EXHIBIT 10(j)
GIVIGEST FIDUCIARIA SA
One Time Program
INVESTMENT BANKING AGREEMENT
THIS INVESTMENT BANKING AGREEMENT made this 27th day of March, 2000 by and
---- -----
between:
GIVIGEST FIDUCIARIA XX
Xxxxx Xxxxxxx 0,
XX-0000 Xxxxxx, Xxxxxxxxxxx
a Swiss Corporation (hereinafter referred to as "GIVIGEST"), and;
AIR PACKAGING TECHNOLOGIES, INC.
00000 Xxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxx, XXX
(hereinafter referred to as "COMPANY");
collectively GIVIGEST and COMPANY hereinafter referred to as "the parties".
WITNESSETH:
WHEREAS, GIVIGEST is an investment banking, financial, management
consulting and strategic planning firm, with expertise in the dissemination of
information about publicly traded companies, and is in the business of providing
investor relations services and other related program services and products;
and,
WHEREAS, COMPANY is publicly held with its common stock trading Over the
Counter (OTC) under the ticker symbol "AIRP", and
WHEREAS, COMPANY desires the advise and services of GIVIGEST in providing
investor relations, preparation of research reports, being introduced to
institutional investors, and assist in a private placement, and
WHEREAS, GIVIGEST is willing to accept COMPANY as a client and to assist
COMPANY in the aforementioned matters,
THEREFORE, in consideration of the mutual covenants contained herein, it is
agreed as follow:
DEFINITIONS AND INTERPRETATIONS
1. Captions and Section Numbers
The headings and section references in this Investment Banking Agreement are for
convenience or reference only and do not form a part of this agreement and are
not intended to interpret, define or limit the scope, extent or intent of this
Investment Banking Agreement or any provisions thereof.
2. Extended Meanings
The words "hereof", "herein", "hereunder" and similar expressions used in any
clause, paragraph or section of this agreement will relate to the whole of this
Investment Banking Agreement and not to that clause, paragraph or section only,
unless otherwise expressly provided.
3. Number and Gender
In this Investment Banking Agreement, words importing the masculine gender
include the feminine or neuter gender and words in the singular include the
plural, and vice-versa.
4. Section References and Schedules
Any reference to a particular "article", "section", "paragraph" or other
subdivision of this Investment Banking Agreement and any reference to a
schedule, exhibit or addendum by name, number and/or letter will mean the
appropriate schedule, exhibit or addendum attached to this Investment Banking
Agreement.
AGREEMENT
5. Appointment
COMPANY hereby appoints and engages GIVIGEST, on exclusive basis, as its
investment banking and financial planning counsel for Europe, and hereby retains
and employs GIVIGEST upon terms and conditions of this Investment Banking
Agreement.
GIVIGEST accepts such appointment and agrees to perform the services upon the
terms and conditions of said Investment Banking Agreement.
6. Authority and Description of Services
During the term of this Agreement, CONSULTANT shall furnish various professional
services and advice as needed and as specifically requested by Xx. Xxxxxx
Xxxxxxxx, President of COMPANY and/or a representative appointed by the Board of
Directors of COMPANY. Said professional services and advice shall relate to
those services, items and/or subjects described in Addendum "A", which is
attached hereto and made a part hereof by this reference.
7. Term of Agreement
This agreement shall become effective on April 1, 2000 shall continue for a
period of one year.
8. Where Services Shall Be Performed
GIVIGEST services shall be performed at the main office location of GIVIGEST in
Lugano (Switzerland), or other such designated location(s) as GIVIGEST and
COMPANY agree are the most advantageous for the work to be performed.
9. Limitations On Release Of Information
The parties hereto recognize that certain responsibilities and obligations are
imposed by federal and state securities laws and by the applicable rules and
regulations of stock exchanges, the National Association of Securities Dealers,
in house "due diligence" or "compliance" departments of brokerage houses, etc.
Accordingly, GIVIGEST agrees as follows:
(a) GIVIGEST will NOT release any financial or other information or data
about COMPANY that has not previously been publicly disseminated, without the
consent and approval of COMPANY.
(b) GIVIGEST will NOT conduct any meetings with financial analysts without
informing COMPANY in advance of any proposed meeting, the format or agenda of
such meeting and allowing COMPANY to elect to have a representative of COMPANY
attend such meeting.
10. Duties Of COMPANY
(a) COMPANY shall supply GIVIGEST, on a regular and timely basis, with all
approved data and information about COMPANY, its management, its product and its
operations; and COMPANY shall promptly advise GIVIGEST of any facts which would
affect the accuracy of any prior data and information previously supplied to
GIVIGEST so that GIVIGEST may take corrective action.
(b) COMPANY shall promptly supply GIVIGEST with full and complete copies of
all filings with all federal and state securities agencies; with full and
complete copies of all shareholder reports and communications; with all data and
information supplied to any analyst, broker-dealer, market maker, or other
member of the financial community; and with all product/services brochures,
sales material, etc.
(c) COMPANY will immediately notify GIVIGEST if it intends to make any
additional private or public offering of securities, including an S-8 or other
registered offering, a Regulation S placement, or any other public or private
placement or distribution of its securities and give GIVIGEST a first right of
refusal to make such offering or placement upon the same terms and conditions.
(d) COMPANY will immediately notify GIVIGEST at least 15 days prior to any
insider selling of COMPANY'S stock, an insider being defined as any officer,
director, or holder of five (5) per cent or more of COMPANY'S outstanding
securities.
(e) In that GIVIGEST shareholders, officers, employees, and/or members of
their families may hold a position in and engage in transactions with respect to
COMPANY securities and, in light of the fact that GIVIGEST imposes restrictions
on such transactions to guard against trading on the basis of material non
public information, COMPANY shall contemporaneously notify GIVIGEST if any
information or data being supplied to GIVIGEST has not been generally released
or promulgated.
(f) COMPANY will consult with GIVIGEST, in advance, of its intention to
issue to COMPANY officers, directors, employees, or consultants any new options
or warrants on its common stock In the event that GIVIGEST disagrees with such
issuance and COMPANY carries through with the issuance, GIVIGEST shall have the
unilateral right to terminate this agreement.
(g) Prior to this agreement becoming effective, COMPANY will provide to
GIVIGEST a year 2000 budget and warrants that it will not materially deviate
from such budget without first consulting with GIVIGEST as to the propriety of
any such deviation. In the event Company materially deviates from such budget
without the permission of GIVIGEST, which shall not be unreasonably withheld,
GIVIGEST shall have the right to terminate this agreement and any unearned
portion of Compensation provided for in Addendum A shall immediately become
fully earned as liquidated damages for this breach. The aforementioned Budget
shall be attached hereto as Addendum B.
(h) COMPANY will not negotiate with or enter into any agreement with a US
investor relations group or US investment banking group without prior
consultation with GIVIGEST, will allow GIVIGEST to assist in any such
negotiations, and will give to GIVIGEST a first right of refusal to perform the
same services on terms equal to any proposed US investor relations group or US
investment banking group.
11. Representations And Indemnification
(a) In that GIVIGEST relies on information provided by COMPANY for a
substantial part of its efforts, COMPANY represents that said information
provided by COMPANY will be neither false nor misleading nor will COMPANY fail
to disclose information necessary to make the other information provided not
misleading.
(b) COMPANY shall be deemed to make a continuing representation of the
accuracy of any and all material facts, materials, information, and data which
it supplies to GIVIGEST and COMPANY acknowledges its awareness that GIVIGEST
will rely on such continuing representation in disseminating such information
and otherwise performing its investment banking functions.
(c) GIVIGEST, in the absence of notice in writing from COMPANY, will
rely on the continuing accuracy of materials, information, and data
supplied by COMPANY.
(d) COMPANY hereby agrees to hold harmless and indemnify GIVIGEST against
any claims, demands, suits, loss, damages, liabilities and expenses arising out
of GIVIGEST's reliance upon the instant accuracy and continuing accuracy of such
facts, materials, information, and data, unless GIVIGEST has been negligent in
performing its duties and obligations hereunder.
(e) GIVIGEST hereby agrees to hold harmless and indemnify COMPANY and its
officers and directors against any claims, demands, suits, loss, damage,
liabilities and expenses incurred which arise out of the services to be provided
by GIVIGEST to COMPANY, but only to the extent that such claims, demands, suits,
loss, damage, liabilities and expenses shall arise out of or be based upon any
untrue statement or alleged untrue statement of a material fact made or absence
to disclose a material fact by GIVIGEST in the offer and sale of COMPANY'S
securities.
(f) COMPANY shall cooperate fully and timely with GIVIGEST to enable
GIVIGEST to perform its duties and obligations under this agreement.
(h) COMPANY represents and warrants that it will provide to GIVIGEST
evidence of its present capital structure, including authorized shares,
outstanding shares, outstanding warrants, outstanding options, and outstanding
convertible securities prior to this agreement becoming effective and further
warrants that it is not negotiating or discussing the issuance of any additional
warrants, options, or shares, common or otherwise, nor any repricing of any
existing equity linked securities, except as specifically disclosed to GIVIGEST.
Such Document of Capital structure shall be attached hereto as Addendum C
(i) The execution and performance of this Investment Banking Agreement by
COMPANY has been duly authorized by the Board of Directors of COMPANY in
accordance with applicable law, and, to the extent required, by the requisite
number of shareholders of COMPANY.
(j) The performance by COMPANY of this Agreement will not violate any
applicable court decree or order, law or regulation, nor will it violate any
provision of the organizational documents and/or bylaws of COMPANY or any
contractual obligation to which COMPANY may be bound.
12. Compensation
(a) For its Investment Banking services, COMPANY shall make payment to
GIVIGEST according to the terms and conditions set forth in Addendum "A".
(b) All moneys payable hereunder shall be in U.S. funds and drawn on U.S.
banks.
(c) For all services not within the scope of this agreement, COMPANY shall
pay to GIVIGEST such fee(s) as, and when, the parties determine in advance of
performance of said special services, provided COMPANY has agreed to said
special services in advance.
13. Billing And Payment
Any Fees or expense reimbursements shall by paid by wire within three days after
COMPANY has received a billing for the services or documentation for the
reimbursements. Any monthly fees will be paid by wire by the tenth day of each
month. Billing and payments for any special services shall be agreed on a case
by case basis.
14. GIVIGEST As An Independent Contractor
GIVIGEST shall provide said services as an independent contractor and not as an
employee of COMPANY nor of any company affiliated with COMPANY. GIVIGEST has no
authority to bind COMPANY or any affiliate of COMPANY to any legal action,
contract, agreement, or purchase and such action can not be construed to be made
in good faith or with the acceptance of COMPANY, thereby becoming the sole
responsibility of GIVIGEST. GIVIGEST is not entitled to any medical coverage,
life insurance, savings plans, health insurance, or any and all other benefits
of afforded COMPANY employees. GIVIGEST shall be solely responsible for any
Federal State or Local Taxes; and should COMPANY for any reason be required to
pay taxes at a later date, GIVIGEST shall insure such payment is made by
GIVIGEST and not COMPANY. GIVIGEST shall be responsible for all workers
compensation payments and herein holds COMPANY harmless for any and all such
payments and responsibilities related hereto.
15. GIVIGEST Not to engage in Conflicting Activities
During the term of this agreement, GIVIGEST shall not engage in any activities
that directly conflicts with the interests of COMPANY. COMPANY hereby
acknowledges notification by GIVIGEST and understands that GIVIGEST does and
shall represent and service other multiple clients in the same manner as it
does COMPANY, and that COMPANY is not an exclusive client of GIVIGEST.
16. Proprietary Information
GIVIGEST shall treat as proprietary any and all information, not previously
publicly disclosed, belonging to COMPANY, its affiliates, or any third parties
and disclosed to GIVIGEST in the course of the performance of GIVIGEST Services.
17. Inside information - Securities Violations
In the course of the performance of this agreement it is expected that specific
sensitive information concerning the operations of COMPANY business and/or
affiliate companies shall be divulged to GIVIGEST. In such event GIVIGEST will
not divulge, discuss, or otherwise reveal such information to any third parties.
18. Disclosure
GIVIGEST shall disclose any outside activities or interests, including ownership
or participation in the development of prior inventions, that conflict or may
conflict with the best interests of COMPANY. It is mutually understood that
prompt disclosure is required under this paragraph if the activity or interest
is related directly or indirectly, to any activity that GIVIGEST may be involved
with on behalf of COMPANY.
19. Warranty Against Contemplation of Agreement For Related Corrupt
Practices
GIVIGEST represents and warrants that all payments and other valuable
consideration paid or to be paid under this agreement constitutes compensation
for services rendered that this agreement; all payments and other valuable
considerations and the use of those payments and valuable considerations are
non-political in nature; and that said payments and valuable considerations will
not be used to influence, sway or bribe any government or municipal party,
either domestic or foreign, in any way.
20. Conditions Precedent to Performance by GIVIGEST
Prior to GIVIGEST being required to perform any duties or obligations agreed to
under the agreement, COMPANY shall have satisfied the following conditions
precedent:
(a) Perform any Duties under Section 10 above or Representations or
warranties under Section 11 above that are to be performed prior to GIVIGEST
undertaking its obligations and duties.
(b) Provide evidence reasonably satisfactory to GIVIGEST that Company's key
executives have agreed to enter into one year employment agreements.
(c) Provide evidence that COMPANY is using its best efforts to acquire a D
& O Insurance having a minimum combined limits of $2,500,000.
(d) Reserve a minimum of one seat on the Board of Directors for a
representative of GIVIGEST reasonably acceptable to the Board, if and when
GIVIGEST requests such an appointment, such director(s) to sit until resignation
or replacement by the shareholders of COMPANY.
(e) COMPANY shall have reached a repricing of the COMPANY's 7% Convertible
Notes due 2003 reasonably acceptable to GIVIGEST.
21. Severability
If any provision of this agreement shall be held to be contrary to law, invalid
or unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court finds that any provision of this agreement is
contrary to law, invalid or unenforceable and that by limiting such provision it
would become valid and enforceable, then such provision shall be deemed to be
written, construed, and enforceable as so limited.
22. Termination of Agreement
This Investment Banking Agreement may not be terminated by either party prior to
the expiration of the term provided in Paragraph 8 above except as follows:
(a) Upon the bankruptcy or liquidation of the other party, whether voluntary
or involuntary,
(b) Upon the other party taking the benefit of any insolvency law, and/or
(c) Upon the other party having or applying for a receiver appointment for
either party.
(d) Upon the discovery of false, misleading, or fraudulent
misrepresentations by either party or the breach of any warranty, representation
of covenant contained herein by either party.
(e) In the event COMPANY fails or refuses to cooperate with GIVIGEST or
fails or refuses to make timely payment of the compensation set forth above
and/or in Addendum "A". In such a case, GIVIGEST shall have the right to
terminate any further performance under this agreement and upon, notification
thereof, all earned compensation shall become immediately due and payable.
(f) In the event of any breach of any other section of this agreement
which provides for termination, including but not limited to Sections 10(f) and
10(g).
23. Attorney Fees
In the event either party is in default of the terms and conditions of this
Investment Banking Agreement and legal
action is initiated or suit be entered as a result of such a default, the
prevailing party shall be entitled to recover all costs
incurred as a result of such default including all costs, reasonable attorney
fees, expenses, court costs through trial,
appeal and to final disposition (if applicable), and all costs of arbitration
provided for herein.
24. Return Of Records
Upon termination of this agreement, GIVIGEST shall deliver all of Company's
records, notes, data, memorandum,
models and equipment of any nature that are in the control of GIVIGEST.
25. Miscellaneous
(a) Effective date of representations shall be no later than the date
of the signing of this agreement by both parties.
(b) Currency: in all instances, references to dollars shall be deemed to be
United States Dollars
26. Notices
All notices hereunder shall be in writing and addressed to the party at the
address herein set forth, or at such other address which notice pursuant to this
section may be given and shall be given by either personal delivery, certified
mail, express mail or other national overnight courier services. Notices shall
be deemed given upon the earlier or actual receipt or three (3) business days
after being mailed or delivered to such courier service. Any notices to be given
hereunder shall be effective if executed by and sent by the attorneys for the
parties giving such notice; and in connection therewith, the parties and their
respective counsel agree that in giving such notice, such counsel may
communicate directly in writing with such parties to the extent necessary to
give such notice. Any notice required or permitted by this agreement to be given
shall be given to the respective parties at the following addresses:
GIVIGEST:
GIVIGEST FIDUCIARIA XX
Xxxxx Xxxxxxx 0,
XX-0000 Xxxxxx, Xxxxxxxxxxx
Telephone: x0000-000-0000
Fax: x0000-000-0000
COMPANY:
AIR PACKAGING TECHNOLOGIES, INC.
00000 Xxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxx, XXX
Telephone 0-000-000-0000
Fax: 0-000-000-0000
27. Time Is Of The Essence
Time is hereby expressly made of the essence of this Investment Banking
Agreement with respect to the performance by the parties of their respective
obligations hereunder.
28. Inurement
This Investment Banking Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, administrators,
personal representatives, successors, assigns and any addenda attached hereto.
29. Entire Agreement
This Investment Banking Agreement contains the entire agreement of the parties
and may be modified or amended only by agreement, in writing, signed by the
party against whom enforcement of any waiver, change, amendment, modification,
extension or discharge is sought. It is declared by both parties that there are
no oral or other agreements or understanding between them affecting this
Investment Banking Agreement or relating to the business of GIVIGEST. This
agreement supersedes all previous agreements between GIVIGEST and COMPANY.
30. Applicable Law
This Agreement is executed pursuant to and shall be interpreted and governed for
all purposes by the laws of the State of Ticino. If any provision of this
Investment Banking Agreement is declared void, such provisions shall be deemed
severed from this agreement, which shall otherwise remain in full force and
effect. Any controversy or claim arising out of, relating to this agreement, or
the breach thereof, shall be settled by arbitration in the Lugano District,
Ticino in accordance with the rules then promulgated by said Courts, the Court
shall appoint an arbitrator, and judgment upon award rendered may be entered in
the courts of the Lugano District, Ticino or any other court having
jurisdiction, which award and/or judgment shall include reasonable attorney's
fees.
31. Acceptance by GIVIGEST
This Investment Banking Agreement is not valid or binding upon GIVIGEST unless
and until executed by the President or other duly authorized executive officer
of GIVIGEST at its home office in Lugano, Switzerland.
32. Non-waiver
The failure of either party at any time to require any such performance by any
other part shall not be construed as a waiver of such right to require such
performance and shall in no way affect such party's right to require such
performance and shall in no way affect such party's right subsequently to
require full performance hereunder.
33. Execution In Counterparts
This agreement may be executed in counterparts, not withstanding the date or
dates upon which this agreement is executed and delivered by any of the parties,
and each shall be deemed to be an original and all of which will constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands in execution of this
agreement.
For and on behalf of: For and on behalf of:
COMPANY GIVIGEST
AIR PACKAGING TECHNOLOGIES, INC. GIVIGEST FIDUCIARIA SA
a US Company a Swiss Company
By /s/ Xxxxxx X. Xxxxxxxx By /s/ Claudio Gianascio
------------------------ ----------------------
Xxxxxx X. Xxxxxxxx Xxxxxxx Gianascio
President President
Date Signed 3/27/2000 Date Signed 3/31/00
--------- -------
GIVIGEST FIDUCIARIA SA
One Time Program
INVESTMENT BANKING AGREEMENT
Addendum "A"
A. SPECIFIC SERVICES
10 Act as an investor relations contact in Europe, such information as is
approved by COMPANY, responding to shareholders requests, and coordinating
shareholder communication with COMPANY. One of GIVIGEST's representatives will
be in charge of answering a dedicated telephone line and dedicated email address
and coordinate with COMPANY all shareholders' questions by telephone, fax, or
email. GIVIGEST will advise COMPANY on the construction and management of a
corporate website. All costs of construction and management shall be paid by
COMPANY.
20 Coordinate with and advise COMPANY on the appointment of a US investor
relations group and/or Investment Banking group.
30 Coordinate the preparation of research reports on COMPANY and its
activities. An initial research report will be issued by GIVIGEST to be
distributed to GIVIGEST's customers and associates as well as COMPANY's existing
shareholders, if appropriate. All costs for printing and mailing will be
pre-approved and paid for by COMPANY.
40 Introduce COMPANY to institutional investors that would indicate an
interest in COMPANY's business and activities. At COMPANY's request, or when it
is deemed appropriate, GIVIGEST will organize one-on-one presentations or road
shows to introduce COMPANY to the European financial community. The first of
these will be held in Switzerland and Italy. COMPANY will pre-approve and pay
for all costs, including travel, accommodations, space rental, and materials
supplied during the presentations.
50 Evaluate and negotiate alternative listings of the COMPANY's stock.
60 Introduce COMPANY to additional market makers and brokerage firms to
broaden its base of investors.
70 Introduce COMPANY to one or more individuals who would have education,
talents, or business experience that could bring additional breadth to the Board
of Directors.
80 During the term of this agreement, use its best efforts, based upon
market conditions, to raise up to $2.5 million in additional capital or
convertible debt at terms to be fixed according to market conditions. As a part
thereof, GIVIGEST will ,on a firm basis, raise $250,000 within one month from
the execution of this agreement upon terms to be agreed and assuming that
COMPANY will have an immediate need for such funds to finance the purchase of
equipment and inventory for a substantial new order that COMPANY has indicated
should be received shortly.
B. COMPENSATION
10 All expenses incurred by GIVIGEST which have been pre-approved by the
President of COMPANY, including but not limited to stationery, printing, travel,
accommodations, and related business meals
20 A monthly retainer of $5,000 payable, in advance, by the last day of the
previous month beginning March 31, 2000.
30 100,000 shares of the common stock of COMPANY, upon the execution of the
agreement, to be issued in the name of GIVIGEST and delivered as soon as
practicable, said shares to be issued as "restricted shares" and to carry upon
them the normal restrictive legend which prohibits their sale or transfer in the
absence of a registration statement covering the same or an exemption from
registration being applicable to the shares and transaction.
40 250,000 warrants to purchase the common stock of COMPANY upon execution
of the agreement. Each warrant shall entitle the holder to purchaser one share
of the common stock of COMPANY at a determined price (see below) for a period of
three years from the ending day of the month in which this agreement is
executed
50 250,000 additional warrants on the same terms as II(4) above on the basis
of one warrant for every $10 raised pursuant to I.(8) above.
60 The price at which the aforementioned warrants are to be issued shall be
a fixed price which shall equal the average of the closing bid prices of the
Company's common stock for the twenty-five trading days prior to execution of
this agreement, but not less than $0.50 per share
70 A Finder's fee equal to ten percent (10%) of all funds raised on behalf
of COMPANY by GIVIGEST during the term of this agreement.
80 As additional consideration, GIVIGEST will have the following
registration rights:
i. In the event that COMPANY shall file, at any time any of the warrants are
outstanding, a registration statement under which the issued shares and the
shares underlying the above warrants could be registered, the COMPANY, upon the
request of GIVIGEST, will use its best efforts to include the same under said
registration statement.
ii. In addition, GIVIGEST shall have the one time right to request the
registration of the issued shares and/or the shares underlying the above
warrants and COMPANY will use its best efforts to secure said registration.
iii. In the case of any such registration filed by the COMPANY under either i or
ii above, COMPANY shall use its best efforts to maintain it in an effective
status for a minimum of one year from the effective date of the registration
For and in behalf of: For and in behalf of:
COMPANY GIVIGEST
AIR PACKAGING TECHNOLOGIES, INC. GIVIGEST FIDUCIARIA SA
a US Company a Swiss Company
By /s/ Xxxxxx X. Xxxxxxxx By /s/ Claudio Gianascio
------------------------ ----------------------
Xxxxxx X. Xxxxxxxx Xxxxxxx Gianascio
President President
