Xxxxx X. Xxxxxx
December 16, 1996
Page 6
December 16, 1996
Xxxxx X. Xxxxxx, Chairman/President
Global Financial Group, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Dear Xx. Xxxxxx:
Upon acceptance this letter will serve as the agreement
between Global Financial Group ("GFG") and Bion Environmental
Technologies, Inc. ("BIET") concerning XXXX's retention of GFG to
provide investment banking services from December 1, 1996 to
November 30, 1998.
1. BIET. BIET designs, sells, oversees the installation,
startup and operation of waste and wastewater treatment
systems based on patented and proprietary technology.
2. GFG. GFG is in the business of providing corporate
investment banking services, including but not limited to,
providing public and non-public financing, introducing
merger/acquisition and joint venture candidates, negotiating
and other related services including but not limited to
making public markets in stocks.
3. Engagement of GFG. BIET engages GFG and GFG accepts such
engagement, effective December 1, 1996, to provide BIET with
advice; to consult with BIET concerning business and
financial planing, corporate organization and structure,
financial matters in connection with the operation of the
business of BIET, private and public equity and debt
financing, acquisitions, mergers and other similar business
combinations, BIET's relations with its securities holders,
preparation and distribution of periodic reports, and shall
periodically provide to BIET analysis of its financial
statements. Said advice and consultation shall be provided
to BIET in such form, manner and place as BIET reasonably
requests. GFG shall not by this Letter Agreement be
prevented or barred from rendering services of the same or
similar nature, as herein described, or services of any
nature whatsoever for, or on behalf of, persons, firms, or
corporations other than BIET. Similarly, BIET shall not be
prevented or barred from seeking or requiring services of a
same or similar nature from persons other than GFG.
4. Compensation.
a) BIET shall deliver to GFG upon execution hereof a
warrant to purchase 100,000 shares of BIET common stock at
$6.00 per share for a period of six months commencing June
1, 1998 and expiring December 1, 1998.
b) Additionally, if, directly or indirectly through the
efforts of GFG, BIET raises not less than $1,250,000, or
other amount satisfactory to BIET by June 30, 1997, GFG
shall have earned the following:
1) A warrant to purchase 150,000 shares of BIET
common stock at $8.00 per share for a period of
six months commencing June 1, 1999 and expiring
December 1, 1999;
2) A warrant to purchase 200,000 shares of BIET
common stock at $12.00 per share for a period six
months commencing June 1, 2001 and expiring
December 1, 2001;
3) If at any time prior to the exercise of these
warrants BIET undertakes to register any shares of
its common stock pursuant to a form of
registration statement which would allow
registration of the shares underlying the exercise
of these warrants, then BIET shall include the
underlying shares in such registration statement
at BIET's sole cost; PROVIDED, HOWEVER, in the
event of a registration statement involving an
underwriter, such underwriter shall have the
right, in its sole discretion, to impose
restrictions on the resale of BIET's securities
issued pursuant hereto and/or eliminate this
registration right from the underwritten
registration statement in its entirety. There is
no assurance that any registration statement
including the warrants or the shares underlying
the warrants will ever be filed or, if filed, will
become effective.
c) Additionally, the agreement between GFG and BIET
effective August 1, 1995 to July 31, 1996 contained warrants
to purchase 50,000 shares of BIET common stock at $2.00 per
share for a period ending July 31, 1996 which warrants have
expired, and warrants to purchase 50,000 shares of BIET
common stock at $4.00 per share for a period ending July 31,
1997 and warrants to purchase 100,000 shares of BIET common
stock at $6.00 per share for a period ending July 31, 1998
which warrants have been cancelled. However, for services
provided to this date under the agreement BIET has issued to
GFG warrants to purchase 25,000 shares of BIET common stock
at $6.00 per share for a period commencing June 1, 1998 and
expiring December 1, 1998 and warrants to purchase 50,000
shares of BIET common stock at $8.00 per share for a period
commencing June 1, 1999 and expiring December 1, 1999.
5. Non-Circumvention. BIET agrees that GFG will be paid
additional compensation in the event BIET should enter into
an agreement to combine with or acquire assets from persons
or entities first introduced to BIET by GFG. XXXX agrees
that it will not consummate any such agreement without first
entering into an agreement with GFG for compensation to GFG
for such introduction and for consultation and efforts
related thereto.
6. First Right of Refusal. If BIET determines to do a public
offering of its securities during the term of this
agreement, GFG will have the first right of refusal to act
as an underwriter for said offering, provided that GFG can
demonstrate to the satisfaction of BIET that it has the
capacity to complete an underwriting of the size
contemplated.
7. Indemnification. BIET and GFG will indemnify and hold each
other harmless from any and all losses, claims, damages or
liabilities, joint or several, to which either may become
subject in connection with any transaction contemplated by
this Letter Agreement, and agree to reimburse each other or
pay directly for any and all legal or other expenses
incurred in connection with investigating or defending any
action or claim in connection therewith; provided, however
that BIET shall not be liable in any such case to the extent
that any such loss, claim, damage or liability is found in a
final judgement by a court of competent jurisdiction to have
resulted in material part from any act by GFG which
constitutes, or results in a material breach of any
agreement with BIET, fraud, misconduct or negligence. The
foregoing indemnity shall also extend to directors,
officers, employees, agents and controlling personnel of GFG
and BIET.
8. Assignment. This Letter Agreement shall be binding upon and
inure to the benefit of the parties and their respective
successors and permitted assigns. Any attempt by either
party to assign any rights, duties or obligations which may
arise under this Letter Agreement without the prior written
consent of the other party shall be void.
9. Other Documentation. It is contemplated that BIET and GFG
may from time to time enter into other agreements concerning
matters not covered herein with respect to specific services
provided thereunder. The parties will negotiate in good
faith in their attempt to consummate such agreements.
10. General Provisions.
10.1 Representations. Each party hereto represents that it
has the right and authorization to enter into this
Letter Agreement and to bind itself to the terms and
conditions contained herein.
10.2 Governing Law. This Letter Agreement shall be governed
by and interpreted in accordance with the laws of the
State of Colorado.
10.3 Arbitration. Any dispute between the parties hereto
arising from or in relation to this Letter Agreement
which cannot be settled through amicable negotiation
shall be finally settled by arbitration in Denver,
Colorado in accordance with the arbitration rules of
the American Arbitration Association, by three
arbitrators appointed according to the applicable
arbitration rules.
10.4 No Waiver. No Provision of this Letter Agreement may
be waived except by agreement in writing signed by the
waiving party. A waiver of any term or provision of
this Letter Agreement shall not be construed as a
waiver of any other term or provision.
10.5 Entire Agreement. The Letter Agreement constitutes the
entire agreement between the parties hereto regarding
the subject matter hereof and supersedes all
negotiations, agreements and commitments in respect
thereto.
10.6 Severability. If any provision of this Letter
Agreement is declared by any court of competent
jurisdiction to be invalid for any reason, such
invalidity shall not affect the remaining provisions of
this Letter Agreement.
10.7 Termination. This Letter Agreement can be cancelled by
either party for any reason upon 30 day written notice
to the other party. In the event of a cancellation by
either party only such compensation as has been earned
to the cancellation date will be due.
10.8. Notices.
(a) If to GFG:
Global Financial Group
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
(b) If to BIET:
Bion Environmental Technologies, Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
(000) 000-0000 (fax)
Please sign on the indicated line and send a copy to me by
facsimile transmission which shall be deemed sufficient binding
acknowledgement of our agreement. I will forward an originally
executed copy of this Letter Agreement for your records and would
ask you to sign a second copy of the Letter Agreement and return
it for my records.
Sincerely,
BION ENVIRONMENTAL TECHNOLOGIES, INC.
/s/ M. Xxxxx Xxxxxxxx
X. Xxxxx Xxxxxxxx
Chief Financial Officer
AGREED TO AND ACCEPTED:
GLOBAL FINANCIAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Chairman/President