Exhibit 99.2
STRATEGIA CORPORATION
COMMON STOCK
1,500,000 SHARES
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SELLING AGENT AGREEMENT
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February , 1997
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Gentlemen:
The undersigned, Strategia Corporation, a Kentucky corporation (the
"Company"), appoints____________________________________ as selling agent
(the "Sales Agent"), on a nonexclusive, best efforts basis, to sell the
shares of the Company described below and hereby confirms its agreement (this
"Agreement") with the Sales Agent as follows:
1. DESCRIPTION OF THE SHARES. The Company proposes to issue and sell up
to 1,500,000 shares of its common stock (the "Shares"). The Shares and the
terms of the offering are more fully described in the Prospectus contained in
the Company's Form SB-2 Registration Statement (Reg. No. 333-14055) (the
"Registration Statement") filed with the United States Securities and Exchange
Commission (the "Commission").
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Sales Agent that:
(a) The Company has prepared the Registration Statement in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the Rules and Regulations (the "Rules and Regulations") of the
Commission thereunder and has filed the Registration Statement with the
Commission. Copies of the Registration Statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the
Rules and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have heretofore
been made available by the Company to you. The Registration Statement,
which shall be deemed to include all information omitted therefrom in
reliance upon Rule 430A and contained
in the Prospectus referred to below, has become effective under the Act and
no post-effective amendment to the Registration Statement has been filed as
of the date of this Agreement. "Prospectus" means (i) the form of
prospectus first filed with the Commission pursuant to Rule 424(b) or (ii)
the last preliminary prospectus included in the Registration Statement
filed prior to the time it becomes effective or filed pursuant to Rule
424(a) under the Act that is delivered by the Company to the Sales Agent for
delivery to purchasers of the Shares, together with the term sheet or
abbreviated term sheet filed with the Commission pursuant to Rule 424(b)(7)
under the Act.
(b) The Company is offering the Shares to be sold through the efforts
of selling agents solely pursuant to exemptions from registration under the
securities laws of each state in which the offering is being made for
offers and sales to registered broker-dealers, banks, savings institutions,
trust companies, insurance companies, investment companies as defined in
the Investment Company Act of 1940, pension or profit-sharing trusts, or
other financial institutions or institutional buyers (including, but not
limited to, any "qualified institutional buyer" as defined in SEC Rule
144A), whether acting for itself or in some fiduciary capacity.
(c) No action, suit or proceeding for the purpose of preventing or
suspending the use of the Prospectus has been initiated or, to the
knowledge of the management of the Company, threatened by any governmental
agency or body nor has any such agency or body notified the Company of any
objections to the use of the Prospectus.
(d) As of the date hereof and at all times thereafter during the
Offering Period (as hereinafter defined), neither the Prospectus nor any
amendment or supplement thereto will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the foregoing representations and warranties shall not apply
to information, if any, contained in or omitted from the Prospectus or any
such amendment or supplement in reliance upon, and in conformity with,
written information furnished to the Company by the Sales Agent
specifically for use in the preparation thereof.
(e) The Company is duly organized and validly existing and in good
standing under the laws of the Commonwealth of Kentucky and has full power
and authority (corporate and other) to conduct its business as described in
the Prospectus. The Company has all such power, authority, authorizations,
approvals, orders, licenses, certificates and permits necessary to enter
into this Agreement, to carry out the provisions and conditions hereof, and
to commence the offering. This Agreement has been duly and validly
authorized, executed and delivered by the Company and is a valid and
binding agreement and obligation of the Company.
(f) Except as contemplated in the Prospectus, after the respective
dates as of which information is given in the Prospectus, the Company has
not incurred any
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liabilities or obligations, direct or contingent, or entered into any
transactions which are material to the Company (except as may be described
in reports filed with the Commission pursuant to the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (together,
the "Exchange Act") and incorporated by reference into the Registration
Statement and the Prospectus), and there has not been any material change
in the capital stock, short-term debt or long-term debt of the Company, or
any material adverse change, or, to the knowledge of the management of the
Company, any development involving a prospective material adverse change, in
the condition (financial or other), net worth or results of operations of
the Company.
(g) The Company has conducted its business so as to comply in all
material respects with applicable statutes, rules, regulations, decisions,
directives and orders, and there is not pending or, to the knowledge of the
management of the Company, threatened, any action, suit or proceeding to
which the Company is or may be a party, before or by any court or
governmental agency or body, which might result in any material adverse
change in the condition (financial or other), business, prospects, net
worth or results of operations of the Company or might materially and
adversely affect the properties or assets thereof.
(h) The Registration Statement contains a list of agreements,
instruments, or understandings to which the Company or its subsidiaries is
a party or by which they or their properties may be bound and which may be
material to the Company ("Material Agreements"). The Company is not in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any Material Agreement, nor is the
Company in violation of any term or provision of its Articles of
Incorporation or Bylaws. The execution and delivery of this Agreement and
the incurrence of the obligations herein set forth will not conflict with,
or constitute a breach of or default under, the Articles of Incorporation
or the Bylaws of the Company or any Material Agreement or any statute
regulating the business of the Company, or any rule, regulation, decision,
directive or order of any court or governmental agency or body having
jurisdiction over the Company or any of its activities or properties; and
except as expressly set forth herein and in the Prospectus, no consent,
approval, authorization or order of any court or governmental agency or
body is required for the consummation of the transactions contemplated
hereby.
(i) The Company's authorized and issued capital stock is stated in
the Prospectus. The Shares being sold by the Company pursuant to this
Agreement, when issued and delivered in accordance with this Agreement,
will be duly and validly issued and outstanding and fully paid, and the
Company's Common Stock conforms to all statements in relation thereto
contained in the Prospectus.
3. EMPLOYMENT OF SALES AGENT; SALES AND DELIVERY OF THE SHARES. On the
basis of the representations and warranties herein contained, and subject to the
terms and conditions and covenants and agreements set forth herein, the parties
hereto agree as follows:
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(a) The Sales Agent will act as selling agent for the Company on a
nonexclusive, "best efforts" basis to sell for the account of the Company
up to 1,500,000 Shares at a price of $_____ per Share, and the Sales Agent
agrees to use its best efforts to effect such sales. However, the Sales
Agent makes no commitment to purchase all or any of the Shares. The Sales
Agent's engagement hereunder will terminate on the earlier of (a) March 31,
1997, or such later date not beyond June 30, 1997, to which the Company may
extend the offering; (b) the sale of all of the Shares; or (c) termination
of the Sales Agent's engagement by the Company in accordance with the
provisions of Section 10 hereof. The period from the Effective Date (as
defined in Section 10(a)) to such termination of the Sales Agent's
engagement shall be referred to as the "Offering Period."
(b) The Sales Agent will offer Shares solely to registered
broker-dealers, banks, savings institutions, trust companies, insurance
companies, investment companies as defined in the Investment Company Act of
1940, pension or profit-sharing trusts, or other financial institutions or
institutional buyers (including, but not limited to, any "qualified
institutional buyer" as defined in SEC Rule 144A), whether acting for
itself or in some fiduciary capacity. The Sales Agent will deliver a copy
of the Prospectus and a subscription agreement in the form accompanying the
Prospectus (the "Subscription Agreement") to each prospective investor.
(c) All subscribers will be instructed to execute a Subscription
Agreement and to make their remittances payable to the Company, in
accordance with the instructions contained in the Prospectus and the
Subscription Agreement. All completed Subscription Agreements and proceeds
received by the Sales Agent shall promptly be transmitted to the Company,
and the Company will accept or reject each Subscription Agreement promptly
upon submission. The Company's acceptance of a subscription will be
evidenced solely by the delivery to the subscriber of a written
confirmation of sale. Receipt by the Company of a Subscription Agreement
and/or payment for the subscribed Shares shall not constitute acceptance of
a subscription. Upon acceptance of a subscription, the Company will deliver
a confirmation of sale and, promptly after the subscriber's check is
cleared, authorize the issuance of stock certificates to the subscriber.
The Company will promptly refund any monies collected and attributed to a
subscription, or portion thereof, rejected by the Company or which is
incomplete. If any subscription delivered to the Company is rejected by the
Company and returned with the proceeds therefor to the Sales Agent, the
funds from the rejected subscription shall be promptly returned to the
subscribers.
(d) As compensation for its efforts, the Sales Agent shall be paid by
the Company a commission of 5% of the proceeds of the Shares sold through
the efforts of the Sales Agent. The commission shall be paid to the Sales
Agent promptly upon the Company's authorization of the issuance of stock
certificates for Shares sold through the Sales Agent's efforts.
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4. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Sales Agent that:
(a) The Company will notify the Sales Agent promptly of any request
by the Commission or any other governmental body or agency that the
Prospectus be amended or supplemented.
(b) The Company will advise the Sales Agent, promptly after it shall
receive notice or obtain knowledge thereof, of the initiation or
threatening of any action, suit or proceeding for the purpose of preventing
or suspending the use of the Prospectus and that it will use its best
efforts to prevent the issuance of any order or ruling preventing or
suspending the offering or to obtain its withdrawal if such an order or
ruling should be issued.
(c) The Company will furnish to the Sales Agent, as soon as
available, copies of the Prospectus and all amendments and supplements
thereto in such quantities as the Sales Agent may from time to time
reasonably request.
(d) The Company will apply the net proceeds from the offering
received by it substantially in the manner set forth under "Use of
Proceeds" in the Prospectus.
(e) During the three-year period after the Effective Date, the
Company or its successors or assigns will comply with all registration,
filing and reporting requirements of the Securities Act and the Exchange
Act.
5. COVENANTS OF THE SALES AGENT. The Sales Agent covenants and agrees
with the Company that:
(a) The Sales Agent will maintain an accurate record of all orders to
purchase Shares and funds received, including the name, address and social
security or taxpayer identification number of each prospective purchaser
and the manner in which the stock certificate is to be issued.
(b) The Sales Agent is registered with the Commission as a
broker-dealer and is a member in good standing with the National Association
of Securities Dealers, Inc. (the "NASD"), and the Sales Agent and all its
agents and representatives have or will have all required licenses and
registrations to perform its obligations under this Agreement; and such
registrations, membership and licenses will remain in effect during the
term of this Agreement. The Sales Agent agrees that, in performing its
obligations under this Agreement, the Sales Agent will comply with all
applicable statutes and the rules and regulations of the NASD and any other
federal or state governmental agency that are applicable to it. This
Agreement has been duly and validly authorized, executed and delivered by
the Sales Agent and is its valid and binding agreement and obligation.
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(c) The Selling Agent agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind which, in the opinion
of the Company, requires the amendment or supplementation of the
Prospectus, the Selling Agent will forthwith discontinue offering Shares
until the Selling Agent receives copies of the supplemented or amended
Prospectus, or until it is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, the Selling Agent will
deliver to the Company all copies, other than permanent file copies then in
the Selling Agent's possession, of the Prospectus before such
supplementation or amendment.
6. RESPONSIBILITY FOR PAYMENT OF EXPENSES. The Company covenants and
agrees to pay the costs and expenses typically borne by issuers of securities in
a public offering, including, without limitation (i) the costs and charges of
any transfer agent or registrar and the cost of preparing stock certificates;
(ii) the qualification of the Shares under state securities laws (if necessary),
including filing fees and the reasonable fees and disbursements of counsel in
connection therewith; (iii) the filing fee of the NASD; and (iv) the printing
and delivery to the Sales Agent of copies of the Prospectus and any amendments
or supplements thereto.
7. CONDITIONS TO OBLIGATIONS. The obligations of each of the parties as
provided herein shall be subject to the continuing accuracy, as of the date
hereof and as of the date of the Company's acceptance of any subscription for
Shares obtained through the efforts of the Sales Agent, of the representations
and warranties of the other party herein.
8. INDEMNIFICATION.
(a) The Company agrees to indemnity and hold harmless the Sales
Agent, each of its agents, attorneys, officers, directors, and employees,
and any person who controls the Sales Agent within the meaning of the
Securities Act of 1933 against any and all losses, claims, lawsuits,
damages, or liabilities to which the Sales Agent or its agents, attorneys,
officers, directors or control persons may become subject insofar as such
losses, claims, lawsuits, damages, or liabilities (including awards and/or
judgments) arise out of or are in connection with the Prospectus or any
amendment or supplement thereto, or any representations, statements or
other acts by the Company, its officers, directors, employees, agents, or
control persons, and will reimburse the Sales Agent, its officers,
directors, employees, agents, attorneys and any person who controls the
Sales Agent for any and all costs and expenses, including reasonable
counsel fees incurred by them in connection with the investigation or
defense of any such loss, claim, lawsuit, damage or liability; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, lawsuit, or liability arises out of or is based
upon an untrue statement or omission made in the Prospectus or any
amendment or supplement
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thereto or in reliance upon and in conformity with written information
furnished to the Company, if any, by or on behalf of the Sales Agent
specifically for use with reference to the Sales Agent in preparation
thereof.
(b) The Sales Agent will indemnity and hold harmless the Company,
each of its agents, attorneys, officers, directors, and employees, and any
person who controls the Company within the meaning of the Securities Act of
1933 against any and all losses, claims, lawsuits, damages, or liabilities
to which the Company or any such person may become subject insofar as such
losses, claims, lawsuits, damages or liabilities (including awards and/or
judgments) arise out of or in connection with or result from any statements
furnished to the Company in writing by the Sales Agent that are included in
the Prospectus or any amendment or supplement thereto and which are
furnished specifically for use with reference to the Sales Agent in
preparation thereof, and will reimburse any and all costs and expenses,
including reasonable counsel fees incurred by the Company or other
indemnified person in connection with investigating or defending any such
loss, claim, lawsuit, damage, or liability.
(c) If the indemnification of a person specified above is for any
reason held unenforceable, the indemnifying party agrees to contribute to
the losses, claims, damages and liabilities for which such indemnification
is held unenforceable, (i) in such proportion as is appropriate to reflect
the relative benefits to the Company, on one hand, and the Sales Agent, on
the other hand, of the transaction as contemplated (whether or not the
transaction is consummated) or (ii) if (but only if) the allocation
provided for in clause (i) is for any reason held unenforceable, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company, on
the one hand, and the Sales Agent, on the other hand, as well as any other
relevant equitable considerations. The Company agrees that, for the
purposes of this paragraph, the relative benefits to the Company and the
Sales Agent of the transaction as contemplated hereby shall be deemed to be
in the same proportion that the total value paid or contemplated to be paid
to or by the Company, any affiliate of the Company, or any of its
shareholders, as the case may be, as a result of or in connection with the
transaction bears to the fees paid or to be paid to the Sales Agent under
this Agreement; provided however, that, to the extent permitted by
applicable law, in no event shall the Sales Agent be required to contribute
an aggregate amount in excess of the aggregate fees actually paid to it
under this Agreement.
(d) If an indemnified party is requested or required to appear as a
witness in any action brought by or on behalf of or against the
indemnifying party or any affiliate of the indemnifying party in a
transaction contemplated by this Agreement in which such indemnified party
is not named as a defendant, the indemnifying party shall reimburse the
indemnified party for all expenses incurred by it in connection with such
indemnified party's appearing and preparing to appear as such a witness,
including, without limitation, reasonable fees and disbursements of its
legal counsel.
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(e) Neither party shall, without the other party's prior written
consent, which consent shall not be unreasonably withheld, settle,
compromise, or consent to the entry of any judgment in any pending or
threatened claim, action, or proceeding in respect of which indemnification
could be sought against it under the indemnification provisions of this
Agreement, whether or not any indemnified party is an actual or potential
party to a claim, action, or proceeding, unless such settlement,
compromise, or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, or
proceeding.
(f) The foregoing reimbursement, indemnity, and contribution
obligations shall be in addition to any liabilities which the indemnifying
party may otherwise have. The reimbursement and indemnity obligations of
the indemnifying party under such subparagraphs shall extend upon the same
terms and conditions to any affiliate of the indemnified party, and the
shareholders, directors, officers, employees, attorneys and control persons
(if any), as the case may be, of the indemnified party and any of its
affiliates.
(g) Prior to any proposed sale, distribution, or liquidation of all
or a significant portion of a party's assets or any significant
recapitalization of its outstanding securities in a transaction pursuant to
which such party's ability to honor its obligations hereunder might be
adversely affected, such party will notify the other party in writing
thereof and, if requested by the other party, shall arrange alternative
means for providing for the obligations of the parties set forth in this
Section 8, including the assumption of such obligations by a third party or
the issuance or creation of an escrow, in each case in an amount and upon
terms and conditions satisfactory to the indemnified part). The provisions
of Section 8 shall survive any termination of the authorization provided by
this Agreement.
9. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company and the Sales Agent
herein, or in certificates delivered pursuant hereto, and the indemnity
agreements contained in Section 8 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Sales Agent or any controlling persons, or the Company or any of its officers,
directors or any controlling persons, and shall survive the issuance of the
Shares.
10. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective (the "Effective Date") upon
the later to occur of (i) the time the Registration Statement shall be
declared effective by the Commission; and (ii) the execution and delivery
of this Agreement by the Company and the Sales Agent.
(b) Either the Company or the Sales Agent may terminate this
Agreement by giving notice to the other as provided in Section 11 at any
time. Any such termination
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shall not terminate the obligations of the parties pursuant to Sections 3,
6, and 8 of this Agreement.
11. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and shall be hand delivered
or sent by U. S. certified mail, return receipt requested, or other form of
delivery requiring signature by the person receiving the delivery, or telecopied
and confirmed to the following addresses:
To the Sales Agent:
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To the Company: Strategia Corporation
P. O. Box 37144
10301 Linn Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
With a copy to: Xxxxx, Xxxx & Xxxxxxx PLLC
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx X. XxxXxxxxx
502/589-5400
All notices shall be deemed delivered upon the earlier of the date the receiving
party signs the return receipt or five days after the notice is postmarked. Any
party to this Agreement may change such address for notices by sending to the
parties to this Agreement written notice of a new address for such purpose.
12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Sales Agent, the Company and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person or corporation, other than the parties hereto and
their successors and assigns and the persons referred to in Section 8, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto and their respective successors and assigns and such indemnified
persons and for the benefit of no other person or corporation. No purchaser of
any of the Shares from the Sales Agent shall be construed a successor or assign
merely by reason of such purchase.
13. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Kentucky.
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14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. The validity of this Agreement shall
not be impaired if each party does not execute the same counterpart so long as
the execution of each party appears on the counterparts taken as a whole.
If the foregoing correctly sets forth the understanding between the
Company and the Sales Agent, please so indicate by signing in the space provided
below for that purpose, whereupon this Agreement shall constitute a binding
agreement between the Company and the Sales Agent.
STRATEGIA CORPORATION
By:
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Name: Xxxxxxx X. Xxxxx
Title: President
ACCEPTED as of the date first above
written.
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(Name of Sales Agent)
By:
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Name:
Title:
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