Exhibit 1.1
SELLING AGREEMENT
This SELLING AGREEMENT is made as of this ____ day of October, 1997 ,
between IMAGEMATRIX CORPORATION, a Colorado corporation ("Company"), with
principal offices at 000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000, and
the person whose name appear on the signature page hereof ("Selling
Shareholder").
RECITALS:
WHEREAS, the Company has issued to Selling Shareholder warrants to
purchase shares of the Company's Common Stock (the shares issuable upon exercise
of said warrants being hereinafter referred to as the "Shares");
WHEREAS, the Company intends to file a registration statement on Form
S-3 ("Registration Statement") with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 (the "Act"), registering the
Shares for sale;
WHEREAS, this Agreement is entered into between the Company and the
Selling Shareholder to facilitate a legal and orderly distribution of the Shares
pursuant to the Registration Statement.
NOW, THEREFORE, in consideration of the promises made herein and for
other good and valuable consideration, the parties agree as follows:
1. Covenants, Representations and Warranties of the Company.
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(a) The Company shall use its best efforts to keep the
Registration Statement effective so as to permit the public sale of the Shares
for a period of one (1) year after the effective date of the Registration
Statement.
(b) The Company will provide the Selling Shareholder with
sufficient copies of the Registration Statement (and prospectus contained
therein) as shall be required to satisfy prospectus delivery requirements under
federal and state securities laws.
(c) The Company will pay all expenses of the public offering of
the Shares except for fees of attorneys, accountants and other advisors retained
by the Selling Shareolders and brokerage and other selling commissions
associated with the distribution of the Shares.
(d)
(i) In the case of the happening, at any time after the
commencement of the offering of the Shares, and prior to its termination,
of any event which materially affects the Company or the Shares which
should be set forth in an amendment of or supplement to the Registration
Statement in order to make the statements therein not misleading, the
Company agrees, upon receiving knowledge of such event, to notify the
Selling Shareholder as promptly as possible of the happening of such an
event.
(ii) In such event, the Company agrees to prepare and
furnish to the Selling Shareholder copies of an amended Registration
Statement or a supplement to the Registration Statement (including the
prospectus contained therein) in such quantities as the Selling Shareholder
may reasonably request, in order that the Registration Statement as so
amended or supplemented will not contain any untrue statement of material
fact, or omit to state any material fact necessary in order to make the
statements therein not misleading in light of the circumstances under which
they were made. The Selling Shareholder agrees temporarily to terminate the
offering of the Shares during the period between the notification by the
Company to the Selling Shareholder of the need for such amendment or
supplement to the Registration Statement and the time such amendment or
supplement has been completed. The duration of this time period shall be at
the sole discretion of the Company.
(e) The Company agrees to obtain the necessary state securities
and blue sky registrations or clearances in only those states in which it elects
to do so.
(f) No order preventing or suspending the use of any preliminary
prospectus contained in the Registration Statement has been issued by the
Commission, and such preliminary prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a 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 this representation and warranty does not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by and with respect to the Selling Shareholder expressly
for use therein.
(g) The Company meets the requirements for the use of Form S-3
under the Act and the rules and regulations of the Commission.
(h) The Registration Statement and the final prospectus contained
therein and any further amendments or supplements thereto (including any
document incorporated by reference therein filed after the effective date of the
Registration Statement) will, when they
become effective or are filed with the Commission, as the case may be, conform
in all material respects to the requirements of the Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and the rules and regulations of
the Commission thereunder; all documents incorporated by reference into the
Registration Statement will conform in all material respects to the requirements
of the Commission thereunder; and no part of the Registration Statement, the
prospectus or any such amendment or supplement (including documents incorporated
by reference therein) will contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions in
the Registration Statement or prospectus made in reliance upon and in conformity
with substantive information furnished in writing to the Company by and with
respect to the Selling Shareholder expressly for use therein.
2. Covenants, Representations and Warranties of the Selling Shareholder.
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(a) In the case of the happening, at any time after the commencement
of the offering of the Shares, and prior to its termination, of any event which
materially affects the plan of distribution of the Shares, which event should be
set forth in an amendment of or supplement to the Registration Statement in
order to make the statements therein not misleading, the Selling Shareholder,
upon receiving knowledge of such event, agrees to notify the Company, as
promptly as possible, of the happening of such an event, whereupon the
provisions of Section l(d) (ii) above shall then apply.
(b) Each Selling Shareholder agrees to deliver copies of the final
prospectus contained in the Registration Statement, as it may be amended and
supplemented from time to time, to purchasers of the Shares as required by
applicable federal and state securities laws. Each Selling Shareholder agrees
that it will offer and sell the Shares in only those states as to which counsel
for the Company has advised each Selling Shareholder in writing that the
necessary state securities or blue sky clearances have been obtained. The
Selling Shareholder will notify the Company in writing at the time the
distribution of the Shares has been completed.
(c) Statements contained in the Registration Statement, the prospectus
or any amendments or supplements thereto (including any document incorporated by
reference therein) made in reliance upon and in conformity with substantive
information furnished in writing to the Company by and with respect to the
Selling Shareholder expressly for use therein do not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make such statements therein not misleading.
(d) If during the effectiveness of the Registration Statement, the
Company notifies the Selling Shareholder of the occurrence of any intervening
event that, in the opinion of the Company's legal counsel, causes the prospectus
included in the Registration Statement not to comply with the Act, each Selling
Shareholder, promptly after receipt of the Company's notice,
shall cease making any offers, sales, or other dispositions of the Shares
included in the Registration Statement until the Selling Shareholder receives
from the Company copies of a new, amended, or supplemented prospectus complying
with the Act.
3. Suspension of Offering. It is understood that the Company and the
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Selling Shareholder will advise each other immediately, in writing, of the
receipt of any threat or the initiation of any steps or procedures by any
federal or state instrumentality or any individual which would impair or prevent
the offer of the Shares or the issuance of any suspension orders or other
prohibitions preventing or impairing the proposed offering. In the case of the
happening of any such event, neither the Company nor the Selling Shareholder
will acquiesce in such steps, procedures or suspension orders, and the Company
agrees actively to defend against any such actions or orders unless all parties
agree in writing to the acquiescence in such actions or orders.
4. Indemnification.
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(a) Company's Indemnification. The Company hereby agrees to indemnify
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and hold harmless each Selling Shareholder, its officers and directors, and each
other person, if any, who controls the Selling Shareholder within the meaning of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which the Selling Shareholder or any such person controlling the Selling
Shareholder may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or proceedings in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in the Registration
Statement, or in any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, and will reimburse the
Selling Shareholder or such person controlling the Selling Shareholder for any
legal or other expenses reasonably incurred in connection with investigating or
defending any such loss, claim, damage, liability or proceeding; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by the
Selling Shareholder.
(b) Selling Shareholder's Indemnification. Each Selling Shareholder
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hereby agrees to indemnify and hold harmless the Company, its officers and
directors, and each other person, if any, who controls the Company within the
meaning of the Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company or such other person controlling the Company may
become subject under the Act or otherwise, but only to the extent that such
losses, claims, damages or liabilities (or proceedings in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in the Registration
Statement or in any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, which, in
each such case, has been made in or omitted from the Registration Statement,
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Selling Shareholder and will
reimburse the Company or such person controlling the Company for any legal or
other expenses reasonably incurred in connection with investigating or defending
any such loss, claim, damage, liability or proceeding.
5. Miscellaneous:
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(a) This Agreement is made pursuant to and governed by the laws of the
State of Colorado.
(b) Any notices by the Company to Selling Shareholder shall be deemed
delivered if in writing and delivered personally, or sent by certified mail, to
the Selling Shareholder addressed to them at their addresses as set forth in the
Company's books and records. Any notice by Selling Shareholder to the Company
shall be deemed delivered if in writing and delivered personally, or sent by
certified mail, addressed to the Company at its address as set forth at the
beginning hereof.
IN WITNESS WHEREOF, the parties have executed this Selling Agreement as of
the date first above written.
COMPANY: IMAGEMATRIX CORPORATION
By:________________________________
Xxxxx X. XxXxx, Vice-President
SELLING SHAREHOLDER:
XXXXXXX TRADING LP OF LAKEWOOD
By:___________________________
Its:__________________________
