EXHIBIT 10.1
[LOGO]
August 6, 1998
Xxxx X. Xxxxxx
Interfund Resources Limited
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 0X
Xxxxxxxx, Xxxxxxxxxxx 00000
RE: AMENDED RETAINER AGREEMENT
--------------------------
Dear Xxxx:
As discussed, the services Interfund Resources Limited ("IRL") is
providing under our letter agreement dated June 2, 1998 have been exceptional
and well beyond the scope anticipated at the time of execution of that
agreement. To more properly reflect the agreement between the parties based
upon this subsequent performance, American Technologies Group, Inc. ("ATG" or
the "Company") desires to amend and restate, as of June 2, 1998, the letter
agreement by which ATG retains IRL as its financial advisor.
I SCOPE OF THE AGREEMENT
A) IRL shall advise the Company on its selection of:
i) Public relations firms to enhance its corporate image and
increase its exposure in the equity markets.
ii) Introduce the Company to investment bankers and work with
them to enhance the investment opportunities afforded by
the Company, and with any other investors that would
support the Company's stock.
B) IRL shall advise the Company on the following matters:
i) Redefining its corporate structure.
C) IRL shall:
i) Advise the Company concerning elements of structure, terms
and conditions of any issues of either debt or equity for
the parent or its affiliates.
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Interfund Resources Limited
August 6, 1998
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ii) Facilitate communication between the Company and any
potential purchasers of its debt or equity offerings.
iii) Investigate and facilitate potential mergers, acquisitions,
joint ventures, corporate partner and strategic alliance
opportunities.
iv) Seek to establish a relationship for the Company with an
investment banker.
v) Advise the Company on all potential actions that would
increase shareholder value.
vi) Receive and respond to any inquiries in reference to the
above.
vii) Consult and communicate with the Company's accountants and
legal counsel to successfully complete the placement of any
offering.
viii) Take such incidental or related actions on behalf of the
Company as IRL may deem appropriate.
ix) The Company is responsible for all information and
representations concerning its operations and financial
condition which may be provided to potential purchasers.
The Company understands that IRL is not obligated to
undertake any independent verification of such information
and representations and IRL assumes no responsibility for
the accuracy, fairness or completeness of such information
or representations. The Company represents and warrants to
IRL that any prospectus prepared and disseminated by the
Company in order to place any debt or equity will be
accurate and complete and will not contain an untrue
statement of material fact or omit to state a material fact
required to be stated therein, or necessary to make the
statements therein in light of the circumstances under
which they are made not misleading. The Company agrees
that all information furnished to IRL in connection with
this agreement shall be accurate and complete in all
material respects at the time provided and that if such
information, in whole or in part, becomes materially
inaccurate, misleading or incomplete during
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August 6, 1998
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the term of IRL's agreement hereunder, the Company shall
promptly so advise IRL in writing and correct any such
inaccuracy or omission.
II FEE STRUCTURE
A) IRL shall receive as its initial retainer, $25,000 of ATG Common
Stock calculated at the bid price less $0.10 as of the close of
business on June 30, 1998 to be immediately registered as free
trading under Rule S-8, if available.
B) IRL shall receive 500,000 shares of ATG Common Stock to be
immediately registered as free trading under Rule S-8, if
available. The shares shall be valued at $0.65 per share.
C) IRL shall receive a monthly retainer of $10,000 due and payable on
the last of each month throughout the term of this agreement. The
first payment being due and payable upon the execution of this
document.
D) The Company shall pay a financial advisory fee to IRL for its
service as financial advisor equal to 6.0% of the aggregate
proceeds received by the Company from issuance or placement of any
debt or equity arranged or negotiated by IRL. The financial
advisory fee referred to in this paragraph will be contingent and
due upon the closing of any proposed financing arranged by the
advisor. In addition to the foregoing fee, the Company agrees to
reimburse IRL for its pre-approved out-of-pocket fees and expenses
incurred by IRL in connection with this letter of agreement or the
services provided hereunder, which amounts shall be payable at
termination or upon the successful closing of any proposed
financing. Out-of-pocket fees and expenses shall not exceed
$10,000 in any one financing without the Company's prior written
consent. However, the Company shall be responsible for all legal
and accounting placement or underwriting fees involved in the
offering.
E) The term of this agreement shall expire on May 31, 1999.
III EXPENSES (GENERAL)
ATG shall reimburse IRL for pre-approved reasonable out-of-pocket costs
and expenses incurred by IRL in connection with this engagement
(collectively, the "Expenses"), including, without limiting the
foregoing, travel and lodging
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August 6, 1998
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expenses, fees and disbursements of legal counsel (including, without
limitation, the allocated cost of in-house legal counsel), accountants,
appraisers and other experts, registration, printing, reproduction,
document delivery and communication costs. It is understood that IRL
shall allocate Expenses as between its advisory and arranging services
in good faith and that such allocation shall be binding onto the parties
hereto.
IV INDEMNIFICATION
Each party shall indemnify and hold harmless the other and their
affiliates, and their respective officers, directors, advisors,
representatives, agents, employees and controlling persons (each an
"Indemnified Person") from and against any and all losses, claims,
damages or liabilities, joint or several, and expenses (including the
fees, changes and disbursements of external counsel and allocated costs
of internal legal counsel) incurred in connection with investigating,
preparing to defend or defending any actual or threatened action, claim
or legal, administrative or judicial proceeding or investigation
(collectively, "claims") related to or arising out of or in connection
with such party's performance of this agreement or any matter referred to
herein, whether based on contract, tort or any other theory and
regardless of whether the Indemnified Person is a formal party to any
such action, claim or proceeding, or investigation provided that such
indemnity shall not apply to Claims to the extent that a court of
competent jurisdiction shall have determined by a final judgment not
subject to further appeal that such Claims resulted solely from the
Indemnified Person's negligence or willful misconduct.
The indemnifying party agrees that it will not, without the prior written
consent of the Indemnified Person, settle any pending or threatened
action, claim, proceeding or investigation related to or arising out of
any such matter unless such settlement includes a provision
unconditionally releasing such Indemnified Person from and holding such
Indemnified Person harmless against all liability in respect to claims by
any releasing party related to or arising out of any matter referred to
in this agreement.
V CONFIDENTIALITY
A) IRL agrees to treat in confidence any information, identified as
confidential, supplied to it by ATG in connection with this
engagement. Said information shall not be revealed to third
parties under any circumstances whatsoever, except as authorized
by the provider of the information, provided, however, that IRL
may disclose such information to those of its affiliates and its
and their respective directors, officers,
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Interfund Resources Limited
August 6, 1998
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employees, agents or advisors (collectively its
"Representatives") who need to know such information for purposes
of assisting in the performance of the services contemplated by
this agreement or evaluating the Financing; it being understood
that such Representatives shall have first been informed of the
confidential nature of the information and are bound by a
confidentiality agreement comparable to this section, and
provided, further, that the information which;
i) is required to be disclosed by applicable law or is
requested by a regulatory authority having jurisdiction
over a party hereto,
ii) is or becomes generally available to the public other than
as a result of a disclosure made in breach of this Section
V or,
iii) became available to IRL from a source other than ATG or its
Representatives shall not be subjected to this Section V.
iv) the terms and provisions of this Section V shall survive
any termination or expiration of this agreement.
B) IRL shall cease to use any confidential information and shall
promptly return to ATG any and all physical, written and
descriptive matter (including all reproductions and copies
thereof) containing confidential information upon termination or
expiration of this agreement.
VI AVAILABILITY OF INFORMATION
ATG agrees to make available to IRL in a timely manner all information
IRL shall reasonably deem appropriate in connection with its activities
on IRL's behalf and shall provide IRL full access to ATG's officers,
directors, employees and professional advisors as required in connection
with the performance by IRL of its services hereunder. XXX recognizes
and confirms that IRL in acting pursuant to this engagement will be using
information in public reports and other information provided by ATG, and
that IRL does not assume responsibility for, and may rely without
independent verification upon the accuracy and completeness of any such
information.
VII EXCLUSIVITY
ATG agrees that no other person or entity may be engaged or authorized
during the term of this agreement to perform services on its behalf of
the type which IRL
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August 6, 1998
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is authorized to perform hereunder in connection with the transactions
contemplated by this agreement.
VIII MATERIAL ADVERSE CHANGE
IRL's responsibilities under this agreement are subject to there being no
material adverse change in the financial or other condition, business or
prospects of ATG or the financial markets of any jurisdiction relevant to
the transactions contemplated by this agreement, provided however, if IRL
determines there has been a material adverse change, then this agreement
shall immediately terminate.
IX ASSIGNMENT
This agreement may not be assigned by either party to any other without
the prior written consent of the other party to this agreement.
X GOVERNING LAW AND SUBMISSION TO JURISDICTION
A mutually agree arbitration clause will be inserted and executed at a
later date as Addendum No. 1.
XI MISCELLANEOUS
IRL and ATG may place public announcements or advertisements in financial
and other newspapers and journals describing its services hereunder
subject to approval, except as may be required by law.
Signature on this agreement received by way of FAX transmission shall be deemed
to be an executed contract agreement enforceable and admissible for all purposes
as may be necessary under the terms of the agreement. All signatories hereto
acknowledge that they have read the foregoing agreement and by their signature
hereby unconditionally agree to its terms and conditions as of the dates noted
below. All signatories hereto warrant that they have full and complete
authority to execute this document for and in the name of the party for which
they have given their signature.
Xxxx X. Xxxxxx
Interfund Resources Limited
August 6, 1998
Page 7
Sincerely,
American Technologies Group, Inc.
By: /s/ Xxxxxxxx X. Xxxxx
_______________________
Name: Xxxxxxxx X. Xxxxx
Title: CEO Dated: August 6, 1998
Accepted and agreed on the above mentioned terms and conditions:
Interfund Resources Ltd.
By: /s/ Xxxx X. Xxxxxx
_________________________
Name: Xxxx X. Xxxxxx
Title: President & CEO Dated: August 6, 1998
