EXHIBIT 10.1
AGREEMENT
IT IS AGREED this 29th day of August 2001, by and between Xxx Xxxxxxxx ("JN")
and Bion Environmental Technologies, Inc. ("BION") as follows:
WHEREAS BION is entering into agreements with various note holders, D2CO, LLC
and others concerning simplifications of BION's capital structure and changes
in management;
AND WHEREAS JN considers the changes to be in the best interests of BION and
JN;
NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants herein:
1) JN agrees to and does hereby amend the promissory note attached hereto as
Exhibit A ("Note") to provide that:
a) The term of the Note shall be extended to April 30, 2002;
b) The Note (principal and interest) shall be completely converted to
shares of common stock of BION (with an effective registration
statement related to resale of such shares) upon the earlier of
April 29, 2002 or the conversion of BION's outstanding Convertible
Bridge Notes and 2001 Convertible Notes (collectively "CV Notes")
which conversion shall take place at the lower of: 1) $2.25 per
share, or ii) the conversion price of the CV Notes;
2) JN and BION hereby cancel 134,000 options exercisable at $2.25 per share
until 12/31/01;
3) JN and BION agree that, effective August 31, 2001, JN shall cease to be
employed by BION and that the employment agreement attached hereto as
Exhibit B shall be terminated.
4) a) Effective September 1, 2001, JN shall serve as a consultant to BION
for a 12 month period ending August 31, 2002 for a monthly fee of
$10,000 per month (payable in cash and/or securities of BION);
b) plus continuation of JN's existing insurance benefits;
c) the monthly fee set forth above shall be reduced by 50% starting the
first month commencing after the average bid price of BION's common
stock shall have exceeded twice the conversion price of the Note for
a period of 20 trading days; and
d) JN shall be issued 90,000 options exercisable at $2.00 per share
until July 31, 2004;
e) the compensation set forth herein shall be in lieu of any severance
pay.
5) Effective August 31, 2001, JN shall resign as Director of BION and shall
join BION's Board of Advisors for the term of his consulting services.
6) BION agrees that, subject to agreement of necessary third parties,
effective September 1, 2001, JN shall be released from the restrictions
on sale of BION securities owned by JN set forth in a Shareholder's
Agreement (dated December 23, 1999), as amended.
7) JN and BION agree to execute such other documents as may be necessary to
properly carry out the transactions set forth herein.
8) The Agreement is subject to ratification by BION's Board of Directors on
or before September 15, 2001.
BION Environmental Technologies, Inc. Xxx Xxxxxxxx
By: /s/ Xxxx X. Xxxxx, Chairman /s/ Xxx Xxxxxxxx
--------------------------------- -----------------------------
Authorized Officer Xxx Xxxxxxxx
EXHIBIT A
Initial Principal: $300,000
Date Due: December 31, 2001
PROMISSORY NOTE ("Note")
FOR VALUE RECEIVED, the undersigned, Bion Environmental Technologies,
Inc., a Colorado corporation ("MAKER"), hereby promises to pay to the order of
Xxx Xxxxxxxx ("HOLDER"), and his successors and assignees, at 0000 Xxxxxxx
Xx., Xxxxxxxxx, Xxxxxxxx 00000, or at such other place as the HOLDER of this
Note may from time to time designate in writing, all sums due under this Note
(plus interest) in lawful and immediately available money of the United
States. The initial principal of this loan is $300,000. Interest shall be
accrued and added to principal at one percent (1.0%) per month from date owed
by MAKER. All outstanding principal and interest shall be due and payable on
or before December 31, 2001, if not previously paid. If this Note or interest
due hereunder is not paid when due or declared due hereunder, the principal
shall draw interest at the rate of one and one half percent (1.5%) per month.
Upon default by the MAKER of the timely payment of principal or interest
due hereunder or upon any Event of Default as hereinafter defined, the HOLDER
may, in its sole discretion, withhold any payments due and payable to MAKER
and apply same to the MAKER's obligations hereunder. In addition, upon any
Event of Default, the HOLDER may declare the full amount of this Note due and
payable.
If any one or more of the following events ("Events of Default") shall
occur for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law,
pursuant to or in compliance with any judgment, decree of order of any court,
or any order, rule or regulation of any administrative or governmental body,
or otherwise) the HOLDER of this Note may, at its option, upon written notice
to MAKER, declare this Note and any other promissory note issued by MAKER to
HOLDER (whether or not then due in accordance with its terms) to be due and
payable, whereupon the entire balance of this Note shall forthwith become and
be due and payable:
(a) MAKER fails to make payment of principal or of interest on
this Note or any other obligation of MAKER when such shall become due and
payable, whether at the stated maturity thereof or by acceleration or
otherwise;
(b) MAKER (1) admits its inability to pay its debts as they
become due; (2) files a petition in bankruptcy or makes a petition to take
advantage of an insolvency act; (3) makes an assignment for the benefit of
creditors; (4) commences a proceeding for the appointment of a receiver,
trustee, liquidator, or conservator of itself or of the whole or any
substantial part of its properties; (5) files a petition or answer seeking
reorganization or arrangement or similar relief under the federal bankruptcy
laws or any other applicable law or statute or the United States or any State;
(c) MAKER (1) is adjudged as bankrupt, (2) a court enters an
order, judgment or decree, appointing a receiver, trustee, liquidator or
conservator of MAKER or of the whole or any substantial part of its
properties, or approve a petition filed against MAKER seeking reorganization
or similar relief under the federal bankruptcy laws or any other applicable
law or statute of the United States or any state; (3) under the provisions of
any other law for the relief or aid of debtors, a court assumes custody or
control of MAKER or the whole or any substantial part of its properties; (4)
there is commenced against MAKER any proceeding for any of the foregoing
relief; (5) a petition in bankruptcy is filed against MAKER; or (6) MAKER by
any act indicates its consent to approval of or acquiescence in any such
proceeding or petition.
Except as otherwise hereinabove expressly provided, MAKER hereby waives
diligence, demand, protest, presentment and all notices (whether of
nonpayment, dishonor, protest, acceleration or otherwise) and consents to
acceleration of the time of payment, surrender or substitution of security or
forbearance, or other indulgence, without notice.
Jurisdiction and venue shall be in a court of general jurisdiction
located in Denver, Colorado. In the event that litigation is necessary to
collect the principal (and interest) of the Note, HOLDER shall be entitled to
reasonable attorneys' fees and litigation costs associated therewith.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: __________________________________
Authorized Officer
Date: May 21, 1999
