EXHIBIT 10.27
AGREEMENT
THIS AGREEMENT is executed as set forth below, pursuant to a term sheet
agreed upon as of the 15th day of December 2005 (on which date the parties
agreed to all material terms except Commencement Date), by, between and among
Bion Environmental Technologies, Inc. ("Bion"), Bion Dairy Corporation
("Dairy"), a subsidiary of Bion, (collectively Bion & Dairy, together with
the other wholly-owned subsidiaries of Bion, are sometimes referred to as the
("Bion Companies") and Xxxxxx Xxxxxxx ("JR").
WHEREAS the Bion Companies desire to receive the services of JR upon the
terms and conditions set forth in this Agreement;
AND WHEREAS JR desires to provide to the Bion Companies with his
services upon the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, the Bion Companies do hereby agree to engage the
services of JR, and (with the express consent of JR as evidenced by his
signature below), upon the terms and conditions set forth in the following
paragraphs:
1) The Term of this Agreement shall run from September 18, 2006 (or
another mutually agreed upon date during September 2006) ("Commencement
Date"), through a date four years after the Commencement Date ("Term"),
during which Term JR shall provide to the Bion Companies his full-time
services as set forth in the following provisions:
a) JR shall provide his full-time services to the Bion Companies
(initially through Dairy) as Chief Operating Officer ("COO") of Dairy, with
duties per discussions to date;
b) JR shall, at the request of Bion, also serve as COO (or in
another senior management officer ("SMO") position) of Bion provided that
Bion has D&O insurance in place and Bion has recommenced filing with the U.S.
Securities & Exchange Commission ("SEC");
c) JR, as COO and/or SMO, of Bion and/or Dairy will be part of a
small senior management cadre which will divide among themselves all of the
necessary management duties of the Bion Companies; JR shall report to the
senior management of the Bion Companies (Chairman, CEO and /or President, as
applicable), who will also be responsible for evaluation of his performance;
d) JR and the Bion Companies shall work out a mutually acceptable
manner of handling office costs, business expenses, travel expenses, etc.
which is consistent with the current treatment by the Bion Companies in
relation to other senior management and senior technical employees; in
addition, JR shall be eligible for reimbursement for reasonable medical
insurance premiums for his family and shall have the right to participate in
existing or subsequently adopted 401(k) plans;
e) JR shall initially have not less than 3 weeks of paid vacation
per year which vacation time shall be scheduled with the senior management of
the Bion Companies in a manner consistent with JR"s duties.
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2) Compensation during the Term of this Agreement (all compensations
items herein and this entire Agreement presume that Bion is receiving and JR
is providing the services as set forth above):
a) Cash compensation from the Bion Companies to JR for services
provided by JR shall be initially $150,000 per year, which shall be payable
in twice monthly installments of $6,250 commencing with the first month of
full-time service;
b) Bion shall grant to JR on the Commencement Date of this
Agreement, in aggregate, 150,000 options, each of which Options may be
exercised to purchase one share of Bion common stock for a period ending
December 15, 2015 at an exercise price of $4.00 per share (collectively,
"Options"), 25% (37,500) of which Options shall vest on the Commencement Date
and an additional 25% (37,500) shall vest on each of the next three
anniversaries of the Commencement Date; PROVIDED, HOWEVER, if JR fails to
provide the services to the Bion Companies for the entire Term (except if
this is the result of the Bion Companies terminating JR for other than
cause), all unvested Options on the date on which JR"s termination takes
place shall be automatically cancelled on such termination date; for the
purposes of these provisions, termination for cause shall include, without
limitation, any of the events listed below:
A) JR"s conviction of any criminal act including, without
limitation, misappropriation of funds or property of the Bion Companies or
any other felony criminal act;
B) JR"s misfeasance or malfeasance in office, which shall mean
fraud, dishonesty, willful misconduct or substantial neglect of duties; and
C) Breach by JR of any material provision of this Agreement.
c) In the event that the Bion Companies elect to terminate JR
without cause, the Bion Companies shall pay JR his full salary and benefits
(subject to reasonable mitigation by JR) for the lesser of the balance of the
Term or six (6) months.
d) Further, while the Bion Companies and JR have discussed the
Bion Companies" "goal" of being able to justify the declaration/payment of
substantial cash bonuses (in a range of up to 50-100% of annual cash
compensation) to senior management (and consultants performing senior
management functions) once initial major projects (initial Integrated
Projects, Dairy Parks and/or Central Processing Facilities with integrated
ethanol plants) have been completed, JR understands that the Bion Companies
are making no commitments related to such bonuses to JR (or any other
officer, director, employee or consultant) other than that JR will be
treated/evaluated in the same manner as all other senior management personnel
(including consultants). Any such bonuses will be declared/paid only when
and if the then existing Boards of Directors of the Bion Companies determines
that such bonuses have been earned and are in the best interests of their
respective shareholders.
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e) Additionally, to the extent that Bion develops policies
regarding vesting of Options and/or bonuses in the event of a "change of
control" in the future, JR will be treated in the same manner as all other
SMO"s, directors, employees & consultants pursuant to such policies.
3) JR will abide by the terms and provisions of a Confidentiality/
Proprietary Information Agreement (copy attached hereto as an Exhibit A) and
further agrees that, unless expressly waived by the Bion Companies in
writing, JR will require any and all persons who have access to confidential
information of the Bion Companies to execute copies of agreements
substantially similar to Exhibit A and that notwithstanding any other terms
herein, Exhibit A shall remain in full force and effect; and JR expressly
agree that: a) at no time during the Term or during a two (2) year period
following the end of the Term (including any extensions thereto) shall JR
compete with the Bion Companies; b) all work product, inventions, etc. of JR
made during JR"s employment pursuant to this Agreement shall be the sole
property of the Bion Companies and JR, as applicable, shall execute such
assignments and /or other documents as may be required to fully vest such
ownership in the Bion Companies; and c) all proprietary information and other
information concerning the Bion Companies acquired pursuant to the service of
JR to the Bion Companies shall at all times be and remain the sole property
of the Bion Companies regardless of how such proprietary information is
stored and upon termination of this Agreement (w/o retaining copies), JR
shall return all such proprietary information to the Bion Companies on
whatever medium it is evidenced (including w/o limitation paper files,
computer memory media, etc.)
4) a) The Bion Companies shall reimburse JR for purchase of basic
equipment (computer/cell phone/etc) which equipment will be owned by the Bion
Companies.
b) JR shall initially work in the Denver, Colorado metropolitan
area and the Bion Companies shall provide JR with appropriate office space if
office space other than JR"s home office is needed.
c) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns and
any person acquiring, whether by merger, consolidation, liquidation, purchase
of assets or otherwise, all or substantially all of a party"s equity or
assets and business.
d) It is the intention of the parties hereto that this Agreement
and the performance hereunder and all suits and special proceedings connected
herewith be construed in accordance with and pursuant to the laws of the
State of Colorado and that in any action, special proceeding or other
proceeding that may be brought arising out of, in connection with, or by
reason of this Agreement, the laws of the State of Colorado shall be
applicable and shall govern to the exclusion of the law of any other forum,
with regard to the jurisdiction in which any action or special proceeding may
be instituted.
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e) Any claim or controversy, which arises out of or relates to
this Agreement, or breach of it, shall be settled by arbitration.
f) Should any party hereto waive breach of any provision of this
Agreement, that waiver shall not operate or be construed as a waiver of any
further breach of this Agreement.
g) In the event that any one or more of the provisions of this
Agreement or any portions there under is determined to be invalid, illegal,
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
h) This Agreement shall constitute the entire agreement between
the parties hereto Oral modifications of the Agreement shall have no effect.
This Agreement may be altered only by a written agreement signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
Bion Dairy Corporation
By: /s/ Xxxx X. Xxxxx
Xxxx Environmental Technologies, Inc.
By: /s/ Xxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxx August 28, 2006
Xxxxxx Xxxxxxx
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