EXHIBIT 10.28
September 17, 1999
Xx. Xxxxxxx X. Xxxxxxxx
President/CEO
Big Buck Brewery & Steakhouse, Inc.
X.X. Xxx 0000
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Re: CONSULTING SERVICES
Dear Xx. Xxxxxxxx:
This letter sets forth the terms and conditions under which Private Equity
("Private Equity") would be willing to engage in consulting services for Big
Buck Brewery & Steakhouse, Inc. ("Big Buck") on a nonexclusive basis.
1. SERVICES PROVIDED. Private Equity shall provide the following investment
banking services, as appropriate and necessary:
A. We will provide advice, recommendations and introductions regarding
financing options, market conditions, program structure and
strategic options, including acquisitions and mergers.
B. We will assemble and package the appropriate documentation, with
your cooperation, for use in presentations to shareholders and
investors which will consist of an updated business plan.
C. With The Xxxxx Group, we will analyze Big Buck and provide a
detailed plan as to cost savings that can be implemented.
D. We will introduce Big Buck to brokerage firms, market makers, and
other strategic investors. Private Equity will maintain regular
contact with these firms/investors to update them as to Big Buck's
performance and future activity. We will provide Big Buck with
weekly updates as to our contacts.
E. We will work closely with the Board of Directors and executive
management to increase the financial stability of the company and
present a strategic plan to accomplish the same to executive
management within 60 days of the date of this letter.
2. EXPENSES. Big Buck shall bear all reasonable costs and expenses approved
by Big Buck that are incidental to Private Equity's consulting efforts,
including appraisals; engineering and environmental reports; fees and
expenses of counsel for Private Equity and Big Buck. In all cases, Private
Equity will obtain written authorization from Big Buck prior to incurring
any third party expenses. Private Equity shall provide an itemized invoice
each month to Big Buck for the previous month's costs and expenses.
3. COMPENSATION. Upon execution of this agreement, Private Equity will
receive an unregistered warrant to purchase 150,000 shares of Big Buck
common stock at an exercise price of $2.00 per share with an expiration
date of October 1, 2002. Exhibit A, attached hereto and by this reference
made a part hereof, sets forth the vesting of this warrant. In addition,
upon execution of this agreement, Big Buck shall issue an unregistered
Xx. Xxxxxxx X. Xxxxxxxx
September 17, 2000
Page 2
warrant to purchase 50,000 shares of Big Buck common stock at an exercise
price of 1.625 per share with an expiration date of October 1, 2002. Such
warrant shall immediately vest.
4. DISCLOSURE. Big Buck agrees to provide Private Equity and/or its
consultants with all information, including up-to-date financial data on
its operations. All such information shall be furnished in a timely manner
and shall be complete and accurate to the best of Big Buck's knowledge.
Big Buck will allow prospective investors or lenders the opportunity to
ask questions concerning the operations and financial statements as
necessary. The executive management of Big Buck may be required to attend
meetings and conference calls in this respect. Big Buck will disclose to
Private Equity sources for capital that Big Buck has initiated presently
and any additional contacts made during the term of this agreement.
Private Equity will communicate all meetings, discussions and
presentations made to third parties on behalf of Big Buck as provided in
Section 1(D).
5. CONFIDENTIALITY. Private Equity agrees to keep confidential all
information concerning Big Buck's business including, but not limited to,
its methods of operation, forms, correspondence and writings concerning
Big Buck's business disclosed in connection with this transaction. Big
Buck agrees to keep confidential any information concerning Private
Equity's business, including Private Equity's industry contacts which it
may introduce to Big Buck, other than as required by law.
6. TERM. This agreement shall remain in full force and effect until October
1, 2003, unless otherwise terminated by either party after 30 days'
notice. Outstanding warrants not vested at the time of termination of this
agreement shall immediately expire upon termination of this agreement.
7. INDEMNIFICATION. Big Buck agrees to indemnify and hold harmless Private
Equity, its officers, directors, employees and affiliates against any
loss, claims, damages, and other liabilities, costs and expenses as may be
incurred (including without limitation, reasonable legal expenses) in
connection with any negligent or intentional or willful misrepresentation
by Big Buck. However, Big Buck will not be liable under this paragraph to
the extent that any loss, claim, damage or liability are finally
determined by a court of competent jurisdiction to have been the result of
negligence, willful misconduct, or intentional misrepresentation on the
part of Private Equity, its employees or affiliates; in which case Private
Equity shall similarly indemnify Big Buck.
8. XXX XXXXXXXX. The parties hereto recognize that Xxx Xxxxxxxx is an
integral part of this agreement. If Xxx Xxxxxxxx ceases to be a member of
Private Equity, Big Buck shall have the right to terminate this agreement
required without the notice under Section 6. Outstanding warrants not
vested at the time of termination of this agreement shall immediately
expire upon termination of this agreement.
9. INTEGRATION. This letter contains all understandings and agreements of the
parties and supercedes any and all prior communications between the
parties, oral and written, with the exception of Non-Exclusive Financing
Agreement dated July 1, 1999, and may be amended only by writing and
signed by both parties.
10. BINDING AGREEMENT, NOT A COMMITMENT. This letter shall be a binding
agreement when executed by the parties.
11. NOTICE. Any notice to be given pursuant to this agreement may be effected
in writing by personal delivery, facsimile or by Certified U.S. Mail
addressed to the other party at the address shown below. Service by mail
shall be deemed effective at the expiration of the fifth business day
after mailing. Each
Xx. Xxxxxxx X. Xxxxxxxx
September 17, 2000
Page 3
party may designate a substitute address by giving written notice to the
other party. Mailed notices shall be addressed as follows:
PRIVATE EQUITY 00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
ATTN: E. Xxxxxxx Xxxxxxx, Director, Capital Markets
BIG BUCK P.O. Box 1430
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
ATTN: Xxxxxxx X. Xxxxxxxx, President/CEO
12. MISCELLANEOUS. In the event of a dispute under this agreement, the parties
agree to submit to binding arbitration under the rules established by the
American Arbitration Association. The prevailing party will be entitled to
receive reimbursement for all legal expenses and costs of enforcing this
agreement. This agreement shall be governed by the laws of the state of
Michigan.
13. EXECUTION IN COUNTERPARTS. This letter may be executed in any number of
counterparts, each of which shall be deemed an original, but such
counterparts together constitute only one and the same instrument. The
parties also agree that a duly executed counterpart transmitted by
facsimile shall have the same force and effect as the signed original.
This letter is solely for the benefit of the parties and may not be relied
upon by any other person or entity. If this letter correctly sets forth your
understanding of our agreement, please indicate your acceptance by signing and
returning to us the enclosed copy of this letter before October 1, 1999.
Very truly yours,
PRIVATE EQUITY LLC
/s/ E. Xxxxxxx Xxxxxxx
----------------------------
E. Xxxxxxx Xxxxxxx
Director, Capital Markets
AGREEMENT ACCEPTED AND
AUTHORIZATION GIVEN TO PROCEED BY:
/s /Xxxxxxx X. Xxxxxxxx September 21, 1999
----------------------------------- ----------------------------
Xxxxxxx X. Xxxxxxxx, President/CEO Date:
Big Buck Brewery & Steakhouse, Inc.
EXHIBIT A
WARRANT VESTING SCHEDULE
50,000 Shares when stock attains and closes on The Nasdaq Stock Market at a
price of four dollars ($4.00) for ten (10) consecutive business days.
50,000 Shares when stock attains and closes on The Nasdaq Stock Market at a
price of five dollars ($5.00) for ten (10) consecutive business days.
50,000 Shares when stock attains and closes on The Nasdaq Stock Market at a
price of six dollars ($6.00) for ten (10) consecutive business days.
A-1
