the best of its
ability, on behalf of both Subscriber and Issuer and/or its assigns as the
duly authorized agent of all parties; and
(e) assignment by the Subscriber of all of its rights under that
certain Loan Agreement dated June 13, 2001 between Subscriber and TRG (the
"Loan Agreement), including, without limitation, assignment by the Subscriber
of the pledge agreement dated June 13, 2001 executed by TRG as pledgor (the
"TRG Pledge Agreement") in connection with the TRG Note, and Subscriber's
rights related to TRG's agreement to cause OAM to enter into a pledge
agreement pursuant to the Loan Agreement (all such consideration (a)-(e)
above, the "Consideration") The agreed upon aggregate value of the
Consideration set forth in (b)-(e) above shall be $5,750,000.
ARTICLE II
CLOSING; PAYMENT; DELIVERIES
Section 2.1 The Closing. The Closing shall take place on the date
hereof, at the offices of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 2.2 Deliveries by the Subscriber. At the Closing, the Subscriber
shall deliver to the Issuer:
(a) the consideration contemplated by Section 1.1(a) hereof by wire
transfer in immediately available funds to the account or accounts specified
by the Issuer in Exhibit A;
(b) the consideration contemplated by Section 1.1(b) hereof by
delivery of the TRG Note accompanied by duly executed instruments of transfer
in substantially the form attached hereto as Exhibit B;
(c) the consideration contemplated by Section 1.1(c) hereof by
delivery of that certain Assignment of Claim Agreement of even date herewith
in substantially the form attached hereto as Exhibit C;
(d) the consideration contemplated by Section 1.1(d) hereof by
delivery of that certain Assignment of Escrow Agreement of even date herewith
in substantially the form attached hereto as Exhibit D;
(e) the consideration contemplated by Section 1.1(e) hereof by
delivery of that certain Assignment of Loan Agreement of even date herewith in
substantially the form attached hereto as Exhibit E;
(f) the duly executed Registration Rights Agreement in the form of
Exhibit F hereto (the "Registration Rights Agreement"); and
(g) an officer's or director's certificate of Subscriber certifying
as to (i) resolutions of the Board of Directors of the Subscriber authorizing
the execution, delivery and performance of this Agreement and the transaction
contemplated hereby (ii) a certificate of recent date as to the good standing
of the Subscriber in the jurisdiction of its incorporation (iii) the
Certificate of Incorporation and by-laws of the Subscriber as in effect on the
date of such certificate.
Section 2.3 Deliveries by the Issuer. At the Closing, the Issuer shall
deliver to the Subscriber:
(a) a stock certificate or stock certificates representing the
Shares being purchased at the Closing, duly endorsed or accompanied by other
duly executed instruments of transfer;
(b) an officer's or director's certificate of the Issuer certifying
as to (i) resolutions of the Board of Directors of the Issuer authorizing the
execution, delivery and performance of this Agreement and the transaction
contemplated hereby (ii) a certificate of recent date as to the good standing
of the Issuer in the jurisdiction of its incorporation (iii) the Certificate
of Incorporation and by-laws of the Issuer as in effect on the date of such
certificate; and
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(c) acceptance of resignation of any member of Subscriber's
current Board of Directors who notifies Issuer in writing that he intends to
resign as a Director of Subscriber upon the Closing of the transaction
contemplated hereby.
Section 2.4 Post-Closing Adjustment. If, prior to the expiration of the
Adjustment Period (as defined below) the Issuer issues, sells or transfers any
of its equity securities or securities convertible into or exchangeable for
equity securities, at a price which reflects or implies a price per share of
Issuer Common Stock less than $.75 per share, or amends, modifies, or waives
any terms of any outstanding security to that such security implies or
reflects such price, upon the closing of each such issuance, sale or transfer,
the Issuer shall issue to the Subscriber a number of additional shares of
Issuer Common Stock at no cost to the Subscriber computed in accordance with
the following formula:
Y = .75(19,000,000) -19,000,000
---------------
A
Where Y = The number of additional shares of Issuer Common Stock to be
issued to the Subscriber upon the closing of the transaction
in question or the conversion or exchange of such shares.
A = The price per share of Issuer Common Stock reflected or
implied by such transaction.
Provided, however, that notwithstanding anything to the
contrary herein no adjustment shall be made for the issuance
by the Issuer of any equity securities pursuant to the
provisions of any of the Issuer's currently issued and
outstanding "J" Warrants.
The "Adjustment Period" shall be a period from the date after the date hereof
until such time as the cumulative equity investment in the Issuer by third
parties unaffiliated with the Subscriber during such period shall equal $5
million.
Section 2.5 CONDITIONS TO CLOSING. The respective obligations of each
party to Close the transactions contemplated hereby are subject to the
satisfaction or waiver of the following conditions on or before the Closing
Date:
(a) Subscriber shall have received a Release relating to its
obligations to proceed to propose a liquidation to its stockholders pursuant
to the April 14, 2000 letter agreement by and among the Subscriber, TRG and
OAM, substantially in the form of Exhibit G hereto, or otherwise satisfactory
to Subscriber and Issuer; and
(b) The Board of Directors of Subscriber shall have adopted
resolutions approving the proposed acquisition of shares of Subscriber by
Issuer pursuant to the Stock Purchase Agreement dated as of January 10, 2002
by and between the Issuer and OAM; and
(c) The Board of Directors of Issuer shall have adopted resolutions
causing the proposed acquisition of the Shares to not be a "change of control"
under the Issuer's stock option plans.
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Section 2.6 ISSUER POST-CLOSING COVENANTS. After the Closing, the Issuer
covenants and agrees that it shall:
(a) use its best efforts to cause the Shares to be distributed to
the Subscriber's stockholders in a tax efficient manner (both with respect to
the Subscriber and the Subscriber's stockholders), and in compliance with all
applicable law, including without limitation the Securities Act of 1933 and
the Delaware General Corporation Law, as soon as is reasonably possible after
the Closing;
(b) Use its best efforts to hold an Annual Meeting of its
shareholders during 2002 in accordance with the requirements of its bylaws,
the Colorado Business Corporation Act and applicable proxy rules and
regulations adopted by the Securities and Exchange Commission;
(c) Obtain liability insurance coverage for the current officers
and directors of Subscriber under the Issuer's Directors and Officers
liability insurance policy covering such officers for acts, omissions and
events occurring beginning two years prior to the Closing Date and ending the
day following the Closing Date, or otherwise purchase a tail policy with
respect to Trident Rowan Group, Inc.'s policy covering such officers and
directors for such period;
(d) Not amend and cause Centerpoint not to amend, or take any
action reasonably expected to cause the amendment of, the officer and director
indemnification provisions contained in the Subscriber's charter and by-laws
in effect on the date hereof, for a period of two years from the date hereof,
and cause Issuer to indemnify the Issuer's officer's and directors in
accordance with such provisions.
(e) Until the date on which the Shares are distributed to the
Centerpoint shareholders, indemnify the Centerpoint directors for their past
acts through the date of Closing to the extent that the Issuer is permitted to
indemnify its own directors for their actions pursuant to Issuer's Articles of
Incorporation and Bylaws; provided, however, that such indemnification shall
only be provided to the Centerpoint directors to the extent that insurance
coverage for such past acts is denied under all available insurance policies
at the time each claim is made or to the extent that such policies and such
insurance companies do not fully indemnify such officers and directors against
the full cost of all claims and expenses arising out of such past acts.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SUBSCRIBER
The Subscriber represents and warrants to the Issuer as follows:
Section 3.1 Organization.
(a) The Subscriber is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware, has all requisite
corporate power and authority to carry on its business as it is now being
conducted, and is qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction in which the nature
of the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so organized, existing and in good
standing or to have such power and authority, or to be so qualified or
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licensed is not reasonably likely to (x) have a Material Adverse Effect on the
Subscriber; or (y) impair the ability of the Subscriber to perform its
obligations hereunder.
(b) As used in this Agreement, the term "Material Adverse Effect"
shall mean a material adverse effect on the business, assets, results of
operations or financial condition of the Subscriber or the Issuer as the case
may be; provided, however, that a Material Adverse Effect shall not include
(a) any change or effect relating or due to general economic or industry-wide
conditions and (b) any change or effect resulting from the announcement by the
Subscriber of its intention to purchase or the Issuer of its intention to
sell, the Shares, the consideration therefor, the execution of this Agreement
or the consummation of the transactions contemplated hereby.
Section 3.2 Authorization; Validity of Agreement.
(a) The Subscriber has the requisite corporate power and authority
to execute and deliver this Agreement and the Registration Rights Agreement
and the other documents to which the Subscriber is a party being delivered in
connection with this Agreement (the "Subscriber Documents") and to consummate
the transactions contemplated hereby and thereby. The execution and delivery
by the Subscriber of the Subscriber Documents and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by the
Board of Directors of the Subscriber and no other corporate proceedings on the
part of the Subscriber are necessary to authorize the execution and delivery
of the Subscriber Documents by the Subscriber and the consummation of the
transactions contemplated hereby and thereby. The Subscriber Documents have
been duly executed and delivered by the Subscriber and, assuming due
authorization, execution and delivery of this Agreement (and the Subscriber
Documents, if applicable) by the Issuer are the valid and binding obligations
of the Subscriber, enforceable against the Subscriber in accordance with their
respective terms, except to the extent such enforcement may be subject to or
limited by (i) bankruptcy, insolvency or other similar laws, now or hereafter
in effect, affecting creditors' rights generally and (ii) the effect of
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
Section 3.3 No Violations; Consents and Approvals.
(a) Neither the execution and delivery of the Subscriber Documents
by the Subscriber nor the consummation by the Subscriber of the transactions
contemplated hereby and thereby will (i) violate any provision of the
certificate of incorporation or bylaws of the Subscriber, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration) under, any of the terms, conditions or
provisions of any loan or credit agreement, note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, lease, license, contract, agreement
or other instrument or obligation to which the Subscriber is a party or by
which any of its assets may be bound or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Subscriber
or any of its properties or assets; except in the case of clauses (ii) and
(iii) for violations, breaches or defaults which would not reasonably be
likely to (x) have a Material Adverse Effect on the Subscriber; or (y) impair
the ability of the Subscriber to perform its obligations hereunder.
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(b) No filing or registration with, notification to, or
authorization, consent or approval of, any foreign, federal, state, local,
municipal, county or other governmental, administrative or regulatory
authority, body, agency, court, tribunal, commission or similar entity
(including any branch, department or official thereof) (a "Governmental
Entity") is required in connection with the execution and delivery of this
Agreement by the Subscriber or the consummation by the Subscriber of the
transactions contemplated hereby, except for such consents, approvals, orders,
authorizations, notifications, registrations, declarations and filings the
failure of which to be obtained or made which would not reasonably be likely
to (x) have a Material Adverse Effect on the Subscriber; or (y) impair the
ability of the Subscriber to perform its obligations hereunder.
Section 3.4 Ownership and Possession of the Consideration; Good Title
Conveyed.
(a) The endorsements, assignments and other instruments being
executed and delivered by the Subscriber to the Issuer at the Closing will be
valid and binding obligations of the Subscriber, enforceable in accordance
with their respective terms, and will effectively vest in the Issuer good,
valid and marketable title to all the consideration to be transferred to the
Issuer pursuant to and as contemplated by this Agreement free and clear of all
Encumbrances, except restrictions on transfer imposed by the Securities Act of
1933, as amended (the "Securities Act"), and state securities laws.
(b) As used in this Agreement, the term "Encumbrances" shall mean
any and all liens, charges, security interests, options, claims, mortgages,
pledges, hypothecations, proxies, voting trusts or agreements, obligations,
understandings or arrangements or other restrictions on title or transfer of
any nature whatsoever.
Section 3.5 Brokers. Except for Investec Ernst & Co. ("Investec"), no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by
this Agreement or based upon arrangements made by or on behalf of the
Subscriber. The Subscriber is solely responsible for the fees and expenses of
Investec.
Section 3.6 Investment Related Representations. To the knowledge and
belief of the Subscriber (a) the Subscriber has received and is familiar with
the Issuer SEC Reports (as hereinafter defined); (b) respecting the Issuer,
the Subscriber is familiar with the Issuer's business, plans and financial
condition, the Subscriber has received all materials which have been requested
by the Subscriber; has had a reasonable opportunity to ask questions of the
Issuer and its representatives; (c) the Issuer has answered all inquiries
that the Subscriber or the Subscriber's representatives have put to it; and
(d) the Subscriber has had access to all additional information necessary to
verify the accuracy of the information set forth in the Issuer SEC Reports and
any other materials furnished herewith, and has taken all the steps necessary
to evaluate the merits and risks of an investment as proposed hereunder.
(e) The Subscriber or the Subscriber's purchaser representative has
such knowledge and experience in finance, securities, investments and other
business matters so as to be able to protect the interests of the Subscriber
in connection with this transaction.
(f) The Subscriber understands the various risks of an investment
in the Issuer as proposed herein and can afford to bear such risks, including,
without limitation, the risks of losing the entire investment.
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(g) The Subscriber has been advised by the Issuer that the Shares
are restricted and have not yet been registered under the Act, that the Shares
will be issued on the basis of the statutory exemption provided by Section
4(2) of the Securities Act of 1933, as amended (the "Act"), or Regulation D
promulgated thereunder, or both, relating to transactions by an issuer not
involving any public offering and under similar exemptions under certain state
securities laws, that this transaction has not been reviewed by, passed on or
submitted to any federal or state agency or self-regulatory organization where
an exemption is being relied upon, and that the Issuer's reliance thereon is
based in part upon the representations made by the Subscriber in this
Agreement. The Subscriber acknowledges that the Subscriber has been informed
by the Issuer of, or is otherwise familiar with, the nature of the limitations
imposed by the Act and the rules and regulations thereunder on the transfer of
the Shares. In particular, the Subscriber agrees that no sale, assignment or
transfer of the Shares shall be valid or effective, and the Issuer shall not
be required to give any effect to such a sale, assignment or transfer, unless
(i) the Shares, or the sale, assignment or transfer of the Shares, is
registered under the Act, it being understood that the Shares are not yet
registered for re-sale although the Issuer has agreed to so register the
Shares as provided in this Agreement, or (ii) the Shares are sold, assigned or
transferred in accordance with all the requirements and limitations of Rule
144 under the Act, it being understood that Rule 144 is not available at the
present time for the sale of the Shares, or (iii) such sale, assignment or
transfer of the Shares is otherwise exempt from registration under the Act.
The Subscriber further understands that absent registration under the Act an
opinion of counsel and other documents may be required to transfer the Shares.
The Subscriber acknowledges that the Shares shall be subject to a stop
transfer order and the certificates evidencing any Shares shall bear the
following or a substantially similar legend or such other legend as may appear
on the forms of the Shares and such other legends as may be required by state
blue sky laws for so long as the shares remain unregistered under the Act:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities laws and neither such securities
nor any interest therein may be offered, sold, pledged, assigned
or otherwise transferred unless (1) a registration statement with
respect thereto is effective under the Act and any applicable
state securities laws or (2) the Issuer receives an opinion of
counsel to the holder of such securities, which counsel and
opinion are reasonably satisfactory to the Issuer, that such
securities may be offered, sold, pledged, assigned or transferred
in the manner contemplated without an effective registration
statement under the Act or applicable state securities laws."
(h) The Subscriber will acquire the Shares for the Subscriber's own
account for investment and not with a view to the sale or distribution thereof
or the granting of any participation therein except in accordance with
applicable law, and has no present intention of distributing or selling to
others any of such interest or granting any participation therein in violation
of any state or federal securities laws.
(i) No oral or written representations have been made to the
Subscriber or the Subscriber's advisors other than as set forth in this
Agreement and any document or certificate delivered pursuant to this Agreement
or as stated in the Issuer SEC Reports.
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(j) The Subscriber is not offering to purchase the Shares as a
result of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or presented at any seminar or meeting, or
any solicitation of an offer to purchase by a person with which the Subscriber
had a pre-existing relationship in connection with investments in debt and
equity securities generally.
(k) Without limiting any of the Subscriber's other representations
and warranties hereunder, the Subscriber acknowledges that the Subscriber has
reviewed and is aware of the risk factors described in the SEC Reports.
Section 3.7 No Other Representations or Warranties. Except for the
representations and warranties contained in this Article III, neither the
Subscriber nor any other Person (as defined herein) makes any other express or
implied representation or warranty on behalf of the Subscriber or any of its
affiliates in connection with the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE ISSUER
The Issuer represents and warrants to the Subscriber as follows:
Section 4.1 Organization. The Issuer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado,
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, and is
qualified or licensed to do business as a foreign corporation and is in good
standing in each jurisdiction in which the nature of the business conducted by
it makes such qualification or licensing necessary, except where the failure
to be so organized, existing and in good standing or to have such power and
authority, or to be so qualified or licensed is not reasonably likely to (x)
have a Material Adverse Effect on the Issuer; or (y) impair the ability of the
Issuer to perform its obligations hereunder.
Section 4.2 Capitalization and Indebtedness. The authorized capital stock
of the Issuer consists of 100,000,000 shares of Issuer Common Stock of which
13,481,930 are issued and outstanding as of the date hereof without giving
effect to the issuance of shares contemplated hereby or the automatic
conversion of any of Issuer's convertible debt securities as a result of the
transaction contemplated hereby. In accordance with the terms of the
convertible securities of the Issuer set forth on Schedule 4.2 hereof, the
convertible securities will by their terms be converted into not more than
19,050,000 shares of Issuer Common Stock upon the consummation of the
transactions contemplated by this Agreement (the "Conversion of Indebtedness")
if conversion occurs on or before January 15, 2002. Each outstanding share of
Issuer Common Stock is duly authorized, validly issued, fully paid and
nonassessable, without any personal liability attaching to the ownership
thereof and has not been issued and is not owned or held in violation of any
preemptive rights of stockholders. Except as set forth on Schedule 4.2, there
is no commitment, plan or arrangement to issue, and no outstanding option,
preemptive right, warrant or other right, instrument or security calling for
the issuance of any share of capital stock of the Issuer or any security or
other instrument which by its terms is convertible into, exercisable for or
exchangeable for capital stock of the Issuer. As of the date hereof the
Issuer is not in default with respect to any Indebtedness and the consummation
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of the transactions contemplated by this Agreement and the OAM Stock Purchase
Agreement will not result in any such default. Immediately following the
consummation of the transactions contemplated by this Agreement and the
Conversion of Indebtedness if conversion occurs on or before January 15, 2002,
the total outstanding indebtedness of the Issuer shall not be greater than
$950,000, and indebtedness other than subordinated indebtedness shall not be
greater than $950,000.
Section 4.3 Authorization; Validity of Agreement. The Issuer has the
requisite corporate power and authority to execute and deliver this Agreement
and the Registration Rights Agreement and to consummate the transactions
contemplated hereby and thereby and by the other documents and agreements
attached hereto as exhibits (this Agreement, the Registration Rights Agreement
and such other agreements, the "Transaction Documents"). The execution and
delivery by the Issuer of the Transaction Documents and the consummation of
the transactions contemplated hereby and thereby have been duly authorized by
the Board of Directors of the Issuer, and no other corporate proceedings on
the part of the Issuer are necessary to authorize the execution and delivery
of the Transaction Documents by the Issuer and the consummation of the
transactions contemplated hereby and thereby. The Transaction Documents have
been duly executed and delivered by the Issuer and, assuming due
authorization, execution and delivery of this Agreement and the Transaction
Documents to which it is a party by the Subscriber, are valid and binding
obligations of the Issuer, enforceable against the Issuer in accordance with
their respective terms, except to the extent such enforcement may be subject
to or limited by (i) bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors' rights generally and (ii) the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
Section 4.4 No Violations; Consents and Approvals.
(a) The execution and delivery of the Transaction Documents and the
OAM Stock Purchase Agreement by the Issuer and the consummation by the Issuer
of the transactions contemplated hereby and thereby will not (i) violate any
provision of the certificate of incorporation or bylaws of the Issuer, (ii)
result in a violation or breach of, or constitute (with or without due notice
or lapse of time or both) a default (or give rise to any right of termination,
amendment, cancellation, acceleration or price adjustment except with respect
to the Issuer's currently issued and outstanding Class "J" and Class "SV"
warrants) under, any of the terms, conditions or provisions of any material
note, bond, mortgage, indenture, guarantee, other evidence of indebtedness,
warrant, option, license, lease, contract, agreement or other instrument or
obligation to which the Issuer or any of its Subsidiaries is a party or by
which any of them or any of their assets may be bound or (iii) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the
Issuer, any of its Subsidiaries or any of their properties or assets, except
in the case of clauses (ii) and (iii) for violations, breaches or defaults
which, in the aggregate, would not reasonably be likely to (x) have a Material
Adverse Effect on the Issuer; or (y) impair the ability of the Issuer to
perform its obligations hereunder.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any Governmental Entity is required in
connection with the execution and delivery of the Transaction Documents by the
Issuer or the consummation by the Issuer of the transactions contemplated
hereby and thereby, except such consents, approvals, orders, authorizations,
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notifications, registrations, declarations and filings the failure of which to
be obtained or made would not reasonably be likely to (x) have a Material
Adverse Effect on the Issuer; or (y) impair the ability of the Issuer to
perform its obligations hereunder.
Section 4.5 Issuance of Shares at the Closing. The issuance of the Shares
being issued at the Closing has been duly authorized by all necessary
corporate action on the part of the Issuer, and when issued the Shares will be
validly issued, fully paid and nonassessable, and will be free and clear of
all Encumbrances, except restrictions on transfer imposed by the Securities
Act and state securities laws, and the issuance of such Shares is not subject
to preemptive or subscription rights.
Section 4.6 Issuer SEC Reports and Financial Statements.
(a) The Issuer has filed all forms, reports and documents required
to be filed by it with the SEC since December 1, 1998 (collectively, the
"Issuer SEC Reports"). The Issuer SEC Reports (i) were prepared in accordance
with the requirements of the Securities Act or the Exchange Act, and the rules
and regulations promulgated thereunder, as the case may be, and (ii) did not
at the time they were filed contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading.
(b) Each of the consolidated financial statements (including, in
each case, any notes thereto) contained in the Issuer SEC Reports (the "Issuer
Financial Statements") (i) was prepared from the books of account and other
financial records of the Issuer and its Subsidiaries, (ii) was prepared in
accordance with U.S. GAAP applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto) and (iii)
presented fairly the consolidated financial position of the Issuer and its
consolidated Subsidiaries as at the respective dates thereof and the results
of their operations and their cash flows for the respective periods indicated
therein except as otherwise noted therein (subject, in the case of unaudited
statements, to the omission of footnotes and normal and recurring year-end
adjustments which were not and are not expected, individually or in the
aggregate, to have a Material Adverse Effect on the Issuer).
(c) The Issuer has heretofore furnished to the Subscriber complete
and correct copies of (i) all agreements, documents and other instruments not
yet filed by the Issuer with the SEC but that are currently in effect and that
the Issuer expects to file with the SEC after the date of this Agreement and
(ii) all amendments and modifications that have not been filed by the Issuer
with the SEC to all agreements, documents and other instruments that
previously had been filed by the Issuer with the SEC and are currently in
effect.
(d) No Undisclosed Liabilities. Except as disclosed in the Issuer
SEC Reports filed prior to the date hereof, since December 31, 2000, Issuer
has not incurred any liabilities that are of a nature that would be required
to be disclosed on its balance sheet or the footnotes thereto prepared in
conformity with GAAP, other than approximately $350,000 which has been
advanced by affiliates of the Issuer since the date of its most recent
Quarterly Report on Form 10-QSB and other liabilities that, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect on the Issuer.
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Section 4.7 Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Issuer.
Section 4.8 No Other Representations or Warranties. Except for the
representations and warranties contained in this Article IV and the documents
and certificates delivered pursuant to this Agreement, neither the Issuer nor
any other Person makes any other express or implied representation or warranty
on behalf of the Issuer or any of its affiliates.
ARTICLE V
COVENANTS
Section 5.1 Registration Rights. The parties acknowledge that the
Subscriber is subscribing for the Shares in reliance on covenants made by the
Issuer in the Registration Rights Agreement.
Section 5.2 Appointment of Director. The Issuer hereby covenants and
agrees from the date hereof until June 30, 2003, it shall exert its best
efforts (including, without limitation, the solicitation of proxies), to cause
the election of the designee of the Subscriber to the Issuer's Board of
Directors. Any vote taken to fill any vacancy created by the resignation,
death or removal of such designee or the expiration of the term of such
designee, shall also be subject to the provisions of this Section 5.2.
Additionally, at the written request of the Subscriber, Issuer shall exert its
best efforts (including the solicitation of proxies) to cause the removal of
such designee at the next stockholders meeting for which the Issuer's proxy
statement is filed after the Issuer's receipt of such notice.
Section 5.3 Use of Proceeds. The Issuer shall use the proceeds of the
transactions contemplated by this Agreement only for the following purposes:
(i) to acquire shares of Common Stock of the Subscriber pursuant to the OAM
Stock Purchase Agreement (ii) to pay the day to day operating expenses and
accounts payable accrued in the ordinary course of business of the Issuer,
(iii) to pay up to $950,000 of Indebtedness of the Issuer and (iv) for working
capital and the payment of costs related to the consummation of this
transaction and the transactions related to this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Public Announcements. The Issuer and the Subscriber shall,
and shall cause their affiliates to, consult promptly with each other prior to
issuing any press release, making any required filing or otherwise making any
public statement with respect to this Agreement and the transactions
contemplated hereby, provide to the other party within a reasonable timeframe
for review a copy of any such press release or statement, and shall not issue
any such press release, public filing or make any such public statement prior
to such consultation and a reasonable opportunity for review and comment, the
duration of which is specified at the time of review and shall make reasonable
efforts to accommodate the reasonable comments of the other party, unless
otherwise required by applicable law or any listing agreement with a
securities exchange.
Section 6.2 Fees and Expenses. All costs and expenses incurred by a
party in connection with this Agreement and the consummation of the
transactions contemplated hereby shall be paid by the party incurring such
costs or expenses.
11
Section 6.3 Non-Survival of Representations and Warranties. Other than
the representations and warranties set forth in Sections 3.4, 4.4 and 4.5
which shall survive in perpetuity, the representations and warranties made in
this Agreement shall survive only until the second anniversary of the date
hereof.
Section 6.4 Amendment; Waiver. This Agreement may be amended, modified
or supplemented by the parties hereto, at any time. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
Section 6.5 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon (a) transmitter's
confirmation of a receipt of a facsimile transmission, (b) confirmed delivery
by a standard overnight carrier or when delivered by hand or (c) the
expiration of five business days after the day when mailed in the United
States by certified or registered mail, postage prepaid, addressed at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(a) If to the Subscriber, to:
Centerpoint Corporation
c/o FDG Associates
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000 or
(000) 000-0000
Attn: Xxxx Xxxxxx
with a copy to:
Xxxxxxx X. Xxxxxxx
000 Xxxx 00xx Xxxxxx, #0X
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Issuer, to:
Bion Environmental Technologies, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Xxxx Xxxxx Xxxxxxxx & Xxxxxx
000 00xx Xx., Xxxxx 0000X
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
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Section 6.6 Certain Definitions. As used in this Agreement:
(a) The term "affiliate," as applied to any person, shall mean any
other person directly or indirectly controlling, controlled by, or under
common control with, that person.
(b) The term "Person" or "person" shall include individuals,
corporations, partnerships, trusts, other entities and groups (which term
shall include a "group" as such term is defined in Section 13(d)(3) of the
Exchange Act of 1934, as amended).
(c) The term "Subsidiary" or "Subsidiaries", with respect to any
person, means any corporation, partnership, joint venture or other legal
entity of which such person (either alone or through or together with any
other subsidiary), owns, directly or indirectly, stock or other equity
interests the holders of which are generally entitled to more than 50% of the
vote for the election of the board of directors or other governing body of
such corporation or other legal entity.
Section 6.7 Interpretation. When a reference is made in this Agreement
to a section, article, paragraph, clause, annex or exhibit, such reference
shall be to a reference to this Agreement unless otherwise clearly indicated
to the contrary. The descriptive article and section headings herein are
intended for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement. Whenever the
words "include," "includes" or "including" are used in this Agreement they
shall be deemed to be followed by the words "without limitation." The words
"hereof," "herein" and "herewith" and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole and not
to any particular provision of this Agreement. The meaning assigned to each
term used in this Agreement shall be equally applicable to both the singular
and the plural forms of such term, and words denoting either gender shall
include both genders. Where a word or phrase is defined herein, each of its
other grammatical forms shall have a corresponding meaning.
Section 6.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
be considered one and the same agreement.
Section 6.9 Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings (written and
oral), between the parties with respect to the subject matter hereof.
Section 6.10 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 6.11 Specific Performance. Irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached; accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
13
Section 6.12 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
Section 6.13 Submission to Jurisdiction. Each of the Issuer and the
Subscriber hereby irrevocably submits in any action, suit or proceeding
arising out of this Agreement or any of the transactions contemplated hereby
to the exclusive jurisdiction of the United States District Court for the
Southern District of New York and the jurisdiction of any court of the State
of New York located in the City of New York. The parties hereto waive any and
all objections to the laying of venue of any such litigation in such
jurisdiction and agree not to plead or claim in any such litigation that such
litigation has been brought in an inconvenient forum.
Section 6.14 Waiver of Jury Trial. Each party acknowledges and agrees
that any controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of or relating to this Agreement, or the transactions contemplated by this
Agreement. Each party certifies and acknowledges that (i) no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce
the foregoing waiver, (ii) each such party understands and has considered the
implications of this waiver, (iii) each such party makes this waiver
voluntarily and (iv) each such party has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in
this Section 6.14.
Section 6.15 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either party hereto
(whether by operation of law or otherwise) without the prior written consent
of the other party. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by, the parties and
their respective successors and assigns and are not intended to confer upon
any Person other than the parties hereto any rights or remedies hereunder.
Section 6.16 Legal Representation of Investec. The parties hereto
acknowledge that Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP ("Xxxxxx Xxxxx") was
retained by Investec to represent Investec in connection with the transactions
contemplated hereby and that, notwithstanding the fact that from time to time
Xxxxxx Xxxxx has represented various affiliates of the Subscriber in
connection with specific transactions, the parties understand Xxxxxx Levin's
preparation of this Agreement and the documents contemplated hereby was solely
at the request of and in its role as counsel to Investec. Neither party
hereto is relying on Xxxxxx Xxxxx for representation or advice in connection
with this Agreement or with the transactions contemplated hereby and without a
written agreement to the contrary, Xxxxxx Xxxxx shall owe no duties to any
party hereto.
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14
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
CENTERPOINT CORPORATION
By:/s/ Xxxx Xxxxxx
Name:
Title:
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By:/s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: CEO
15
EXHIBIT A
Account for Wire Transfer:
Chase Manhattan Bank
ABA# 000000000
Investec- Ernst
Acct. No. 140080524
For Further Credit to:
Bion Environmental Technologies, Inc.
Acct. No. 02016771
EXHIBIT B
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made this 13th day of June
2001, by and between TRIDENT ROWAN GROUP, INC., a Maryland corporation,
(together with its successors and assigns, the "Borrower") and CENTERPOINT
CORPORATION, a Delaware corporation (together with its successors and assigns,
the "Lender"), with offices located c/o FDG Associates, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 1.
INTERPRETATION
(a) Definitions. The following capitalized terms are defined as follows:
"Collateral" means the TRG Collateral and the OAM Collateral.
"Default" means any of the events set forth in Article 6 which with
giving of notice, the lapse of time, or both, would constitute an Event of
Default.
"Default Rate" means an amount equal to the Interest Rate plus two
percent (2.00%).
"Event of Default" has the meaning set forth in Article 6 hereof.
"Interest Rate" means an annual rate of interest equal to 5.00%.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing). The term "Lien" shall
include reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances affecting property.
"Loan" means the loan evidenced by the Note.
"Loan Documents" means this Agreement, the Note the Pledge Agreements and
the Limited Recourse Guaranty Agreement and all other documents, instruments,
financing statements, certificates and other agreements executed in connection
with the Loan.
"Note" means the Secured Promissory Note executed by the Borrower in
substantially the form of Exhibit A attached to this Agreement evidencing the
Loan.
"Limited Recourse Guaranty Agreement" means that certain Limited Recourse
Guaranty Agreement of even date herewith by and between OAM and Lender.
"OAM" shall mean OAM, S.p.A., an Italian corporation and wholly owned
subsidiary of Borrower.
"OAM Collateral" means the Pledged Capital Stock as such term is defined
in the OAM Pledge Agreement.
"OAM Pledge Agreement" means that certain Pledge Agreement of even date
herewith by and between OAM and Lender.
"Obligations" means, without limitation, the Loan including all interest
and other charges chargeable to the Borrower or due from the Borrower to the
Lender from time to time and all costs and expenses referred to in Sections
7.4.
"Payment Dates" means the dates established pursuant to Article 2 for the
payment of interest on the Notes.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
"Pledge Agreements" means the OAM Pledge Agreement and the TRG Pledge
Agreement.
"Requirements of Law" means, with respect to any Person, any law, treaty,
rule or regulation or determination of an arbitrator or a court or other
governmental authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"TRG Collateral" means the Pledged CP Capital Stock as such term is
defined in the TRG Pledge Agreement.
"TRG Pledge Agreement" means that certain Pledge Agreement of even date
herewith by and between Borrower and Lender.
"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code in
each case in effect in the jurisdiction where the Collateral is located.
Section 2.
LOAN TERMS AND AMOUNTS
(a) Loan Commitment. Subject to the terms and conditions of this
Agreement, the Lender hereby agrees to make a loan to Borrower in the amount
of $4,200,000. (the "Loan"). The absolute and unconditional obligation of
the Borrower to repay the Lender the principal of the Loan and the interest
thereon shall be evidenced the Note.
(b) Interest on Overdue Payments; Default Rate. If any payment of
interest or principal is not paid when due, the Lender, at its option, may
charge and collect from the Borrower interest at the Default Rate applicable
to the Note.
Upon the occurrence and during the continuance of any Event of
Default, the outstanding principal and all accrued interest as well as any
other charges due the Lender hereunder or under the Note, shall bear interest
from the date on which such amount shall have first become due and payable to
the Lender (or, in the case of other charges due Lender hereunder, five (5)
days after demand therefor by Lender) to the date on which such amount shall
be paid to the Lender (whether before or after judgment), at the Default Rate.
Upon the occurrence and during the continuance of an Event of Default, any
2
accrued and unpaid interest shall become and be absolutely due and payable to
the Lender, on demand, at any time. Interest will continue to accrue until
the Obligations are discharged (whether before or after judgment).
(c) Voluntary Prepayments. Borrower may voluntarily prepay, without
premium or penalty, the Loan in part or in full at any time upon notice to
Lender at least five (5) days prior to the specified prepayment date.
(d) Place of Payments. Notwithstanding anything in the Loan
Documents to the contrary, each payment payable by the Borrower to the Lender
under this Agreement or the Note shall be made directly to the Lender c/o FDG
Associates, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such
other place as may be designated by Lender on the due date of each such
payment in immediately available funds.
(e) Application of Funds. The funds received by the Lender shall
be applied toward the Obligations as follows: first, to the payment of all
fees, charges and other sums (with the exception of principal and interest)
due and payable to the Lender under the Note or this Agreement at such time;
second, to the payment of interest which shall be due and payable on the
principal of the Note; and third, to the payment of principal on the Note.
Section 3.
SECURITY INTEREST
To secure the payment and performance of all of the Borrower's
obligations hereunder and under the Note, the Borrower shall grant the Lender
a continuing first priority security interest in the TRG Collateral pursuant
to the TRG Pledge Agreement and shall cause its wholly owned subsidiary OAM to
grant to the Lender a continuing first priority security interest in the OAM
Collateral pursuant to the Limited Recourse Guaranty Agreement and the OAM
Pledge Agreement.
Section 4.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement, the Borrower
hereby represents and warrants to the Lender that:
(a) Enforceable Obligations. This Agreement and the Note have been
duly executed and delivered on behalf of the Borrower, and constitute the
legal, valid and binding obligation of the Borrower, enforceable against
Borrower in accordance with their terms.
(b) No Legal Bar. The execution, delivery and performance of this
Agreement and the Note, and the consummation of the transactions contemplated
hereby and thereby, will not (i) violate any Requirements of Law, or (ii)
conflict with or result in a breach of the terms or provisions of, or
constitute a default under, or (except as otherwise contemplated by any of the
Loan Documents) result in the creation of any Lien under any contractual
obligation of the Borrower.
3
Section 5.
AFFIRMATIVE COVENANTS
So long as any Note remains outstanding and unpaid or any other
Obligation is owing to the Lender, Borrower shall promptly give notice to the
Lender of the occurrence of any Default or Event of Default setting forth the
details of the Default or Event of Default and any action taken or
contemplated to be taken with respect to the same.
Section 6.
EVENTS OF DEFAULT AND REMEDIES
(a) Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default:
(i) Payments. Failure by the Borrower to pay any interest on
or principal of the Note when it is due and payable or declared due and
payable, as the case may.
(ii) Commencement of Bankruptcy or Reorganization Proceeding.
The Borrower or OAM shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, wind-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or
any substantial part of its assets; or
There shall be commenced against the Borrower or OAM any such
case, proceeding or other action which results in the entry of an order for
relief or any such adjudication or appointment or remains undismissed,
undischarged or unbonded for a period of thirty (30) days; or
There shall be commenced against the Borrower or OAM any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within thirty (30) days from the entry thereof.
(b) Remedies. Upon the occurrence of an Event of Default described
in this Article 6, the Lender, at its option, may:
(i) declare the Obligations of the Borrower immediately due and
payable, without presentment, notice, protest or demand of any kind for the
payment of all or any part of the Obligations (all of which are expressly
waived by the Borrower) and exercise all of its rights and remedies against
the Borrower and any Collateral provided herein or in any other agreement
between the Borrower and the Lender, and
(ii) exercise all rights granted to it under the Pledge
Agreement.
4
(c) Application of Proceeds. The Lender shall apply any credit in
respect of disposition of the Collateral to the payment of the Obligations in
accordance with the provisions of Section 2.5 hereof.
(d) Rights Cumulative; Waiver. The rights, options and remedies of
the Lender shall be cumulative and no failure or delay by the Lender in
exercising any right, option or remedy shall be deemed a waiver thereof or of
any other right, option or remedy, or waiver of any Event of Default
hereunder, nor shall any single or partial exercise of any such right, power
or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy hereunder. The Lender shall not be deemed to
have waived any of the Lender's rights hereunder or under any other agreement,
instrument or paper signed by the Borrower unless such waiver shall be in
writing and signed by the Lender in accordance with the provisions hereof.
Section 7.
MISCELLANEOUS
(a) Amendments and Waivers. Borrower and Lender may amend this
Agreement or the Note, and the Lender may waive future compliance by the
Borrower with any provision of this Agreement or the Note, but no such
amendment or waiver shall be effective unless in a written instrument executed
by an authorized officer of the Lender and Borrower.
(b) Notices. All notices, consents, requests and demands to or upon
the respective parties hereto shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made
when delivered by hand, or when deposited in the mail, postage prepaid, or, in
the case of telex, telegraphic or telecopy notice, when sent, addressed as
follows:
If to the Lender: Centerpoint Corporation
c/o FDG Associates
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000 or
(000) 000-0000
If to the Borrower: Trident Rowan Group, Inc.
c/o FDG Associates
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000 or
(000) 000-0000
Notices of changes of address shall be given in the same manner.
(c) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Borrower, the Lender and their respective
successors and assigns, except that the Borrower may not assign or transfer
any of its rights or obligations under this Agreement without the prior
written consent of the Lender. If the Lender shall transfer its Note and its
rights under this Agreement, then the Lender shall be relieved and released
from its obligations hereunder.
5
(d) Collection Costs. All reasonable costs and expenses incurred by
the Lender to obtain, enforce or preserve the security interests granted by
this Agreement and to collect the Obligations, including, without limitation,
all reasonable out-of-pocket costs, all reasonable costs to maintain and
preserve the Collateral and all reasonable attorneys' fees and legal expenses
incurred in obtaining or enforcing payment of any of the Obligations or
foreclosing the Lender's security interest in any of the Collateral, whether
through judicial proceedings or otherwise, or in enforcing or protecting its
rights and interests under this Agreement or under any other instrument or
document delivered pursuant hereto, or in protecting the rights of any holder
or holders with respect thereto, or in defending or prosecuting any actions or
proceedings arising out of or relating to the Lender's transactions with the
Borrower shall become part of the Obligations, and the Lender may take
judgment against the Borrower for all such costs, expenses and fees in
addition to all other amounts due from the Borrower hereunder.
(e) Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
(f) Governing Law. This Agreement, the Note and the other Loan
Documents and the rights and obligations of the parties under this Agreement,
the Note and the other Loan Documents shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York, without
regard to its statues relating to conflicts of laws.
(g) WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED INDUCEMENT
FOR THE LENDER TO EXTEND CREDIT TO THE BORROWER, AND AFTER HAVING THE
OPPORTUNITY TO CONSULT COUNSEL, THE BORROWER HEREBY EXPRESSLY WAIVES THE RIGHT
TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS AGREEMENT OR
ARISING IN ANY WAY FROM THE OBLIGATIONS.
(h) Other Waivers. Borrower waives notice of nonpayment, demand,
notice of demand, presentment, protest and notice of protest with respect to
the Obligations, or notice of acceptance hereof, notice of the Loan made,
credit extended, Collateral received or delivered, or any other action taken
in reliance hereon, and all other demands and notices of any description,
except such as are expressly provided for herein.
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6
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
BORROWER:
TRIDENT ROWAN GROUP, INC.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title:
LENDER:
CENTERPOINT CORPORATION
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: CEO
7
Schedule A
Term Note
Payment Schedule
Interest Payments due semi-annually on January 14, 2002 and upon
repayment of principal. Principal due and payable on June 13, 2002
EXHIBIT C
ASSIGNMENT OF ACTION AGREEMENT
AGREEMENT (this "Agreement"), made as of this 10th day of January 2002,
by and between Centerpoint Corporation, a Delaware corporation
("Centerpoint"), and Bion Environmental Technologies, Inc., a Colorado
corporation ("Bion").
WHEREAS, Centerpoint Corporation (then Moto Guzzi Corporation) closed on
the sale of its subsidiaries to Aprilia on September 6, 2000, and SIREF S.p.A.
and San Paolo Finanziaria S.p.A., each of which is an affiliate of IMI, the
Company's investment adviser, acted as fiduciary agents for the closing;
WHEREAS, At the closing, pursuant to an invoice submitted to them by IMI
prior to the closing, but without the prior knowledge, consent or approval of
Centerpoint or Trident Rowan Group, Inc., the fiduciary agents paid IMI Lit.
11,401 million, in respect of fees and expenses claimed by IMI to be due it
under its engagement letter with Trident Rowan and OAM;
WHEREAS, Since early July 0000, Xxxxxxx Xxxxx and Centerpoint have
disputed IMI's interpretation of the calculation of the fee due it under its
engagement letter, following indication by IMI of its basis of calculation,
which dispute relates to the respective interpretations of the Trident Rowan,
Centerpoint and IMI of the term "Total Enterprise Value", as that term is used
in the engagement letter;
WHEREAS, IMI refused to engage in negotiations and did not present any
calculation of the fee prior to the closing, and after did not present a
calculation or invoice to Centerpoint until after the closing and actual
payment to IMI of the alleged fee by the fiduciary agents;
WHEREAS, In addition to disputing the amount of the fee paid to IMI,
Trident Rowan and Centerpoint believe that IMI had no right to cause its fee
to be deducted from the Centerpoint proceeds, as Centerpoint was not a party
to the engagement letter;
WHEREAS, the Company and Trident Rowan are currently evaluating possible
courses of action against IMI and the fiduciary agents, including initiating
legal proceedings in Italy and the United States;
WHEREAS, Centerpoint and Bion are parties to that certain Subscription
Agreement dated the date hereof (the "Subscription Agreement"), pursuant to
which Centerpoint is purchasing from Bion certain shares of Bion's common
capital stock, no par value per share, in exchange for consideration
including, among other things, the Assigned Interest (as defined below);
WHEREAS, Centerpoint desires to assign to Bion and Bion desires to
purchase from Centerpoint, a 65% interest in and to Centerpoint's right, title
and interest in and to the claims, , including 65% of Centerpoint's right to
receive principal, interest, fees, expenses, damages, penalties and other
amounts in respect of, or in connection with, any of the foregoing, together
with voting and other rights and benefits arising from, under or relating to
any of the foregoing, including, without limitation, all of Centerpoint's
rights to receive cash, securities, instruments and/or other property or
distributions issued in connection with any of the foregoing (collectively,
the "Assigned Interest");
WHEREAS, it is acknowledged that it is the current intent of the parties
that in connection with and upon the consummation of the transactions
contemplated hereby, Bion will immediately reassign to OAM all of the right,
title and interest in and to the Assigned Interest pursuant to the Stock
Purchase Agreement dated January 10, 2002, by and between OAM and Bion ;
WHEREAS, upon the assignment of the Assigned Interest from Centerpoint to
Bion (and from Bion to OAM), OAM shall administer any litigation related to,
settlement of, or other resolution of the Action and the Assigned Interest on
behalf of Centerpoint and Bion and/or their assigns as the duly authorized
agent of all parties;
WHEREAS, the expenses and fees incurred in relation to the administration
of the Action shall be borne by both parties pro rata based upon their
respective interests, 65% for Bion and 35% for Centerpoint, in the Action
(such percentages as to each of Bion and Centerpoint, respectively, its "Pro
Rata Share");
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
Section 1. Assignments and Purchases. Centerpoint hereby assigns,
conveys, transfers and sets over unto Bion the Assigned Interest, and Bion
accepts such assignment.
Section 2. Administration of the Action. In connection with the
assignment of the Assigned Interest by Centerpoint to Bion pursuant to
Section 1 and Centerpoint's retention of a 35% interest in the Action, the
parties agree that OAM shall administer any litigation related to, settlement
of, or other resolution of the Action and the Assigned Interest, to the best
of its ability, on behalf of both Centerpoint and Bion as the duly authorized
agent of both parties. Bion and Centerpoint hereby appoint OAM and OAM's
authorized assignees and designees, with full power of substitution, as Bion's
and Centerpoint's true and lawful attorney and authorize OAM and OAM's
authorized assignees and designees to act in Bion's and Centerpoint's name,
place and stead, solely with respect to the administration of the Action. Bion
and Centerpoint also grant to OAM and OAM's authorized assignees and designees
full authority to do all lawful things necessary to administer the Action or
any portion thereof and to enforce each of their respective and collective
rights thereunder or related thereto pursuant to this Agreement.
Section 3. Fees and Expenses; Allocation of Award.
(1) Each party shall pay its Pro Rata Share of the direct costs and
expenses associated with, or incurred in connection with, the administration
of the Action, or carrying out the intention, or facilitating the performance,
of the terms of this Agreement (such costs and expenses, the "Expenses"). The
procedure for the payment of expenses by Centerpoint shall be as follows: each
month OAM shall provide Centerpoint with a reasonably itemized statement of
the Expenses actually incurred by OAM and paid to non-affiliated parties in
connection with the administration of the action, along with adequate proof of
payment. Centerpoint shall reimburse OAM for its Pro Rata Share of all such
Expenses reasonably incurred by within 25 days of Centerpoint's receipt of
such itemized statement and proof of payment; provided, however, that
Centerpoint shall not be required to reimburse OAM for any Expenses until such
2
time as Centerpoint's Pro Rata Share exceeds a minimum "basket" amount of
$5,000. In the event that Centerpoint does not fully reimburse OAM for its
Pro Rata Share of reasonable Expenses in excess of the $5,000 basket amount as
set forth in the itemized statement within 25 days of Centerpoint's receipt of
such statement, Centerpoint shall thereupon forfeit its interest in the
action. Bion shall also pay its Pro Rata share of any such Expenses within 25
days of its receipt of such itemization and proof of payment.
(2) Each of Bion and Centerpoint agrees to bear its own respective legal
and other costs and expenses for preparing, negotiating, executing, and
implementing this Agreement and any related documents.
(3) If at any time after the date hereof, either party erroneously
receives any payment in respect of, or in connection with, the Action which is
in excess of its Pro Rata Share (such excess being hereinafter defined as an
Assigned Distribution), whether in the form of cash, securities, instruments
and/or other property or otherwise in connection with any of the foregoing,
the receiving party shall be deemed to have received such Assigned
Distribution in a fiduciary capacity and as trustee for the other party and
its assigns, and the receiving party shall with respect to any such Assigned
Distribution (i) accept and hold it for the account and sole benefit of the
other party and /or its assigns, (ii) have no equitable or beneficial interest
in it, and (iii) deliver it (net of any applicable Pro Rata Share of
Expenses)promptly to the other party or its assigns (as appropriate) in the
same form received and, when necessary or appropriate, with the receiving
party's endorsement (without recourse, representation, or warranty), except to
the extent prohibited under any applicable law, rule, or order.
(4) If any Assigned Distribution received by either party in error
includes securities or other non-cash property of any kind, the receiving
party shall, to the extent permissible by law, endorse (without
recourse),assign, convey or otherwise cause to be registered in or transferred
to Bion's name, or such name as the other party may direct (at the other
party's sole expense) in writing, and deliver such securities or other non-
cash property to the other party as soon as practicable. Pending such
transfer, the receiving party shall hold the same as agent for the other party
and the receiving party shall have no legal, equitable, or beneficial interest
in any such Assigned Distribution that was received in error.
(5) If either party erroneously receives any Assigned Distribution which
it is required to remit to the other party, the receiving party will furnish
to the other party such forms, certifications, statements, and other documents
as the receiving party may reasonably request in writing to evidence the other
party's exemption from the withholding of any tax imposed by the United States
of America or any other jurisdiction, whether domestic or foreign, or to
enable Centerpoint to comply with any applicable laws or regulations relating
thereto, and the receiving party may refrain from remitting such Assigned
Distribution until such forms, certifications, statements, and other documents
have been so furnished.
(6) If any Assigned Distribution received by Centerpoint and transferred
to Bion pursuant to this Agreement has been made to Centerpoint wrongfully or
in error, and is required to be returned or disgorged by Centerpoint, Bion
shall promptly return such Assigned Distribution to Centerpoint.
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Section 4. Representations, Warranties and Covenants. Each of
Centerpoint and Bion hereby represents, warrants, acknowledges and agrees that
it is entering into this Agreement and consummating the transactions
contemplated hereby without relying upon any representation, express or
implied, concerning any particular outcome of the Action.
Section 5. Indemnification. Each of Centerpoint and Bion agrees to
defend, indemnify and hold harmless the other from any and all liabilities,
costs, losses and expenses (including reasonable attorneys' fees and
disbursements) suffered or incurred by the indemnified party arising or
resulting from the breach of this Agreement (including all exhibits) and
covenants herein contained or the inaccuracy of any representation or warranty
made by such indemnifying party under or pursuant to this Agreement.
Section 6. Further Assurances. Each of Centerpoint and Bion hereby
covenants and agrees that such party will do, execute, acknowledge and deliver
all such further acts, deeds, conveyances, assignments, affidavits, notices,
transfers and assurances as the other party shall from time to time reasonably
require in furtherance of and for the better assuring, assigning, conveying,
transferring and setting over to Bion the Assigned Interest, for vesting in
Bion control over administration of the Action, or for otherwise carrying out
the intention or facilitating the performance of the terms of this Agreement.
Section 7. Miscellaneous.
(1) Incorporation by Reference. The parties hereby agree that the terms
and provisions of Sections 6.1, 6.4, 6.5, 6.7, 6.8, 6.9, 6.11, 6.12, 6.13,
6.14, and 6.16 of the Subscription Agreement shall be incorporated herein as
if set forth in full.
(2) Survival of Representations and Warranties. All representations,
warranties, indemnities and agreements (that are not performed at the Closing)
of the parties hereto as set forth in this Agreement shall survive the
Closing.
(3) Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by either party without the prior
written consent of the other party; provided, however, that a merger or
consolidation shall not be deemed an assignment, and that Centerpoint
acknowledges and agrees that Bion may assign all of its rights and obligations
hereunder to OAM, and that upon receipt by Centerpoint of a copy of any such
assignment and OAM's agreement to assume all of Bion's obligations hereunder,
Bion shall be released from all of its obligations hereunder. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of and be enforceable by, the parties and their respective successors and
assigns and not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
CENTERPOINT CORPORATION
By: /s/ Xxxx Xxxxxx
Name:
Title:
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: CEO
5
EXHIBIT D
ASSIGNMENT OF ESCROW AGREEMENT
AGREEMENT (this "Agreement"), made as of this 10th day of January 2002 by
and between Centerpoint Corporation, a Delaware corporation (f/k/a Moto Guzzi
Corporation) ("Centerpoint"), and Bion Environmental Technologies, Inc., a
Colorado corporation ("Bion").
WHEREAS, Centerpoint is a party to that certain Escrow Agreement (the
"Escrow Agreement") by and among Centerpoint, Banca di Intermediazione
Mobiliare IMI S.p.A., an Italian corporation ("IMI") and Aprilia, S.p.A.
("Aprilia");
WHEREAS, Centerpoint and Bion are parties to that certain Subscription
Agreement dated the date hereof (the "Subscription Agreement"), pursuant to
which Centerpoint is purchasing from Bion certain shares of Bion's capital
stock, no par value per share, in exchange for consideration including, among
other things, the Assigned Interest (as defined below);
WHEREAS, Centerpoint desires to assign to Bion and Bion desires to
purchase from Centerpoint, a 65% interest in and to Centerpoint's right, title
and interest in and to the Escrow Agreement and all claims, including
Centerpoint's right to receive principal, interest, fees, expenses, damages,
penalties and other amounts in respect of, or in connection with, any of the
foregoing, together with voting and other rights and benefits arising from,
under or relating to any of the foregoing, including, without limitation, all
of Centerpoint's rights to receive cash, securities, instruments and/or other
property or distributions issued in connection with any of the foregoing
(collectively, the "Assigned Interest");
WHEREAS, immediately upon consummation of the assignment of the Assigned
Interest to Bion pursuant to this Agreement, Bion intends to assign all of its
right, title and interest in and to the Assigned Interest to OAM, S.p.A., an
Italian corporation which is the parent corporation of Centerpoint ("OAM");
WHEREAS, Pursuant to the terms of the Share Purchase Agreement dated
April 14, 2000 by and between Centerpoint and Aprilia, S.p.A. and the related
Escrow Agreement, relating to the sale of Moto Guzzi's operating subsidiaries,
Lit. 9,375 million of the proceeds of the sale were placed into escrow.
WHEREAS, By letter dated July 13, 2001 Aprilia requested that IMI, the
escrow agent under the Escrow Agreement, pay them Lit. 7,611 million in
respect of claims alleged by it in June 2000 and on July 26, 2001, in spite of
being aware of Centerpoint contesting of each of the alleged claims and its
intention to seek arbitration, IMI advised Centerpoint that it had paid Lit.
7,611 million from the escrow account to Aprilia in respect of the Alleged
Claims;
WHEREAS, Pursuant to the Share Purchase Agreement and Escrow Agreement,
each of which provides that disputes among the parties be arbitrated,
Centerpoint filed a Request for Arbitration in Accordance with Article 4 of
the ICC Rules of Arbitration relating to the alleged claims and the payment by
IMI and requesting restitution of the funds paid to Aprilia, with the
International Chamber of Commerce;
WHEREAS, upon the assignment of the Assigned Interest from Centerpoint to
Bion, Bion agrees that OAM shall administer any litigation, arbitration, or
other action related to, settlement of, or other resolution with respect to,
the Escrow Agreement or the Assigned Interest (each an "Action");
WHEREAS, upon the assignment of the Assigned Interest to Bion and the
subsequent reassignment of the Assigned Interest to OAM, the expenses and fees
incurred in relation to the administration of any Action shall be borne by OAM
and Centerpoint pro rata based upon their respective interests, 65% for OAM
and 35% for Centerpoint, in such Action (such percentages as to each of OAM
and Centerpoint, respectively, their "Pro Rata Share").
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
Section 1. Assignments and Purchases. Centerpoint hereby assigns,
conveys, transfers and sets over unto Bion the Assigned Interest, and Bion
accepts such assignment.
Section 2. Administration of any Action. . In connection with the
assignment of the Assigned Interest by Centerpoint to Bion pursuant to Section
1 and Centerpoint's retention of a 35% interest in the Action, the parties
agree that OAM shall administer any litigation related to, settlement of, or
other resolution of the Action and the Assigned Interest, to the best of its
ability, on behalf of both Centerpoint and Bion as the duly authorized agent
of both parties. Bion and Centerpoint hereby appoint OAM and OAM's authorized
assignees and designees, with full power of substitution, as Bion's and
Centerpoint's true and lawful attorney and authorize OAM and OAM's authorized
assignees and designees to act in Bion's and Centerpoint's name, place and
stead, solely with respect to the administration of the Action. Bion and
Centerpoint also grant to OAM and OAM's authorized assignees and designees
full authority to do all lawful things necessary to administer the Action or
any portion thereof and to enforce each of their respective and collective
rights thereunder or related thereto pursuant to this Agreement.
Section 3. Fees and Expenses; Allocation of Award.
(1) Each party shall pay its Pro Rata Share of the direct costs and
expenses associated with, or incurred in connection with, the administration
of the Action, or carrying out the intention, or facilitating the performance,
of the terms of this Agreement (such costs and expenses, the "Expenses").
The procedure for the payment of expenses by Centerpoint shall be as follows:
each month OAM shall provide Centerpoint with a reasonably itemized statement
of the Expenses actually incurred by OAM and paid to non-affiliated parties in
connection with the administration of the action, along with adequate proof of
payment. Centerpoint shall reimburse OAM for its Pro Rata Share of all such
Expenses reasonably incurred by OAM within 25 days of Centerpoint's receipt of
such itemized statement and proof of payment; provided, however, that
Centerpoint shall not be required to reimburse OAM for any Expenses until such
time as Centerpoint's Pro Rata Share exceeds a minimum "basket" amount of
$5,000. In the event that Centerpoint does not fully reimburse OAM for its
Pro Rata Share of reasonable Expenses in excess of the $5,000 basket amount as
set forth in the itemized statement within 25 days of Centerpoint's receipt of
such statement, Centerpoint shall thereupon forfeit its interest in the
action. Bion shall also pay its Pro Rata share of any such Expenses within 25
days of its receipt of such itemization and proof of payment.
(2) Each of Bion and Centerpoint agrees to bear its own respective
legal and other costs and expenses for preparing, negotiating, executing, and
implementing this Agreement and any related documents.
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(3) If at any time after the date hereof, Centerpoint receives any
payment in respect of, or in connection with, the Action which is in excess of
its Pro Rata Share (such excess being hereinafter referred to as an "Assigned
Distribution"), whether in the form of cash, securities, instruments and/or
other property or otherwise in connection with any of the foregoing,
Centerpoint shall be deemed to have received such distribution in a fiduciary
capacity and as trustee for Bion and its assigns, and Centerpoint shall with
respect to any such Assigned Distribution (i) accept and hold it for the
account and sole benefit of Bion and /or its assigns, (ii) have no equitable
or beneficial interest in it, and (iii) deliver it (net of any applicable Pro
Rata Share of Expenses) promptly to Bion or its assigns (as appropriate) in
the same form received and, when necessary or appropriate, with Centerpoint's
endorsement (without recourse, representation, or warranty), except to the
extent prohibited under any applicable law, rule, or order.
(4) If any Assigned Distribution includes securities or other non-
cash property of any kind, Centerpoint shall, to the extent permissible bylaw,
endorse (without recourse), assign, convey or otherwise cause to be registered
in or transferred to Bion's name, or such name as Bion may direct(at Bion's
sole expense) in writing, and deliver such securities or other non-cash
property to Bion as soon as practicable. Pending such transfer, Centerpoint
shall hold the same as agent for Bion and Centerpoint shall have no legal,
equitable, or beneficial interest in any such Assigned Distribution.
(5) If Centerpoint receives any Assigned Distribution which it is
required to remit to Bion, Bion will furnish to Centerpoint such forms,
certifications, statements, and other documents as Centerpoint may reasonably
request in writing to evidence Bion's exemption from the withholding of any
tax imposed by the United States of America or any other jurisdiction, whether
domestic or foreign, or to enable Centerpoint to comply with any applicable
laws or regulations relating thereto, and Centerpoint may refrain from
remitting such Assigned Distribution until such forms, certifications,
statements, and other documents have been so furnished.
(6) If any Assigned Distribution received by Centerpoint and
transferred to Bion pursuant to this Agreement has been made to Centerpoint
wrongfully or in error, and is required to be returned or disgorged by
Centerpoint, Centerpoint shall promptly return such Assigned Distribution to
Bion.
Section 4. Representations, Warranties and Covenants. Each of
Centerpoint and Bion hereby represents, warrants, acknowledges and agrees that
it is entering into this Agreement and consummating the transactions
contemplated hereby without relying upon any representation, express or
implied, concerning any particular outcome of the Action.
Section 5. Indemnification. Each of Centerpoint and Bion agrees to
defend, indemnify and hold harmless the other from any and all liabilities,
costs, losses and expenses (including reasonable attorneys' fees and
disbursements) suffered or incurred by the indemnified party arising or
resulting from the breach of this Agreement (including all exhibits) and
covenants herein contained or the inaccuracy of any representation or warranty
made by such indemnifying party under or pursuant to this Agreement.
Section 6. Further Assurances. Each of Centerpoint and Bion hereby
covenants and agrees that such party will do, execute, acknowledge and deliver
all such further acts, deeds, conveyances, assignments, affidavits, notices,
3
transfers and assurances as the other party shall from time to time reasonably
require in furtherance of and for the better assuring, assigning, conveying,
transferring and setting over to Bion the Assigned Interest, for vesting in
OAM control over administration of the Action, or for otherwise carrying out
the intention or facilitating the performance of the terms of this Agreement.
Section 7. Miscellaneous.
(a) Incorporation by Reference. The Parties hereby agree that the
terms and provisions of Sections 6.1, 6.4, 6.5, 6.7, 6.8, 6.9, 6.11,
6.12,6.13, 6.14, and 6.16 of the Subscription Agreement shall be incorporated
herein as if set forth in full.
(b) Survival of Representations and Warranties. All representations,
warranties, indemnities and agreements (that are not performed at the Closing)
of the parties hereto as set forth in this Agreement shall survive the
Closing.
(c) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either party without
the prior written consent of the other party; provided, however, that a merger
or consolidation shall not be deemed an assignment, and that Centerpoint
acknowledges and agrees that Bion may assign all of its rights and obligations
hereunder to OAM S.p.A., an Italian corporation ("OAM"), and that upon receipt
by Centerpoint of a copy of any such assignment and OAM's agreement to assume
all of Bion's obligations hereunder (which assumption will be deemed
satisfactory if in the form of Exhibit A hereto), Bion shall be released from
all of its obligations hereunder. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by,
the parties and their respective successors and assigns and are not intended
to confer upon any person other than the parties hereto any rights or remedies
hereunder.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
CENTERPOINT CORPORATION
By: /s/ Xxxx Xxxxxx
Name:
Title:
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: CEO
4
EXHIBIT E
ASSIGNMENT OF LOAN AGREEMENT
FOR VALUE RECEIVED, Centerpoint Corporation, a Delaware
corporation("Assignor"), hereby sells, transfers and assigns unto Bion
Environmental Technologies, Inc., a Colorado corporation ("Assignee"), as
partial consideration in connection with that certain Subscription Agreement,
dated the date hereof, among Assignor and Assignee (the "Subscription
Agreement"),all of Assignor's right, title and interest in and to (1) that
certain Loan Agreement dated June 13, 2001, executed by Trident Rowan Group,
Inc., a Maryland corporation ("TRG"), in favor of Assignor (the "Loan
Agreement") and(2) the Loan Documents (as defined in the Loan Agreement)
including but not limited to any rights that Assignor may have that entitle
Assignor to require OAM S.p.A., an Italian corporation ("OAM"), to enter into
a security or pledge arrangement or agreement in connection with the Loan
Agreement.
Each of Centerpoint and Bion hereby agrees that the terms and provisions
of Sections 6.1, 6.4, 6.5, 6.7, 6.8, 6.9, 6.11, 6.12, 6.13, 6.14, and 6.16 of
the Subscription Agreement shall be incorporated herein as if set forth in
full.
Dated: January ___, 2002
CENTERPOINT CORPORATION
By: Xxxx Xxxxxx
Name:
Title:
Agreed and acknowledged:
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxx
Name:
Title:
EXHIBIT A
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made this 13th day of June
2001, by and between TRIDENT ROWAN GROUP, INC., a Maryland corporation,
(together with its successors and assigns, the "Borrower") and CENTERPOINT
CORPORATION, a Delaware corporation (together with its successors and assigns,
the "Lender"), with offices located c/o FDG Associates, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 1.
INTERPRETATION
(a) Definitions. The following capitalized terms are defined as follows:
"Collateral" means the TRG Collateral and the OAM Collateral.
"Default" means any of the events set forth in Article 6 which with
giving of notice, the lapse of time, or both, would constitute an Event of
Default.
"Default Rate" means an amount equal to the Interest Rate plus two
percent (2.00%).
"Event of Default" has the meaning set forth in Article 6 hereof.
"Interest Rate" means an annual rate of interest equal to 5.00%.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing). The term "Lien" shall
include reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances affecting property.
"Loan" means the loan evidenced by the Note.
"Loan Documents" means this Agreement, the Note the Pledge Agreements and
the Limited Recourse Guaranty Agreement and all other documents, instruments,
financing statements, certificates and other agreements executed in connection
with the Loan.
"Note" means the Secured Promissory Note executed by the Borrower in
substantially the form of Exhibit A attached to this Agreement evidencing the
Loan.
"Limited Recourse Guaranty Agreement" means that certain Limited Recourse
Guaranty Agreement of even date herewith by and between OAM and Lender.
"OAM" shall mean OAM, S.p.A., an Italian corporation and wholly owned
subsidiary of Borrower.
"OAM Collateral" means the Pledged Capital Stock as such term is defined
in the OAM Pledge Agreement.
"OAM Pledge Agreement" means that certain Pledge Agreement of even date
herewith by and between OAM and Lender.
"Obligations" means, without limitation, the Loan including all interest
and other charges chargeable to the Borrower or due from the Borrower to the
Lender from time to time and all costs and expenses referred to in Sections
7.4.
"Payment Dates" means the dates established pursuant to Article 2 for the
payment of interest on the Notes.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
"Pledge Agreements" means the OAM Pledge Agreement and the TRG Pledge
Agreement.
"Requirements of Law" means, with respect to any Person, any law, treaty,
rule or regulation or determination of an arbitrator or a court or other
governmental authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"TRG Collateral" means the Pledged CP Capital Stock as such term is
defined in the TRG Pledge Agreement.
"TRG Pledge Agreement" means that certain Pledge Agreement of even date
herewith by and between Borrower and Lender.
"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code in
each case in effect in the jurisdiction where the Collateral is located.
Section 2.
LOAN TERMS AND AMOUNTS
(a) Loan Commitment. Subject to the terms and conditions of this
Agreement, the Lender hereby agrees to make a loan to Borrower in the amount
of $4,200,000. (the "Loan"). The absolute and unconditional obligation of
the Borrower to repay the Lender the principal of the Loan and the interest
thereon shall be evidenced the Note.
(b) Interest on Overdue Payments; Default Rate. If any payment of
interest or principal is not paid when due, the Lender, at its option, may
charge and collect from the Borrower interest at the Default Rate applicable
to the Note.
Upon the occurrence and during the continuance of any Event of
Default, the outstanding principal and all accrued interest as well as any
other charges due the Lender hereunder or under the Note, shall bear interest
from the date on which such amount shall have first become due and payable to
the Lender (or, in the case of other charges due Lender hereunder, five
(5)days after demand therefor by Lender) to the date on which such amount
shall be paid to the Lender (whether before or after judgment), at the Default
Rate. Upon the occurrence and during the continuance of an Event of Default,
2
any accrued and unpaid interest shall become and be absolutely due and payable
to the Lender, on demand, at any time. Interest will continue to accrue until
the Obligations are discharged (whether before or after judgment).
(c) Voluntary Prepayments. Borrower may voluntarily prepay, without
premium or penalty, the Loan in part or in full at any time upon notice to
Lender at least five (5) days prior to the specified prepayment date.
(d) Place of Payments. Notwithstanding anything in the Loan
Documents to the contrary, each payment payable by the Borrower to the Lender
under this Agreement or the Note shall be made directly to the Lender c/o FDG
Associates, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such
other place as may be designated by Lender on the due date of each such
payment in immediately available funds.
(e) Application of Funds. The funds received by the Lender shall
be applied toward the Obligations as follows: first, to the payment of all
fees, charges and other sums (with the exception of principal and interest)
due and payable to the Lender under the Note or this Agreement at such time;
second, to the payment of interest which shall be due and payable on the
principal of the Note; and third, to the payment of principal on the Note.
Section 3.
SECURITY INTEREST
To secure the payment and performance of all of the Borrower's
obligations hereunder and under the Note, the Borrower shall grant the Lender
a continuing first priority security interest in the TRG Collateral pursuant
to the TRG Pledge Agreement and shall cause its wholly owned subsidiary OAM to
grant to the Lender a continuing first priority security interest in the OAM
Collateral pursuant to the Limited Recourse Guaranty Agreement and the OAM
Pledge Agreement.
Section 4.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement, the Borrower
hereby represents and warrants to the Lender that:
(a) Enforceable Obligations. This Agreement and the Note have been
duly executed and delivered on behalf of the Borrower, and constitute the
legal, valid and binding obligation of the Borrower, enforceable against
Borrower in accordance with their terms.
(b) No Legal Bar. The execution, delivery and performance of this
Agreement and the Note, and the consummation of the transactions contemplated
hereby and thereby, will not (i) violate any Requirements of Law, or (ii)
conflict with or result in a breach of the terms or provisions of, or
constitute a default under, or (except as otherwise contemplated by any of the
Loan Documents) result in the creation of any Lien under any contractual
obligation of the Borrower.
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Section 5.
AFFIRMATIVE COVENANTS
So long as any Note remains outstanding and unpaid or any other
Obligation is owing to the Lender, Borrower shall promptly give notice to the
Lender of the occurrence of any Default or Event of Default setting forth the
details of the Default or Event of Default and any action taken or
contemplated to be taken with respect to the same.
Section 6.
EVENTS OF DEFAULT AND REMEDIES
(a) Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default:
(i) Payments. Failure by the Borrower to pay any interest on
or principal of the Note when it is due and payable or declared due and
payable, as the case may.
(ii) Commencement of Bankruptcy or Reorganization Proceeding.
The Borrower or OAM shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, wind-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or
any substantial part of its assets; or
There shall be commenced against the Borrower or OAM any such
case, proceeding or other action which results in the entry of an order for
relief or any such adjudication or appointment or remains undismissed,
undischarged or unbonded for a period of thirty (30) days; or
There shall be commenced against the Borrower or OAM any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within thirty (30) days from the entry thereof.
(b) Remedies. Upon the occurrence of an Event of Default described
in this Article 6, the Lender, at its option, may:
(i) declare the Obligations of the Borrower immediately due and
payable, without presentment, notice, protest or demand of any kind for the
payment of all or any part of the Obligations (all of which are expressly
waived by the Borrower) and exercise all of its rights and remedies against
the Borrower and any Collateral provided herein or in any other agreement
between the Borrower and the Lender, and
(ii) exercise all rights granted to it under the Pledge
Agreement.
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(c) Application of Proceeds. The Lender shall apply any credit in
respect of disposition of the Collateral to the payment of the Obligations in
accordance with the provisions of Section 2.5 hereof.
(d) Rights Cumulative; Waiver. The rights, options and remedies of
the Lender shall be cumulative and no failure or delay by the Lender in
exercising any right, option or remedy shall be deemed a waiver thereof or of
any other right, option or remedy, or waiver of any Event of Default
hereunder, nor shall any single or partial exercise of any such right, power
or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy hereunder. The Lender shall not be deemed to
have waived any of the Lender's rights hereunder or under any other agreement,
instrument or paper signed by the Borrower unless such waiver shall be in
writing and signed by the Lender in accordance with the provisions hereof.
Section 7.
MISCELLANEOUS
(a) Amendments and Waivers. Borrower and Lender may amend this
Agreement or the Note, and the Lender may waive future compliance by the
Borrower with any provision of this Agreement or the Note, but no such
amendment or waiver shall be effective unless in a written instrument executed
by an authorized officer of the Lender and Borrower.
(b) Notices. All notices, consents, requests and demands to or upon
the respective parties hereto shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made
when delivered by hand, or when deposited in the mail, postage prepaid, or, in
the case of telex, telegraphic or telecopy notice, when sent, addressed as
follows:
If to the Lender: Centerpoint Corporation
c/o FDG Associates
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000 or
(000) 000-0000
If to the Borrower: Trident Rowan Group, Inc.
c/o FDG Associates
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000 or
(000) 000-0000
Notices of changes of address shall be given in the same manner.
(c) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Borrower, the Lender and their respective
successors and assigns, except that the Borrower may not assign or transfer
any of its rights or obligations under this Agreement without the prior
written consent of the Lender. If the Lender shall transfer its Note and its
rights under this Agreement, then the Lender shall be relieved and released
from its obligations hereunder.
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(d) Collection Costs. All reasonable costs and expenses incurred by
the Lender to obtain, enforce or preserve the security interests granted by
this Agreement and to collect the Obligations, including, without limitation,
all reasonable out-of-pocket costs, all reasonable costs to maintain and
preserve the Collateral and all reasonable attorneys' fees and legal expenses
incurred in obtaining or enforcing payment of any of the Obligations or
foreclosing the Lender's security interest in any of the Collateral, whether
through judicial proceedings or otherwise, or in enforcing or protecting its
rights and interests under this Agreement or under any other instrument or
document delivered pursuant hereto, or in protecting the rights of any holder
or holders with respect thereto, or in defending or prosecuting any actions or
proceedings arising out of or relating to the Lender's transactions with the
Borrower shall become part of the Obligations, and the Lender may take
judgment against the Borrower for all such costs, expenses and fees in
addition to all other amounts due from the Borrower hereunder.
(e) Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
(f) Governing Law. This Agreement, the Note and the other Loan
Documents and the rights and obligations of the parties under this Agreement,
the Note and the other Loan Documents shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York, without
regard to its statues relating to conflicts of laws.
(g) WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED INDUCEMENT
FOR THE LENDER TO EXTEND CREDIT TO THE BORROWER, AND AFTER HAVING THE
OPPORTUNITY TO CONSULT COUNSEL, THE BORROWER HEREBY EXPRESSLY WAIVES THE RIGHT
TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS AGREEMENT OR
ARISING IN ANY WAY FROM THE OBLIGATIONS.
(h) Other Waivers. Borrower waives notice of nonpayment, demand,
notice of demand, presentment, protest and notice of protest with respect to
the Obligations, or notice of acceptance hereof, notice of the Loan made,
credit extended, Collateral received or delivered, or any other action taken
in reliance hereon, and all other demands and notices of any description,
except such as are expressly provided for herein.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
BORROWER:
TRIDENT ROWAN GROUP, INC.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title:
LENDER:
CENTERPOINT CORPORATION
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: CEO
7
Schedule A
Term Note
Payment Schedule
Interest Payments due semi-annually on January 14, 2002 and upon
repayment of principal. Principal due and payable on June 13, 2002
EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as
of January 10, 2002 by and among Bion Environmental Technologies, Inc., a
Colorado corporation (the "Issuer"), and Centerpoint Corporation, a Delaware
corporation (the "Investor"). The Issuer and the Investor are sometimes
referred to herein collectively as the "Parties" or each individually as a
"Party".
WHEREAS, in connection with the Subscription Agreement of even date
herewith by and between the Parties hereto (the "Subscription Agreement"), the
Issuer has agreed, upon the terms and subject to the conditions of the
Subscription Agreement, to issue and sell to the Investor 19,000,000 shares of
the Issuer's Common Stock and pursuant to Section 1.2 of the Subscription
Agreement to issue additional shares of its Common Stock to the Investor under
certain circumstances (collectively, the "Registrable Securities"); and
WHEREAS, to induce the Investor to execute and deliver the Subscription
Agreement, the Issuer agreed to provide certain registration rights under the
Securities Act (as defined below) for the Registrable Securities.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, hereby agree as follows:
1. Registration Rights.
1.1 Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Commission" shall mean the United States Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act and the Exchange Act.
(b) "Common Stock" shall mean the Issuer's common stock, no par
value per share.
(c) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
(d) "Holder" shall mean the Investor or any direct or indirect
transferee of Investor or another Holder, with respect to the Registrable
Securities so transferred.
(e) "Person" shall mean a corporation, a limited liability
company, an association, a partnership, an organization, a business, a trust,
an individual, a governmental or political subdivision thereof or a
governmental agency.
(f) The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such Registration Statement by the Commission.
(g) "Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Issuer in complying with Sections 1.2
and 1.3 hereof, including, without limitation, all registration, qualification
and filing fees, indenture trustee fees and expenses and other customary third
party fees and expenses in connection with facilitating the public trading of
the Common Stock, printing expenses, escrow fees, fees and disbursements of
counsel for the Issuer, reasonable fees and disbursements of the Holders'
Counsel (as defined in Section 1.5(b)), "blue sky" fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Issuer which shall
be paid in any event by the Issuer). Registration Expenses shall not include
Selling Expenses.
(h) "Registration Statement" shall mean any registration
statement which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the prospectus included therein, all
amendments and supplements to such Registration Statement, including post-
effective amendments, all exhibits and all material incorporated by reference
in such Registration Statement.
(i) "Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto
(such as Rule 144A).
(j) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(k) "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by the Holders and all reasonable fees and disbursements of counsel
for the selling Holders (other than those included in Registration Expenses).
1.2 Registration.
(a) Registration. The Issuer shall file with the Commission a
Registration Statement effecting the registration of the Registrable
Securities under the Securities Act for distribution to the stockholders of
Investor (the "Registration Statement") at the earliest practicable date and
within 90 days of the date of Investor's filing with the SEC its Form 10-K
with audited financial statements for the year ended December 31, 2001
("Investor's Form 10-K") and shall exert its best efforts to cause such
Registration Statement to be declared effective as soon as practicable
thereafter; provided, however, that should the Commission allow the
Registration Statement to be filed and declared effective without the
Investor's Form 10-K being filed and without including therein the Investor's
audited financial statements for the year ended December 31, 2001, the Issuer
shall be required to file the Registration Statement at the earliest
practicable date and within 90 days of the date that such determination is
made by the Commission's staff. The Issuer shall use its best efforts to
maintain such Registration Statement continuously in effect for a period of 3
years from the date hereof; provided, however that the obligation of Issuer to
maintain the effectiveness of the Registration Statement filed by Issuer
hereunder shall terminate on the date that the Registrable Securities are
distributed to the stockholders of Investor. If necessary, the Issuer shall
cause to be filed, and shall use its best efforts to have declared effective
as soon as practicable following filing, additional registration statements or
2
amendments necessary to maintain such effectiveness for such 3 year period.
Issuer shall cause Investor's Form 10-K to be filed as soon as is reasonably
practicable and shall use its best efforts to cause Investor's Form 10-K to be
filed with the SEC within 90 days of the date hereof.
(b) Failure to Register or Lapse in Effectiveness.
(i) The parties acknowledge and agree that the covenants
and agreements set forth in Section 1.2(a) are an essential inducement to the
Investor's purchasing the Registrable Securities and that if such covenants
and agreements are breached, the Investor would be deprived of the benefits of
its bargain. The provisions of this Section 1.2 shall be in addition to and
not in lieu of any other equitable or legal remedies available to the Holder
in respect of any breach by the Issuer of Section 1.2 hereof.
(ii) In the event that the Issuer fails to file with the
Commission a Registration Statement effecting the registration of the
Registrable Securities under the Securities Act for distribution to the
stockholders of Investor within 90 days of the date of Investor's filing with
the SEC of the Investor's Form 10-K (the "Filing Deadline"), the Issuer shall
pay to the Holder a penalty in shares of Issuer's Common Stock an amount equal
to five percent (5%) of the outstanding shares of Issuer Common Stock held by
Holder for each ninety day period after the Filing Deadline that such
Registration Statement is not filed.
(iii) In the event that such Registration Statement is not
declared effective by the Commission within nine months of the date of its
initial filing (the "Effectiveness Deadline"), the Issuer shall pay to the
Holder a penalty in shares of Issuer's Common Stock an amount equal to five
percent (5%) of the outstanding shares of Issuer Common Stock held by Holder
for each ninety day period after the Effectiveness Deadline that such
Registration Statement is not declared effective by the Commission; provided,
however, that the Issuer shall not be required to pay any penalty hereunder if
the failure to have such Registration Statement declared effective by the
Effectiveness Deadline is due solely to disclosure issues related directly to
Centerpoint during the time period prior to Closing that the Issuer is unable
to resolve with the Commission despite the Issuer's best efforts to have the
Registration Statement declared effective as soon as practicable following the
filing.
(c) the Issuer may, at its option, in satisfaction of its
obligation to file the Registration Statement in (a) above, amend its Form S-2
Registration Statement dated October 26, 2001 to cause the Registrable
Securities to be included in such registration statement, within the time
periods set forth in (a) above, in which event all references in this
Agreement to the Registration Statement shall mean such registration statement
as amended, and as amended from time to time.
1.3 Expenses of Registration. All Registration Expenses shall be
borne by the Issuer. All Selling Expenses relating to securities registered
on behalf of the Holder shall be borne by the Holder of such securities pro
rata on the basis of the number of securities so registered.
1.4 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Issuer pursuant to this Section 1,
3
the Issuer will keep the Holder advised in writing as to the initiation of
each registration and such amendment thereof and as to the effectiveness
thereof. At its expense the Issuer will:
(a) Promptly prepare and file with the Commission a
Registration Statement with respect to such securities and use its best
efforts to cause such Registration Statement to become effective as promptly
as is reasonably practicable, subject, however, to the provisions of Section
1.5 of this Agreement, and remain effective for the period provided in
Section 1.2 (the "Registration Period"); provided, however, that if, after
such Registration Statement has become effective, the offering of the
Registrable Securities pursuant to such registration is interfered with by any
stop order, injunction or similar order of the Commission or other
governmental agency or court (an "Order"), such registration will be deemed
not to have been effected except to the Holder whose untrue statement or
omission is contained in any information or affidavit furnished in writing by
the Holder to the Issuer specifically for inclusion in such registration
statement which was the cause of such Order. Notwithstanding the foregoing,
if within sixty (60) days after the effective date of such Order, the same is
lifted and the effectiveness of the registration is restored, the registration
shall be deemed to have been effected, provided that the Registration Period
(i) will be tolled during the period the stop order, injunction or similar
order is in effect, (ii) shall resume upon the lifting thereof and (iii) shall
be extended one day for each day during the period that such Order is in
effect.
(b) Furnish, at least five (5) business days before filing a
Registration Statement that registers such Registrable Securities, a
prospectus relating thereto and any amendments or supplements relating to such
a Registration Statement or prospectus, to one counsel selected by the Holder
(the "Holder's Counsel"), copies of all such documents proposed to be filed
(it being understood that such five-business-day period need not apply to
successive drafts of the same document proposed to be filed so long as such
successive drafts are supplied to the Holder's Counsel in advance of the
proposed filing by a period of time that is customary and reasonable under the
circumstances).
(c) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection with such Registration Statement as may be necessary to keep such
Registration Statement effective for the Registration Period, and to comply
with the provisions of the Securities Act with respect to the sale and other
disposition of all securities covered by such Registration Statement.
(d) Notify in writing to the Holder's Counsel promptly (i) of
the receipt by the Issuer of any notification with respect to any comments by
the Commission with respect to such Registration Statement or prospectus or
any amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto, (ii) of the receipt by the Issuer of any notification with respect to
the issuance by the Commission of any stop order suspending the effectiveness
of such Registration Statement or prospectus or any amendment or supplement
thereto or the initiation or threatening of any proceeding for that purpose
and (iii) of the receipt by the Issuer of any notification with respect to the
suspension of the qualification of such Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purposes.
4
(e) Use its best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or "blue
sky" laws of such jurisdictions as shall be reasonably requested by the
Holder, provided that the Issuer shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
(f) Furnish to the Holder participating in such registration
and to the underwriters of the securities being registered such number of
copies of the Registration Statement, preliminary prospectus, final prospectus
and such other documents as the Holder or underwriters may reasonably request
in order to facilitate the public offering of such securities.
(g) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. The Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(h) Notify the Holder of Registrable Securities covered by such
Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing.
(i) Use its best efforts to furnish, at the request of the
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
Section 1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
Registration Statement with respect to such securities becomes effective, (i)
a copy addressed to Holder of the opinion, dated such date, of the counsel
representing the Issuer for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and (in a non-underwritten
offering) to the Holder requesting registration of Registrable Securities and
(ii) a copy addressed to Holder of the letter dated such date, from the
independent certified public accountants of the Issuer, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the
underwriters, if any, and (in a non-underwritten offering) to the Holder
requesting registration of Registrable Securities.
(j) List the Registrable Securities on any securities exchange
on which any shares of the Common Stock are listed.
(k) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and the securities
commission or other regulatory authority of any relevant state or other
jurisdiction and make available to its securityholders, as soon as reasonably
practicable, earnings statements (which need not be audited) covering a period
of 12 months beginning within three months after the effective date of the
Registration Statement, which earnings statements shall satisfy the provisions
of Section 11(a) of the Securities Act.
5
(l) Use its best efforts to take all other steps reasonably
necessary to effect the registration of such Registrable Securities
contemplated hereby.
1.5 Permissible Delay of Registration.
(a) If at any time or times after the Registration Statement
is declared effective by the Commission, the Issuer determines that the
disclosures in such Registration Statement contain or will contain a
misstatement of a material fact or omit or will omit to state any material
fact which would make the statements made in the Registration Statement, in
light of the circumstances under which they are made, false or misleading (a
"Disclosure Condition"), the Issuer shall be entitled to either suspend the
effectiveness of the Registration Statement with the Commission or suspend the
availability of the Registration for resales of the Registrable Securities by
the Holder, or may take both such actions, and shall promptly notify the
Holder thereof by delivery of written notice (a "Suspension Notice").
(b) Notwithstanding anything contained in subsection (a) above
to the contrary, the Issuer's obligation to maintain the Registration
Statement current under the provisions of Section 1.2 of this Agreement shall
not be suspended by reason of the Issuer's failure to disclose information at
a time when public disclosure of such information is required by law.
(c) Upon receipt of a Suspension Notice, the Holder shall
immediately discontinue the use of the Registration for any purpose until
notified by the Issuer that the Registration is current and available for use
by the Holder for the resale of the Registrable Securities held by it.
(d) The Issuer shall not be entitled to suspend the
effectiveness of the Registration Statement for a period longer than the later
of:
(i) the removal of the Disclosure Condition(s), or
(ii) a period of not more than ninety (90) consecutive
days, or
(iii) a period of not more than one hundred eighty (180)
days within any twelve (12) month period.
(e) The Issuer shall use its best efforts to cure any
Disclosure Condition(s) as quickly as is reasonably possible under the
circumstances. As soon as practicable after obtaining the information
necessary to cure the Disclosure Condition(s) or the Issuer determines that
such Disclosure Condition(s) no longer exist(s), the Issuer shall amend or
supplement the Registration Statement to the extent necessary to make the
Registration Statement current, and shall give prompt written notice to the
Holder when the Registration is again available for resales of the Registrable
Securities.
1.6 Indemnification.
(a) The Issuer will indemnify the Holder and the Holder's
officers, directors, employees, principals, equity holders and partners; each
underwriter, broker or any other Person (other than the Issuer) acting on
behalf of such Holder; and each Person (other than the Issuer) controlling
6
such Person within the meaning of Section 15 of the Securities Act, with
respect to which registration, qualification or compliance has been effected
pursuant to this Section 1, against all expenses, claims, losses, damages or
liabilities (or actions in respect thereof) (collectively, "Losses"),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened based on (i) any untrue statement (or alleged untrue
statement) of a material fact contained in any Registration Statement,
preliminary or final prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or (ii) any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, or (iii) any violation by the Issuer of the Securities
Act, state securities or "blue sky" laws or any rule or regulation promulgated
thereunder applicable to the Issuer in connection with any such registration,
qualification or compliance (each statement, omission or violation referred to
in clauses (i), (ii) and (iii) of this Section 1.6(a) being referred to as a
"Violation"), and the Issuer will reimburse the Holder, each of its officers
and directors, each such underwriter, broker or other Person (other than the
Issuer) acting on behalf of such Holder, and each such controlling Person
(other than the Issuer) for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
Loss, provided that the Issuer will not be liable to the Holder or any such
Person in any such case to the extent that any such Loss arises out of or is
based on any untrue statement or omission (or alleged untrue statement or
omission), made in conformity with written information furnished to the Issuer
by an instrument duly executed by such Holder or Person and stated to be
specifically for use therein or the preparation thereby.
(b) The Holder will, if Registrable Securities held by the
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Issuer, each of
its directors and officers, each underwriter, broker or other Person acting on
behalf of the Issuer, and each Person who controls any of the foregoing
Persons within the meaning of Section 15 of the Securities Act, against all
Losses arising out of any untrue statement (or alleged untrue statement) of a
material fact contained in any such Registration Statement, preliminary or
final prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Issuer, such directors, officers, underwriters, brokers, other
Persons acting on behalf of the Issuer or control Persons for any legal or any
other expenses reasonably incurred in connection with investigating, preparing
or defending any such Loss, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such Registration Statement, preliminary or
final prospectus, offering circular or other document in conformity with
written information furnished to the Issuer by an instrument duly executed by
such Holder and stated to be specifically for use therein or the preparation
thereby. Notwithstanding the foregoing, the liability of each Holder under
this subsection (b) shall be limited to an amount equal to the aggregate
proceeds received by such Holder from the sale of Registrable Securities in
such registration.
(c) Each Person entitled to indemnification under this Section
1.6 (the "Indemnified Party") shall give notice to the Party required to
provide indemnification (the "Indemnifying Party") promptly after such
7
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel
for the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not unreasonably be withheld), and the Indemnified Party may participate in
such defense at such Indemnified Party's expense, and provided further, that
the failure of any Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its obligations under this Section 1.7
unless the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action and provided further, that
the Indemnifying Party shall not assume the defense for matters as to which
there is a conflict of interest or separate and different defenses. If (i)
the Indemnifying Party shall have failed to assume the defense of such claim
and to employ counsel reasonably satisfactory to the Indemnified Party in a
timely manner or (ii) in the reasonable judgment of any Indemnified Party a
conflict of interest may exist between such Indemnified Party and the
Indemnifying Party with respect to such claim, the fees and expenses of any
counsel employed by the Indemnified Party shall be at the expense of the
Indemnifying Party; provided that, if the Indemnifying Party is obligated to
pay the fees and expenses of counsel for other Indemnified Parties, such
Indemnifying Party shall be obligated to pay only the fees and expenses
associated with one attorney or law firm for the Indemnified Parties, unless
there exists a conflict of interest or separate and different defenses among
the Indemnified Parties. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation.
(d) If the indemnification provided for in this Section 1.6 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, claim, damage, liability or action referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amounts paid or payable by such
Indemnified Party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions which resulted in such loss,
claim, damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding the foregoing,
the maximum amount which the Holder shall be required to contribute pursuant
to this Section 1.6(d) shall be limited to an amount equal to the net proceeds
actually received by the Holder from the sale of Registrable Securities
effected pursuant to such registration.
1.7 Information by Holder. The Holder of securities included in any
registration shall furnish to the Issuer in writing such information regarding
the Holder, the Registrable Securities held by such Holder and the
8
distribution proposed by such Holder as the Issuer may reasonably request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.
1.8 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, the Issuer agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after the effective date
that the Issuer becomes subject to the reporting requirements of the
Securities Act or the Exchange Act.
(b) Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Issuer under the
Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements);
(c) So long as the Holder owns any Registrable Securities, to
furnish to the Holder forthwith upon request a written statement by the Issuer
as to its compliance with the reporting requirements of said Rule 144, and of
the Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Issuer, and such other reports and documents of the
Issuer and other information in the possession of or reasonably obtainable by
the Issuer as the Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such
securities without registration. The Issuer will take action reasonably
requested by the Holder to facilitate the transfer of Registrable Securities
pursuant to Rule 144.
1.9 Transfer of Registration Rights. The rights of the Holder
hereunder shall without any further action on the part of such Holder be
assigned and transferred to any transferee of the Registrable Securities;
provided, that immediately after the transfer, the further disposition of any
of the securities is restricted by the Securities Act; and provided further,
however, that such transferee shall, as a condition to the exercise of such
rights, be subject to the restrictions contained in this Agreement applicable
to the seller or transferor.
1.10 Prohibition Against Short Sales. None of the Holders nor any
of their respective affiliates, agents, successors or assigns shall engage in
any short sales of the Issuer's Common Stock during the term of this
Agreement. In the event that any such person engages in short sales of the
Issuer's Common Stock against the future delivery of any pro rata share of the
Registrable Securities pursuant to a Registration Statement or otherwise, the
Issuer shall have no obligation to deliver such pro rata share of the
Registrable Securities to such person.
2. Miscellaneous.
2.1 Governing Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles governing conflicts of law.
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(b) The Parties hereto irrevocably consent to the jurisdiction
of the courts of the State of New York and of any federal court located in the
Southern District of New York in connection with any action or proceeding
arising out of or relating to this Agreement, any document or instrument
delivered pursuant to, in connection with or simultaneously with this
Agreement, or a breach of this Agreement or any such document or instrument.
In any such action or proceeding, each party hereto waives personal service of
any summons, complaint or other process and agrees that service thereof may be
made in accordance with Section 2.6. Within 30 days after such service, or
such other time as may be mutually agreed upon in writing by the attorneys for
the parties to such action or proceeding, the party so served shall appear or
answer such summons, complaint or other process.
2.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Holder, and
the closing of the transactions contemplated hereby.
2.3 Successors and Assigns. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the Parties
hereto.
2.4 Amendments. This Agreement may only be amended by mutual
written Agreement of the parties.
2.5 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally,
mailed by certified or registered mail, postage prepaid, return receipt
requested, by courier or facsimile (provided confirmation of transmission is
mechanically generated and kept on file by the sending party), addressed (a)
if to the Holder, at such Holder's address as set forth in the Issuer's
records, or at such other address as such Holder shall have furnished to the
Issuer in writing, (b) if to the Issuer, at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx, or at such other address
as the Issuer shall have furnished to the Holder in writing. Notices that are
mailed shall be deemed to have been given five days after deposit in the
United States mail and notices delivered personally, by facsimile or by
courier shall be deemed to have been given upon delivery to recipient's
address.
2.6 Delays or Omissions. No failure or delay by any Holder in
exercising any right, power or privilege hereunder and no course of dealing
between the Issuer, on the one hand, and the Holder, on the other hand, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. Any
Person having rights under any provision of this Agreement shall be entitled
to enforce such rights specifically or to recover damages or to exercise any
other remedy available to it at law or in equity. The foregoing rights and
remedies shall be cumulative and the exercise of any right or remedy provided
herein shall not preclude any Person from exercising any other right or remedy
provided herein. The Issuer agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate. No
notice to or demand on the Issuer in any case shall entitle the Issuer to any
other or further notice or demand in similar or other circumstances or
10
constitute a waiver of the rights of any Holder to any other or further action
in any circumstances without notice or demand. Each covenant contained herein
shall operate independently of any other covenant contained herein.
2.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.8 Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to Persons or circumstances shall be interpreted so as best to
reasonably effect the intent of the parties hereto, the parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision which will achieve to the extent possible, the
economic, business and other purposes of the void or unenforceable provision.
2.9 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: CEO
CENTERPOINT CORPORATION
By: /s/ Xxxx Xxxxxx
Name:
Title:
11
EXHIBIT G
Trident Rowan Group, Inc.
Xxx Xxxxx'x Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
January __, 2002
Centerpoint Corporation (f/k/a Moto Guzzi Corporation)
c/o FDG Associates
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
For ten dollars, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, we hereby terminate our
rights pursuant to paragraphs 2 and 3 in Section 1.1 of that certain Letter
Agreement dated April 8, 2000, as amended and restated June 14, 2001, by and
among Centerpoint Corporation, a Delaware corporation (f/k/a Moto Guzzi
Corporation) (the "Company"), Trident Rowan Group, Inc., a Maryland
corporation ("TRG"), and OAM S.p.A., an Italian corporation (the "Letter
Agreement"). TRG hereby releases the Company, its officers, directors and
affiliates from any and all manner of claims, demands, causes of action,
obligations, damages, or liabilities whatsoever of every kind and nature, at
law or in equity, known or unknown, that we have or may have, now or in the
future, with respect to any failure, or alleged failure, of the Company to
comply with the provisions of paragraphs 2 and 3 of the Letter Agreement,
including without limitation the Company's obligation to hold a special
meeting of stockholders to consider and vote upon a proposal to liquidate all
of the assets of the Company and to proceed with a liquidation of the Company,
if approved by the Company's stockholders.
Very truly yours,
TRIDENT ROWAN GROUP, INC.
By:
Name:
