[CAPITAL GROWTH FINANCIAL LETTERHEAD]
June 21, 2004
Biofield Corporation
0000 Xxxx Xxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx Xx. M.D., PhD.
Gentlemen:
This will confirm our agreement that CGF Securities, LLC ("CGF") shall, for the
term of this agreement, from the date hereof through August 31, 2004 (unless
extended by mutual agreement), render its services to Biofield Corporation (the
"Company") as financial advisor and Managing Placement Agent regarding the
Company's intention to raise up to $800,000 (with a 20% over allotment option)
in debt plus equity (the "Financing").
1. The Financing. As soon as practicable after preparation of suitable
and mutually agreeable offering materials and subject to continued due
diligence, CGF shall use its best efforts to arrange the Financing
with accredited or sophisticated investors acceptable to the Company.
The Financing will consist of up to $800,000 (with a 20% over
allotment option) in one year, 12% (payable monthly) Promissory Notes
plus shares of Common Stock of the Company as described on the Term
Sheet attached hereto and made part hereof.
2. Placement Fees. The Company shall pay CGF, as compensation for its
services, 10% of the gross proceeds of the Financing, payable in cash
as financing proceeds are received by the Company. This placement fee
will apply to any proceeds received during the term of this agreement
and within 12 months of the termination of the term of this agreement
from sources introduced to the Company by CGF during the term of this
agreement. The Company shall issue to CGF and/or its designees five
year cashless warrants to purchase a number of shares equal to 10% of
the number of shares issued in the Financing, exercisable at $.20 per
share. The Company shall pay the placement fees due CGF upon each
closing. In the event the Company refuses or otherwise fails to
complete the Financing despite performance by CGF, if sufficient
arrangements shall have been made by CGF so that the Financing
contemplated hereby is in a position to be consummated, then
CGF Securities, LLC
a Capital Growth Financial company
000 XX XXXXXX XXXX., XXXXX 000 x XXXX XXXXX, XX 00000
TEL: 000-000-0000 o FAX: 000-000-0000
XXX.XXXXXXXXXXXXX.XXX
(Member NASD/MSRB/SIPC)
Biofield Corporation
Page 2
June 21, 2004
the Company shall pay to CGF a "break-up" fee as compensation for
services and as liquidated damages, in lieu of any and all other
damages, and in addition to any advances paid pursuant to this
agreement, in the amount of twenty five thousand dollars ($25,000).
3. Cooperation. The Company and CGF shall cooperate with one another
fully in order to consummate the Financing contemplated herein as
expeditiously as practicable. In particular, the Company will prepare
such offering and supporting materials as CGF may reasonable request.
Further, on a monthly basis, The Company will provide to CGF financial
information to include profit and loss statement and cash position and
cash outflows in the previous month.
4. Expenses. The Company agrees to pay or to reimburse CGF for all
reasonable expenses related to the Financing (including CGF legal fees
and expenses). All expenses in excess of $1,000 are to be approved in
writing by the Company (except for legal fees and expenses up to
$5,000).
5. Confidentiality. CGF will not disclose to any other person, firm or
corporation, nor use for its own benefit during or after the term of
this agreement, any trade secrets or other information designated as
confidential by the Company which is acquired by CGF in the course
performing services hereunder. (A trade secret is information not
generally known to the trade, which gives the Company an advantage
over its competitors. Trade secrets can include, by way of example,
products or services under development, production methods and
processes, sources of supply customer lists, and marketing plans). Any
financial advice rendered by CGF pursuant to this agreement may not be
disclosed publicly in any manner without the prior written approval of
CGF. At the conclusion of this engagement and upon request by the
Company, CGF shall return all material deemed confidential, supplied
by the Company and confirm that any and all copies of such material
have been destroyed.
6. Indemnification. The Company hereby agrees to indemnify, defend and
hold harmless CGF and its affiliates, the respective directors,
officers agents and employees of CGF and its affiliates and each other
person, if any, controlling CGF or any of its affiliates from and
against any losses claims, damages or liabilities (or actions,
including shareholder actions, in respect thereof) arising out of the
engagement of CGF by the Company pursuant to the terms hereof or in
connection therewith, and will reimburse CGF, and any other party
entitled to be indemnified hereunder for all expenses (including
attorneys fees) threatened litigation in which CGF or any of its
affiliates is a party. The Company will not, however, be responsible
for any claims, liabilities, losses, damages or expenses, which have
resulted from CGF's misconduct or gross negligence. The Company
Biofield Corporation
Page 3
June 21, 2004
also agrees that neither CGF, nor any of its affiliates, nor any
person controlling CGF, or any of its affiliates, shall have any
liability to the Company for or in connection with the engagement
pursuant to the terms hereof, except for any such liability for
losses, claims, damages or expenses incurred by the Company that
result from CGF's misconduct or negligence. The foregoing agreement
shall be in addition to any rights that CGF or any indemnified party
may have at a common law or otherwise, including, but not limited to,
any right to contribution. The Company hereby consents to personal
jurisdiction, services of process and venue in any court in which any
claim subject to this indemnification provision is brought against CGF
or any other indemnified party, only with respect to any other claim
that may be made against the Company. The obligation to indemnify CGF
pursuant to the terms of this paragraph shall survive and remain in
full force and effect following the completion of any transaction
contemplated herein or the expiration or termination of this
agreement. CGF herby agrees to indemnify, defend and hold harmless the
Company and its affiliates, the respective directors, officers, agents
and employees of the Company and its affiliates and each other person,
if any, controlling the Company or any of its affiliates, from and
against any losses, claims, damages or liabilities (or actions,
including shareholder actions in respect thereof) incurred as a result
of claims asserted by third parties arising out of misconduct or gross
negligence of CGF in connection the engagement of CGF hereunder for
all expenses (including attorneys fees) as they are incurred by the
Company, or any other indemnified party in connection with
investigating, preparing or defending any such action or claim,
whether or not in connection with investigating, preparing or
defending any such action or claim, whether or not in connection with
pending or threatened litigation in which the Company, or any of its
affiliates is a party. CGF agrees that neither the cCompany, nor any
of its affiliates, nor any person for or in connection with CGF's
engagement pursuant to the terms hereof, except for any liability for
losses, claims, damages, liabilities or expenses that result from the
Company's misconduct or gross negligence. The foregoing agreement
shall be in addition to any rights that any indemnified party may have
at common law or otherwise including, but not limited to any right of
contribution. CGF hereby consents to personal jurisdiction, service of
process and venue in any court in which any claim subject to this
indemnification provisions brought against the company, or any other
indemnified party, only with respect to any other claim that may be
brought against CGF. CGF's obligation to indemnify the Company, and
others pursuant to the terms of this paragraph shall survive and
remain in full force and effect following the completion of any
transaction contemplated herein or the expiration or termination of
this agreement. Jurisdiction and Venue of any legal proceeding shall
be governed by Paragraph 9.
7. Operating Matters. Any transaction between the Company or any of its
affiliates, on the one hand, and any other affiliates of any the
officers, directors and controlling persons of the Company shall be on
terms and conditions that are no less favorable to the Company, or any
of its affiliates that the terms and conditions that would be
available in dealings with independent third parties.
8. Governing Law. The internal laws of the State of Florida shall govern
this agreement. Any dispute arising out of this agreement shall be
adjudicated in the courts of the State of Florida or in the federal
courts sitting in the Southern District of the State of Florida.
Biofield Corporation
Page 4
June 21, 2004
9. Due Authority. The Company and CGF each represents to the other that
it has due authority to enter into this agreement and that the officer
executing this agreement has full authority to do so.
10. If any legal action or other proceeding is brought in connection with
the interpretation or enforcement of any of the provisions of this
agreement, the prevailing party shall be entitled to recover its
reasonable attorney's fees and other costs incurred in an action or
proceeding in addition to any other relief to which the party may be
entitled.
Please confirm that the foregoing correctly sets forth our understanding by
signing a copy of this letter where provided and returning it to us along with
payment of the expense advance referred to in paragraph 4 above, at your
earliest convenience.
Very truly yours, Accepted and agreed:
CGF SECURITIES, LLC Biofield Corporation
By _________________________ By___________________________
Xxxx Xxxxxx Xxxxx X. Xxxx Xx. M.D., PhD
Chairman and CEO Chairman and CEO
cc: Xxxxxx Xxxxxxxx
