EXHIBIT 99.1
BION ENVIRONMENTAL TECHNOLOGIES, INC.
SUBSCRIPTION AGREEMENT
TO: Bion Environmental Technologies, Inc.
Ladies and Gentlemen:
1. Subscription for Shares/2008 Note. The undersigned,
intending to be legally bound, hereby irrevocably applies to purchase
from Bion Environmental Technologies, Inc. (the "Company"), a Colorado
corporation:
a) the amount of shares of the Company's Common Stock (the
"Shares") of the Company indicated below at a price of $2.00 per share
payable by exchange of: i) the Company's 2007 Series A Convertible Note
(principal plus accrued interest through May 31, 2008) ('2007Note') and
ii) Brightcap Deferred Compensation Note (principal plus accrued
interest through May 31, 2008) ('BC Note'), and
b) the principal amount of the Company's 2008 Note (convertible
at $2.00 per share until June 30, 2008)('2008 Note', form of which is
attached hereto as Exhibit A) equal to Bright Capital, Ltd.'s accrued
deferred compensation (through May 31, 2008) ('DC') (collectively the
2007 Note, BC Note and DC are the 'Obligations'). This subscription is
submitted to the Company in accordance with and subject to the terms
and conditions described herein. This Subscription Agreement, including
all amendments thereof and supplements, appendices and exhibits
thereto, together with the Company's publicly available SEC filings
(which the undersigned acknowledges it has reviewed and/or has had the
opportunity to review) is herein referred to as the "Offering Document"
or "Memorandum". Capitalized items not defined herein shall have the
meaning given them in the Offering Document. The signature of the
undersigned below constitutes the execution of this Subscription
Agreement. (The Shares and 2008 Note are collectively the
'Securities').
2. Amount and Method of Payment and Closing.
The undersigned either encloses herewith the documents
representing the Obligations ("Purchase Price") for cancellation by the
Company in order to purchase the Securities subscribed for hereunder or
authorizes the Company to cancel the Obligations as 'paid in full' by
execution of this Subscription Agreement. Payment of the Purchase
Price is being made by delivery to the Company of the Obligations
and/or authorization of cancellation of the Obligations as 'paid in
full'.
3. Representations and Warranties. The undersigned hereby
acknowledges, represents and warrants to and agrees with, the Company
as follows:
(a) The undersigned understands that an investment in the
Securities is available only to "Accredited Investors" as defined in
Regulation D. The undersigned represents and warrants to the Company,
as the issuer of the securities being offered hereby, that he/she/it is
an "Accredited Investor" because the undersigned comes within any one
or more of the following categories (please initial each applicable
category):
i. _____ Any bank as defined in section 3(a)(2) of the
Act, or any savings and loan association or other institution as
defined in section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary capacity; any broker or dealer registered
pursuant to section 15 of the Securities Exchange Act of 1934; any
insurance company as defined in section 2(a)(13) of the Act; any
investment company registered under the Investment Company Act of 1940
or a business development company as defined in section 2(a)(48) of
that Act; any Small Business Investment Company licensed by the U.S.
Small Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958; any plan established and maintained by
a state, its political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, for the benefit of its
employees, if such plan has total assets in excess of $5,000,000; any
employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974 if the investment decision is made by a
plan fiduciary, as defined in section 3(21) of such act, which is
either a bank, savings and loan association, insurance company, or
registered investment adviser, or if the employee benefit plan has
total assets in excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are accredited
investors;
ii. _____ Any private business development company as
defined in section 202(a)(22) of the Investment Advisers Act of 1940;
iii. _____ Any organization described in section
501(c)(3) of the Internal Revenue Code, Massachusetts or similar
business trust, or partnership, not formed for the specific purpose of
acquiring the securities offered, with total assets in excess of
$5,000,000;
iv. __x___ Any director, executive officer, or general
partner of the issuer of the securities being offered or sold, or any
director, executive officer, or general partner of a general partner of
that issuer;
v. __x___ Any natural person whose individual net worth,
or joint net worth with that person's spouse, at the time of his
purchase exceeds $1,000,000;
vi. __x___ Any natural person who had an individual
income in excess of $200,000 in each of the two most recent years or
joint income with that person's spouse in excess of $300,000 in each of
those years and has a reasonable expectation of reaching the same
income level in the current year;
vii. _____ Any trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring the
securities offered, whose purchase is directed by a sophisticated
person as described in Rule 506(b)(2)(ii); or
viii. _x____ Any entity in which all of the equity owners
are accredited investors.
(b) The undersigned understands that the offering and sale of
the Securities is intended to be exempt from registration under the
Securities Act of 1933, as amended ("Act"), by virtue of Section 4(2)
of the Act and/or the provisions of Regulation D promulgated thereunder
and, in accordance therewith, and in furtherance thereof, the
undersigned represents and warrants to and agrees with the Company as
follows:
(i) The undersigned has received the Offering Document,
has carefully reviewed it and the exhibits attached thereto and
documents referenced therein, and understands and has relied on the
information contained therein and information otherwise provided to the
undersigned in writing by the Company relating to this investment. If
the undersigned has received the Memorandum electronically, the
undersigned hereby accepts receipt of the Memorandum electronically and
has the ability to utilize the hyperlinks embedded therein;
(ii) The undersigned understands and acknowledges that
all documents, records and books pertaining to this investment
(including, without limitation, the Offering Document and the exhibits
thereto) have been made available by the Company for inspection by the
undersigned's attorney(s), accountant(s) and/or other advisors;
(iii) The undersigned and/or the undersigned's advisor(s)
have had a reasonable opportunity to review all publicly available
information concerning the Company, including without limitation the
Company's Form 10-SB, Form 10-QSB for the period ending March 31, 2008,
and Form 10-KSB for the period ended June 30, 2007, and the "risk
factors" and Financial Statements and related footnotes included
therewith), ask questions of and receive answers from a person or
persons acting on behalf of the Company concerning the offering of the
Securities and the Company, and hereby acknowledge that all such
questions have been answered to the full satisfaction of the
undersigned;
(iv) No oral or written representations have been made or
oral or written information furnished to the undersigned or the
undersigned's advisor(s) in connection with the offering of the
Securities, which were in any way inconsistent with the information
stated in the Offering Document;
(v) The undersigned is not subscribing for the Securities
as a result of any advertisement, article, notice, press release or
other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any general solicitation or
general advertising, or any solicitation of a subscription by a person
not previously known to the undersigned in connection with investments
in securities generally;
(vi) If the undersigned is a natural person, the
undersigned has reached the age of majority in the state in which the
undersigned resides, has adequate means of providing for the
undersigned's current needs and personal contingencies, is able to bear
the substantial economic risks of an investment in the Securities for
an indefinite period of time, has no need for liquidity in such
investment and, at the present time, could afford a complete loss of
such investment;
(vii) The undersigned has, or together with the
undersigned's advisor(s) has, such knowledge and experience in
financial, tax and business matters so as to enable the undersigned to
utilize the information made available to the undersigned in connection
with the offering of the Securities in order to evaluate the merits and
risks of an investment in the Securities and to make an informed
investment decision with respect thereto;
(viii) The undersigned is not relying on the Company with
respect to the tax and other economic considerations of the undersigned
relating to this investment. In regard to such considerations, the
undersigned has relied on the advice of, or has consulted with, only
the undersigned's own advisors;
(ix) The undersigned is acquiring the Securities solely
for the undersigned's own account as principal, for investment purposes
only and not with a view to the resale or distribution thereof, in
whole or in part, and no other person has a direct or indirect
beneficial interest in such Securities;
(x) The undersigned will not sell or otherwise transfer
the Securities without registration under the Act or an exemption
therefrom and fully understands and agrees that the undersigned must
bear the economic risk of this purchase for an indefinite period of
time because, among other reasons, the Securities have not been
registered under the Act or under the securities laws of any state and,
therefore, cannot be resold, pledged, assigned or otherwise disposed of
unless it is subsequently registered under the Act and under the
applicable securities laws of such states or unless an exemption from
such registration is available; and
(xi) The undersigned understands that the Company is
under no obligation to register the Securities on behalf of the
undersigned or to assist the undersigned in complying with any
exemption from registration under the Act, except as set forth in the
Offering Documents.
(c) The undersigned recognizes that an investment in the
Securities involves a number of significant risks, including those set
forth under the captions "RISK FACTORS" in the Memorandum and the
Company's Form 10-KSB (for year ended June 30, 2007) and Form 10-SB.
(d) If the undersigned is a corporation, partnership, trust or
other entity, it is authorized and qualified to purchase the
Securities, and the person signing this Subscription Agreement on
behalf of such entity has been duly authorized by such entity to do so.
(e) If the undersigned is a corporation, a partnership or a
limited liability company, the person signing this Subscription
Agreement on its behalf hereby represents and warrants that the
information contained herein completed by any shareholders of such
corporation, partners of such partnership or members or managers of
such limited liability company is true and correct with respect to such
shareholders, partners, members or managers (and if any such
shareholder, partner, member or manager is itself a corporation,
partnership or limited liability company, with respect to all persons
having an interest in such corporation, partnership or limited
liability company, whether directly or indirectly) and that the person
signing this Subscription Agreement has made due inquiry to determine
the truthfulness and accuracy of the information contained herein.
(f) The undersigned represents and warrants that it is the
owner of the Obligations and has the authority to enter into this
transaction using the Obligations as Purchase Price for the Securities.
4. Indemnification. The undersigned agrees to indemnify and
hold harmless the Company and its affiliates and each other person, if
any, who controls any thereof, within the meaning of Section 15 of the
Act, against any and all loss, liability, claim, damage and expense
whatsoever (including, but not limited to, any and all expenses
reasonably incurred in investigating, preparing or defending against
any litigation commenced or threatened or any claim whatsoever) arising
out of or based upon any false representation or warranty or breach or
failure by the undersigned to comply with any covenant or agreement
made by the undersigned herein or in any other document furnished by
the undersigned to any of the foregoing in connection with this
transaction.
5. Modification. Neither this Subscription Agreement nor any
provisions hereof shall be waived, modified, discharged or terminated
except by an instrument in writing signed by the party against whom any
such waiver, modification, discharge or termination is sought.
6. Notices. Any notice, demand or other communication which
any party hereto may be required, or may elect, to give to anyone
interested hereunder shall be in writing and delivered in person sent
by facsimile transmission or sent by United States Certified,
Registered or Express Mail, Federal Express or other private courier,
postage prepaid, and return receipt requested in the event of delivery
by mail. Notices shall be given when delivered personally, or when
sent by facsimile transmission if sent during regular business hours of
the recipient and if not, on the next following business day or if
mailed, at midnight on the third business day after the date of mailing
or if sent by Federal Express or by other private courier on the next
following business day.
7. Counterparts. This Subscription Agreement may be executed
through the use of separate signature pages or in any number of
counterparts, and each of such counterparts shall, for all purposes,
constitute one agreement binding on all parties, notwithstanding that
all parties are not signatories to the same counterpart.
8. Entire Agreement. This Subscription Agreement contains the
entire agreement of the parties with respect to the subject matter
hereof, and there are no representations, covenants or other agreements
except as stated or referred to herein.
9. Severability. Each provision of this Subscription
Agreement is intended to be severable from every other provision, and
the invalidity or illegality of any portion hereof shall not affect the
validity or legality of the remainder hereof.
10. Assignability. This Subscription Agreement is not
transferable or assignable by the undersigned except as may be provided
herein.
11. Applicable Law. This Subscription Agreement shall be
governed by and construed in accordance with the laws of the State of
New York as applied to residents of that state executing contracts
wholly to be performed in that state.
12. Principal Amount of Securities Subscribed For. (to be
completed by subscriber):
Number of Shares subscribed for:
a) 243,984 Shares for 2007 Note
b) 290,160 Shares for BC Note
c) $350,000 principal amount of 2008 Note for DC
Purchase Price of Shares subscribed for:
a) $487,967.43 from 2007 Note
b) $580,318.49 from BC Note
c) $350,000.00 from DC
a) Bright Capital Limited Defined Benefit Pension Plan
b) Bright Capital Limited Defined Benefit Pension Plan
c) Bright Capital Limited
Name(s) in which the Shares are to be registered
00 Xxxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxx Xxxx 11746
City, State and Zip Code
______________________________________
Telephone
______________________________________
E-Mail Address
_______-_____-_______ and _______-_____-_______
Tax ID Number(s) of Subscriber(s)
Broker/Advisor Name: __________________________________________
Form of joint ownership (if applicable):
Community ___________
Tenants-in-Common ___________
Joint Tenants ___________
If the Securities hereby subscribed for are to be owned by more
than one person in any manner, the undersigned understands and agrees
that all of the co-owners of such Securities must sign this
Subscription Agreement in order for this subscription to be accepted.
IN WITNESS WHEREOF, the undersigned represent(s) that the
foregoing statements are true and correct and that he/she has (they
have) executed this Subscription Agreement this _________ day of May,
2008.
___________________________________ _______________________________
Please Print Name Signature of Subscriber
___________________________________ _______________________________
Please Print Name Signature of Co-Owner
Reviewed and Accepted:
___________________________________ _______________________________
Please Print Name Signature of Authorized
Representative
___________________________________ _______________________________
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