Exhibit 3
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STOCK PURCHASE AGREEMENT
by and between
OAM, S.p.A.
and
BION ENVIRONMENTAL TECHNOLOGIES, INC.
dated as of
January 10, 2002
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of January 10, 2002 (this
"Agreement"), by and between OAM, S.p.A., an Italian corporation (the "Selling
Stockholder") and Bion Environmental Technologies, Inc., a Colorado corporation
(the "Purchaser").
WHEREAS, the Selling Stockholder is the owner of 3,459,997 shares
(the "Shares") of common stock, par value $.01 per share ("Centerpoint Common
Stock"), of Centerpoint Corporation, a Delaware corporation ("Centerpoint");
WHEREAS, upon the terms and subject to the conditions set forth
herein, the Selling Stockholder desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Selling Stockholder, all of the Shares;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sale of Shares. Upon the terms and subject
to the conditions of this Agreement, at the closing contemplated by this
Agreement (the "Closing"), which is being held simultaneously with the execution
herewith, the Selling Stockholder is selling, transferring, assigning, conveying
and delivering to the Purchaser, and the Purchaser is purchasing from the
Selling Stockholder, the Shares for an aggregate consideration to consist of:
(a) 1,000,000 (the "Consideration Shares") shares of common stock,
no par value per share, of the Purchaser (the "Purchaser Common Stock"), which
are subject to the restrictions referred to in Section 3.11, and have the
benefit of the registration rights agreement referred to in Section 2.2(a);
(b) a warrant in substantially the form attached hereto as Exhibit
"A", the "Consideration Warrant" and, together with the Consideration Shares,
the "Consideration Securities") to purchase 1,000,000 shares of Purchaser Common
Stock (the "Consideration Warrant Shares");
(c) $3,700,000 in cash;
(d) Assignment of 100% of $4.2 million principal and all accrued and
unpaid interest, represented by that certain note dated June 13, 2001, by
Trident Rowan Group Inc., a Maryland corporation ("TRG"), in favor of
Centerpoint and its transferees and assigns (the "TRG Note");
(e) Assignment of 65% of that certain litigation claim of
Centerpoint against Banca di Intermediazione Mobiliare IMI S.p.A., an Italian
corporation ("IMI"). In connection with such assignment, Selling Stockholder
shall continue to administer any litigation related to, settlement of, or other
resolution of such action and the assigned interest, to the best of its ability,
on behalf of both Selling Stockholder and Centerpoint as Centerpoint's duly
authorized agent. Selling Stockholder acknowledges that Purchaser has no
knowledge whatsoever of the substance, validity or merit of the claims and makes
no warranty or other representation of any kind in relation thereto;
(f) Assignment of 65% of the Selling Stockholder's right to that
certain escrow account pursuant to the Escrow Agreement by and among the Selling
Stockholder, IMI and Aprillia, S.p.A., an Italian corporation (the "Aprilia
Escrow"). In connection with such assignment, Selling Stockholder shall continue
to administer any litigation related to, settlement of, or other resolution of
such action and the assigned interest, to the best of its ability, on behalf of
both Selling Stockholder and Centerpoint as Centerpoint's duly authorized agent.
Selling Stockholder acknowledges that Purchaser has no knowledge whatsoever of
the substance, validity or merit of the claims and makes no warranty or other
representation of any kind in relation thereto; and
(g) Release of the Shares from that certain Pledge Agreement dated
June 13, 2001 (the "Pledge Agreement") by and between the Selling Stockholder
and Centerpoint pursuant to the Assignment of Pledge Agreement between
Centerpoint and Purchaser of even date herewith (all such consideration (a)-(g)
above, the "Consideration"). The agreed upon aggregate value of the
Consideration set forth in (d) through (g) above shall be $5,750,000.
Section 1.2 Post-Closing Adjustment. If, prior to the expiration of
the Adjustment Period (as defined below) the Purchaser issues, sells or
transfers any of its equity securities or securities convertible into or
exchangeable for equity securities, at a price which reflects or implies a price
per share of Purchaser Common Stock less than $.75 per share, or amends, by
formal amendment or waiver, the terms of any such outstanding security to
reflect or imply such a price upon the closing of each such issuance, sale or
transfer, the Purchaser shall issue to the Selling Stockholder a number of
additional shares of Purchaser Common Stock computed in accordance with the
following formula:
Y = .75(1,000,000) -1,000,000
--------------
A
Where Y = The number of additional shares of Purchaser Common Stock
to be issued to the Selling Stockholder upon the closing of
the transaction in question.
A = The price per share Purchaser Common Stock reflected or
implied by such transaction.
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Provided, however, that notwithstanding anything to the contrary
herein no adjustment shall be made for the issuance by Purchaser of
any equity securities pursuant to the provisions of any of
Purchaser's currently issued and outstanding "J" Warrants.
The "Adjustment Period" shall be a period commencing the day after the date
hereof until such time as the cumulative equity investment in the Purchaser by
third parties unaffiliated with the Selling Stockholder during such period shall
equal $5 million.
ARTICLE II
CLOSING; PAYMENT; DELIVERIES
Section 2.1 The Closing. The Closing is taking place on the date
hereof, at the offices of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Section 2.2 Deliveries by the Purchaser. At the Closing, the
Purchaser is delivering to the Selling Stockholder:
(a) the consideration contemplated by Section 1.1(a) hereof by
delivery of stock certificates representing the Consideration Shares registered
in the name of the Selling Stockholder and the duly executed Registration Rights
Agreement in the form of Exhibit "B" hereto (the "Registration Rights
Agreement");
(b) the consideration contemplated by Section 1.1(b) hereof by
delivery of the Consideration Warrant;
(c) the consideration contemplated by Section 1.1(c) hereof by wire
transfer in immediately available funds to the account or accounts specified by
the Selling Stockholder in Exhibit C;
(d) the consideration contemplated by Section 1.1(d) hereof by
delivery of the TRG Note accompanied by duly executed instruments of transfer in
substantially the form attached hereto as Exhibit D;
(e) the consideration contemplated by Section 1.1(e) hereof by
delivery of that certain Assignment of Loan Agreement of even date herewith in
substantially the form attached hereto as Exhibit E;
(f) the consideration contemplated by Section 1.1(f) hereof by
delivery of that certain Assignment of Escrow Agreement of even date herewith in
substantially the form attached hereto as Exhibit F;
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(g) the consideration contemplated by Section 1.1(g) hereof by
delivery of copies of an effective surrender and termination by Centerpoint of
its rights under the Pledge Agreement in the form of Exhibit G; and
(h) an officer's or director's certificate of the Purchaser
certifying as to (i) resolutions of the Board of Directors of the Purchaser
authorizing the execution, delivery and performance of this Agreement and the
transaction contemplated hereby (ii) a certificate of recent date as to the good
standing of the Purchaser in the jurisdiction of its incorporation (iii) the
Certificate of Incorporation and by-laws of the Purchaser as in effect on the
date of such certificate.
Section 2.3 Deliveries by the Selling Stockholder. At the Closing,
the Selling Stockholder shall deliver to the Purchaser:
(a) a stock certificate or stock certificates representing the
Shares being purchased at the Closing, duly endorsed or accompanied by other
duly executed instruments of transfer;
(b) a countersigned copy of the Registration Rights Agreement;
(c) a copy of all resolutions adopted by the Board of Directors of
the Selling Stockholder authorizing the sale of the Shares to the Purchaser
pursuant to the terms of this Agreement, certified by the Secretary of Selling
Stockholder;
(d) a letter substantially in the form of Exhibit H executed by the
Selling Stockholder and TRG (the "Side Letter").
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLING STOCKHOLDER
The Selling Stockholder represents and warrants to the Purchaser as
follows:
Section 3.1 Organization.
(a) The Selling Stockholder is a corporation duly organized, validly
existing, and in good standing under the laws of Italy, has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted, and is qualified or licensed
to do business as a foreign corporation and is in good standing in each
jurisdiction in which the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so
organized, existing and in good standing or to have such power and authority, or
to be so qualified or licensed is not reasonably likely to (x) have a Material
Adverse Effect on the Selling Stockholder; or (y) impair the ability of the
Selling Stockholder to perform its obligations hereunder.
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(b) As used in this Agreement, the term "Material Adverse Effect"
shall mean a material adverse effect on the business, assets, results of
operations or financial condition of the Selling Stockholder or the Purchaser,
as the case may be; provided, however, that a Material Adverse Effect shall not
include (a) any change or effect relating or due to general economic or
industry-wide conditions and (b) any change or effect resulting from the
announcement of the parties' intention to execute or execution of this Agreement
or the consummation of the transactions contemplated hereby.
Section 3.2 Authorization; Validity of Agreement.
(a) The Selling Stockholder has the requisite corporate power and
authority to execute and deliver this Agreement, the Side Letter and the
Registration Rights Agreement (collectively the "Selling Stockholder Transaction
Documents") and to consummate the transactions contemplated hereby and thereby.
The execution and delivery by the Selling Stockholder of the Selling Stockholder
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by the Board of Directors of the
Selling Stockholder and no other corporate proceedings on the part of the
Selling Stockholder are necessary to authorize the execution and delivery of the
Selling Stockholder Transaction Documents by the Selling Stockholder and the
consummation of the transactions contemplated hereby and thereby. The Selling
Stockholder Transaction Documents have been duly executed and delivered by the
Selling Stockholder and, assuming due authorization, execution and delivery of
the Selling Stockholder Transaction Documents by the parties hereto other than
the Selling Stockholder, are valid and binding obligations of the Selling
Stockholder, enforceable against the Selling Stockholder in accordance with
their terms, except to the extent such enforcement may be subject to or limited
by (i) bankruptcy, insolvency or other similar laws, now or hereafter in effect,
affecting creditors' rights generally and (ii) the effect of general principles
of equity (regardless of whether enforceability is considered in a proceeding at
law or in equity).
Section 3.3 Capitalization. The authorized capital stock of
Centerpoint consists of 20,250,000 shares of Common Stock of which 5,589,092
shares will be outstanding, excluding shares issued upon exercise or conversion
of options, warrants, convertible debt instruments or other rights outstanding
as of the date hereof, in accordance with their applicable terms, and 4,750,000
shares of Preferred Stock of which no shares will be outstanding, excluding
shares issued upon exercise or conversion of options, warrants, convertible debt
instruments or other rights outstanding as of the date hereof, in accordance
with their applicable terms. Each outstanding share of Centerpoint Common Stock
and Preferred Stock is duly authorized, validly issued, fully paid and
nonassessable, without any personal liability attaching to the ownership thereof
and has not been issued and is not owned or held in violation of any preemptive
rights of stockholders. Except as set forth in Schedule 3.3, there is no
commitment, plan or arrangement to issue, and no outstanding option, preemptive
right, warrant or other right, instrument or security calling for the issuance
of, any share of capital stock of Centerpoint or any security or other
instrument which by its terms is convertible into, exercisable for or
exchangeable for capital stock of Centerpoint.
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Section 3.4 No Violations; Consents and Approvals.
(a) The execution and delivery of the Selling Stockholder
Transaction Documents by the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and thereby will not
(i) violate any provision of the certificate of incorporation or bylaws of the
Selling Stockholder, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, amendment, cancellation or acceleration) under, any of
the terms, conditions or provisions of any loan or credit agreement, note, bond,
mortgage, indenture, guarantee, other evidence of indebtedness, lease, license,
contract, agreement or other instrument or obligation to which the Selling
Stockholder is a party or by which any of its assets may be bound or (iii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Selling Stockholder or any of its properties or assets; except
in the case of clauses (ii) and (iii) for violations, breaches or defaults which
would not reasonably be likely to (x) have a Material Adverse Effect on the
Selling Stockholder; or (y) impair the ability of the Selling Stockholder to
perform its obligations hereunder.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any foreign, federal, state, local,
municipal, county or other governmental, administrative or regulatory authority,
body, agency, court, tribunal, commission or similar entity (including any
branch, department or official thereof) (a "Governmental Entity") is required in
connection with the execution and delivery of the Selling Stockholder
Transaction Documents by the Selling Stockholder or the consummation by the
Selling Stockholder of the transactions contemplated hereby and thereby, except
for such consents, approvals, orders, authorizations, notifications,
registrations, declarations and filings the failure of which to be obtained or
made which would not reasonably be likely to (x) have a Material Adverse Effect
on the Selling Stockholder; or (y) impair the ability of the Selling Stockholder
to perform its obligations hereunder.
Section 3.5 Ownership and Possession of Shares.
(a) The Shares and the certificates representing the Shares are now
owned by the Selling Stockholder, or by a nominee or custodian for the sole and
exclusive benefit of the Selling Stockholder and, upon delivery to Purchaser of
the surrender and termination by Centerpoint of its rights under the Pledge
Agreement as set forth in Section 2.2(g), will be free and clear of all
Encumbrances whatsoever, except for any Encumbrances created by this Agreement
and Encumbrances arising under the Securities Act of 1933, as amended (the
"Securities Act") or state securities laws.
(b) As used in this Agreement, the term "Encumbrances" shall mean
any and all liens, charges, security interests, options, claims, mortgages,
pledges, hypothecations, proxies, voting trusts or agreements, obligations,
understandings or arrangements or other restrictions on title or transfer of any
nature whatsoever.
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Section 3.6 Good Title Conveyed. The stock certificates, stock
powers, endorsements, assignments, and other instruments being executed and
delivered by the Selling Stockholder to the Purchaser at the Closing will be
valid and binding obligations of the Selling Stockholder, enforceable in
accordance with their respective terms, and will effectively vest in the
Purchaser good, valid and marketable title to all the Shares pursuant to and as
contemplated by this Agreement free and clear of all Encumbrances, except
restrictions on transfer imposed by the Securities Act of 1933, as amended (the
"Securities Act"), and state securities laws.
Section 3.7 Centerpoint SEC Reports and Financial Statements.
(a) Except as set forth on Schedule 3.7(a), Centerpoint has filed
all forms, reports and documents required to be filed by it with the SEC since
June 30, 1998 (together, the "Centerpoint SEC Reports"). The forms, reports and
documents filed by Centerpoint from December 1, 1998 through March 31, 2000, and
Note 21 (the "Subsequent Event Note") to the financial statements included in
TRG's Form 10-K for the fiscal year ended December 31, 1999 (i) were prepared in
accordance with the requirements of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as the case may be, and
(ii) did not at the time they were filed contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(b) Each of the consolidated financial statements (including, in
each case, any notes thereto) contained in the Centerpoint SEC Reports (the
"Centerpoint Financial Statements"), as they would need to be adjusted to take
into account the events reflected in the Subsequent Event Note (i) was prepared
from the books of account and other financial records of Centerpoint and its
Subsidiaries (as defined herein), (ii) was prepared in accordance with United
States generally accepted accounting principles ("U.S. GAAP") applied on a
consistent basis throughout the periods indicated (except as may be indicated in
the notes thereto) and (iii) presented fairly the consolidated financial
position of Centerpoint and its consolidated Subsidiaries as at the respective
dates thereof and the results of their operations and their cash flows for the
respective periods indicated therein except as otherwise noted therein (subject,
in the case of unaudited statements, to the omission of footnotes and normal and
recurring year-end adjustments which were not and are not expected, individually
or in the aggregate, to have a Material Adverse Effect on Centerpoint).
(c) The Selling Stockholder has heretofore furnished to the
Purchaser complete and correct copies of (i) all agreements, documents and other
instruments not yet filed by Centerpoint with the SEC but that are currently in
effect and that Centerpoint expects to file with the SEC after the date of this
Agreement and (ii) all amendments and modifications that have not been filed by
Centerpoint with the SEC to all agreements, documents and other instruments that
previously had been filed by Centerpoint with the SEC and are currently in
effect.
(d) Except as set forth in Schedule 3.7(d), Centerpoint has no
liabilities or other obligations of a nature that would be required to be set
disclosed on a balance sheet of
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Centerpoint or the footnotes thereto prepared in accordance with GAAP, other
than liabilities and other obligations which, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect on
Centerpoint.
Section 3.8 Bank Statements. The bank statement of Centerpoint for
the month ended December 31, 2001, in the form previously delivered to the
Purchaser, fairly and accurately reflects the accounts of Centerpoint as of such
date.
Section 3.9 Brokers. Except for Investec Ernst & Co. ("Investec")
and Xxxxxx Xxxxxxx & Company, Inc., no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement or based upon arrangements
made by or on behalf of the Selling Stockholder or Centerpoint. Centerpoint is
solely responsible for the fees and expenses of Investec.
Section 3.10 Investment Representations.(a) The Selling Stockholder
is acquiring the Consideration Securities for the Selling Stockholder's own
account for investment and not with a view to the sale or distribution thereof
or the granting of any participation therein, and has no present intention of
distributing or selling to others any of such interest or granting any
participation therein.
(b) The Selling Stockholder has been advised by the Purchaser that
the Consideration Securities have not yet been registered under the Act, that
the Consideration Securities will be issued on the basis of the statutory
exemption provided by Section 4(2) of the Securities Act, or Regulation D
promulgated thereunder, or both, relating to transactions by an issuer not
involving any public offering and under similar exemptions under certain state
securities laws, that this transaction has not been reviewed by, passed on or
submitted to any federal or state agency or self-regulatory organization where
an exemption is being relied upon, and that the Purchaser's reliance thereon is
based in part upon the representations made by the Selling Stockholder in this
Agreement. The Selling Stockholder acknowledges that the Selling Stockholder is
otherwise familiar with, the nature of the restriction imposed by the Act and
the rules and regulations thereunder on the transfer of the Consideration
Securities. In particular, the Selling Stockholder agrees that no sale,
assignment or transfer of the Consideration Securities shall be valid or
effective, and the Purchaser shall not be required to give any effect to such a
sale, assignment or transfer, unless (i) the sale, assignment or transfer of the
Consideration Securities is registered under the Act, it being understood that
the Consideration Securities are not yet registered for re-sale although the
Purchaser has agreed to so register the Consideration Securities as provided in
the Registration Rights Agreement, or (ii) the Consideration Securities are
sold, assigned or transferred in accordance with all the requirements and
limitations of Rule 144 under the Securities Act, it being understood that Rule
144 is not available at the present time for the sale of the Consideration
Securities, or (iii) such sale, assignment or transfer of the Consideration
Securities is otherwise exempt from registration under the Securities Act. The
Selling Stockholder further understands that absent registration under the
Securities Act, an opinion of counsel and other documents may be required to
transfer the Consideration Securities. The Selling Stockholder acknowledges that
the Consideration Securities shall be subject to a stop transfer order and the
certificates evidencing any Consideration Securities shall bear the
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following or a substantially similar legend or such other legend as
may appear on the forms of the Consideration Securities and such
other legends as may be required by state blue sky laws for so long
as the Consideration Securities remain unregistered under the Act:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
or any state securities laws and neither such securities nor any
interest therein may be offered, sold, pledged, assigned or
otherwise transferred unless (1) a registration statement with
respect thereto is effective under the Act and any applicable state
securities laws or (2) the Purchaser receives an opinion of counsel
to the holder of such securities, which counsel and opinion are
reasonably satisfactory to the Purchaser, that such securities may
be offered, sold, pledged, assigned or transferred in the manner
contemplated without an effective registration statement under the
Act or applicable state securities laws."
Section 3.11 No Other Representations or Warranties. Except for the
representations and warranties contained in this Article III, neither the
Selling Stockholder nor any other Person (as defined herein) makes any other
express or implied representation or warranty on behalf of the Selling
Stockholder or any of its affiliates in connection with the transactions
contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
The Purchaser represents and warrants to the Selling Stockholder as
follows:
Section 4.1 Organization. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado, has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted, and
is qualified or licensed to do business as a foreign corporation and is in good
standing in each jurisdiction in which the nature of the business conducted by
it makes such qualification or licensing necessary, except where the failure to
be so organized, existing and in good standing or to have such power and
authority, or to be so qualified or licensed is not reasonably likely to (x)
have a Material Adverse Effect on the Purchaser; or (y) impair the ability of
the Purchaser to perform its obligations hereunder.
Section 4.2 Capitalization and Indebtedness. The authorized capital
stock of Purchaser consists of 100,000,000 shares of Purchaser's Common Stock of
which 13,481,930 are issued and outstanding as of the date hereof without giving
effect to the issuance of shares to Selling Shareholder and Centerpoint pursuant
to the transactions contemplated hereby or the automatic conversion of any of
Purchaser's convertible debt securities as a result of the
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transaction contemplated hereby. In accordance with the terms of the convertible
securities of the Purchaser set forth on Schedule 4.2 hereof, the convertible
securities will by their terms be converted into not more than 19,050,000 shares
of Purchaser's Common Stock upon the consummation of the transactions
contemplated by this Agreement (the "Conversion of Indebtedness") if conversion
occurs on or before January 15, 2002. Each outstanding share of Purchaser's
Common Stock is duly authorized, validly issued, fully paid and nonassessable,
without any personal liability attaching to the ownership thereof and has not
been issued and is not owned or held in violation of any preemptive rights of
stockholders. Except as set forth on Schedule 4.2, there is no commitment, plan
or arrangement to issue, and no outstanding option, preemptive right, warrant or
other right, instrument or security calling for the issuance of any share of
capital stock of the Purchaser or any security or other instrument which by its
terms is convertible into, exercisable for or exchangeable for capital stock of
the Purchaser. As of the date hereof the Purchaser is not in default with
respect to any Indebtedness and the consummation of the transactions
contemplated by this Agreement and the Centerpoint Stock Subscription Agreement
will not result in any such default. Immediately following the consummation of
the transactions contemplated by this Agreement and the Conversion of
Indebtedness if conversion occurs on or before January 15, 2002, the total
outstanding indebtedness of the Purchaser shall not be greater than $950,000,
and indebtedness other than subordinated indebtedness shall not be greater than
$950,000.
Section 4.3 Authorization; Validity of Agreement. The Purchaser has
the requisite corporate power and authority to execute and deliver this
Agreement and the documents and agreements attached hereto as exhibits to be
executed and delivered by Purchaser (such documents and exhibits, the "Purchaser
Transaction Documents"). The execution and delivery by the Purchaser of this
Agreement and the Purchaser Transaction Documents and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by the
Board of Directors of the Purchaser, and no other corporate proceedings on the
part of the Purchaser are necessary to authorize the execution and delivery of
this Agreement and the Purchaser Transaction Documents by the Purchaser and the
consummation of the transactions contemplated hereby and thereby. This Agreement
and the Purchaser Transaction Documents have been duly executed and delivered by
the Purchaser and, assuming due authorization, execution and delivery of this
Agreement and the Purchaser Transaction Documents by the parties thereto other
than the Purchaser, are valid and binding obligations of the Purchaser,
enforceable against the Purchaser in accordance with their respective terms,
except to the extent such enforcement may be subject to or limited by (i)
bankruptcy, insolvency or other similar laws, now or hereafter in effect,
affecting creditors' rights generally and (ii) the effect of general principles
of equity (regardless of whether enforceability is considered in a proceeding at
law or in equity).
Section 4.4 No Violations; Consents and Approvals.
(a) The execution and delivery of this Agreement and the Purchaser
Transaction Documents by the Purchaser and the consummation by the Purchaser of
the transactions contemplated hereby and thereby will not (i) violate any
provision of the certificate
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of incorporation or bylaws of the Purchaser, (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of any material
note, bond, mortgage, indenture, guarantee, other evidence of indebtedness,
license, lease, contract, agreement or other instrument or obligation to which
the Purchaser or any of its Subsidiaries is a party or by which any of them or
any of their assets may be bound or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the Purchaser, any of its
Subsidiaries or any of their properties or assets, except in the case of clauses
(ii) and (iii) for violations, breaches or defaults which would not reasonably
be likely to (x) have a Material Adverse Effect on the Purchaser; or (y) impair
the ability of the Purchaser to perform its obligations hereunder.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any Governmental Entity is required in
connection with the execution and delivery of this Agreement or the Purchaser
Transaction Documents by the Purchaser or the consummation by the Purchaser of
the transactions contemplated hereby and thereby, except such consents,
approvals, orders, authorizations, notifications, registrations, declarations
and filings the failure of which to be obtained or made would not reasonably be
likely to (x) have a Material Adverse Effect on the Purchaser; or (y) impair the
ability of the Purchaser to perform its obligations hereunder.
Section 4.5 Issuance of Consideration Shares at the Closing. The
Consideration Shares, being issued at the Closing are, and the Consideration
Warrant Shares will be, when issued, validly issued, fully paid and
nonassessable, and the issuance of such shares is not subject to preemptive or
subscription rights.
Section 4.6 Good Title Conveyed. The stock certificates, stock
powers, endorsements, assignments and other instruments being executed and
delivered by the Purchaser to the Selling Stockholder at the Closing will be
valid and binding obligations of the Purchaser, enforceable in accordance with
their respective terms, and will effectively vest in the Selling Stockholder
good, valid and marketable title to all the Consideration to be transferred to
the Selling Stockholder pursuant to and as contemplated by this Agreement free
and clear of all Encumbrances, except restrictions on transfer imposed by the
Securities Act and state securities laws.
Section 4.7 Purchaser SEC Reports and Financial Statements.
(a) The Purchaser has filed all forms, reports and documents
required to be filed by it with the SEC since June 30, 1998 (collectively, the
"Purchaser SEC Reports"). The Purchaser SEC Reports (i) were prepared in
accordance with the requirements of the Securities Act or the Exchange Act, as
the case may be, and (ii) did not at the time they were filed contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading.
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(b) Each of the consolidated financial statements (including, in
each case, any notes thereto) contained in the Purchaser SEC Reports (the
"Purchaser Financial Statements") (i) was prepared from the books of account and
other financial records of the Purchaser and its Subsidiaries, (ii) was prepared
in accordance with U.S. GAAP applied on a consistent basis throughout the
periods indicated (except as may be indicated in the notes thereto) and (iii)
presented fairly the consolidated financial position of the Purchaser and its
consolidated Subsidiaries as at the respective dates thereof and the results of
their operations and their cash flows for the respective periods indicated
therein except as otherwise noted therein (subject, in the case of unaudited
statements, to the omission of footnotes and normal and recurring year-end
adjustments which were not and are not expected, individually or in the
aggregate, to have a Material Adverse Effect on the Purchaser).
(c) The Purchaser has heretofore furnished to the Selling
Stockholder complete and correct copies of (i) all agreements, documents and
other instruments not yet filed by the Purchaser with the SEC but that are
currently in effect and that the Purchaser expects to file with the SEC after
the date of this Agreement and (ii) all amendments and modifications that have
not been filed by the Purchaser with the SEC to all agreements, documents and
other instruments that previously had been filed by the Purchaser with the SEC
and are currently in effect.
(d) No Undisclosed Liabilities. Except as disclosed in the Purchaser
SEC Reports filed prior to the date hereof and an additional amount of
approximately $350,000 which has been advanced by affiliates of Purchaser since
the date of its most recent Quarterly Report on Form 10-QSB, since December 31,
2000, Purchaser has not incurred any liabilities that are of a nature that would
be required to be disclosed on its balance sheet or the footnotes thereto
prepared in conformity with GAAP, other than (i) liabilities incurred in the
ordinary course of business or (ii) liabilities that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
the Purchaser.
Section 4.8 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Purchaser.
Section 4.9 No Resale. (a) The Purchaser is acquiring the Shares for
the Purchaser's own account for investment and not with a view to the sale or
distribution thereof or the granting of any participation therein, and has no
present intention of distributing or selling to others any of such interest or
granting any participation therein.
(b) The Purchaser has been advised by the Selling Stockholder that
the Shares are not registered and are being transferred hereunder on the basis
of the statutory exemption under the Securities Act and under similar exemptions
under certain state securities laws, that this transaction has not been reviewed
by, passed on or submitted to any federal or state agency or self-regulatory
organization where an exemption is being relied upon, and that the Selling
Stockholder's reliance thereon is based in part upon the representations made by
the Purchaser in this Agreement. The Purchaser acknowledges that the Purchaser
is otherwise familiar with the
12
nature of the restriction imposed by the Act and the rules and regulations
thereunder on the transfer of the Shares, by the legend reflected on the share
certificate being conveyed to the Purchaser at Closing and by the other
restrictions that may have been placed thereon by Centerpoint.
Section 4.10 No Other Representations or Warranties. Except for the
representations and warranties contained in this Article IV, neither the
Purchaser nor any other Person makes any other express or implied representation
or warranty on behalf of the Purchaser or any of its affiliates.
ARTICLE V
REGISTRATION RIGHTS
The parties acknowledge that the Selling Stockholder is accepting
the Consideration Shares and the Consideration Warrants in reliance on covenants
made by the Purchaser in the Registration Rights Agreement. Selling Stockholder
agrees that during the term of the Registration rights Agreement, neither the
Selling Stockholder nor any of its affiliates, agents, successors or assigns
shall engage in any short sales of the Purchaser's Common Stock, and that in the
event that any such person engages in short sales of the Purchaser's Common
Stock against the future delivery of any pro rata share of Purchaser's
securities pursuant to a registration statement or otherwise, the Purchaser
shall have no obligation to deliver such pro rata share of such securities to
any such person.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Public Announcements. The Purchaser and the Selling
Stockholder shall, and shall cause their affiliates to, consult promptly with
each other prior to issuing any press release, making any required filing or
otherwise making any public statement with respect to this Agreement and the
transactions contemplated hereby, provide to the other party within a reasonable
timeframe for review a copy of any such press release or statement, and shall
not issue any such press release, public filing or make any such public
statement prior to such consultation and a reasonable opportunity for review and
comment, the duration of which is specified at the time of review and shall make
reasonable efforts to accommodate the comments of the other party, unless
otherwise required by applicable law or any listing agreement with a securities
exchange.
Section 6.2 Fees and Expenses. All costs and expenses incurred by a
party in connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such costs or expenses.
Section 6.3 Non-Survival of Representations and Warranties. Other
than the representations and warranties set forth in Sections 3.8, 4.2 and 4.6,
which shall survive in
13
perpetuity, the representations and warranties made in this Agreement shall
survive only until the second anniversary of the date hereof.
Section 6.4 Amendment; Waiver. This Agreement may be amended,
modified or supplemented by the parties hereto, at any time. This Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties hereto.
Section 6.5 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon (a) transmitter's
confirmation of a receipt of a facsimile transmission, (b) confirmed delivery by
a standard overnight carrier or when delivered by hand or (c) the expiration of
five business days after the day when mailed in the United States or Italy by
certified or registered mail, postage prepaid, addressed at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) If to the Selling Stockholder, to:
OAM S.p.A.
Xxx Xxxxx 0
00000 Xxxxx, Xxxxx
Facsimile: 011-39-02-72000457
Attention: Board of Directors
with a copy to:
Xxxx Xxxxxx
FDG Associates
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to the Purchaser, to:
Bion Environmental Technologies, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
14
with a copy to:
Xxxx Xxxxx Xxxxxxxx & Xxxxxx
000 00xx Xx., Xxxxx 0000X
Xxxxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Section 6.6 Certain Definitions. As used in this Agreement:
(a) The term "affiliate", as applied to any person, shall mean any
other person directly or indirectly controlling, controlled by, or under common
control with, that person.
(b) The term "Person" or "person" shall include individuals,
corporations, partnerships, trusts, other entities and groups (which term shall
include a "group" as such term is defined in Section 13(d)(3) of the Exchange
Act).
(c) The term "Subsidiary" or "Subsidiaries", with respect to any
person, means any corporation, partnership, joint venture or other legal entity
of which such person (either alone or through or together with any other
subsidiary), owns, directly or indirectly, stock or other equity interests the
holders of which are generally entitled to more than 50% of the vote for the
election of the board of directors or other governing body of such corporation
or other legal entity.
Section 6.7 Interpretation. When a reference is made in this
Agreement to a section, article, paragraph, clause, annex or exhibit, such
reference shall be to a reference to this Agreement unless otherwise clearly
indicated to the contrary. The descriptive article and section headings herein
are intended for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement. Whenever the
words "include," "includes" or "including" are used in this Agreement they shall
be deemed to be followed by the words "without limitation." The words "hereof,"
"herein" and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement. The meaning assigned to each term used
in this Agreement shall be equally applicable to both the singular and the
plural forms of such term, and words denoting either gender shall include both
genders. Where a word or phrase is defined herein, each of its other grammatical
forms shall have a corresponding meaning.
Section 6.8 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall be considered one and the same agreement.
Section 6.9 Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings (written and
oral), between the parties with respect to the subject matter hereof.
15
Section 6.10 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 6.11 Specific Performance. Irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached; accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.
Section 6.12 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
Section 6.13 Submission to Jurisdiction. Each of the Selling
Stockholder and the Purchaser hereby irrevocably submits in any action, suit or
proceeding arising out of this Agreement or any of the transactions contemplated
hereby to the exclusive jurisdiction of the United States District Court for the
Southern District of New York and the jurisdiction of any court of the State of
New York located in the City of New York. The parties hereto waive any and all
objections to the laying of venue of any such litigation in such jurisdiction
and agree not to plead or claim in any such litigation that such litigation has
been brought in an inconvenient forum.
Section 6.14 Waiver of Jury Trial. Each party acknowledges and
agrees that any controversy which may arise under this Agreement is likely to
involve complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to a trial
by jury in respect of any litigation directly or indirectly arising out of or
relating to this Agreement, or the transactions contemplated by this Agreement.
Each party certifies and acknowledges that (i) no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver, (ii) each such party understands and has considered the implications of
this waiver, (iii) each such party makes this waiver voluntarily and (iv) each
such party has been induced to enter into this Agreement by, among other things,
the mutual waivers and certifications in this Section 6.14.
Section 6.15 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either party
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the parties
and their respective successors and assigns and are not intended to confer upon
any Person other than the parties hereto any rights or remedies hereunder.
16
Section 6.16 Legal Representation of Investec. The parties hereto
acknowledge that Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP ("Xxxxxx Xxxxx") was
retained by Investec to represent Investec in connection with the transactions
contemplated hereby and that, notwithstanding the fact that from time to time
Xxxxxx Xxxxx has represented various affiliates of the Selling Stockholder in
connection with specific transactions, the parties understand Xxxxxx Levin's
preparation of this Agreement and the documents contemplated hereby was solely
at the request of and in its role as counsel to Investec Neither party hereto is
relying on Xxxxxx Xxxxx for representation or advice in connection with this
Agreement or with the transactions contemplated hereby and without a written
agreement to the contrary, Xxxxxx Xxxxx shall owe no duties to any party hereto.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
OAM S.p.A.
By:
------------------------------
Name:
Title:
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By:
------------------------------
Name:
Title:
S-1
TABLE OF CONTENTS
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sale of Shares.............................1
Section 1.2 Post-Closing Adjustment.................................2
ARTICLE II
CLOSING; PAYMENT; DELIVERIES
Section 2.1 The Closing.............................................3
Section 2.2 Deliveries by the Purchaser.............................3
Section 2.3 Deliveries by the Selling Stockholder...................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDER
Section 3.1 Organization............................................4
Section 3.2 Authorization; Validity of Agreement....................5
Section 3.3 Capitaliation...........................................5
Section 3.4 No Violations; Consents and Approvals...................5
Section 3.5 Ownership and Possession of Shares......................6
Section 3.6 Good Title Conveyed.....................................7
Section 3.7 Centerpoint SEC Reports and Financial Statements........7
Section 3.8 Bank Statements.........................................8
Section 3.9 Brokers.................................................8
Section 3.10 Investment Representations..............................8
Section 3.11 No Other Representations or Warranties..................9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Section 4.1 Organization............................................9
Section 4.2 Capitalization and Indebtedness.........................9
Section 4.3 Authorization; Validity of Agreement...................10
Section 4.4 No Violations; Consents and Approvals..................10
Section 4.5 Issuance of Consideration Shares at the Closing........11
Section 4.6 Good Title Conveyed....................................11
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Section 4.7 Purchaser SEC Reports and Financial Statements.........11
Section 4.8 Brokers................................................12
Section 4.9 No Resale..............................................12
Section 4.10 No Other Representations or Warranties.................13
ARTICLE V
REGISTRATION RIGHTS .................13
ARTICLE VI
MISCELLANEOUS
Section 6.1 Public Announcements...................................13
Section 6.2 Fees and Expenses......................................13
Section 6.3 Non-Survival of Representations and Warranties.........13
Section 6.4 Amendment; Waiver......................................14
Section 6.5 Notices................................................14
Section 6.6 Certain Definitions....................................15
Section 6.7 Interpretation.........................................15
Section 6.8 Counterparts...........................................15
Section 6.9 Entire Agreement.......................................15
Section 6.10 Severability...........................................16
Section 6.11 Specific Performance...................................16
Section 6.12 Governing Law..........................................16
Section 6.13 Submission to Jurisdiction.............................16
Section 6.14 Waiver of Jury Trial...................................16
Section 6.15 Assignment.............................................16
Section 6.16 Legal Representation of Investec.......................17
Exhibit A Consideration Warrant
Exhibit B Registration Rights Agreement
Exhibit C Accounts Specified by Selling Shareholder
Exhibit D TRG Note and Assignment Documents
Exhibit E Assignment of Loan Agreement
Exhibit F Assignment of Escrow Agreement
Exhibit G Pledge Agreement
Exhibit H Side Letter
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