EXHIBIT 1.1 SELLING AGREEMENT
This SELLING AGREEMENT is made as of this day of ,
1998, between
INFONOW CORPORATION, a Delaware corporation ("Company"), with principal
offices at 0000
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, and those persons whose names
appear on the
signature pages hereof ("Selling Stockholders").
RECITALS:
WHEREAS, the Company has issued to Selling Stockholders shares of the
Company's Common Stock and/or warrants to purchase shares of the Company's
Common Stock
(said shares and shares issuable upon exercise of said warrants being
hereinafter referred to as the
"Shares");
WHEREAS, The Company filed a registration statement on Form SB-2
("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
Stockholders 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.
(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 Stockholders 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 Stockholders 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 Stockholders 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 Stockholders copies of an amended Registration Statement or a
supplement to the
Registration Statement (including the prospectus contained therein) in
such quantities as the
Selling Stockholders 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
Stockholders agree
temporarily to terminate the offering of the Shares during the period
between the notification
by the Company to the Selling Stockholders 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 state-
ments or omissions made in reliance upon and in conformity with information
furnished in writing
to the Company by and with respect to the Selling Stockholders expressly for
use therein.
(g) The Company meets the requirements for the use of Form SB-2
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 Stockholders
expressly for use therein.
2. Covenants, Representations and Warranties of the Selling Stockholders.
(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
Stockholders, 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 Stockholder 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
Stockholder agrees that it will offer and sell the Shares in only those states
as to which counsel for
the Company has advised each Selling Stockholder in writing that the necessary
state securities or
blue sky clearances have been obtained. The Selling Stockholders 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 Stockholders 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 Stockholders 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 Stockholder, 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 Stockholders receive 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
Selling Stockholders
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 Stockholders 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.
(a) Company's Indemnification. The Company hereby agrees to
indemnify and
hold harmless each Selling Stockholder, its officers and directors, and each
other person, if any, who
controls the Selling Stockholders within the meaning of the Act, against any
losses, claims, damages
or liabilities, joint or several, to which the Selling Stockholders or any
such person controlling the
Selling Stockholders 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 Stockholders
or such person
controlling the Selling Stockholders 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 Stockholders.
(b) Selling Stockholder's Indemnification. Each Selling
Stockholder 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 Stockholders 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:
(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 Stockholders shall be
deemed
delivered if in writing and delivered personally, or sent by certified mail,
to the Selling Stockholders
addressed to them at their addresses as set forth in the Company's books and
records. Any notice
by Selling Stockholders 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: INFONOW CORPORATION
By:
Xxxxxxx X. Xxxxxxx, President
SELLING STOCKHOLDERS: Xxxxxxxx Consulting Group, Inc.
By:
Rand Family Trust
By:
Trustee Xxxxxxx Xxxxxxx
Xxxxx Xxxx Xxxx Xxxxxxxxx
OPUS Capital Fund LLC
Xxxxx Xxxxxx
By:
H. Xxxx Xxxxxxxx
Environmental Systems Research
Institute, Inc.
By:
Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxxx Global Low
Price Stock Fund
Xxxxxx Xxxxxxxx
By:
Xxxxxx Xxxxx
Xxxxx Xxxxxxxx
