EXHIBIT 10ddd
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FINANCIAL CONSULTING
AND INVESTMENT BANKING AGREEMENT
THIS AGREEMENT is made on this 6th day of September 2000, by and between
Advanced Deposition Technologies, Inc., a corporation having its principal
office at Xxxxx Xxxxxxxx Industrial Park, Taunton, MA 02780 (the "Company"), and
XXXXXXXXXX &CO, Inc., a Rhode Island corporation having an office at 00 Xxxxxx
Xx., Xxxxxxx XX, 00000 ("hereinafter referred to as "XXXXXXXXXX"). XXXXXXXXXX
and its principals represent they do not have any past or outstanding SEC
actions against them. Should such SEC actions arise, the Company reserves the
right to terminate this agreement and all obligations hereunder.
In consideration of the mutual premises contained herein and on the terms and
conditions hereinafter set forth, the Company and XXXXXXXXXX agree as follows:
1. PROVISION OF SERVICES. The Company hereby retains XXXXXXXXXX to perform
non-exclusive consulting services related to corporate finance, corporate
communications and investment banking matters, and XXXXXXXXXX hereby accepts
such retention and shall undertake reasonable efforts to perform for the Company
the duties described herein. In this regard, XXXXXXXXXX shall devote such time
and attention to the business of the Company as shall be determined by
XXXXXXXXXX, in its sole discretion.
(a) XXXXXXXXXX agrees, to the extent reasonably required in the conduct of the
business of the Company, and at the Company's written request to
XXXXXXXXXX'x Senior Vice President of Corporate Finance (or such other
person designated by XXXXXXXXXX), to place at the disposal of the Company
its judgment and
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experience and to provide, on a best efforts basis, investment relations,
corporate communications and business development services to the Company
including the following:
(i) advice with regard to stockholder relations and public
relations matters,
(ii) provide institutional relations services,
(iii) provide brokers relations services,
(iv) evaluate financial matters and assist in financial
arrangements and/or transactions,
(v) assist in mergers and acquisitions, perform due diligence on
the target companies,
all with the objective of accomplishing the Company's business and
financial goals.
(b) XXXXXXXXXX agrees to provide "analytical support" to the Company: prepare
and disseminate, and at its expense to cause the preparation and
dissemination of, a "Corporate Profile" and/or "Research Report" in
compliance with applicable state and federal securities laws and
regulations. The first document should be prepared within 60 days of the
Agreement's activation. The Company agrees to provide all the necessary
help and materials for this task.
(c) XXXXXXXXXX agrees to provide institutional relations services to the
Company. XXXXXXXXXX agrees to use reasonable effort to arrange, prepare and
facilitate meetings, seminars and other corporate communication activities
with mutual and pension fund managers, financial analysts and advisors in
conjunction with the Company's roadshow. XXXXXXXXXX agrees to use
reasonable efforts to arrange
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such meetings. The Company agrees to provide all the necessary help and
materials for this task, including participation of its principals in the
above mentioned events.
(d) XXXXXXXXXX agrees to provide broker relations services to the Company.
XXXXXXXXXX agrees to use reasonable effort to arrange presentations,
informational seminars and meetings with broker-dealers. XXXXXXXXXX will
use its extensive database of carefully pre-screened security dealers with
interest in small capitalization companies.
(e) Not later than October 30, 2000, XXXXXXXXXX agrees to prepare and
disseminate at its expense a Company presentation for institutional
investors. The Company agrees to provide all the necessary help and
materials for this task.
(f) XXXXXXXXXX agrees to provide shareholders public relations activities, that
will include a support for a toll-free number for shareholders and
potential investors, an Internet forum, issue commentary and analysis on
the Company news and press-releases.
(g) Notwithstanding the foregoing, when XXXXXXXXXX provides services to the
Company in connection with mergers, acquisitions, consolidations, joint
ventures and similar corporate finance transactions; for each such
transaction or transactions, XXXXXXXXXX and the Company will formalize
their arrangement in a separate agreement at the time service is provided.
(h) XXXXXXXXXX shall use reasonable efforts in furnishing advice
recommendations, and for this purpose XXXXXXXXXX shall at all times
maintain or keep and make available qualified personnel or a network of
qualified outside professionals for the performance of its obligations
under this Agreement. To the extent reasonably practicable, XXXXXXXXXX
shall so use its own personnel rather than outside professionals.
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2. TERM. XXXXXXXXXX'x retention hereunder shall be for a term of one (1) year
commencing on the date of this Agreement. This Agreement may be terminated by
either party upon thirty (30) days prior written notice. The initial term may be
extended for a term of up to two (2) additional years by mutual agreement of the
parties.
3. COMPENSATION. In consideration for the services provided by XXXXXXXXXX
hereunder, the Company shall pay to XXXXXXXXXX $4,000 per month for the first 3
month period, $5,000 per month for the second 3 month period, $6,000 per month
for the third 3 month period, $7,000 per month for the fourth 3 month period and
$5,000 per month thereafter in cash or readily available funds for a period of
this Agreement, and hereby grants and shall issue to XXXXXXXXXX a warrant (the
"Warrant") to purchase up to 100,000 shares of the common stock of the Company
(the "Underlying Common Stock") at a per share price of $1.50 (the "Strike
Price"). The Warrant, which shall be transferable upon notice of exercise, shall
be issued to XXXXXXXXXX in the form of a warrant agreement (the "Warrant
Agreement") which shall be in form and content satisfactory to XXXXXXXXXX and
the Company. The Warrant Agreement shall provide, among other provisions, that
the Warrant shall be exercisable by XXXXXXXXXX, in accordance with the following
conditions and limitations:
(a) The Warrant shall expire at the earlier of; four (4) years
from the date of this Agreement (the "Expiration Date") or
ninety (90) days after the termination of this Agreement.
(b) XXXXXXXXXX shall be permitted to exercise the Warrant and
purchase up to 30,000 shares of the Underlying Common Stock
once the closing market price for the Company's common stock
has achieved a per share price of $5.00 or higher for twenty
(20) consecutive trading days.
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(c) XXXXXXXXXX shall be permitted to exercise the Warrant and
purchase 30,000 shares of the Underlying Common Stock once the
closing market price for the Company's common stock has
achieved a per share price of $7.50 or higher for twenty (20)
consecutive trading days.
(d) XXXXXXXXXX shall be permitted to exercise the Warrant and
purchase 40,000 shares of the Underlying Common Stock once the
closing market price for the Company's common stock has
achieved a per share price of $10.00 or higher for twenty (20)
consecutive trading days.
(e) XXXXXXXXXX shall be permitted to exercise the Warrant and
purchase an additional 50,000 shares of the Underlying Common
Stock once the closing market price for the Company's common
stock has achieved a per share price of $15.00 or higher for
twenty (20) consecutive trading days but only if this event
occurs before December 31, 2001.
(f) Anti-dilution provisions for stock dividends, splits, mergers.
(g) In lieu of any cash payment required by XXXXXXXXXX in
connection with the exercise of the Warrant, the holder(s) of
the Warrant shall have the right at any time and from time to
time, to exercise the Warrant in full or in part by
surrendering the Warrant Agreement and/or Certificates as
payment of the aggregated Strike Price. The number of shares
of Underlying Common Stock to be issued upon exercise shall be
determined by (i) multiplying the number of the shares of
common stock within the Warrant to be exercised by an amount
equal to the market price per share less the Strike price, and
then dividing the product thereof by the market price per
share. Solely for the purposes of this paragraph, market price
shall be calculated as the average of the market prices for
each of the
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twenty (20) trading days preceding the date notice is given
that the holder(s) intend(s) to exercise the Warrant. For
instance, if the price for share is $6.00, and XXXXXXXXXX
decides to exercise the Warrant by surrendering the Warrant
Agreement as payment of the aggregated Strike Price ($1.50),
than XXXXXXXXXX gets 25% less shares. If XXXXXXXXXX decides to
exercise 50,000 Warrants, it has two options: pay $75,000 and
receive 50,000 Warrants or get 37,500 Warrants and surrender
12,500 (25%) Warrants as payment.
(h) The Company will reserve and at all times have available a
sufficient number of shares of its common stock to be issued
upon the exercise of the Warrant.
(i) During the term of the Warrant Agreement, the Company shall
grant "piggy back" registration rights to include the shares
of the Underlying Common Stock in any registration statement
filed by the Company under the Securities Act of 1933 relating
to an underwriting of the sale of shares of common stock or
other security of the Company subject to a customary
underwriter's cutback provision.
(j) 4. EXPENSES. The Company agrees to reimburse XXXXXXXXXX for
reasonable out of pocket expenses incurred by XXXXXXXXXX in
connection with the services rendered by XXXXXXXXXX hereunder,
including but not limited to XXXXXXXXXX'x due diligence and
corporate communications activities with respect to the
Company. Any such expenses exceeding $1000.00 or those
relating to the retention of other parties shall require the
prior approval of the Company.
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5. INDEMNIFICATION. The Company agrees to indemnify and hold harmless XXXXXXXXXX
and its affiliates, the respective directors, officers, partners, agents and
employees and each other person, if any, controlling XXXXXXXXXX or any of its
affiliates (collectively the "XXXXXXXXXX Parties") from all losses, claims,
damages, liabilities and expenses incurred by them (including reasonable
attorney's fees and disbursements) that result from any violations of securities
laws or rules or any untrue statements made or any statements omitted to be made
in connection with securities related matters by the Company, its agents or
employees. XXXXXXXXXX will indemnify and hold harmless the Company and the
respective directors, officers, agents and employees of the Company (the
"Company Parties") from and against all losses, claims, damages, liabilities and
expenses that result from malfeasance, or gross negligence, or the dissemination
of unauthorized information regarding the Company in the performance of
XXXXXXXXXX'x duties hereunder. Each person or entity seeking indemnification
hereunder shall promptly notify the Company or XXXXXXXXXX as applicable, of any
loss, claim, damage or expense for which the Company, or XXXXXXXXXX as
applicable, may become liable pursuant to this Section 5. Neither party shall
pay, settle or acknowledge liability under any such claim without the written
consent of the party liable for indemnification, unless such action include a
general release of liability of the other party, and shall permit the Company or
XXXXXXXXXX, as applicable, a reasonable opportunity to cure any underlying
problem or to mitigate damages. The scope of this indemnification between
XXXXXXXXXX and the Company shall be limited to, and pertain only to certain
transactions contemplated or entered into pursuant only to this Agreement.
The Company or XXXXXXXXXX, as applicable, shall have the opportunity to defend
any claim for which it may be liable hereunder, provided it notifies the party
claiming the right to indemnification within fifteen (15) days of notice of the
claim.
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6. STATUS OF XXXXXXXXXX AS CONSULTANT AND CONFIDENTIALITY OBLIGATIONS.
XXXXXXXXXX shall at all times be an independent contractor of the Company and,
except as expressly provided or authorized in this Agreement, shall have no
authority to act for or represent the Company. Any information obtained by
XXXXXXXXXX from the Company during the term of this Agreement, which information
is not in the public domain, shall be maintained by XXXXXXXXXX on a confidential
basis and shall not be disclosed to third parties, without the prior written
consent of the Company. For purposes of this Agreement, third parties are
defined to exclude all officers, directors, employees, agents and/or contractors
of XXXXXXXXXX.
7. OTHER ACTIVITIES OF XXXXXXXXXX. The Company recognizes that XXXXXXXXXX now
renders and may continue to render financial consulting, management, investment
banking and other services to other companies that may or may not conduct
business and activities similar to those of the Company. XXXXXXXXXX shall be
free to render such advice and other services and the Company hereby consents
thereto. XXXXXXXXXX shall not be required to devote its full time and attention
to the performance of its duties under this Agreement, but shall devote only so
much of its time and attention as it deems reasonable or necessary for such
purposes, in its sole discretion.
8. OTHER COVENANTS OF THE COMPANY. The Company covenants, promises and agrees
that:
(a) during the term of this Agreement, the Company shall furnish
XXXXXXXXXX with copies of its annual, quarterly and proxy filings with the SEC,
promptly upon the Company's completion thereof.
(b) the Company agrees that the Company for the duration of this
Agreement, be in conformance with all appropriate regulatory and governmental
reporting requirements.
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9. CONTROL. Nothing contained herein shall be deemed to require the Company to
take any action contrary to its Certificate of Incorporation or By-Laws, or any
applicable statute or regulation, or to deprive its Board of Directors of their
responsibility for any control of the affairs of the Company.
10. PUBLIC DISCLOSURE REQUIREMENT. The Company shall comply with all SEC
requirements pertaining to the public disclosure of this agreement.
11. NOTICES. Any notices hereunder shall be sent to the Company and XXXXXXXXXX
at their respective addresses above set forth. Any notice may be given by
overnight delivery services, faxes, or registered or certified mail, postage
prepaid. Either party may designate any other address to which notice shall be
given, by giving written notice to the other of such change of address in the
manner herein provided.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties with respect to its subject matter and
supersedes all prior discussion, agreements and understandings between them with
respect thereto. This Agreement may not be modified except in a writing signed
by the parties.
13. JURISDICTION AND VENUE. This Agreement has been made in the Commonwealth of
Massachusetts and shall be governed by and construed in accordance with the laws
thereof. Any proceeding commenced by either party to enforce or interpret any
provision of this Agreement shall be brought in the Commonwealth of
Massachusetts. The Company hereby submits to the jurisdiction of the courts of
the Commonwealth of Massachusetts including the federal courts, for such
purposes.
14. NO ASSIGNMENT. Neither this Agreement nor the rights of either party
hereunder shall be assigned by either party without the prior written consent of
the other party.
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15. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
16. NON-COMPLIANCE. If any provision of this Agreement conflicts with any law,
rule or regulation of any federal, state or self-regulatory organization,
including the Securities and Exchange Commission, the blue-sky laws of any
state, the National Association of Securities Dealers, Inc., or any other
governmental authority having jurisdiction over the activities or services
described herein, then in that event, the Company and XXXXXXXXXX shall amend
this Agreement to bring any affected provision into compliance with such
regulations.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
XXXXXXXXXX & CO, INC. ADVANCED DEPOSITION
TECHNOLOGIES, INC.
/s/ Xxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Partner Title: CEO
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