EXHIBIT 1.1
SELLING AGREEMENT
This SELLING AGREEMENT is made as of this _______ day of
___________________, 1999, between COLORADO MEDTECH, INC., a Colorado
corporation ("Company"), with principal offices at 0000 Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, and those persons whose names appear on the signature pages
hereof ("Selling Shareholders").
RECITALS:
WHEREAS, the Company has issued to Selling Shareholders shares of the
Company's common stock ("Common Stock" or 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, as amended (the "Act"),
registering the Shares for sale;
WHEREAS, this Agreement is entered into between the Company and the Selling
Shareholders 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 Shareholders with sufficient
copies of the Registration Statement (and the 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 Shareholders and brokerage and other selling commissions associated
with the distribution of the Shares.
(d) In the case of the happening, at any time after the commencement
of the offering of the Shares, and prior to the termination thereof, 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 Shareholders as promptly
as possible of the happening of such an event. In such event, the Company agrees
to prepare and furnish to the Selling Shareholders copies of an amended
Registration Statement or a supplement to the Registration Statement (including
the prospectus contained therein) in such quantities as the Selling Shareholders
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
Shareholders agree temporarily to terminate the offering of the Shares under the
Registration Statement during the period between the notification by the Company
to the Selling Shareholders 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. Notwithstanding the above, the Selling Shareholders may offer and
sell the Shares in compliance with the Act during such time without the use or
reliance upon registration or the Registration Statement.
(e) The Company shall 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 Shareholders 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. No part of the
Registration Statement, the prospectus or any amendment or supplement thereto
(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
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information furnished in writing to the Company by and with respect to the
Selling Shareholders expressly for use therein.
2. Covenants, Representations and Warranties of the Selling Shareholders.
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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 the termination thereof, 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, each Selling
Shareholder who or which receives knowledge of such event, upon receiving such
knowledge, shall notify the Company, as promptly as possible, of the happening
of such an event, whereupon the provisions of Section l(d) 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 Shareholders 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 Shareholders 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 Shareholders 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 Shareholders receive from the Company
copies of a new, amended or supplemented prospectus complying with the Act.
Notwithstanding the above, the Selling Shareholders may offer and sell the
Shares in compliance with the Act during such time without the use or reliance
upon registration or the Registration Statement.
3. Suspension of Offering. It is understood that the Company and the
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Selling Shareholders 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 Shareholders
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.
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4. Miscellaneous:
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(a) This Agreement is made pursuant to and governed by the laws of
the State of Colorado, without regard to its choice of law principles.
(b) Any notices by the Company to Selling Shareholders shall be
deemed delivered if in writing and delivered personally, or sent by certified
mail, to the Selling Shareholders addressed to them at their addresses as set
forth in the Company's books and records. Any notice by Selling Shareholders 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.
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IN WITNESS WHEREOF, the parties have executed this Selling Agreement as of
the date first above written.
COMPANY:
COLORADO MEDTECH, INC.
By:____________________________
Xxxx X. Xxxxxxxxx XX,
Chief Executive Officer
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SELLING SHAREHOLDERS:
_______________________________
Xxxxxx Xxxxx
_______________________________
Xxxxxxxx Xxxxx
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