-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, INuXbQ+v4jeK9h8waYr3vSlAWtG5Y5piXTOhujkUm5gLX0BcrRlOsBS5LaxXyu5X v3N7fBOqZxmfc9whvzm3xQ== 0000948830-03-000103.txt : 20030415 0000948830-03-000103.hdr.sgml : 20030415 20030414180129 ACCESSION NUMBER: 0000948830-03-000103 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20030325 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030415 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BION ENVIRONMENTAL TECHNOLOGIES INC CENTRAL INDEX KEY: 0000875729 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE CHEMICALS [2870] IRS NUMBER: 841176672 STATE OF INCORPORATION: CO FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-31437 FILM NUMBER: 03649323 BUSINESS ADDRESS: STREET 1: 18 EAST 50TH STREET STREET 2: 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 3032940750 MAIL ADDRESS: STREET 1: 18 EAST 50TH ST STREET 2: 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: RSTS CORP DATE OF NAME CHANGE: 19930328 8-K 1 bion8k.txt BION ENVIRONMENTAL TECH 8-K (3-25-03) SECURITIES AND EXCHANGE COMMISSION WASHINGTON DC 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934 Date of Report: March 25, 2003 --------------------------------- (Date of earliest event reported) Bion Environmental Technologies, Inc. ----------------------------------------------------- (Exact Name of Registrant as Specified in its Charter Colorado 001-31437 84-1176672 ------------------------ --------------------- ------------------- (State of Incorporation) (Commission File No.) (I.R.S. Employer Identification No.) 18 East 50th Street, New York, NY 10022 ----------------------------------------------------- (Address and Zip Code of Principal Executive Offices) Registrant's telephone number including area code: (212) 758-6622 Item 5. Other Events. CHANGES IN OUR MANAGEMENT. The following changes in our management occurred at a Board of Directors Meeting, which was held on March 25, 2003: * Jon Northrop, one of our founders and a former officer and Director, and Mark Smith, a former officer and director, were elected to serve on our Board of Directors to fill vacancies created by recent resignations. * Mr. Smith was elected to serve as the President of Bion Environmental Technologies, Inc. ("Bion") and both of its subsidiaries. * Jon Northrop was elected to serve as the Secretary of Bion and its subsidiaries. * Jere Northrop, also a founder and one of our current directors, was elected to serve as the Assistant Secretary of Bion and its subsidiaries. Jere Northrop and Jon Northrop are brothers. * David Mitchell resigned as an officer and director of Bion and of its subsidiaries. LIQUIDITY UPDATE. During the period from January 10, 2003 through April 11, 2003, Bright Capital LLC ("Brightcap"), an entity owned and controlled by Dominic Bassani, a consultant whose services were provided to us as part of our management agreement with D2CO, LLC ("D2")see discussion below), advanced us $249,500 so that we could pay operating expenses that are critical to our operations, primarily consisting of salaries paid to retain critical personnel, which now consists of six employees. Also, as of April 11, 2003, we owe creditors approximately $850,000. We amended our New York City office lease effective March 1, 2003. Under this amendment the expiration date was changed to December 31, 2003, from the previous expiration date of December 31, 2010. The amendment calls for the drawdown of the letter of credit provided to the landlord for the full amount of $120,561 to be used to pay arrearages and future rent. In addition, two of our new subtenants, Mitchell & Co. and Zizza & Co., which are controlled by David Mitchell and Salvatore Zizza, respectively, are former officers and directors of Bion, and have personally guaranteed the lease with the landlord. We will not incur additional cash outflows in connection with this lease as a result of the drawdown of the letter of credit, the subrental income and the personal guarantees. We vacated our Buffalo and North Carolina locations. Employees remaining from those locations have opened up home offices. 2 Although we are currently seeking other outside sources of capital, as of this date we have not been able to secure financing that is necessary for our current and future operations and there can be no assurance that sufficient funds will be available from external sources. Further, there can be no assurance that any such required funds, if available, will be available on attractive terms or that they will not have a significantly dilutive effect on our existing shareholders. Since we do not yet have the ability to generate cash flow from operations, we have substantially curtailed our current business activities and we may need to cease operations if we are not able to immediately raise capital from outside sources. This would have a material adverse effect on our business and our shareholders. LOAN FROM BRIGHT CAPITAL, LLC. On March 28, 2003, we executed a promissory note in favor of Brightcap. The note is in the initial principal sum of $42,500 plus the $27,000 that Brightcap has loaned since then and any additional amounts that it may loan to us in the future. The $42,500 sum represents amounts that had already been loaned to us by Brightcap which enabled us to pay certain of our ongoing operating expenses. The note bears interest on the unpaid principal at the simple rate of six percent (6%) per annum. All principal and accrued interest becomes payable on March 28, 2004. As of April 11, 2003, the principal amount of the note is $69,500. The note does not cover all of the $249,500 that has been advanced to us to date from Bright Cap. Repayment of amounts due under the note is secured by a lien on all of our tangible assets, including without limitation, all of our computers, office furniture, file cabinets, equipment and inventory. None of our intangible assets, including our patents, intellectual property or trade secrets, is pledged as collateral for the note. STATUS OF AGREEMENTS WITH D2 The management agreement between us and D2 was terminated effective as of March 25, 2003. The voting and shareholder agreements to which D2 was a party were also terminated as of that same date. The Trust Under Deferred Compensation Plan for D2CO, LLC (the "Trust") will remain in existence until mutually agreed otherwise and, unless otherwise agreed in writing, the "payable" balance of $450,000 currently owed by us to the Trust will be converted into shares of our Common Stock upon the earlier to occur of (a) a $5 million or greater equity financing(s) by us, in which case the amount payable will be converted into shares of our Common Stock at the equity price of the financing (or, in the event that the $5 million in equity financing is obtained in a series of more than one financing, the price of the equity financing which pushed the aggregate total of the financings above $5 million), or (b)March 31, 2005, at the then current market price of our Common Stock. 3 Item 7. Financial Statements and Exhibits. The following documents are filed as exhibits to this Form 8-K: Exhibit No. Description 10.1 Promissory Note and Security Agreement between Bion Environmental Technologies, Inc. and Bright Capital, LLC 10.2 First Amendment to Lease between Bion Environmental Technologies, Inc. and Pan Am Equities Corp. 10.3 Agreement between Bion Environmental Technologies, Inc. and Bergen Cove 10.4 Agreement between Bion Environmental Technologies, Inc. and David Mitchell dated April 7, 2003 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. BION ENVIRONMENTAL TECHNOLOGIES, INC. Date: April 14, 2003 By: /s/ Mark Smith ------------------------------------- Mark Smith, President 4 EX-10 3 ex101.txt BION ENVIRONMENTAL TECH 8-K (3-25-03) EX 10.1 EXHIBIT 10.1 THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND IS A "RESTRICTED SECURITY" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE NOTE MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF BION ENVIRONMENTAL TECHNOLOGIES, INC. SECURED PROMISSORY NOTE $42,500.00 March 28, 2003 Bion Environmental Technologies, Inc. ("Debtor"), for value received, hereby promises to pay to the order of Bright Capital Limited ("Lender"), in lawful money of the United States at the address of Lender set forth below, the initial principal sum of Forty Two Thousand Five Hundred Dollars ($42,500.00) plus any amounts that may be loaned by Lender to Debtor pursuant to this Note after the date hereof , together with interest on the unpaid principal at the simple rate of six percent (6%) per annum. Such principal and accrued interest shall be payable at Maturity on March 28, 2004. This Note is secured by a security interest in certain assets of the Debtor pursuant to that certain Security Agreement of even date herewith between Debtor and Lender. This Note may be prepaid, in whole or in part, at any time without permission or penalty. Interest shall be computed on the basis of a 360-day year and actual days elapsed. If a payment on this Note shall become due on a Saturday, Sunday or public holiday under the laws of the State of New York, such payment shall be made on the next succeeding business day and such extension of time shall be included in computing interest in connection with such payment. Immediately upon the occurrence of an "Event of Default" (as defined below), Lender may, at its option, declare immediately due and payable the entire unpaid principal amount of this Note, together with all interest thereon, plus any other amounts payable at the time of such declaration pursuant to this Note. An Event of Default shall be defined as each of the following: (i) failure of Debtor to make any payment of interest and/or principal within ten (10) days after the due date; (ii) Debtor shall admit in writing its inability to pay its debts as they become due, shall make a general assignment for the benefit of creditors or shall file any petition for action for relief under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors; or (iii) an involuntary petition shall be filed against Debtor under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors unless such petition shall be dismissed or vacated within thirty (30) days of the date of the filing thereof. Debtor hereby waives diligence, presentment, protest and demand and also notice of protest, demand, dishonor and nonpayment of this Note and expressly agrees that this Note, or any payment hereunder, may be extended from time to time, all without in any way affecting the liability of Debtor. If Lender should institute collection efforts, of any nature whatsoever, to attempt to collect any and all amounts due hereunder upon the default of Debtor, Debtor shall be liable to pay to holder immediately and without demand all reasonable costs and expenses of collection incurred by Lender, including, without limitation, reasonable attorney fees, whether or not suit or other action or proceeding be instituted and specifically including but not limited to collection efforts that may be made through a bankruptcy court. Any notice or other communication, except for payment hereunder, required or permitted hereunder shall be in writing and shall be deemed to have been given upon delivery if personally delivered or one day after deposit if deposited in the United States mail for mailing by certified mail, postage prepaid, and addressed as follows: If to Debtor: Bion Environmental Technologies, Inc. 18 East 50th Street, 10th Floor New York, New York 10022 If to Lender: Bright Capital Limited 64 Village Hill Drive Dix Hills New York 11746-8337 Any payment shall be deemed made upon receipt by Lender. Lender or Debtor may change its address for purposes of this paragraph by giving to the other party notice in conformance with this paragraph of such new address. This Note may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Note as of the day and year first above written. "Debtor" BION ENVIRONMENTAL TECHNOLOGIES, INC. By: /s/ Mark Smith Authorized Officer ACKNOWLEDGED AND AGREED TO: "Lender" BRIGHT CAPITAL LIMITED By: /s/ Dominic Bassani Authorized Officer STATE OF COLORADO UNIFORM COMMERCIAL CODE-SECURITY AGREEMENT Debtor: Name: Bion Environmental Technologies, Inc. (Exact Legal Name Required) Address: Residence: _________________________________________________________ No. Street City State Business: 18 East 50th Street - 10th Floor New York New York No. Street City State Secured Party: Name: Bright Capital Limited Address: 64 Village Hill Drive Dix Hills New York No. Street City State Debtor, for consideration, hereby grants to Secured Party a security interest in the following property and any and all additions, accessions and substitutions thereto or therefor (hereinafter called the "COLLATERAL"): All of Debtor's tangible assets of any kind, including, without limitation, computers, office furniture, file cabinets and all of the equipment and inventory listed on Exhibit A attached hereto and incorporated herein by reference. To secure payment of the indebtedness evidenced by that certain promissory note of even date herewith, payable to the Secured Party, or order, as set forth herein. DEBTOR EXPRESSLY WARRANTS AND COVENANTS: 1. That except for the security interest granted hereby Debtor is, or to the extent that this agreement states that the Collateral is to be acquired after the date hereof, will be, the owner of the Collateral free from any adverse lien, security interest or encumbrances; and that Debtor will defend the Collateral against all claims and demands of all persons at anytime claiming the same or any interest therein. 2. The Collateral is used or bought primarily for: ___ Personal, family or household purposes; ___ Use in farming operations; X Use in business. 3. That Debtor's residence, state of organization or chief executive office is as stated herein, and the Collateral will be kept at the location set forth on Exhibit A attached hereto and incorporated herein by reference. _____________________________________________________________________________ No. and Street City County State 4. If any of the Collateral is oil, gas, or minerals to be extracted or timber to be cut, or goods which are or are to become fixtures, said Collateral concerns the following described real estate situate in the _____________ County of and State of Colorado, to wit: N/A 5. Promptly to notify Secured Party of any change in the location of the Collateral. 6. To pay all taxes and assessments of every nature which may be levied or assessed against the Collateral. 7. Not to pen-nit or allow any adverse lien, security interest or encumbrance whatsoever upon the Collateral and not to permit the same to be attached or replevined. 8. That the Collateral is in good condition, and that Debtor will, at Debtor's own expense, keep the same in good condition and from time to time, forthwith, replace and repair all such parts of the Collateral as may be broken, worn out, or damaged without allowing any lien to be created upon the Collateral on account of such replacement or repairs, and that the Secured Party may examine and inspect the Collateral at any time, wherever located. 9. That Debtor will not use the Collateral in violation of any applicable statutes, regulations or ordinances. 10. The Debtor will keep the Collateral at all times insured against risks of loss or damage by fire (including so-called extended coverage), theft and such other casualties as the Secured Party may reasonably require, including collision in the case of any motor vehicle, all in such amounts, under such forms of policies, upon such terms, for such periods, and written by such companies or underwriters as the Secured Party may approve, losses in all cases to be payable to the Secured Party and the Debtor as their interest may appear. All policies of insurance shall provide for at least ten days' prior written notice of cancellation to the Secured Party; and the Debtor shall furnish the Secured Party with certificates of such insurance or other evidence satisfactory to the Secured Party as to compliance with the provisions of this paragraph. The Secured Party may act as attorney for the Debtor in making, adjusting and settling claims under or cancelling such insurance and endorsing the Debtor's name on any drafts drawn by insurers of the Collateral. UNTIL DEFAULT Debtor may have possession of the Collateral and use it in any lawful manner, and upon default Secured Party shall have the immediate right to the possession of the Collateral. DEBTOR SHALL BE IN DEFAULT under this agreement upon the happening of any of the following events or conditions: (a) default in the payment or performance of any obligation, covenant or liability contained or referred to herein or in any note evidencing the same; (b) the making or furnishing of any warranty, representation or statement to Secured Party by or on behalf of Debtor which proves to have been false in any material respect when made or furnished; (c) loss, theft, damage, destruction, sale or encumbrance to or of any of the Collateral, or the making of any levy seizure or attachment thereof or thereon; (d) death, dissolution, termination of existence, insolvency, business failure, appointment of a receiver of any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding under any bankruptcy or insolvency laws of, by or against Debtor or any guarantor or surety for Debtor. UPON SUCH DEFAULT and at any time thereafter, or if it deems itself insecure, Secured Party may declare all Obligations secured hereby immediately due and payable and shall have the remedies of a secured party under Article 9 of the Colorado Uniform Commercial Code. Secured Party may require Debtor to assemble the Collateral and deliver or make it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Expenses of retaking, holding, preparing for sale, selling or the like shall include Secured Party's reasonable attorney's fees and legal expenses (including the allocated fees and expenses of in-house counsel) and such portion of the Secured Party's overhead as it may in its reasonable judgment deem allocable to and includable in such expenses. No waiver by Secured Party of any default shall operate as a waiver of any other default or of the same default on a future occasion. The taking of this Security Agreement shall not waive or impair any other security Secured Party may have or hereafter acquire for the payment of the above indebtedness, nor shall the taking of any such additional security waive or impair this Security Agreement; but Secured Party may resort to any security it may have in the order it may deem proper, and notwithstanding any collateral security, Secured Party shall retain its rights of set-off against Debtor. All rights of Secured Party hereunder shall inure to the benefit of its successors and assigns; and all promises and duties of Debtor shall bind Debtor's heirs, executors or administrators or Debtor's successors or assigns. If there be more than one Debtor, their liabilities hereunder shall be joint and several. Dated: March 28, 2003 Debtor: Bion Environmental Technologies, Inc. Colorado - ------------------------------------- ------------------------------------ Debtor's state of organization, or if not a registered organization, chief executive officer By: /s/ Mark Smith 19871767435 ---------------------------------- ------------------------------------ Authorized Officer Debtor's State Identification No. (Exhibits Omitted) EX-10 4 ex102.txt BION ENVIRONMENTAL TECH 8-K (3-25-03) EX 10.2 EXHIBIT 10.2 FIRST AMENDMENT TO LEASE DATE: March 1, 2003 LANDLORD: PAN AM EQUITIES, INC. As agent for PAMELA EQUITIES CORP. ADDRESS OF LANDLORD: 3 New York Plaza New York, New York 10004 TENANT: BION ENVIRONMENTAL TECHNOLOGIES, INC. ADDRESS OF TENANT: 18 East 50th Street, Tenth Floor New York, New York 10023 LEASE DATE: August 8, 2000 NEW COMMENCEMENT DATE: January 1, 2003 DATE OF PRIOR AMENDMENTS OR AGREEMENT: NONE BUILDING: 18 East 50th Street New York, New York 10023 CURRENT PREMISES: Tenth Floor SECURITY DEPOSIT OR LETTER OF CREDIT: $120,561.00 EXPIRATION DATE: December 31, 2010 NEW EXPIRATION DATE: December 31, 2003 Page 1 RECITALS WHEREAS, Landlord and Tenant entered into a lease agreement dated August 8, 2000 (the "Original Lease") wherein Tenant leased premises known as the Tenth (10th) floor of the Building ("Original Premises"); WHEREAS, the parties have agreed to shorten the term of the Lease; and WHEREAS, the parties have agreed to further modify the terms of the Original Lease. NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is hereby agreed as follows: 1. The Lease. For the purposes of this First Lease Amendment, the term "Lease" shall be defined as the Original Lease. Unless defined herein the capitalized word shall have the meaning ascribed to them in the lease. 2. Arrearages. As of February 24, 2003, Tenant acknowledges it is currently in arrears for the sum of $48,533.92 ("Arrearages"). Said Arrearages are due and owing to the Landlord and must be paid immediately. 3. Drawdown of Letter of Credit. Immediately upon the execution of this Amendment by Tenant, Landlord shall draw down on the Letter of Credit and the full amount of $120,561.00 shall be released to Landlord. As necessary, Tenant shall cooperate with Landlord to facilitate the release of the Letter of Credit. Landlord shall utilize the Letter of Credit to pay the Arrearages. Once the Arrearages have been satisfied, there shall remain the sum of $72,027.08 ("Remaining Sum"). Landlord shall utilize the Remaining Sum to pay Rent due under the Lease. Once the Remaining Sum has been utilized, then the Tenant shall continue to pay the Rent due under the Lease. 4. New Expiration Date. The parties agree that the Lease shall now terminate on December 31, 2003 ("New Expiration Date"). Tenant shall now vacate on the New Expiration Date in accordance with the Lease. 5. Personal Guaranty. To ensure performance by Tenant as to its obligations under the Lease, as amended herein, David Mitchell and Salvatore Zizza shall enter into the form of personal guaranty attached hereto as Exhibit "A". 6. Successor-in-Interest. The First Amendment of the Lease shall inure to the benefit of and be binding upon the parties hereto and their respective legal representatives, successors and permitted assigns. Page 2 7. No Broker. Landlord and Tenant represent and warrant to each other that no broker brought about this transaction and Landlord and Tenant agree to indemnify and hold each other harmless from any and all claims of any broker arising out of or in connection with the negotiations of or the entering into of this First Amendment of Lease by the parties hereto. If such claim arises out of a breach of the foregoing warranty to that end Landlord or Tenant shall indemnify the other party for all loss, costs or damage including reasonable attorney's fees arising therefrom. These representations and warranties shall survive the termination of the Original Lease and this First Amendment. 8. Ratification of Original Lease. Except as expressly modified and amended by this First Amendment of Lease, all of the terms, provisions and conditions of the Original Lease are hereby ratified and confirmed by Landlord and Tenant. Tenant hereby releases and discharges Landlord from any and all claims or liability now arising out of the Lease prior to the date hereof, including, but in no way limited to, any and all changes as billed by Landlord to Tenant pursuant to the terms of the Original Lease. In the event of a conflict between the terms of the Original Lease and the terms of the First Amendment, then the terms of this First Amendment shall control. ATTEST: LANDLORD: PAN AM EQUITIES, INC. As agent for PAMELA EQUITIES CORP. By:______________________ By: /s/ Name:____________________ Name:_______________________ Title:___________________ Title:______________________ ATTEST: TENANT: BION ENVIRONMENTAL TECHNOLOGIES, INC. By:______________________ By:/s/ David Mitchell Name:____________________ Name:_______________________ Title:___________________ Title: CEO Page 3 E X H I B I T "A" PERSONAL GUARANTY FOR VALUE RECEIVED, and as an essential inducement to cause PAN AM EQUITIES, INC., as agent for PAMELA EQUITIES CORP., as landlord ("Landlord"), to enter into that certain agreement of lease (the "Lease") dated August 8, 2000 and amended by a First Amendment being executed simultaneously, between Landlord and BION ENVIRONMENTAL TECHNOLOGIES, INC., as tenant ("Tenant") for certain premises in the building owned by Landlord known as 18 East 50th Street, New York, New York 10022 as more particularly described therein (the "Premises"), the undersigned, DAVID MITCHELL AND SALVATORE ZIZZA (collectively, the "Undersigned") all having an office at 18 East 50th Street, New York, New York 10022 hereby agree as follows: 1. Effective after a default and termination of the Lease, the undersigned hereby unconditionally guarantees to Landlord: (a) the full and timely payment of rent and additional rent under the Lease; and (b) the payment by Tenant of any legal fees expended by Landlord in obtaining possession of the Premises after a default by Tenant under the Lease and termination of the Lease or in enforcing the provisions of this Guaranty. The Undersigned hereby waives notice of acceptance of this Guaranty, notice of any action taken or omitted in reliance herein, notice of default, notice of non- payment, notice of non-performance, notice of non-observance, presentment, protest or other proof or notice or demand, or promptness in making any claim or demand hereunder, whereby to charge the Undersigned. The Undersigned hereby expressly agrees that the validity of this Guaranty shall in no way be terminated, affected or impaired by reason of the assertion of, or failure to assert, against Tenant or any other person any of the rights or remedies reserved pursuant to the provisions of the Lease. 2. INTENTIONALLY OMITTED. 3. The Undersigned agrees that the Landlord shall have the right, in Landlord's discretion, to proceed against the Undersigned, or any of them upon any default of Tenant in the performance of Tenant's obligations to pay rent and additional rent in accordance with the provisions of the Lease, without first instituting action or proceeding against Tenant, or Landlord may also take all available action for redress against Tenant alone or jointly by reasons of any such default, against both Tenant and the Undersigned, or any of them 4. The undersigned further agrees that if it shall be necessary to institute action against the Undersigned in order to enforce this Guaranty, the Undersigned shall pay to Landlord the reasonable fees and expenses of Landlord's attorneys in connection with the enforcement of this Guaranty. 5. In any action of proceeding brought hereunder against the Undersigned, the Supreme Court of the State of New York for the County of New York, or in case of diversity of citizenship, the United States District Court for the Southern District of New York shall have jurisdiction. 6. The provisions of this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if payment or any part hereof, or any of the obligations guaranteed hereunder up to the date of surrender is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Tenant, whether by order of any court, by any settlement approved by any court, or otherwise, all as though such payment had not been made. 7. To the extent permitted by law, the Undersigned hereby, waives trial by jury of any and all issues arising in any action or proceeding between the parties upon, under, or connected with this Limited Guaranty, or any of its provisions, or the breach thereof, directly or indirectly, or any and all negotiations in connection therewith. 8. In case of any agreement between Landlord and Tenant extending the time of performance or modifying or waiving of any of the terms, provisions or conditions of the Lease, or in case of any failure of Landlord to enforce any of the terms or provision of the Lease, the Undersigned nevertheless shall continue to be jointly and severally liable under this Guaranty according to the tenor hereof and no extension, modification, waiver or failure to enforce Landlord's rights under the Lease shall impair the obligations of the Undersigned herein to Landlord, and this obligation shall be and shall remain in full force and effect, the Undersigned expressly waiving any notice of such extension, modification, waiver or failure to enforce the Lease. 9. Any payments required to be made by the Undersigned hereunder shall become due on demand in accordance with the terms hereof immediately upon the happening of a default by Tenant under the Lease and the expiration of the time period for curing same as provided under the Lease and termination thereof, if any, and the Undersigned expressly waives and relinquishes all rights and remedies accorded by applicable law to guarantors, except the right to cure promptly. l0. The validity of this Guaranty and the obligations of the Undersigned hereunder shall in no way be terminated, affected or impaired by reason of any action which Landlord may take or fail to take against Tenant or by reason of any failure to enforce any of the rights or remedies reserved to Landlord in the Lease, or otherwise. No delay on Landlord's part in exercising any right, power or privilege under the Lease, this Guaranty, or any other document which may be executed by the Undersigned, shall operate as a waiver of any such right, power or privilege. 11. This Guaranty shall remain in full force and effect, notwithstanding the institution by or against Tenant or the Undersigned, of bankruptcy, reorganization, readjust, receivership or insolvency proceedings of any nature or disaffirmance of the Lease in any such proceedings, or otherwise. 12. This Guaranty shall continue and remain in full force and effect and be binding upon the Undersigned and Landlord as to any modifications or extensions of the Lease; but not as to permitted assignments provided assignee's principals execute a Guaranty in substantially identical form to this Guaranty; but shall be so binding as to any permitted sale or sales of the stock of Tenant, or of partnership or joint venture interest in Tenant, as the case may be, and also after any termination of the Lease for any cause whatsoever. 13. This Guaranty shall be binding upon and inure to the benefit of Landlord and its respective heirs, executors, administrators, legal representatives, successors and assigns, and shall be binding upon each of the Undersigned and its respective heirs, executors, administrator, legal representatives and assigns. 14. Guarantor acknowledges that this Guaranty is an absolute and unconditional guaranty of payment and not merely of collection. IN WITNESS WHEREOF, the Undersigned has executed this Guaranty this 3 day of March 2003. /s/ David Mitchell -------------------------- Guarantor ###-##-#### -------------------------- Social Security Number Address: 18 East 50th Street New York, New York 10023 14. Guarantor acknowledges that this Guaranty is an absolute and unconditional guaranty of payment and not merely of collection. IN WITNESS WHEREOF, the Undersigned has executed this Guaranty this 3 day of March 2003. /s/ Salvatore Zizza -------------------------- Guarantor ###-##-#### -------------------------- Social Security Number Address: 18 East 50th Street New York, New York 10023 EX-10 5 ex103.txt BION ENVIRONMENTAL TECH 8-K (3-25-03) EX 10.3 EXHIBIT 10.3 AGREEMENT This Agreement is made effective as of March 1, 2003, by and between Bion Environmental Technologies, Inc., ("Bion") and Bergen Cove. Bion desires to have the following services provided by Bergen Cove. Therefore, the parties agree as follows: 1. DESCRIPTION OF SERVICES. Beginning on March 1, 2003, Bergen Cove will provide the following services (collectively, the "Services"): Collect monthly rent from the Undertenants, David J. Mitchell, Salvatore J. Zizza, Lazam Properties, Ltd. (Louis Perlman) and Verus Support Services for occupancy of the 10th floor of 18 East 50th Street, New York, NY 10022. Pay monthly rent to the Overtenant, Pan Am Equitites. 2. PERFORMANCE OF SERVICES. The manner in which the Services are to be performed shall be determined by Bergen Cove. Bion will rely on Bergen Cove to fulfill its obligations under this Agreement. 3. TERM/TERMINATION. This Agreement shall terminate automatically at the time all rents are collected from the Undertenants and paid to the Overtenant. 4. ASSIGNMENT. Bergen Cove's obligations under this Agreement may not be assigned or transferred to any other person, firm, or corporation without the prior written consent of Bion. 5. NOTICES. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the United States mail, postage prepaid, addressed as follows: IF for the Company: Bion Environmental Technologies, Inc. Larry Danziger Chief Financial Officer 18 East 50th Street, 10th Floor New York, New York 10022 IF for Bergen Cove: Salvatore Zizza 18 East 50th Street, 10th Floor New York, New York 10022 Such address may be changed from time to time by either party by providing written notice to the other in the manner set forth above. 6. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties. 7. AMENDMENT. This Agreement may be modified or amended if the amendment is made in writing and is signed by both parties. 8. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 9. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. 10. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of New York. Party receiving services: Bion Environmental Technologies, Inc. By: /s/ David J. Mitchell David J. Mitchell Chief Executive Officer Party providing services: Bergen Cove By: /s/ Salvatore Zizza EX-10 6 ex104.txt BION ENVIRONMENTAL TECH 8-K (3-25-03) EX 10.4 EXHIBIT 10.4 From: Mark A. Smith Sent: Monday, April 07, 2003 3:05 PM To: Mark A. Smith; dmitchell at biontech.com Cc: Brightcap Subject: resignation/termination and amendment of agreements (with changes) The outline below contains the changes that have been discussed. Please confirm the following (as we are preparing Form 8k filing): 1 - your resignation was effective as to all positions with Bion and its subsidiaries; 2 - all agreements (except as specified herein) between D2 and Bion (including those also involving 3rd parties) terminated effective upon your resignation (including without limitation management agreement (as amended), voting agreement, and shareholder agreement); 3 - you, in conjunction with Mr. Zizza, will provide Bion/Cptx with cubicle office space, file and storage space and use of the conference room at their prior corporate headquarters at 18 E. 50th St., 10th floor, NYC, at no cost to Bion/Cptx thru the end of the amended lease term (currently 12/31/03); 4 - the D2 Deferred Comp Trust shall remain in existence until mutually agreed otherwise and the 'payable' balance of $450,000 owed by Bion to the Trust shall be converted into Bion common stock upon the earlier of: a) a $5,000,000 (or greater) equity financing(s) by Bion, in which case it shall be converted at the equity price of such financing (or, in the event that the $5,000,000 was reached in a series of more than one financing, the price of the equity financing which pushed the aggregate total of the financings above $5,000,000), or b) March 31, 2005 (at the then market price of Bion's common stock, unless agreed otherwise in writing). Yours, Mark A. Smith, President Bion Environmental Technologies, Inc. (Bion) and Centerpoint Corporation (Cptx) /s/ David Mitchell April 7, 2003 -----END PRIVACY-ENHANCED MESSAGE-----