EXHIBIT 1.01
The sales agent warrants to be issued to the sales agent as part of its fee
will be restricted from sale, transfer, assignment or hypothecation for a
period of one year from the date of this prospectus supplement except to
officers or partners (not directors) of the sales agent to comply with
Rule 2710(c)(7)(A) of the NASD Conduct Rules.
Sales Agent Agreement
March 28, 2002
Bathgate XxXxxxxx Capital Group, LLC
Gentlemen:
NanoPierce Technologies, Inc., (the "Company"), hereby confirms its agreement
with you (the "Sales Agent") as follows:
Section 1
Representations and Warranties of the Company
Pursuant to the NanoPierce Technologies, Inc. Financing Terms Agreement dated
March 29, 2002, attached hereto, the Company proposes to offer and sell to
Generation Capital Associates and/or its assigns, up to $2,000,000 of Units on
terms as more fully described in the Financing Terms Agreement.
In order to induce the Sales Agent to enter into this agreement, the Company
hereby represents and warrants to and agrees with the Sales Agent as follows:
1.01 Documents: The documents with respect to the securities and all
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exhibits thereto, copies of which have heretofore been delivered by the
Company to the Sales Agent, have been prepared by the Company and consist
of all current SEC filings by the Company including its most recent Form
10-K for its fiscal year ended June 30, 2001 and all subsequently filed
Form 10-Q's, 8-K's and any other form filed with Securities and Exchange
Commission subsequent to its Form 10-K filing for the period ending June
30,2001.
1.02 No Material Adverse Change: Except as reflected in or contemplated by
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the Documents, and prior to the First Tranch Closing Date (as defined in
the Financing Terms Agreement), there shall not be any material adverse
change in the business, properties or technological position of the Company
as a whole and there shall not have been any material transaction entered
into by the Company, other than transactions entered into in the ordinary
course of business.
1.03 Legality of Securities Offered: The securities offered have been duly
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and validly authorized and when issued and sold against payment, will be
validly issued, fully paid and non assessable.
1.04 Litigation: There is, and at the Closing Date, there will be no
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action suit or proceeding pending or to the knowledge of the Company
threatened, which might result in judgments against the Company, its
officers, directors or affiliates other than those listed in the most
recent public disclosure documents.
1.05 Authority: The execution and delivery by the Company of this
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agreement, has been duly authorized, and this Agreement is valid, binding
and legally enforceable obligation of the Company.
Section 2
Issue Sale and Delivery of Securities
2.01 Sales Agent Appointment: The Company hereby appoints the Sales Agent,
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as a non-exclusive agent until July 31, 2002.
2.02 Compensation of Sales Agent: In consideration for the Sales Agents
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execution of this agreement, and for the performance of its obligations
hereunder, the Company agrees to pay the Sales Agent cash compensation of
$100,000, payable on the First Tranch Closing Date, as defined in the
Financing Terms Agreement. As additional consideration for the initial
closing, the Company will issue to the Sales Agent or, at the Sales Agents
sole discretion, the Registered Representatives or Principals of the Sales
Agent, Sales Agent Warrants to purchase 80,000 NPCT Units (Sales Agent
Warrants) as more fully described in the Financing Terms Agreement. The
Warrants are exercisable for a period of five (5) years at the Unit
Purchase Price ($1.25), as defined in the Financing Terms Agreement. The
compensation for the Second Tranch closing will be the same as the First
Tranch Closing.
2.03 Representations and Warranties: The Sales Agent represents that it
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is a registered broker dealer with the Securities and Exchange Commission
and a member in good standing with the NASD.
2.04 Delivery of Securities: All securities will be delivered pursuant to
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the Financing Terms Agreement.
Section 3
Covenants of the Company
3.01 Due Diligence: The Company will cooperate with the Sales Agent in
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such investigation of the Company as the Sales Agent may make or cause to
be made of the business, operations, contracts, and obligations of the
Company.
Section 4
Indemnification
4.01 Indemnification by Company: The Company agrees to indemnify, defend
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and hold harmless the Sales Agent, its representatives and affiliates from
and against any and all losses, claims, damages, liabilities, expenses,
joint or several, including reasonable attorney's and accountant's fees and
the costs of any of the Sales Agent personnel involved in any such matter
arising out of the Company's reckless acts or breaches of law in connection
with its performance under this agreement which they or any of them may
incur under the Act, or any State securities law and the Rules and
Regulations thereunder.
4.02 Notification to Company: The indemnified persons agree to notify the
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Company promptly of the commencement of any litigation or proceeding
against the indemnified persons of which it may be advised, in connection
with the offering and sale of the securities. The omission of the
indemnified persons to so notify the Company of any such action shall
relieve the Company from any liability, which it may have to the
indemnified persons.
4.03 Indemnification by Sales Agent: The Sales Agent agrees to indemnify
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and hold harmless the Company, its representatives and affiliates from and
against any and all losses claims, damages, liabilities, expenses, joint or
several, including reasonable attorney's and accountant's fees and the
costs of any of the Company's personnel involved in any such matter arising
out of the Sales Agent's reckless acts or breaches of law in connection
with its performance under this agreement which they or any of them may
incur under the Act, or any State securities law and the Rules and
Regulations thereunder.
4.04 Notification to Sales Agent: The Company and indemnified persons
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agree to notify the Sales Agent promptly of the commencement of any
litigation or proceeding against the indemnified persons of which it may be
advised, in connection with the offering and sale of the securities. The
omission of the indemnified persons to so notify the Company of any such
action shall relieve the Company from any liability, which it may have to
the indemnified persons.
Section 5
Termination
5.01 Failure to Comply with Agreement: This Agreement may be terminated by
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either party hereto, by notice to the other party in the event that such
party shall have failed or been unable to comply with any of the terms,
conditions or provisions of this agreement required by either the Company
or the Sales Agent to be performed, complied with or fulfilled by it within
the respective times herein provided for, unless compliance therewith has
been expressly waived by the non-defaulting party in writing.
Section 6
Notice
Except as otherwise expressly provided in this agreement:
6.01 Notice to Company: Whenever notice is required by the provisions of
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this Agreement to be given to the Company, such notice shall be in writing
to the Company as provided below:
Xxxx X. Xxxxxxxxx
NanoPierce Technologies, Inc.
000 00/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
6.02 Notice to Sales Agent: Whenever notice is required by the provisions
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of this Agreement to be given to the Sales Agent, such notice shall be in
writing to the Sales Agent as provided below:
Xxxxx X.X. Xxxxxx
Bathgate XxXxxxxx Capital Group, LLC
0000 X. Xxxxxx Xx., #000
Xxxxxxxxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Section 7
Miscellaneous
7.01 Governing Law: The validity, interpretation, and construction of this
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Agreement and of each part hereof will be governed by the laws of the State
of Colorado. The parties agree that any dispute, which arises between them
relating to this Agreement or otherwise, shall be submitted for resolution
in conformity with the Securities Arbitration Rules of the American
Arbitration Association. The parties agree that the location of an
arbitration hearing before the arbitrators shall be in Denver, Colorado and
each party shall request such location.
7.02 Counterparts: This agreement may be executed in any number of
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counterparts, each of which will constitute an original.
Please confirm that the foregoing correctly sets forth the Agreement
between you and the Company.
Sincerely,
NanoPierce Technologies, Inc.
_____________ By: ___________________________________
Date: Xxxx X. Xxxxxxxxx, President/CEO
We hereby confirm as of the date hereof that the above letter sets forth
the Agreement between the Company and us.
Bathgate XxXxxxxx Capital Group, LLC
_____________ By: ___________________________________
Date: Xxxxxxx X. Xxxxxxx, Manager
