EXHIBIT 3.3
STATEMENT OF DESIGNATION AND DETERMINATION OF PREFERENCES
OF
SERIES B CONVERTIBLE PREFERRED STOCK
OF
BION ENVIRONMENTAL TECHNOLOGIES, INC.
TO THE SECRETARY OF STATE OF THE STATE OF COLORADO:
Pursuant to the provisions of the Colorado Corporation Code, the
undersigned Mark A. Smith and Jon Northrop, President and Secretary,
respectively, of Bion Environmental Technologies, Inc. (the "Corporation"), a
Colorado corporation, submit the following Statement of Designation and
Determination of Preferences of Series B Convertible Preferred Stock.
FIRST: The name of the Corporation is Bion Environmental Technologies,
Inc., a Colorado corporation.
SECOND: At a meeting of the Board of Directors of the Corporation held
on March 27, 2009 at which a quorum was duly present and acting throughout,
the following resolution was unanimously adopted:
WHEREAS the Articles of Incorporation of the Corporation, as amended,
authorize a class of preferred shares of stock consisting of 10,000,000
shares having a par value of $.001 per share, issuable from time to time in
one or more series: and
WHEREAS the Board of Directors of the Corporation is authorized, subject
to limitations prescribed by law and by the provisions of Article IV of the
Corporation's Articles of Incorporation, to establish and fix the number of
shares to be included in any series of preferred stock and the designation,
rights, preferences and limitation of the shares to be included in any series
of preferred stock and the designation, rights, preferences and limitations
of the shares of such series; and
WHEREAS it is the desire of this Board of Directors to issue, establish
and fix a series of preferred stock and the designation, rights, preferences
and limitations of the shares of such series.
NOW THEREFORE BE IT RESOLVED that pursuant to Article FOURTH of the
Corporation's Articles of Incorporation there is hereby established a series
of 50,000 shares of preferred stock of the Corporation, to have the
designation, rights, preferences and limitations set forth in such Article IV
as modified in paragraphs (1) through (6) below:
(1) Designation. The 50,000 shares of such series shall be designated
"Series B Convertible Preferred Stock". Such series shall hereinafter be
referred to as the "Series B Preferred Stock." The Series B Preferred Stock
shall have a par value of $0.01 and shall be issued at a purchase price of
$100 per share.
(2) Conversion Rights. (a) For a period commencing Midnight, M.S.T., on
a date of issuance and terminating three years after issuance, each of the
shares of Series B Preferred Stock shall be convertible at any time and from
time to time at the option of the respective holders thereof into fully paid
and non-assessable shares of the Corporation's common stock (the "Common
Stock") upon the terms and conditions set forth in the following
subparagraphs of this paragraph ("Elective Conversion"); or as provided in
subparagraph (d) below.
(b) Each share of Series B Preferred Stock shall be convertible
into shares of Common Stock calculated by dividing the sum of the $100 per
share purchase price ("Purchase Price") plus any accrued and unpaid dividends
divided by $2.00(or into such greater or lesser number of such shares as may
be determined pursuant to any adjustment required by the provisions of
subparagraph (c) of this paragraph). The number of shares of Common Stock
issuable at any time upon conversion of one share of Series B Preferred Stock
is hereinafter referred to as the "Conversion Rate."
(c)(i) In any of the following events, occurring hereafter,
appropriate and equitable adjustment shall be made in the Conversion Rate, so
as to maintain the proportionate interest of each holder of the Series B
Preferred Stock: (A) any declaration of a dividend on the Common Stock,
payable in Common Stock or securities convertible into Common Stock;(B) any
decrease in the number of outstanding shares of the Common Stock by a
combination, consolidation or reclassification of shares; (C) any increase in
the number of outstanding shares of the Common Stock by a split-up or
reclassification of shares; or (D) any distribution by the Corporation to any
of the holders of the Common Stock, qua shareholders, of any corporate
property (excluding cash dividends payable out of funds legally available
therefore).
(ii) If there shall be effected any consolidation or merger of the
Corporation with another corporation (other than consolidation or merger in
which the Corporation is the continuing corporation) or the sale of all or
substantially all of the Corporation's assets to another corporation in
exchange for stock, then, as a condition of such consolidation, merger or
sale, lawful and fair provision shall be made whereby the Corporation shall
redeem the outstanding Series B Preferred Stock at a price of $100 per share
plus any accrued unpaid dividends or at the sole election of the Series B
Preferred Stock Holder, the holder of any share or shares of Series B
Preferred Stock shall be treated as having converted all shares of Series B
Preferred stock immediately prior to any such consolidation, merger or sale
of assets.
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(iii) No adjustment in the Conversion Rate shall be made if, at the
same time as the Corporation issues shares of Common Stock as a dividend
which, as provided in (i) above, would otherwise call for an adjustment in
the Conversion Rate, the Corporation shall issue shares of Common Stock as a
dividend or distribution on the outstanding shares of Series B Preferred
Stock equal to the dividend or distribution of the shares of Common Stock
into which the Series B Preferred Stock is then convertible.
(iv) Except as otherwise specifically provided in (i) above, no
adjustment in the Conversion Rate shall be made by reason of the issuance of
shares of Common Stock or any security convertible into shares of Common
stock in exchange for cash, property or services.
(v) Notwithstanding any other provision of this subparagraph (c) of
paragraph (2), the Corporation shall not be required, except as hereinafter
provided, to make any adjustment of the Conversion Rate in any case in which
the amount by which such Conversion Rate would be increased would be 1ess
than five one-hundredths (5/100) of a share of Common Stock, but in such case
any adjustment that would otherwise be required then to be made shall be
carried forward and made at the time and together with any and all such
adjustments so carried forward, shall amount to one (1) one-twentieth (l/20)
of a share of Common Stock, in the event of any subdivision or combination of
shares of common stock such amount of one-twentieth (1/20) (as theretofore
decreased or increased) shall be proportionately decreased or increased.
(vi) No fraction of a share of Common Stock shall be issued upon
conversion, but in lieu thereof the corporation shall, notwithstanding any
other provision of this paragraph (2), pay for such fraction an appropriate
amount in cash.
(vii) Whenever the Conversion Rate is adjusted, the Corporation
shall deliver prompt written notice to each holder of the Series B Preferred
Stock, containing a statement signed by two officers of the Corporation,
stating the adjusted Conversion Rate and sufficient facts to show the reason
for and the manner of computing the adjustments.
(viii) Neither the purchase or other acquisition by the Corporation
of any shares of common Stock nor the sale or other disposition by the
Corporation of any shares of common Stock at any time theretofore purchased
or otherwise acquired by it shall result in any adjustment of the Conversion
Rate or be taken into account in computing any subsequent adjustment of the
Conversion Rate.
(d)(i) A portion (up to 100% as calculated below) of each share of
Series B Preferred Stock shall be automatically and mandatorily converted,
prorata, into shares of Corporation's restricted Common Stock at the
Conversion Rate upon each occasion (at least thirty calendar days apart)
after a date six months subsequent to the initial issuance of shares of
Series B Preferred Stock on which the closing price of the Corporation's
publicly traded common stock shall have been equal or greater than 150% of
the Conversion Rate (initially $3.00)for twenty (20) consecutive trading days
with a reported average daily trading volume of 10,000 shares or more.
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(ii) On each occasion for mandatory conversion as set forth at
subparagraph (d)(i) immediately above, a sufficient portion of the
outstanding shares of Series B Preferred Stock shall be prorata converted so
that the holders of the Series B Preferred Stock receive an aggregate number
of shares of the Corporation's restricted Common Stock equal to seven and one
half (7.5) times the average reported daily volume of trading in the
Corporation's publicly traded Common Stock for the applicable twenty (20) day
period.
(e) The Corporation shall at all times reserve and keep available
out of its authorized but unissued shares of Common Stock, for the purpose of
effecting the conversion of shares of Series B Preferred Stock, the full
number of whole shares of Common Stock then deliverable upon the conversion
of all shares of Series B Preferred Stock at the time outstanding.
(f) The Series B Preferred Stock shall be convertible at the office
of any transfer agent therefore (or at such other place as may be designated
by the Corporation) on the earlier of the appropriate date set forth at
subparagraph (d) above or, in the event of an Elective Conversion pursuant to
subparagraph (a) above, upon surrender of the certificate or certificates
therefore, duly endorsed for transfer. Such Elective Conversion shall be
deemed to have been made as of the date of such surrender of certificates
representing shares of Series B Preferred Stock for conversion and the person
entitled to receive the Common Stock issuable on such conversion shall be
treated for all purposes as having become the record holder of such Common
Stock on such date. The Corporation shall make no payment or adjustment on
account of any dividends accrued on the shares of Series A Preferred Stock
surrendered for conversion, except that all dividends accrued and unpaid on
such shares up to the dividend payment date immediately preceding such
surrender for conversion shall be included in the conversion procedures in
calculation of the Conversion Rate.
(3) Liquidation/Redemption. In the event of a liquidation or dissolution
(or similar event) of the Corporation prior to redemption or conversion of
the Series B Preferred Stock, the Corporation shall redeem the outstanding
Series B Preferred Stock at a price of $100 per share plus any accrued unpaid
dividends or, at the sole election of the Series B Preferred Stock Holder,
the Series B Preferred Stock shall be treated as if it has been converted to
Common Stock for all purposes related to such liquidation, dissolution or
similar event. On any date more than one year after the initial issuance of
the Series B Preferred Stock, the Corporation shall have the right to call
the outstanding Series B Preferred Stock for redemption, in whole or in part
(on a prorata basis), on 10 days' written notice to the holders, at a price
equal to $100 plus any accrued unpaid dividends, during which ten (10) day
period, the holders may elect to convert the Series B Preferred Stock to the
Corporation's common stock pursuant to paragraph (2) above. Unless redeemed
or converted at an earlier date, the Corporation shall redeem the outstanding
Series B Preferred Stock at a price of $100 per share plus any accrued unpaid
dividends on the third anniversary of issuance.
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(4) Dividend Rights/Liquidation Amount. The Series B Preferred Stock
shall accrue dividends at a rate of 2.5% per quarter (10.0% annually) which
dividend shall be earned and accrued or paid quarterly (or partial quarter as
applicable). Any accrued but unpaid dividends shall be included in the
calculation of the Conversion Rate. The Purchase Price of the Series B
Preferred Stock, plus any accrued but unpaid dividends shall be the
Liquidation Amount for the Series B Preferred Stock. Upon liquidation of the
Corporation, the Liquidation Amount shall be included in the calculation of
the Conversion Rate.
(5) Covenants of the Corporation. So long as at least fifty percent
(50%) of the Series B Preferred Stock that are initially issued remain
outstanding, the Corporation shall not, without the approval of a majority of
the holders of the then outstanding Series B Preferred Stock, which approval
shall not be unreasonably withheld:
(a) Alter or amend its certificate of incorporation or bylaws or
recapitalize or reclassify any class of stock including through a merger, in
each case, in a manner that would adversely effect the rights of the holders
of the Series B Preferred Stock, or in any way change the rights of the
Series B Preferred Stock;
(b) Create or issue any class of voting securities that are senior
to the Series B Preferred Stock;
(c) Increase or decrease the authorized number of Series B
Preferred Stock (other than through conversion);
(d) Enter into any agreement that restricts the Corporation's
ability to satisfy its obligations to under the Series B Preferred Stock or
honor the exercise of conversion rights thereof;
(e) Declare a dividend or distribution or redeem or repurchase
capital stock (in each case, other than in accordance with the terms of the
Series B Preferred Stock, or a redemption of employee shares), unless,
simultaneously therewith, the Corporation shall redeem or repurchase all of
the then outstanding Series B Preferred Stock for the aggregate Liquidation
Amount;
(f) The Corporation shall not sell, lease or convey (other than by
mortgage) all or substantially all of the property or business of the
Corporation and shall not effect any merger or consolidation with any other
company unless as a result thereof and after giving effect thereto (a) the
Corporation shall be the surviving corporation, (b) the Series B Preferred
Stock shall continue to be outstanding, (c) there shall be no change in the
preference, privileges or other rights and restrictions with respect to the
Series B Preferred Stock and (d) there shall not be created or thereafter
exist as a result of thereof any new class of shares having preference over
the Series B Preferred Stock with respect to dividends, distribution of
assets or rights upon liquidation.
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(g) The Corporation shall not incur any additional debt for
borrowed money in excess of debt in an aggregate amount of up to $20 million
as direct loans to the Corporation (expressly excluding interest accruals
related to current Corporation debt and compensation accruals pursuant to
existing agreements) and excluding any debt related to financing specifically
related to individual projects.
(h) Conduct transactions with affiliates, unless the terms and
conditions of any such transaction are at least as favorable to the
Corporation as in an arms length transaction and are approved by a majority
of the disinterested members of the Board of Directors; and
(i) Enter into any agreement, or form or permit any subsidiary, to
do any of the foregoing.
(6) The Series B Preferred Stock shall have no other preferences over
the Common Stock except those specifically set forth above.
IN WITNESS WHEREOF the undersigned Corporation has caused this Statement
to be prepared, executed and verified by its duly authorized president and
secretary.
Dated: March 27, 2009 Bion Environmental Technologies, Inc.
By: /s/ Mark A. Smith
President
By: /s/ Kathleen Paradise
Secretary
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