November 5, 2007
November
5, 2007
Green
Energy Technology, Inc.
Attn:
Xxxx Xxxxxx
000
Xxxxx
Xxxxxx #000
San
Rafael, CA 94901
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Re:
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Letter
of Intent for the Share Exchange Agreement between Better Biodiesel,
Inc.,
and Green Energy Technology,
Inc.
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Dear
Xx.
Xxxxxxxx:
This
letter of intent (the “LOI”) dated October 31, 2007 will confirm the
general terms upon which Better Biodiesel, Inc., a Colorado corporation
(“Better Biodiesel”), and Green Energy Technology, Inc., a California
company (“GET”), will enter into a share exchange agreement (the
“Agreement” or “Share Exchange”) whereby common stock of Better
Biodiesel and Better Biodiesel’s best efforts commitment to facilitate capital
financing (to be definitively stated in the Agreement) shall be exchanged for
100% of the common stock of GET (the “GET Shares”). Upon the
development, execution and closing of a definitive Share Exchange, which shall
occur on or prior to November 30, 2007, GET will exist as a wholly owned
subsidiary of Better Biodiesel (the “Closing”), in the manner
described below.
We
propose that the Agreement be negotiated and executed by our respective Boards
of Directors and Managers and that the Agreement contain the following general
terms and conditions.
A. The
Exchange.
(i)
GET, at Closing, shall deliver the GET Shares, subject to customary due
diligence, in exchange for the consideration (the “Consideration”)(to be
definitively stated in the Agreement):
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(a)
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15,750,000
shares of common stock of Better Biodiesel less shares transferred
to
designees of Better Biodiesel for the purposes of meeting certain
expenses
of the Share Exchange transaction that may be incurred (to be definitively
stated in the Agreement) (the collectively the “Better Biodiesel
Shares”). Any and all Better Biodiesel common stock issued
pursuant to the Agreement shall be restricted for a period of up
to two
years, pursuant to Rule 144 of the Securities Act of 1933, unless
otherwise included on a registration
statement;
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(b)
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Better
Biodiesel’s commitment to facilitate and secure, on a “best efforts”
basis, capital financing of up to $7.5 million, to be delivered within
one
hundred eighty days (180) days following the Closing of the Share
Exchange; and
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(c)
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Better
Biodiesel’s settlement of all liabilities in connection with, or
obligations owed to, Better Biodiesel’s current President/Chief Executive
Officer; and
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(ii) The
Share Exchange is intended to be a tax-free reorganization under Section 368
of
the Internal Revenue Code and the parties hereto shall use their best efforts
in
the structuring and carrying forth of the Share Exchange in order to maintain
tax free treatment of the transaction.
B. Agreement.
The
Agreement shall include, contain or provide the following:
(i) Representations
and Warranties. The Agreement shall contain the customary and usual
representations and warranties by the parties. The principal
executive officer of each of the parties shall certify these representations
and
warranties “to the best of his personal knowledge and information.”
(ii) Financial
and Other Information.
(a) The
examination and inspection of the books and records of each of the parties
prior
to Closing; the delivery no later than at Closing of customary schedules listing
GET’s material contracts; real and personal property; pending, threatened and
contemplated legal proceedings; employees; assets and liabilities, including
contingencies and commitments; and other information reasonably
requested;
(b)
Not
later than November 30, 2007 Better Biodiesel shall provide financial statements
to GET at least as complete and comprehensive as financial statements to be
provided by GET under (ii)(c)(I) and (ii)(c)(II). GET acknowledges
that Better Biodiesel’s Form 10-KSB for the fiscal year ended September 30,
2007, will be filed not later than December 31, 2007, unless otherwise extended,
pursuant to Rule 12(b)-25(b) of the 1934 Exchange Act, to January 14,
2008;
(c) GET
shall provide financial statements consisting of a balance sheet and a related
statements of income and cash flow for (I) the prior two (2) fiscal years,
(II)
for the quarters subsequent to the most recent fiscal year and (III) for the
period subsequent to the most recent quarter if material changes have occurred
(the “Financial Statements”), which fairly represent the financial
condition of GET as of the respective dates and for the periods
involved,
and
such
statements shall be prepared in accordance with generally accepted accounting
principles consistently applied, on Closing, for such period or for such periods
as shall be set
forth
in
the Agreement. In the event that GET does not have these Financial
Statements readily available at Closing, GET shall provide a written
representation of GET’s ability to produce the Financial Statements in auditable
form within forty-five (45) days following the Closing; and
(d) The
Financial Statements of GET shall state zero dollars ($0.00) of debt-related
liabilities.
(iii) Expenses. Better
Biodiesel and GET shall bear their own expenses prior to the
Closing.
(iv) Conduct
of Business prior to Closing. Until consummation or termination of an Agreement,
GET will conduct business only in the ordinary course and the assets of GET
shall not be sold or disposed of except in the ordinary course of
business.
(v) Appointment
of Managers. Immediately upon Closing, Better Biodiesel shall appoint
GET’s designated management team.
(vi) Appointment
to the Board of Directors. Immediately upon or prior to the Closing,
Better Biodiesel shall two (2) GET designees to the board of
directors;
(vii) Prior
to November 30, 2007, Better Biodiesel shall obtain shareholder approval and
effect the necessary regulatory filings for the corporate name change of Better
Biodiesel to “Green Energy Technology, Inc.”
(viii) Miscellaneous
Provisions.
(a) Better
Biodiesel and GET shall have received all permits, authorizations, regulatory
approvals and third party consents necessary for the consummation of the change
of domicile and/or the Closing of the Agreement, and all applicable legal
requirements shall have been satisfied.
(b) The
Agreement shall be negotiated and executed as soon as the parties have arrived
at and acceptable definitive Agreement, and Better Biodiesel shall instruct
its
legal counsel to immediately prepare all necessary documentation to facilitate
negotiations upon the execution of this LOI.
(c) The
Board of Directors of Better Biodiesel and the managers of GET and the requisite
majority of the stock holders and members required under applicable law shall
have approved the Agreement.
(d) All
notices or other information deemed required or necessary to be given to any
of
the parties shall be given at the following addresses:
Better
Biodiesel
c/o
The
Xxxx Law Group, PLLC
000
Xxxxx
Xxxxxx, Xxxxx 0000
Seattle,
WA 98101
GET
Attn:
Xxxx Xxxxxxxx
000
Xxxxx
Xxxxxx #000
San
Rafael, CA 94901
With
a copy to:
_____________________
_____________________
_____________________
_____________________
(e) Any
finder’s fee or similar payment with respect to the Agreement shall be paid by
the party or parties agreeing to such fee or payment.
(f) An
Agreement shall contain customary and usual indemnification and hold harmless
provisions.
(g) The
transactions which are contemplated herein, to the extent permitted, shall
be
governed by and construed in accordance with the laws of the State of
California. This provision shall not and does not, in any manner,
control or imply any issues that may arise regarding venue of a court of
law.
(h) Each
party and its agents, attorneys and representatives shall have full and free
access to the property, books and records of the other party (the
confidentiality of which the investigating party agrees to retain) for purposes
of conducting due diligence.
(i) The
substance of any public announcement with respect to the exchange, other than
notices required by law, shall be approved in advance by all parties or their
duly authorized representatives.
(j) Until
the earlier of the Closing or the termination of negotiations pursuant to this
LOI, GET agrees that it will not, nor will it permit any of its respective
representatives or
agents
to, directly or indirectly, solicit, initiate, or encourage any inquiries or
proposals from, discuss or negotiate with, or provide any information to, any
third persons or parties relating to any transaction the completion of which
would likely make the negotiation and execution of a Definitive Agreement or
any
related transaction impractical to complete.
C. Counterparts.
This
LOI
may be executed in any number of counterparts and each such counterpart shall
be
deemed to be an original instrument, but all of such counterparts together
shall
constitute one agreement.
D. Confidentiality.
As
used
in this LOI, “Confidential Information” means all nonpublic information
disclosed by the one party or its agents to the other that is designated as
confidential or that, given the nature of the information or the circumstances
surrounding its disclosure, reasonably should be considered as
confidential. Confidential Information includes, without limitation
(i) nonpublic information relating to the party’s technology, customers,
business plans, promotional and marketing activities, finances and other
business affairs, and (ii) third-party information that the party is
obligated to keep confidential.
The
parties may use Confidential Information only in connection with its business
relationship with the other party. Except as expressly provided in
this LOI, the parties hereto agree not to disclose Confidential Information
to
anyone without the other party’s prior written consent. Each party
will take all reasonable measures to avoid disclosure, dissemination or
unauthorized use of Confidential Information, including, at a minimum, those
measures it takes to protect its own confidential information of a similar
nature.
If
the
foregoing correctly sets forth the substance of the understanding of the
parties, please execute this LOI in duplicate. Retain one copy for your records
and return one to Xxxxx X. Xxxx, The Xxxx Law Group, PLLC, 000 Xxxxx Xx., Xxxxx
0000, Xxxxxxx, Xxxxxxxxxx 00000.
E. Non-solicitation,
Non-circumvention, Exclusivity.
GET
agrees not to solicit or otherwise seek other persons or entities for the
purpose of entering into a corporate transaction or joint venture that would
likely make the negotiation and execution of the Share Exchange or any related
transaction impractical to complete for the period commencing upon mutual
execution of this LOI and ending upon the earlier of November 30, 2007 or the
good faith termination of this LOI (the “Exclusivity
Period”). During the Exclusive Period, GET also agrees not to
solicit or participate in any discussions or negotiations for any merger or
other form of business combination or other type of investment other than the
Share
Exchange
contemplated by this LOI. If GET receives an unsolicited offer
on more favorable terms, profile will immediately notify Better Biodiesel and
the GET board of directors may consider the offer in accordance with their
fiduciary duties to shareholders.
F. Nature
of this Letter of Intent.
This
Letter of Intent merely evidences the intention of the parties hereto to use
their best efforts to negotiate in good faith and enter into a binding Share
Exchange Agreement, which shall be the controlling agreement
thereafter. If the parties, despite their best efforts and good
faith, are unable to negotiate and enter a binding Share Exchange Agreement,
Section D, above, shall survive the termination of this LOI, and each of the
parties agrees to hold the others harmless for any attorney’s fees, accountant’s
fees, expenses or other damages which may be incurred by their good faith
failure to consummate the Share Exchange Agreement.
Xxxxxx
and accepted as of the date first written above.
/s/
Xxxxx X.
Xxxx
By: Xxxxx
X. Xxxx
Its: Director
Green
Energy Technology, Inc.
/s/
Xxxx
Xxxxxxxx
By: Xxxx
Xxxxxxxx
Its: President
