Exhibit 10.1
AGREEMENT
By this AGREEMENT, effective 3:30 p.m. May 6, 1997, Denver time,
it is AGREED by, between and among Bion Environmental
Technologies, Inc. ("BION") and BionSoil, Inc. ("BS")(BION and BS
are collectively "BIET") and Lotaylingkyur, Inc. ("LTLK"), Dublin
Holding, Ltd. ("DHL"), Xxxxx Xxxxx ("KM"), and Xxxx X. Xxxxx
("MAS")(LTLK, DHL, KM, and MAS are collectively "S") as follows:
WHEREAS LTLK and DHL jointly own a convertible promissory
note of BION ("NOTE") issued pursuant to a First Amended and
Restated Agreement (and its predecessor agreements} (collectively
"FARA") which NOTE was issued May 16, 1995; and
WHEREAS LTLK owns a promissory note and other rights related
to a loan to BIET dating from January 8, 1997 (collectively "BS
NOTE"); and
WHEREAS BION owes LTLK additional sums based on a loan made
to BION by LTLK during April 1997 and for unpaid payments due
pursuant to the NOTE and/or FARA (collectively "ADDITIONAL
DEBT"); and
WHEREAS BION, LTLK and DHL entered into an agreement dated
January 2, 1997 which concerned early conversion of the NOTE and
modification of the terms of FARA subject to certain
contingencies which contingencies have not been met; and
WHEREAS LTLK owns two pieces of real property ("LTLK
Property") which BION desires to acquire and which LTLK is
willing to transfer to BION on the terms and conditions herein;
and
WHEREAS KM owns a piece of real property ("KM Property")
which BION desires to acquire and which KM is willing to transfer
to BION on the terms and conditions herein (LTLK Property and KM
Property are collectively "Property");
AND WHEREAS S are desirous of acquiring securities of BION;
NOW THEREFORE IN CONSIDERATION OF the mutual promises and
covenants set forth below:
1. a) S agrees to:
i) release BIET from any and all obligations to S on
the NOTE, BS NOTE and ADDITIONAL DEBT; and
ii) assign the PROPERTY (described at Exhibit A
hereto) to BION by quit claim deeds; and
b) BION agrees to issue to S:
i) 1,574,308 shares of BION common stock ("SHARES");
and
ii) 937,154 Class E1 Warrants ("E1 Warrants") of BION
(in the form set forth at Exhibit B hereto); and
iii) 1,087,154 Class X Warrants ("X Warrants") of BION
(in the form set forth at Exhibit C
hereto)(collectively SHARES, E1 Warrants and X
Warrants are the "SECURITIES"),
which SECURITIES shall be issued to S as set forth at Exhibit D
hereto.
2. a) BION and S agree that the provisions of FARA shall be
terminated in their entirety;
b) BION and S agree that the following provisions shall
be effective hereafter:
i) in the event of an underwriting/offering by BION,
S shall not be subject to any lock-up agreement
which does not allow S to sell at least 7,500
shares of BION common stock per month (on a
cumulative basis) and any such lock-up agreement
shall terminate in its entirety no more than one
year after the completion of such offering; and
ii) S does not now and shall not attempt to exercise
any control over the management or business of
BION and, further, S shall have no direct or
indirect power to control BION (despite the size
of its stock holdings in BION) due to an existing
Voting Agreement, provided, however, that if BION
is not profitable by June 30, 1999, the Voting
Agreement shall terminate on January 1, 2000,
unless otherwise agreed in writing by BION and S,
and this provision shall be null and void; and
iii) BION shall indemnify and hold harmless S from any
liability to BION (or others) pursuant to 16(b)
of the Exchange Act of 1934 for "short swing
profits" which arise from matching this
transaction (including transactions between and
among LTLK, DHL, KM, and/or MAS in connection with
this Agreement) with any other transaction; and
iv) LTLK shall provide consulting services to BION
commencing July 1, 1997 with base monthly fees of
$2,500 until November 1997 which base monthly fee
increases by $500 per month on November 1 of each
year thereafter through November 1, 2001, the
consulting services shall be for a term of 64
months; base monthly consulting fees shall be paid
to LTLK by BION on the 15th of each month
commencing July 1997.
3. BION, BS, LTLK, DHL, KM and MAS agree to execute such
other documents as may be reasonably required to carry out the
terms of this Agreement.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
by: /s/ Xxx Xxxxxxxx
Authorized Officer
BIONSOIL, INC.
by: /s/ Xxx Xxxxxxxx
Authorized Officer
LOTAYLINGKYUR, INC.
by: /s/ Xxxx X. Xxxxx
Authorized Officer
DUBLIN HOLDING, LTD.
by: /s/ Xxxx X. Xxxxx
Authorized Agent
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Exhibit A
LTLK Property consists of:
1. Xxx 00, Xxx Xxxx Xxxxxx, Xxxxxx Xxxx Xxx; also known as
street and number: 110 Pinewood Overlook, The Xxxx
Grande, Crestone, Colorado
2. Xxx 0, Xxx Xxxxxxx, Xxxxxx xx Xxxxxxx, Xxxxx of
Colorado; also known as street and number: 0000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
KM Property consists of:
1. Xxxx 0 xxx 00, Xxxxx 00, Xxxxxxxxxx Xxxxx, together
with an easement for ingress and egress over and across
the north 45 feet of Xxx 00, Xxxxx 00, Xxxxxxxxxx
Xxxxx, Xxxxxx xx Xxxxxxx, Xxxxx of Colorado; also known
as street and number: 000 00xx Xxxxxx, Xxxxxxx,
Xxxxxxxx
Exhibit B
Void after 3:30 p.m., Denver Time, on December 31, 2001
Warrant to Purchase
_______ Shares
of Common Stock
CLASS E-1 WARRANT TO PURCHASE COMMON STOCK
OF
BION ENVIRONMENTAL TECHNOLOGIES, INC.
This is to certify that, FOR VALUE RECEIVED, ____________________
or registered assigns ("Holder), is entitled to purchase, subject
to the provisions of this Warrant, from Bion Environmental
Technologies, Inc., a Colorado corporation ("Company"), at any
time on or after January 1, 2001, and not later than 3:30 p.m.,
Denver Time, on December 31, 2001, unless extended as provided in
Section (a) below, restricted and legended shares of
common stock, no par value per share, of the Company ("Common
Stock") at a purchase price per share of $6.00 (in cash or stock
of the Company). The number of shares of Common Stock to be
received upon the exercise of this Warrant and the price to be
paid for a share of Common Stock may be adjusted from time to
time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to
time, are hereinafter sometimes referred to as "Warrant Stock"
and the exercise price of a share of Common Stock in effect at
any time and as adjusted from time to time is hereinafter
sometimes referred to as the "Exercise Price."
(a) Exercise of Warrant. Subject to the provisions of
Section (1) hereof, this Warrant may be exercised in whole or in
part at any time or from time to time on or after January 1,
2001, but not later than 3:30 p.m., Denver time on December 31,
2001, or if such date is a day on which banking institutions are
authorized by law to close, then on the next succeeding day which
shall not be such a day, by presentation and surrender hereof to
the Company or at the office of its stock transfer agent, if any,
with the Purchase Form annexed hereto duly executed and
accompanied by payment of the Exercise Price (in cash or
equivalent value) for the number of shares specified in such
form, together with all federal and state taxes applicable upon
such exercise. The Company may unilaterally extend the time
within which the Warrant may be exercised but is not obligated to
do so, but not longer than twelve (12) months. The Company may
unilaterally reduce the exercise price per share. If this
Warrant should be exercised in part only, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the right hereunder. Upon receipt by the
Company of this Warrant at the office or agency of the Company,
in proper form for exercise, the Holder shall be deemed to be the
holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the
Company shall then be closed or that certificates representing
such shares of Common Stock shall not then be actually delivered
to the Holder.
(b) Reservation of shares. The Company, hereby agrees that
at all times subsequent hereto there shall be reserved for
issuance and/or delivery upon exercise of this Warrant such
number of shares of its Common Stock as shall be required for
issuance or delivery upon exercise of this Warrant.
(c) Fractional Shares. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise
of this Warrant. With respect to any fraction of a share called
for upon any exercise hereof, the Company shall pay to the Holder
an amount in cash equal to such fraction multiplied by the
current market value of such fractional share, determined as
follows:
(1) If the Common Stock is listed on a national securi
ties exchange or admitted to unlisted trading privileges on
such exchange, the current value shall be the last reported
sale price of the Common Stock on such exchange on the last
business day prior to the date of exercise of this Warrant
or if no such sale is made on such day, the average closing
bid and asked prices for such day on such exchange; or
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current value shall be the
mean of the last reported bid and asked prices reported by
the National Association of Securities Dealers Automated
Quotation System (or, if not so quoted on NASDAQ, by the
National Quotation Bureau, Inc.) on the last business day
prior to the day of the exercise of this Warrant; or
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not
so reported, the current value shall be an amount, not less
than book value, determined in such reasonable manner as may
be prescribed by the Board of Directors of the Company, such
determination to be final and binding on the Holder.
(d) Exchange, Assignment or Loss of Warrant. This Warrant
is exchangeable, without expense, at the option of the Holder,
upon presentation and surrender hereof to the Company or at the
office of its stock transfer agent, if any, for other Warrants of
different denominations entitling the Holder thereof to purchase
in the aggregate the same number of shares of Common Stock
purchasable hereunder. Any assignment hereof shall be made by
surrender of this Warrant to the Company or at the office of its
stock transfer agent, if any, with the Assignment Form annexed
hereto duly executed and funds sufficient to pay any transfer
tax; whereupon the Company shall, without charge, execute and
deliver a new Warrant in the name of the assignee named in such
instrument of assignment and this Warrant shall promptly be
cancelled. This Warrant may be divided upon presentation hereof
at the office of the Company or at the office of its stock
transfer agent, if any, together with a written notice specifying
the names and denominations in which new Warrants are to be
issued and signed by the Holder hereof. The terms "Warrant" and
"Warrants" as used herein include any Warrants issued in
substitution for a replacement of this Warrant, or into which
this Warrant may be divided or exchanged. Upon receipt by the
Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new
Warrant of like tenor and date. Any such new Warrant executed
and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this
Warrant so lost, stolen, destroyed, or mutilated shall be at any
time enforceable by anyone.
(e) Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder in the
Company, either at law or equity, and the rights of the Holder
are limited to those expressed in the Warrant and are not
enforceable against the Company except to the extent set forth
herein.
(f) Adjustments to Exercise Price and Number of Shares.
(1) Adjustment of Number of Shares. Anything in this
Section (f) to the contrary notwithstanding, in case the
Company shall at any time issue Common Stock or Convertible
Securities by way of dividend or other distribution on any
stock of the Company or subdivide or combine the outstanding
shares of Common Stock, the Exercise Price shall be
proportionately decreased in the case of such issuance (on
the day following the date fixed for determining
shareholders entitled to receive such dividend or other
distribution) or decreased in the case of such subdivision
or increased in the case of such combination (on the date
that such subdivision or combination shall become
effective).
(2) No Adjustment for Small Amounts. Anything in this
Section (f) to the contrary notwithstanding, the Company
shall not be required to give effect to any adjustment in
the Exercise Price unless and until the net effect of one or
more adjustments, determined as above provided, shall have
required a change of the Exercise Price by at least one
cent, but when the cumulative net effect of more than one
adjustment so determined shall be to change the actual
Exercise Price by at least one cent, such change in the
Exercise Price shall thereupon be given effect.
(3) Number of Shares Adjusted. Upon any adjustment of
the Exercise Price, the Holder of this Warrant shall
thereafter (until another such adjustment) be entitled to
purchase, at the new Exercise Price, the number of shares,
calculated to the nearest full share, obtained by
multiplying the number of shares of Common Stock initially
issuable upon exercise of this Warrant by the Exercise Price
in effect on the date hereof and dividing the product so
obtained by the new Exercise Price.
(4) Common Stock Defined. Whenever reference is made
in this Section (f) to the issue or sale of shares of Common
Stock, the term "Common Stock" shall mean the Common Stock
of the Company of the class authorized as of the date hereof
and any other class of stock ranking on a parity with such
Common Stock. However, subject to the provisions of Section
(i) hereof, shares issuable upon exercise hereof shall
include only shares of the class designated as Common Stock
of the Company as of the date hereof.
(g) Officer's Certificate. Whenever the Exercise Price
shall be adjusted as required by the provisions of Section (f)
hereof, the Company shall forthwith file in the custody of its
Secretary or an Assistant Secretary at its principal office, and
with its stock transfer agent, if any, an officer's certificate
showing the adjusted Exercise Price determined as herein provided
and setting forth in reasonable detail the facts requiring such
adjustment. Each such officer's certificate shall be made
available at all reasonable times for inspection by the Holder
and the Company shall, forthwith after each such adjustment,
deliver a copy of such certificate to the Holder. Such
certificate shall be conclusive as to the correctness of such
adjustment.
(h) Notices to Warrant Holders. So long as this Warrant
shall be outstanding and unexercised (i) if the Company shall pay
any dividend or make any distribution upon the Common Stock or
(ii) if the Company shall offer to the Holders of Common Stock
for subscription or purchase by them any shares of stock of any
class or any other rights or (iii) if any capital reorganization
of the Company, reclassification of the capital stock of the
Company, consolidation or merger of the Company with or into
another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company to
another corporation, or voluntary or involuntary dissolution,
liquidation or winding up of the Company shall cause to be
delivered to the Holder, at least ten days prior to the date
specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating
the date on which (x) a record is to be taken for the purpose of
such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger,
conveyance, lease, dissolution, liquidation or winding up is to
take place and the date, if any, is to be fixed as of which the
Holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property
deliverable upon such reclassification, reorganization, consolida-
tion, merger, conveyance, dissolution, liquidation or winding up.
(i) Reclassification, Reorganization or Merger. In case of
any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company (other than a
change in par value, or from no par value to par value, or as a
result of an issuance of Common Stock by way of dividend or other
distribution or of a subdivision or combination), or in case of
any consolidation or merger of the Company with or into another
corporation (other than a merger with a subsidiary in which
merger the Company is the continuing corporation and which does
not result in any reclassification, capital reorganization or
other change of outstanding shares of Common Stock of the class
issuable upon exercise of this Warrant) or in case of any sale or
conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, the Company shall
cause effective provision to be made so that the Holder shall
have the right thereafter, by exercising this Warrant, to
purchase the kind and amount of shares of stock and other
securities and property receivable upon such reclassification,
capital reorganization or other change, consolidation, merger,
sale or conveyance. Any such provision shall include provision
for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. The
foregoing provisions of this Section (i) shall similarly apply to
successive reclassifications, capital reorganizations and changes
of shares of Common Stock and to successive consolidations,
mergers, sales or conveyances. In the event that in any such
capital reorganization or reclassification, consolidation,
merger, sale or conveyance, additional shares of Common Stock
shall be issued in exchange, conversion, substitution or payment,
in whole or in part, for or of a security of the Company other
than Common Stock, any such issue shall be treated as an issue of
Common Stock covered by the provisions of subsection (f) hereof
with the amount of the consideration received upon the issue
thereof being determined by the Board of Directors of the
Company, such determination to be final and binding on the
Holder.
(j) Transfer to Comply with the Securities Act of 1933.
(1) This Warrant or the Warrant Stock or any other
security issued or issuable upon exercise of this Warrant
may not be sold, transferred or otherwise disposed of except
to a person who, in the opinion of counsel for the Company,
is a person to whom this Warrant or such Warrant Stock may
legally be transferred pursuant to Section (d) hereof
without registration and without the delivery of a current
prospectus under the Securities Act with respect thereto and
then only against receipt of an agreement of such person to
comply with the provisions of this Section (j) with respect
to any resale or other disposition of such securities.
(2) The Company may cause the following legend to be
set forth on each certificate representing Warrant Stock or
any other security issued or issuable upon exercise of this
Warrant not theretofore distributed to the public or sold to
underwriters for distribution to the public pursuant to
Section (k) hereof, unless counsel for the Company is of the
opinion as to any such certificate that such legend is
unnecessary:
The securities represented by this certificate may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the
Securities Act of 1933 (the "Act"), or pursuant to an
exemption from registration under the Act the availability
of which is to be established to the satisfaction of the
Company.
(k) Registration Rights for Warrant Stock. In the event
that the Company on or before the expiration date shall file a
registration statement (or similar document) with the U.S.
Securities & Exchange Commission on the Company's equity
securities on a form which would legally allow inclusion of the
shares of the Company's common stock issued pursuant hereto, the
Company shall include such shares in such registration statement,
at the Company's sole cost; PROVIDED, HOWEVER, in the event of a
registration involving an underwriter, such underwriter shall
have the right, in its sole discretion, to impose restrictions on
the resale of the Company's securities issued pursuant hereto
and/or eliminate this registration right from the underwritten
registration statement in its entirety; FURTHER PROVIDED,
HOWEVER, in the event an underwriter has eliminated this
registration right from an underwritten registration statement,
upon request by a majority of the Holders at a date three months
after close or cancellation of such underwritten registration,
the Company shall one time and one time only file and process to
effectiveness (and maintain effectiveness for not less than six
months), at the Company's sole expense, a registration statement
including all the shares underlying the exercise of this Warrant
and any other warrant of the Company owned by Holder. All
expenses of any such registration statement including the shares
shall be borne by the Company.
(l) Applicable Law. This Warrant shall be governed by,
and construed in accordance with, the laws of the State of
Colorado.
Bion Environmental Technologies, Inc.
Date: _______________ By: ______________________
Authorized Officer
PURCHASE FORM
Dated ________________
The undersigned hereby irrevocably elects to exercise the X-
0 Warrant to the extent of purchasing _________ shares of Bion
Environmental Technologies, Inc. Common Stock and hereby makes
payment of $________ in payment of the actual exercise price
thereof.
__________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name _________________________________________________
(please typewrite or print in block letters)
Address_______________________________________________
Signature__________________________________________
_____________________________
FOR VALUE RECEIVED, ____________________________ hereby
sells, assigns, and transfers unto
Name________________________________________________
(please typewrite or print in block letters)
Address______________________________________________
the right to purchase Common Stock represented by this Warrant to
the extent of __________ shares as to which such right is exercis
able and does hereby irrevocably constitute and appoint
______________, attorney, to transfer the same on the books of
the Company with full power of substitution in the premises.
Signature _______________________________
Dated: _______________________
Exhibit C
Void after 3:30 p.m., Denver Time, on December 31, 2003
Warrant to Purchase
______ Shares
of Common Stock
CLASS X WARRANT TO PURCHASE COMMON STOCK
OF
BION ENVIRONMENTAL TECHNOLOGIES, INC.
This is to certify that, FOR VALUE RECEIVED, ___________________
or registered assigns ("Holder), is entitled to purchase, subject
to the provisions of this Warrant, from Bion Environmental
Technologies, Inc., a Colorado corporation ("Company"), at any
time on or after January 1, 2003, and not later than 3:30 p.m.,
Denver Time, on December 31, 2003, unless extended as provided in
Section (a) below, ______ restricted and legended shares of
common stock, no par value per share, of the Company ("Common
Stock") at a purchase price per share of $10.00 (in cash or stock
of the Company). The number of shares of Common Stock to be
received upon the exercise of this Warrant and the price to be
paid for a share of Common Stock may be adjusted from time to
time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to
time, are hereinafter sometimes referred to as "Warrant Stock"
and the exercise price of a share of Common Stock in effect at
any time and as adjusted from time to time is hereinafter
sometimes referred to as the "Exercise Price."
(a) Exercise of Warrant. Subject to the provisions of
Section (1) hereof, this Warrant may be exercised in whole or in
part at any time or from time to time on or after January 1,
2003, but not later than 3:30 p.m., Denver time on December 31,
2003, or if such date is a day on which banking institutions are
authorized by law to close, then on the next succeeding day which
shall not be such a day, by presentation and surrender hereof to
the Company or at the office of its stock transfer agent, if any,
with the Purchase Form annexed hereto duly executed and
accompanied by payment of the Exercise Price (in cash or
equivalent value) for the number of shares specified in such
form, together with all federal and state taxes applicable upon
such exercise. The Company may unilaterally extend the time
within which the Warrant may be exercised but is not obligated to
do so, but not longer than twelve (12) months. The Company may
unilaterally reduce the exercise price per share. If this
Warrant should be exercised in part only, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the right hereunder. Upon receipt by the
Company of this Warrant at the office or agency of the Company,
in proper form for exercise, the Holder shall be deemed to be the
holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the
Company shall then be closed or that
certificates representing such shares of Common Stock shall not
then be actually delivered to the Holder.
(b) Reservation of shares. The Company, hereby agrees that
at all times subsequent hereto there shall be reserved for
issuance and/or delivery upon exercise of this Warrant such
number of shares of its Common Stock as shall be required for
issuance or delivery upon exercise of this Warrant.
(c) Fractional Shares. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise
of this Warrant. With respect to any fraction of a share called
for upon any exercise hereof, the Company shall pay to the Holder
an amount in cash equal to such fraction multiplied by the
current market value of such fractional share, determined as
follows:
(1) If the Common Stock is listed on a national securi
ties exchange or admitted to unlisted trading privileges on
such exchange, the current value shall be the last reported
sale price of the Common Stock on such exchange on the last
business day prior to the date of exercise of this Warrant
or if no such sale is made on such day, the average closing
bid and asked prices for such day on such exchange; or
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current value shall be the
mean of the last reported bid and asked prices reported by
the National Association of Securities Dealers Automated
Quotation System (or, if not so quoted on NASDAQ, by the
National Quotation Bureau, Inc.) on the last business day
prior to the day of the exercise of this Warrant; or
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not
so reported, the current value shall be an amount, not less
than book value, determined in such reasonable manner as may
be prescribed by the Board of Directors of the Company, such
determination to be final and binding on the Holder.
(d) Exchange, Assignment or Loss of Warrant. This Warrant
is exchangeable, without expense, at the option of the Holder,
upon presentation and surrender hereof to the Company or at the
office of its stock transfer agent, if any, for other Warrants of
different denominations entitling the Holder thereof to purchase
in the aggregate the same number of shares of Common Stock
purchasable hereunder. Any assignment hereof shall be made by
surrender of this Warrant to the Company or at the office of its
stock transfer agent, if any, with the Assignment Form annexed
hereto duly executed and funds sufficient to pay any transfer
tax; whereupon the Company shall, without charge, execute and
deliver a new Warrant in the name of the assignee named in such
instrument of assignment and this Warrant shall promptly be
cancelled. This Warrant may be divided upon presentation hereof
at the office of the Company or at the office of its stock
transfer agent, if any, together with a written notice specifying
the names and denominations in which new Warrants are to be
issued and signed by the Holder hereof. The terms "Warrant" and
"Warrants" as used herein include any Warrants issued in
substitution for a replacement of this Warrant, or into which
this Warrant may be divided or exchanged. Upon receipt by the
Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new
Warrant of like tenor and date. Any such new Warrant executed
and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this
Warrant so lost, stolen, destroyed, or mutilated shall be at any
time enforceable by anyone.
(e) Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder in the
Company, either at law or equity, and the rights of the Holder
are limited to those expressed in the Warrant and are not
enforceable against the Company except to the extent set forth
herein.
(f) Adjustments to Exercise Price and Number of Shares.
(1) Adjustment of Number of Shares. Anything in this
Section (f) to the contrary notwithstanding, in case the
Company shall at any time issue Common Stock or Convertible
Securities by way of dividend or other distribution on any
stock of the Company or subdivide or combine the outstanding
shares of Common Stock, the Exercise Price shall be
proportionately decreased in the case of such issuance (on
the day following the date fixed for determining
shareholders entitled to receive such dividend or other
distribution) or decreased in the case of such subdivision
or increased in the case of such combination (on the date
that such subdivision or combination shall become
effective).
(2) No Adjustment for Small Amounts. Anything in this
Section (f) to the contrary notwithstanding, the Company
shall not be required to give effect to any adjustment in
the Exercise Price unless and until the net effect of one or
more adjustments, determined as above provided, shall have
required a change of the Exercise Price by at least one
cent, but when the cumulative net effect of more than one
adjustment so determined shall be to change the actual
Exercise Price by at least one cent, such change in the
Exercise Price shall thereupon be given effect.
(3) Number of Shares Adjusted. Upon any adjustment of
the Exercise Price, the Holder of this Warrant shall
thereafter (until another such adjustment) be entitled to
purchase, at the new Exercise Price, the number of shares,
calculated to the nearest full share, obtained by
multiplying the number of shares of Common Stock initially
issuable upon exercise of this Warrant by the Exercise Price
in effect on the date hereof and dividing the product so
obtained by the new Exercise Price.
(4) Common Stock Defined. Whenever reference is made
in this Section (f) to the issue or sale of shares of Common
Stock, the term "Common Stock" shall mean the Common Stock
of the Company of the class authorized as of the date hereof
and any other class of stock ranking on a parity with such
Common Stock. However, subject to the provisions of Section
(i) hereof, shares issuable upon exercise hereof shall
include only shares of the class designated as Common Stock
of the Company as of the date hereof.
(g) Officer's Certificate. Whenever the Exercise Price
shall be adjusted as required by the provisions of Section (f)
hereof, the Company shall forthwith file in the custody of its
Secretary or an Assistant Secretary at its principal office, and
with its stock transfer agent, if any, an officer's certificate
showing the adjusted Exercise Price determined as herein provided
and setting forth in reasonable detail the facts requiring such
adjustment. Each such officer's certificate shall be made
available at all reasonable times for inspection by the Holder
and the Company shall, forthwith after each such adjustment,
deliver a copy of such certificate to the Holder. Such
certificate shall be conclusive as to the correctness of such
adjustment.
(h) Notices to Warrant Holders. So long as this Warrant
shall be outstanding and unexercised (i) if the Company shall pay
any dividend or make any distribution upon the Common Stock or
(ii) if the Company shall offer to the Holders of Common Stock
for subscription or purchase by them any shares of stock of any
class or any other rights or (iii) if any capital reorganization
of the Company, reclassification of the capital stock of the
Company, consolidation or merger of the Company with or into
another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company to
another corporation, or voluntary or involuntary dissolution,
liquidation or winding up of the Company shall cause to be
delivered to the Holder, at least ten days prior to the date
specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating
the date on which (x) a record is to be taken for the purpose of
such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger,
conveyance, lease, dissolution, liquidation or winding up is to
take place and the date, if any, is to be fixed as of which the
Holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property
deliverable upon such reclassification, reorganization, xxxxxxx-
dation, merger, conveyance, dissolution, liquidation or winding
up.
(i) Reclassification, Reorganization or Merger. In case of
any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company (other than a
change in par value, or from no par value to par value, or as a
result of an issuance of Common Stock by way of dividend or other
distribution or of a subdivision or combination), or in case of
any consolidation or merger of the Company with or into another
corporation (other than a merger with a subsidiary in which
merger the Company is the continuing corporation and which does
not result in any reclassification, capital reorganization or
other change of outstanding shares of Common Stock of the class
issuable upon exercise of this Warrant) or in case of any sale or
conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, the Company shall
cause effective provision to be made so that the Holder shall
have the right thereafter, by exercising this Warrant, to
purchase the kind and amount of shares of stock and other
securities and property receivable upon such reclassification,
capital reorganization or other change, consolidation, merger,
sale or conveyance. Any such provision shall include provision
for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. The
foregoing provisions of this Section (i) shall similarly apply to
successive reclassifications, capital reorganizations and changes
of shares of Common Stock and to successive consolidations,
mergers, sales or conveyances. In the event that in any such
capital reorganization or reclassification, consolidation,
merger, sale or conveyance, additional shares of Common Stock
shall be issued in exchange, conversion, substitution or payment,
in whole or in part, for or of a security of the Company other
than Common Stock, any such issue shall be treated as an issue of
Common Stock covered by the provisions of subsection (f) hereof
with the amount of the consideration received upon the issue
thereof being determined by the Board of Directors of the
Company, such determination to be final and binding on the
Holder.
(j) Transfer to Comply with the Securities Act of 1933.
(1) This Warrant or the Warrant Stock or any other
security issued or issuable upon exercise of this Warrant
may not be sold, transferred or otherwise disposed of except
to a person who, in the opinion of counsel for the Company,
is a person to whom this Warrant or such Warrant Stock may
legally be transferred pursuant to Section (d) hereof
without registration and without the delivery of a current
prospectus under the Securities Act with respect thereto and
then only against receipt of an agreement of such person to
comply with the provisions of this Section (j) with respect
to any resale or other disposition of such securities.
(2) The Company may cause the following legend to be
set forth on each certificate representing Warrant Stock or
any other security issued or issuable upon exercise of this
Warrant not theretofore distributed to the public or sold to
underwriters for distribution to the public pursuant to
Section (k) hereof, unless counsel for the Company is of the
opinion as to any such certificate that such legend is
unnecessary:
The securities represented by this certificate may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the
Securities Act of 1933 (the "Act"), or pursuant to an
exemption from registration under the Act the availability
of which is to be established to the satisfaction of the
Company.
(k) Registration Rights for Warrant Stock. In the event
that the Company on or before the expiration date shall file a
registration statement (or similar document) with the U.S.
Securities & Exchange Commission on the Company's equity
securities on a form which would legally allow inclusion of the
shares of the Company's common stock issued pursuant hereto, the
Company shall include such shares in such registration statement,
at the Company's sole cost; PROVIDED, HOWEVER, in the event of a
registration involving an underwriter, such underwriter shall
have the right, in its sole discretion, to impose restrictions on
the resale of the Company's securities issued pursuant hereto
and/or eliminate this registration right from the underwritten
registration statement in its entirety; FURTHER PROVIDED,
HOWEVER, in the event: i) an underwriter has eliminated this
registration right from an underwritten registration statement,
or ii) upon request by a majority of the Holders, at a date three
months after close or cancellation of such underwritten
registration or after the date of request, the Company shall one
time and one time only file and process to effectiveness (and
maintain effectiveness for not less than six months), at the
Company's sole expense, a registration statement including all
the shares underlying the exercise of this Warrant and any other
warrant of the Company owned by Holder. All expenses of any such
registration statement including the shares shall be borne by the
Company.
(l) Applicable Law. This Warrant shall be governed by,
and construed in accordance with, the laws of the State of
Colorado.
Bion Environmental Technologies, Inc.
Date: _______________ By: ____________________________
Authorized Officer
PURCHASE FORM
Dated ________________
The undersigned hereby irrevocably elects to exercise the X
Warrant to the extent of purchasing _________ shares of Bion
Environmental Technologies, Inc. Common Stock and hereby makes
payment of $________ in payment of the actual exercise price
thereof.
__________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name _________________________________________________
(please typewrite or print in block letters)
Address_______________________________________________
Signature__________________________________________
_____________________________
FOR VALUE RECEIVED, ____________________________ hereby
sells, assigns, and transfers unto
Name________________________________________________
(please typewrite or print in block letters)
Address______________________________________________
the right to purchase Common Stock represented by this Warrant to
the extent of __________ shares as to which such right is exercis
able and does hereby irrevocably constitute and appoint
______________, attorney, to transfer the same on the books of
the Company with full power of substitution in the premises.
Signature _______________________________
Dated: _______________________
Exhibit D
Instructions for issuing Securities:
1. Xxxxx Xxxxx and Xxxx X. Xxxxx
a) 237,154 Class E1 warrants
b) 637,154 Class X warrants
to be issued as follows:
E1 X
(i) Xxxxx Xxxxx 52,154 200,000
(ii) Xxxx X. Xxxxx 100,000 235,154
(iii) Xxxxxxxxxxx Xxxxx 15,000 50,000
(iv) Xxxxxx Xxxxx - 20,000
(v) Xxxxxxx Xxxxx 5,000 5,000
(vi) Xxxxx Xxxxxxxxxxxxx 10,000 10,000
(vii) Xxxxxxxx Xxxxxxxxxxxxx 1,000 1,000
(viii) Xxxxxx Xxxxxxxxxxxxx 1,000 1,000
(ix) Xxxx Xxxxxx 3,000 5,000
(x) Xxxxxxx Xxxxxx 3,000 3,000
(xi) Xxxxxxxxx Xxxxx 12,500 30,000
(xii) Xxxxx Xxxxx 12,500 30,000
(xiii) Xxxxxxx Xxxxxxx - 10,000
(xiv) Xxxxx Xxxxxx 3,000 3,000
(xv) Dzigar Kongtrul
Jigme Namgyel 10,000 25,000
(xvi) Xxxxxx Xxxxx 3,000 3,000
(xvii) N.T. Xxxxx 3,000 3,000
(sviii)Xxxxxxx Xxxxx-Xxxxx 1,000 1,000
(xix) Xxxxx Xxxxx 1,000 1,000
(xx) Xxxxxxx Xxxxx Xxxxx 1,000 1,000
2. Dublin Holding Ltd.
a) 650,000 shares (unlegended pursuant to Regulation S) (from NOTE)
(10 x 50,000 certificates; 5 x 20,000 certificates; 5 x 10,000
certificates)
b) 700,000 class E1 warrants
c) 450,000 class X warrants
3. LoTayLingKyur, Inc.
a) 624,308 shares (legended, Rule 144 with holding period from 5/16/95)
(from NOTE) (3 x 10,000 certificates; 5 x 50,000 certificates; 7 x
10,000 certificates; 1 x 4,308 certificates)
b) 300,000 shares (legended, Rule 144, 1 year hold from 5/6/97) (1 x
99,985 certificates; 1 x 200,015 certificates)
