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EXHIBIT 1.1
AGREEMENT
DEUTSCHE BANC. ALEX. XXXXX
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00xx Xxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
(INSERT DATE)
Deutsche Bank Securities Inc.
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00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: Sale of the Common Shares of Mosaix, Inc.
Gentlemen:
Mosaix, Inc. (the "Company") has filed a registration statement on Form
S-3 (File No. (Insert) (the "Registration Statement") with respect to (Insert
Number) shares of the Common Stock of the Company.
The Registration Statement includes a prospectus (the "Prospectus").
Each preliminary prospectus included in the Registration Statement prior to the
time it becomes effective is herein referred to as a "Preliminary Prospectus."
Any reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
and any amendments and supplements thereon. From time to time, Deutsche Bank
Securities Inc. ("Deutsche Bank") may purchase Shares from the Company, either
as principal or agent, for resale to members of the public.
The Company represents, warrants and covenants:
a) The Company is current in its filings under the Securities
Exchange Act of 1934, and the Registration Statement is
effective under the Securities Act of 1933, as amended (the
"Act").
b) The Registration Statement and the Prospectus comply or will
comply in all material respects, as the case may be, to the
requirements of, the Act and the Rules and Regulations
thereunder and that the documents incorporated by reference in
the Prospectus, at the time they were filed
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with the Securities and Exchange Commission, conformed at the
time of filing, in all material respects to the requirements of
the Securities Exchange Act of 1934 or the Act, as applicable,
and the Rules and Regulations thereunder.
c) The Registration Statement and any amendment thereto, does not
contain and will not contain, as the case may be, any untrue
statement of a material fact and does not omit nor will not omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and the
Prospectus and any amendments and supplements thereto does not
contain and will not contain, as the case may be, any untrue
statement of a material fact and does not omit nor will not omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
d) The Company will advise Deutsche Bank promptly if it learns of:
(i) any request of the Securities and Exchange Commission (the
"Commission") for amendment to the Registration Statement or for
supplement to the Prospectus or for any additional information
and (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the use of the Prospectus, or of the institution of any
proceedings for that purpose.
The Company agrees to indemnify and hold harmless Deutsche Bank and each
person, if any, who controls Deutsche Bank within the meaning of the Act
against any losses, claims, damages or liabilities to which Deutsche
Bank or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based
upon: (a) any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or (b) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
under which they were made, and will reimburse Deutsche Bank and each
such controlling person for any legal or other expenses reasonably
incurred by Deutsche Bank or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability,
action or proceeding and expenses reasonably incurred in responding to a
subpoena or governmental inquiry whether or not Deutsche Bank or such
controlling person is a party to any action or proceeding; provided,
however, that the Company will not be liable in such case to the extent
that any such loss, claim, damage or liability arises or is based upon
any sale of Shares to any person by Deutsche Bank if Deutsche Bank
failed to send or give a copy of the Prospectus, as the same may be
amended or supplemented, to that person within the time required by the
Act, and that the untrue statement or alleged
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untrue statement of a material fact was corrected in the Prospectus.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to this Agreement, such person
(the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party"). In case any
such proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein, and, to the
extent it shall wish, jointly with any other indemnifying party, to
assume the defense thereof, with counsel satisfactory to such
indemnified party and shall pay as incurred the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred the fees and expenses of the
counsel retained by the indemnified party in the event: (i) the
indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions or
proceedings in resect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and Deutsche Bank on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
Deutsche Bank on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof), as well as any other
relevant equitable
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considerations. The relative benefits received by the Company on the one
hand and Deutsche Bank on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering received by the
Company bear to the total commissions and other compensation received by
Deutsche Bank. The relative fault shall be determined by reference to,
among other things, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this Agreement were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Agreement, Deutsche Bank shall
not be required to contribute any amount in excess of the commissions
and other compensation applicable to the Shares sold through Deutsche
Bank. In addition, no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
This Agreement shall be governed by the laws of the State of New
York.
Very truly yours,
Mosaix Incorporated
