EXHIBIT 10(i)
GIVIGEST FIDUCIARIA SA
ONE TIME PROGRAM
INVESTMENT BANKING AGREEMENT
THIS INVESTMENT BANKING AGREEMENT made this 13th day of August, 1999 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
WHEREAS, COMPANY is publicly held with its common stock trading Over the
Counter (OTC) under the ticker symbol "AIRP",
WHEREAS, COMPANY desires to place a private placement of 7% Convertible
Debentures to institutional and accredited investors as more particularly
described in Addendum "B", attached hereto, and
WHEREAS, GIVIGEST is willing to accept COMPANY as a client; and assist
COMPANY to place the above mentioned private placement,
WHEREAS, GIVIGEST is a company under the laws of the State of Ticino,
Country of Switzerland and, through its financial and investment banking
functions, makes venture capital investments on behalf of itself and clients;
and
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 a non-exclusive basis, as its
investment banking and financial planning counsel for Switzerland and Italy, 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. FIRST ENGAGEMENT
COMPANY engages GIVIGEST to place the private placement, as described on
Addendum "B", to prospective investors as further described below and subject to
the further provisions of this Investment Banking Agreement.
GIVIGEST hereby accepts said engagement and COMPANY as a client and agrees to
provide the services as further described below and subject to the further
provisions of this Investment Banking Agreement.
7. AUTHORITY AND DESCRIPTION OF SERVICES
During the term of this Agreement, GIVIGEST shall furnish various professional
services. 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, and/or as follows:
8. TERM OF AGREEMENT
This agreement shall become effective upon execution hereof and shall continue
thereafter through and including October 15, 1999 or in case of paragraphs
10,11,12(d),12(e),17,18,23,24,26, and 30 so long as any of the debentures that
are to be offered to the private placement are outstanding.
9. 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.
10. 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.
11. 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
(3) 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, if reasonably possible, give
GIVIGEST a first right of refusal to make such offering or placement upon the
same terms and conditions.
(4) COMPANY will immediately notify GIVIGEST at least 30 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 cause the outstanding common shares to be reverse split on
a 1 new share for 10 old share basis no sooner than October 15, 1999 and no
later than December 31, 1999.
(g) COMPANY will cause DTC sheets to be provided to GIVIGEST on a weekly
basis and will pay all costs thereof.
(h) COMPANY will provide GIVIGEST, at no cost, a quarterly shareholder list
and, in addition will provide a list anytime the shareholdings of any
shareholder holding 5% or more of COMPANY'S shares is transferred.
(i) COMPANY will notify GIVIGEST, in advance, of its intention to issue to
COMPANY officers, directors, employees, or consultants any new options or
warrants on its common stock.
12. 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 by GIVIGEST
in the offer and sale of COMPANY'S debentures.
(f) COMPANY shall cooperate fully and timely with GIVIGEST to enable
GIVIGEST to perform its duties and obligations under this agreement.
(g) 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.
(h) 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.
13. COMPENSATION
(a) For its Investment Banking services, COMPANY shall make payment to
GIVIGEST according to the terms and conditions set forth in Addendum "A".
(2) 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.
14. BILLING AND PAYMENT
Finder's Fees will by paid by wire within three days after COMPANY has received
the funds from any sale of its securities under this agreement. Billing and
payments for any special services shall be agreed on a case by case basis.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
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.
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
(1) Effective date of representations shall be no later than the date
of the signing of this agreement by both parties.
(2) 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.
34. Costs
All costs and expenses incurred in the preparation of this agreement shall be
borne solely by COMPANY.
IN WITNESS WHEREOF, the parties hereto have set their hands in execution of this
agreement.
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
GIVIGEST FIDUCIARIA SA
ONE TIME PROGRAM
INVESTMENT BANKING AGREEMENT
ADDENDUM "A"
SPECIFIC SERVICES
1. GIVIGEST agrees to use its efforts to place COMPANY's $2,000,000 7%
Convertible Debentures (hereinafter "Debentures"), as described on Addendum "B".
2. GIVIGEST commits to place $1,500,000 of COMPANY's Debentures on a
firm basis, as that term is commonly used.
3. GIVIGEST will use its best efforts to place the remaining $500,000
of COMPANY's Debentures.
4. GIVIGEST commits to place the first $500,000 of COMPANY's Debentures
no later than August 13, 1999.
5. GIVIGEST commits to place the next $1,000,000 of COMPANY's
Debentures no later than September 15, 1999.
6. GIVIGEST will use its best efforts to place the remaining $500,000
of COMPANY's debentures no later than October 15, 1999.
COMPENSATION
10% commission on all funds received by COMPANY through the sale of the
Debentures subject to this agreement, including but not limited to the sale of
the aforementioned debentures by GIVIGEST directly, received from investors or
subscribers presented by GIVIGEST, or received from persons related to or
referred by any such investor or subscriber.
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
GIVIGEST FIDUCIARIA SA
ONE TIME PROGRAM
INVESTMENT BANKING AGREEMENT
ADDENDUM "B"
DESCRIPTION OF DEBENTURES
1. 4 year 7% Convertible Debentures of Air Packaging Technologies, Inc.
2. Conversion Price
a. Convertible into common stock of COMPANY at anytime within two years of
issue date at $0.15 per share.
b. Convertible into common stock of COMPANY at anytime between the first day of
the third year and the last day of the fourth year after issue date at $0.25
c. Conversion feature expires at 12:00 midnight Los Angeles, California time on
the last day of the fourth year after the issue date.
3. Payable in full, if not converted, upon surrender of debenture to
COMPANY no sooner than the first day of the fifth year after issue date.
4. Interest
a. Payable annually in arrears.
b. Payable, at the option of holder, in unregistered common stock of COMPANY at
a 20% discount to the average bid price of COMPANY's common stock during the 30
business days immediately prior to payment date, if COMPANY is notified of the
election a minimum of 15 days prior to the payment date. For the purpose of
this paragraph the "payment date" is defined as the 365th day from the issue
date or the last payment date, as applicable.
c. At COMPANY's option, COMPANY may choose to register said dividend shares.
In such event, the dividend shall be payable at the average bid price of
COMPANY's common stock for the 30 business days immediately prior to payment
date. If COMPANY chooses this option, it will use its best efforts to register
the dividend shares as soon as practicable after payment date.
D. Notwithstanding anything to the contrary, the minimum price to be used to
compute the number of shares to be issued as a dividend shall be $0.15.
5. Issuance of Debentures
a. The Debentures will be issued in the names and denominations as directed by
GIVIGEST, provided, that COMPANY shall be entitled to request information from
GIVIGEST concerning any purchaser and approve any purchaser of the Debentures,
which approval shall not be unreasonably withheld or delayed.
REGISTRATION RIGHTS AND OTHER FEATURES
1. Registration Rights
a. Company will use its best efforts to file a registration with the US
Securities and Exchange Commission within 30 days of this agreement to register
the debentures and the underlying common shares upon conversion.
b. Company will use its best efforts to cause said registration statement to
become effective by December 31, 1999 and will use its best efforts to maintain
said registration until 6 months after the conversion of all of the debentures
or the expiration of the conversion rights, whichever comes first.
2. Other Features
a. The minimum amount of debentures that can be converted at any time by any
debenture holder shall be $100,000.
b. Debentures shall be senior in preference to all other debentures whether
presently outstanding or issued in the future unless unanimously agreed to by
the debenture holders in the particular case.
SUBSCRIBERS & EXEMPT PLACEMENT
a. The aforementioned debentures shall be offered by GIVIGEST only to accredited
institutions and individuals as that term is defined under the Securities Act of
1933 and the rules promulgated thereunder (hereinafter "The Act")and only to
institutions and individuals which acknowledge that they are acquiring the
Debentures with an investment intent and not with a view to resale unless
registered.
b. The Debentures will be offered and sold pursuant to an exemption from
registration under The Act and, as such, both the Debentures and the common
shares issued upon conversion will be issued with a restrictive legend and may
not be resold, hypothecated, or transferred within the US or to a US person, as
that term is defined under The Act, unless and until a registration statement
covering the debentures and underlying shares is in effect or an exemption from
registration for said sale, hypothecation, or transfer is applicable to said
action.
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
