EXHIBIT 10.2
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.
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(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
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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
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.
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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,
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
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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.
(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.
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(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.
(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
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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
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
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(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
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
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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
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
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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.
(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
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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
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]
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By:
Name:
Title:
CENTERPOINT CORPORATION
By:
Name:
Title:
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