UNDERWRITING AGREEMENT
Exhibit 1.1
, 2002
Bathgate Capital Partners LLC
0000 X.
Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Gentlemen:
Pelion Systems, Inc., a Colorado corporation (the “Company”), hereby confirms its agreement with you (the
“Underwriter”) as follows:
SECTION 1
The Company proposes to issue and sell 350,000 Units
(the “Units”) of the Company’s securities, each Unit comprising one share (the “Shares”) of its Common Stock and one Common Stock Purchase Warrant (“Warrants”). The Company hereby appoints the Underwriter as its
exclusive agent to sell the Units, subject to the terms and provisions of this Agreement, on a “best efforts, 85,000 Units or none” basis, with at least 85,000 Units (the “Minimum Units”) required to be sold if any are sold. Each
Warrant may be exercised for a period of five years from the Effective Date (as defined below) to purchase one share (a “Warrant Share”) at a price of $ per
share.
The Company proposes to issue and sell to the Underwriter and its designees on the Closing Date
(hereinafter defined) for an aggregate purchase price of $100, warrants (“Underwriter’s Options”) to purchase up to 35,000 shares of Common Stock and 35,000 Warrants. The Underwriter’s Options shall be exercisable at
$ per share and $.05 per Warrant.
SECTION 2
In order to induce the Underwriters to enter into this Agreement, the Company hereby represents and warrants to and agrees with each Underwriter that:
under the Securities Act is followed, the prospectus that discloses all the information that was omitted from the prospectus on the effective date pursuant to such Rule, and in either case,
together with any changes contained in any prospectus filed with the Commission by the Company with your consent after the effective date of the Registration Statement, is herein referred to as the “Final Prospectus.” If the procedure in
Rule 430A is followed, the prospectus included as part of the Registration Statement on the date when the Registration Statement became effective is referred to herein as the “Effective Prospectus.” Any prospectus included in the
Registration Statement and in any amendments thereto prior to the effective date of the Registration Statement is referred to herein as a “Preliminary Prospectus.” For purposes of this Agreement, “Rules and Regulations” mean the
rules and regulations adopted by the Commission under the Securities Act.
Included in the Registration Statement
are the Units; the Shares; the Warrants; the Shares and Warrants contained in the Underwriter’s Options; and the shares of Common Stock reserved against exercise of the Warrants and the Underwriter’s Options. As used in this Agreement, the
term “Effective Date” refers to the date the Commission declares the Registration Statement effective pursuant to Section 8 of the Securities Act.
When the Registration Statement becomes effective and on the Closing Date (hereinafter defined), the Registration
Statement, the Effective Prospectus (and on the Closing Date, the Final Prospectus) will contain all statements which are required to be stated therein in accordance with the Securities Act and the Rules and Regulations. No such document will
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; except that the foregoing does not apply to information contained in or
omitted from the Registration Statement or the Effective Prospectus or Final Prospectus in reliance upon written information furnished by the Underwriter, or by any Underwriter through the Underwriter, specifically for use in the preparation
thereof. The Company will not at any time hereafter file any amendments to the Registration Statement or in accordance with Rule 424(b) of the Rules and Regulations of which the Underwriter shall not have been previously advised in advance of filing
or to which the Underwriter shall reasonably object in writing.
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the Effective Prospectus or the Final Prospectus, and prior to the Closing Dates, (a) there shall not have been any material adverse change in the condition, financial or otherwise, of the
Company or in its business taken as a whole; (b) there shall not have been any material transaction entered into by the Company other than transactions in the ordinary course of business; (c) the Company shall not have incurred any material
liabilities, obligations or claims, contingent or otherwise, which are not disclosed in the Effective Prospectus or the Final Prospectus; (d) except in the ordinary course of business and with the consent of the Underwriter, there shall not have
been nor will there be any change in the capital stock or long-term debt (except current payments) of the Company; and (e) the Company has not and will not have paid or declared any dividends or other distributions on its capital stock.
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understanding to which the Company is a party, or to which it may reasonably be expected to become a party, have been fully disclosed in the Effective Prospectus and Final Prospectus.
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secrets, know-how, trademarks, service marks, trade names or copyrights which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, might have a material adverse effect on the business, properties, condition (financial or otherwise), prospects or results of operations of the Company and its Subsidiaries, taken as a whole.
SECTION 3
3.2. Public Offering Price. After the Commission notifies the Company that the Registration Statement has become effective, the Underwriter will offer the Units
hereunder at a price of $___ per Unit. The Underwriter will be entitled to a commission of 10% on each Unit sold by it as such agent; provided, in the event the Minimum Units are not sold and the offering is terminated, the Underwriter shall not
receive any commission. Any commissions payable to the Underwriter under this paragraph shall be payable on the Closing Dates or as otherwise provided herein.
3.3. Escrow Account. During the period of the offering, the proceeds from the sale of at least the first 85,000 Units ($___)(the “Minimum Proceeds”) shall
be promptly deposited in an escrow account (“Escrow Account”) entitled “Pelion Systems, Inc. Escrow Account” with Guaranty Bank and Trust Company (the “Escrow Agent”). The agreement establishing the Escrow Account
(“Escrow Agreement”) shall be in form and content satisfactory to counsel for the Underwriter and the Company. The proceeds from any sale of Units after the First Closing (hereinafter defined) will be deposited into a separate account at
the Escrow Agent that will require the signature of the Company and the Underwriter to release funds. Unless 85,000 Units are sold and paid for by Investors by the Sales Termination Date, this Agreement shall automatically be terminated and the
entire proceeds received from the sale of the Units shall be returned to the Investors, without deduction therefrom or interest thereon.
3.4. Closings. The delivery of the Units against payment therefore is defined as the “Closing” and the time and date thereof are defined as the “Closing Date.” The
first Closing Date will be held when the Minimum Proceeds are received (“First Closing”). It is anticipated that there may be additional Closings as additional funds are received, and the final Closing will be referred to as the
“Final Closing.” The Final Closing could also be the First Closing in the event that no Units are sold after the First Closing. The Closings shall take place at the office of the Underwriter in Greenwood Village, Colorado, or at such other
location as may be specified by the Underwriter
3.5. Inspection of
Certificates. For the purpose of expediting the checking and packaging of the certificates for the Units, if requested by the Underwriter, the Company agrees to make the certificates available for inspection by the Underwriter at the
main office of the Underwriter in Greenwood Village, Colorado, at least two full business days prior to the proposed delivery date.
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The Underwriter’s Options shall be non-transferable for a period of one (1) year following the Effective Date except to
the Underwriter and its respective officers or partners. The Underwriter’s Options shall also contain anti-dilution provisions for stock splits, recombinations, and reorganizations, a one-time demand registration provision, customary piggyback
registration rights, and shall otherwise be in form and substance satisfactory to the Underwriter. The Underwriter’s Options will be exercisable during the four year period commencing one (1) year after the Effective Date.
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3.12. Warrant Solicitation Agent. The
Company agrees to employ the Underwriter as a consultant in connection with the exercise of the Warrants sold as part of the Units. If the Underwriter agrees to act as consultant, the Underwriter shall receive as compensation for acting as a
consultant a fee equal to 5% of the exercise price of the Warrants exercised.
SECTION 4
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will prepare promptly such Prospectus or Prospectuses as may be necessary to permit continued compliance with the requirements of Section 10 of the Securities Act.
SECTION 5
The Company
covenants and agrees with the Underwriters that:
5.3 Preparation and Filing of Amendments and Supplements. The Company agrees to prepare and file promptly with the Commission, upon request of the Underwriter, such amendments or supplements to
the Registration Statement or Final Prospectus, in form satisfactory to counsel to the Company, as may be
necessary, in the opinion of counsel to the Underwriter and of counsel to the Company; and it shall use its best efforts to cause the same to become effective as promptly as possible.
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If the Company shall fail to furnish the
Underwriter with financial statements as herein provided, within the times specified herein, the Underwriter, after giving reasonable notice of not less than 30 days (and if the financial statements are not provided within such 30 day period), shall
have the right to have such financial statements prepared by independent public accountants of its own choosing and the Company agrees to furnish such independent public accountants such data and assistance and access to such records as they may
reasonably require to enable them to prepare such statements and to pay their reasonable fees and expenses in preparing the same.
During the period ending three years from the Closing Date the Company shall also provide to the Underwriter copies of all other statements, documents, or other information which the Company shall mail or otherwise make available to
any class of its security holders, or which it shall file with the Commission; and, upon request in writing from the Underwriter, the Company shall furnish to the Underwriter such other information as may reasonably be requested and which may be
properly disclosed to the Underwriter with reference to the property, business and affairs of the Company and its Subsidiaries, if any; provided such written request includes an agreement to keep confidential any information which should not be
disclosed to the public.
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therein and all amendments and exhibits thereto), each Preliminary Prospectus, the Effective Prospectus and the Final Prospectus as amended or
supplemented, and the printing, delivery and shipping of this Agreement and other underwriting documents, including Blue Sky Memoranda and Selected Dealer Agreements; (c) the filing fee of the National Association of Securities Dealers, Inc.; (d)
any applicable listing fees; (e) the cost of printing certificates representing the Units; (f) the cost and charges of any transfer agent or registrar; (g) the fees and expenses of qualifying the Units under the blue sky laws of various
jurisdictions; and (h) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise provided for in this Section. It is understood, however, that, except as provided in this Section, the Underwriters
shall pay all of their own costs and expenses, including the fees of their counsel, and any advertising expenses connected with any offers they may make.
5.13. Delivery of Documents. At the Closing, the Company will deliver to the Underwriter true and
correct copies of the articles of incorporation of the Company and all amendments thereto; true and correct copies of the by-laws of the Company and of the minutes of all meetings of the directors and shareholders of the Company held prior to the Closing Date which in any way relate to the subject matter of this Agreement. All
such copies shall be certified by the Secretary of the Company.
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cause to be made of all the properties, management, business and operations of the Company, and the Company will make available to the
Underwriter in connection therewith such information in its possession as the Underwriter may reasonably request.
5.23. Outside Directors, Committees, Executive Compensation. The Company shall use its best efforts to have at least two members elected to its board of directors
who are not officers or employees of the Company (“outside directors”) on the Effective Date of the Registration Statement, and to cause two such outside directors to be nominated as directors for two additional one-year terms. The Company will form independent audit and compensation committees which shall be comprised of at
least three of the Company’s directors, at least a majority of whom shall be outside directors.
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delivered a copy of such filing to the Underwriter and to legal counsel for the Underwriter. The Company shall use its best efforts to cause the
registration statement under the Exchange Act to become effective not later than the Effective Date, or as soon thereafter as possible.
SECTION 6
6.2. Indemnification by Underwriters. Each Underwriter severally, but not jointly, shall indemnify and hold harmless the Company
against any and all loss, claim, damage or liability, joint or several, to which the Company may become subject under the Securities Act or otherwise, insofar as such loss, claim, damage, liability (or action in respect thereto) arises out of or are
based upon (a) any untrue statement or alleged untrue statement of a material fact contained (i) in the Registration Statement, any Preliminary Prospectus, the Effective Prospectus or the Final Prospectus or any amendment or supplement thereto
or (ii) in any Blue Sky Application; or (b) the omission or alleged omission to state in the Registration Statement, any Preliminary Prospectus, the Effective Prospectus or the Final Prospectus or any amendment or supplement thereto or in any
Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein not misleading; except that such indemnification shall be available in each such case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon
information and in conformity with written information furnished to the Company through the Underwriter or on behalf of such Underwriter specifically for use in the preparation thereof; and shall reimburse any legal or other expenses reasonably
incurred by the Company in connection with the investigation or defending against any such loss, claim, damage, liability, or action.
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Each party entitled to contribution agrees that upon the service of a summons or
other initial legal process upon it in any action instituted against it in respect of which contribution may be sought, it shall promptly give written notice of such service to the party or parties from whom contribution may be sought, but the
omission so to notify such party or parties of any such service shall not relieve the party from whom contribution may be sought from any obligation it may have hereunder or otherwise (except as specifically provided in Section 6.4 hereof).
6.5. Extension of Obligations. The obligations of the Company under this
Section 6 shall be in addition to any other liability which the Company may otherwise have, and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section shall be in addition to any liability that the respective Underwriters may otherwise have, and shall extend, upon the same terms and conditions, to each director of the Company (including any person
who, with his consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement, and to each person, if any, who controls the Company within the
meaning of the Securities Act.
6.6. Reimbursement of Underwriters. In
addition to its obligations under Section 6.1 of this Agreement, the Company agrees that, as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding arising out of or based upon any loss, claim,
damage, or liability described in Section 6.1 of this Agreement, it will reimburse the Underwriters, and each of them, on a monthly basis (or more often, if requested) for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company’s obligation to reimburse the
Underwriters for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. To the extent that any portion, or all, of any such interim reimbursement payments are so held to
have been improper, the Underwriters receiving the same shall promptly return such amounts to the Company together with interest, compounded daily, determined on the basis of the prime rate (or other commercial lending rate for borrowers of the
highest credit rating) announced from time to time by Norwest Bank of Denver, Denver, Colorado (the “Prime Rate”). Any such interim reimbursement payments that are not made to the Underwriters within 30 days of a request for reimbursement
shall bear interest at the Prime Rate from the date of such request until the date paid.
6.7. Reimbursement of the Company. In addition to their obligations under Section 6.2 of this Agreement, the Underwriters agree that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon any loss, claim, damage or liability described in Section 6.2 of this Agreement, they will reimburse the Company on a monthly basis (or more often, if requested) for all
reasonable legal or other expenses incurred by the Company in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety
and enforceability of the Underwriters’ obligation to reimburse the Company for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. To the extent that any portion,
or all, of any such interim reimbursement payments are so held to have been improper, the Company shall
promptly return such amounts to the Underwriters together with interest, compounded daily, determined on the basis of the Prime Rate. Any such interim reimbursement payments that are not made to the Company within 30 days of a request for
reimbursement shall bear interest at the Prime Rate from the date of such request until the date paid.
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SECTION 7
This Agreement shall become effective (a) at 10:00 a.m., Denver
time, on the first full business day after the Effective Date, or (b) upon release by the Underwriter of the Units for sale after the Effective Date, whichever shall first occur. The Underwriter shall notify the Company immediately after the
Underwriter shall have taken any action, by release or otherwise, whereby this Agreement shall have become effective. For purposes of this Agreement, the release of the initial public offering of the Units for sale to the public shall be deemed to
have been made when the Underwriter releases, by telegram or otherwise, firm offers of the Units to securities dealers or release for publication of a newspaper advertisement relating to the Units, whichever occurs first. This Agreement shall,
nevertheless, become effective at such time earlier than the time specified above, after the Effective Date, as the Underwriter may determine by notice to the Company.
SECTION 8
The obligations of the several Underwriters hereunder to purchase the Units and to make payment to the Company hereunder on the Closing
Dates shall be subject to the accuracy, as of the Closing Dates, of each of the representations and warranties on the part of the Company herein contained, to the performance by the Company of all its agreements herein contained, to the fulfillment
of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions:
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unfavorable ruling, decision or finding would materially adversely affect the business, management, licenses, operations or financial condition
or income of the Company considered as an entity.
(a) |
The Company has been duly incorporated and validly exists as a corporation in good standing under the laws of the State of Colorado, and has the corporate power
and authority to own its properties and to carry on its business as described in the Registration Statement and Effective Prospectus and the Final Prospectus. |
(b) |
The Company is duly qualified and in good standing as a foreign corporation authorized to do business in all jurisdictions in which the character of the
properties owned or held under lease or the nature of the business conducted requires such qualification except where the failure to qualify would not have a material adverse effect on the business of the Company. |
(c) |
The authorized and outstanding capital stock of the Company is as set forth in the Effective Prospectus and Final Prospectus; the Units, the Common Stock, the
Warrants, and the Underwriter’s Warrants conform to the statements concerning them in the Effective Prospectus and Final Prospectus; the outstanding Common Stock of the Company contains no preemptive rights; the Units, the Shares, the Warrants,
and the Underwriter’s Options have been, and the Common Stock issuable upon exercise of the Warrants and the Underwriter’s Options will be, duly and validly authorized and, upon issuance thereof and payment therefor in accordance with this
Agreement, validly issued, fully paid and nonassessable, and will not be subject to the preemptive rights of any shareholder of the Company. |
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(d) |
A sufficient number of shares of Common Stock have been duly reserved for issuance upon the exercise of the Warrants and the Underwriter’s Options.
|
(e) |
To such counsel’s knowledge, no consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are required for the
valid authorization, issuance or sale of the Units, the Shares, the Warrants, and the Underwriter’s Options contemplated by this Agreement, except for those consents, approvals, authorizations, and orders which the Company has obtained and
which are in full force and effect under the Securities Act, the Exchange Act, and under applicable state securities laws in connection with the purchase and distribution of such securities by the Underwriters, and the clearance of the
underwriting compensation by the NASD. |
(f) |
The issuance and sale of the Units and the Underwriter’s Options, the consummation of the transactions herein contemplated, and the compliance with the
terms of this Agreement will not conflict with or result in a breach of any of the terms, conditions, or provisions of or constitute a default under the certificate of incorporation or by-laws of the Company; nor, to such counsel’s knowledge,
will they conflict with or result in a breach of any of the terms, conditions, or provisions of any note, indenture, mortgage, deed of trust, or other agreement or instrument to which the Company is a party or by which the Company or any of its
property is bound, other than for which the Company has received a consent or waiver of such conflict, breach or default, or where such conflict or breach would not have a material adverse effect on the business of the Company; or any existing law
(provided this paragraph shall not relate to federal or state securities laws), order, rule, regulation, writ, injunction, or decree known to such counsel of any government, governmental instrumentality, agency, body, arbitration tribunal,
or court, domestic or foreign, having jurisdiction over the Company or its property. |
(g) |
On the basis of a reasonable inquiry by such counsel, including participation in conferences with Underwriters of the Company and its accountants at which the
contents of the Registration Statement and the Effective Prospectus and the Final Prospectus and related matters were discussed, and without expressing any opinion as to the financial statements or other financial data contained therein: (i) nothing
has come to such counsel’s attention which leads them to believe that the Registration Statement and the Final Prospectus, as amended or supplemented by any amendments or supplements thereto made by the Company prior to the Closing Date, do not
comply as to form in all material respects with the requirements of the Securities Act; (ii) nothing has come to their attention which leads them to believe that the Registration Statement or the Final Prospectus, as amended or supplemented by any
such amendments or supplements thereto, contains any untrue statement of a material fact or omits to state any 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; (iii) they do not know of any contract or other document required to be described in or filed as an exhibit to the Registration Statement which is not so described or filed; and (iv) the Registration Statement has become
effective under the Securities Act, and, to the best of their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated
by the Commission. |
(h) |
This Agreement has been duly authorized and executed by the Company and is a valid and binding agreement of the Company, except as rights to indemnity hereunder
may be limited by federal or state securities laws or public policy and except as enforceability may be
|
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limited by federal or state securities laws or public policy and except as enforceability may be bankruptcy, insolvency, or similar laws affecting creditors rights generally and by general
equitable principles. |
(i) |
The Company is not in default of any of the contracts, licenses, leases or agreements to which it is a party, and the offering and sale of the Units and the
Underwriter’s Options will not cause the Company to become in default of any of its contracts, licenses, leases or agreements. |
(j) |
To such counsel’s knowledge the Company is not currently offering any securities for sale except as described in the Registration Statement.
|
(k) |
Counsel has no knowledge of any promoter, affiliate, parent or subsidiaries of the Company except as are described in the Registration Statement and Final
Prospectus. |
(l) |
To the knowledge of counsel, and without making any statement as to title, the Company owns all properties described in the Registration Statement as being
owned by it; the properties are free and clear of all liens, charges, encumbrances or restrictions except as described in the Registration Statement; all of the leases, subleases and other agreements under which the Company holds its properties are
in full force and effect; the Company is not in default under any of the material terms or provisions of any of the leases, subleases or other agreements; and there are no claims against the Company concerning its rights under the leases, subleases
and other agreements and concerning its right to continued possession of its properties. |
(m) |
To the knowledge of counsel, the Company has been issued by the appropriate federal, state and local regulatory authorities the required licenses, certificates,
authorizations or permits necessary to conduct its business as described in the Registration Statement and to retain possession of its properties. Counsel is unaware of any notice of any proceeding relating to the revocation or modification of any
of these certificates or permits. |
(n) |
To the knowledge of counsel, the Company has paid all taxes which are shown as due and owing on the financial statements included in the Registration Statement
and Final Prospectus. |
(o) |
As to all factual matters, including without limitation the issuance of stock certificates and receipt of payment therefor, the states in which the Company
transacts business, and the adoption of resolutions reflected by the Company’s minute book, such counsel may rely on the certificate of an appropriate officer of the Company. Counsel’s opinion as to the validity and enforceability of any
and all contracts and agreements referenced herein may exclude any opinion as to the validity or enforceability of any indemnification or contribution provisions thereof, or as the validity or enforceability of any such contract or agreement
may be limited by bankruptcy or other laws relating to or affecting creditors’ rights generally and by equitable principles. |
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execution of this Agreement. In the letter dated the each Closing Date, they shall state as of such date (or, with respect to matters involving
changes or developments since the respective dates as of which specified financial information is given in the Final Prospectus, as of a date not more than five days prior to the date of such letter) their conclusions and findings with respect to
the financial information and other matters covered by their letter dated the date of this Agreement, the purpose of the letter to be delivered on the Closing Dates being to update in all respects the conclusions and findings set forth in the prior
letter or letters. The Underwriter shall be furnished without charge, in addition to the original signed copies, such number of signed or photostatic or conformed copies of such letters as the Underwriter shall reasonably request.
(a) The representations and warranties of the Company in this Agreement are true and correct at and as of the date of the certificate, and the
Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the date of the certificate.
(b) The Registration Statement has become effective and to the best of the knowledge of the respective signers no order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose has been initiated or is threatened by the Commission.
(c) The respective signers have each examined the Registration Statement and the Final Prospectus and any amendments and supplements thereto, and to the best of their knowledge the Registration
Statement and the Final Prospectus and any amendments and supplements thereto contain all statements required to be stated therein, do not include any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, since the Effective Date, there has occurred no event required to be set forth in an amended or a supplemented Prospectus which has not been so set forth.
8.10. Tender of Delivery of Units. All of the Units being offered
by the Company and being sold by the Underwriter, and the Underwriter’s Warrants being purchased from the Company by the Underwriter, shall be tendered for delivery in accordance with the terms and provisions of this Agreement.
8.11. Blue-Sky Registration or Qualification. The Units shall be
registered or qualified in such states as the Underwriter and the Company may agree pursuant to Section 5.4, and each such registration or qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Dates.
On the Effective Date and the Closing Date, the Underwriter shall receive from counsel for the Company, written information which contains the following:
(a) |
the names of the states in which applications to register or qualify the Units have been filed; |
(b) |
the status of such registrations or qualifications in such states as of the date of such letter; |
(c) |
a list containing the name of each such state in which the Units may be legally offered and sold by a dealer licensed in such state and the number of each which
may be legally offered and sold in the offering in each such state as of the date of such letter; |
(d) |
with respect to the written information provided on the Effective Date, a representation that such counsel will promptly update such written information if
counsel receives actual notice
|
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of any material changes in the information provided therein between the Effective Date and the Closing Date; |
(e) |
the names of the states in which the offer and sale of the Units in the offering is exempt from registration or qualification; and
|
(f) |
a statement that the Underwriters and selected dealers in the offering may rely upon the information contained therein. |
8.12. Approval of Underwriter’s Counsel. All opinions,
letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel to the Underwriter, whose approval shall
not be unreasonably withheld. The suggested form of such documents shall be provided to the counsel for the Underwriter at least three business days before the dates they are to be provided, that is, the Effective Date and the Closing Dates
8.13. Officers’ Certificate as a Company
Representation. Any certificate signed by an officer of the Company and delivered to the Underwriter or counsel for the Underwriter shall be deemed a representation and warranty by the Company to the Underwriter as to
the statements made therein.
SECTION 9
(a) |
Material adverse changes in the Company’s business, business prospects, management, earnings, properties or conditions, financial or otherwise;
|
(b) |
Any action, suit, or proceedings, at law or in equity, hereafter threatened or filed against the Company by any person or entity, or by any federal, state or
other commission, board or agency wherein any unfavorable result or decision could materially adversely affect the business, business prospects, properties, financial condition or income or earnings of the Company; |
(c) |
Additional material governmental restrictions not in force and effect on the date hereof shall have been imposed upon the trading in securities generally, or
new offering or trading restrictions shall have been generally established by a registered securities exchange, the Commission, the National Association of Securities Dealers, Inc. or other applicable regulatory authority, or trading in securities
generally on any such exchange, the Nasdaq Stock Market, or otherwise, shall have been suspended, or a general moratorium shall have been established by federal or state authorities; |
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(d) |
Substantial and material changes in the condition of the market beyond normal fluctuations such that it would be undesirable, impracticable or inadvisable in
the judgment of the Underwriter to proceed with this Agreement or with the public offering of the Units; |
(e) |
Any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for
the Units; or |
(f) |
Any suspension of trading in the securities of the Company in the over-the-counter market or the interruption or termination of quotations of any security of
the Company on the Nasdaq Stock Market. |
SECTION 10
The Underwriter represents and warrants to and agrees with the Company that:
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the offer and sale of the Units covered hereby except as set forth in the Registration Statement or as authorized in writing by the Company and the Underwriter; (c) it will comply in good faith with all laws, rules and regulations applicable to the distribution of the
securities, including the Rules of Fair Practice of NASD Regulation, Inc.; and (d) the Underwriter has the authority to execute this Agreement on behalf of all of the Underwriters.
SECTION 11
Except as otherwise expressly provided in this Agreement:
11.1 Notice to the Company. Whenever notice is required by the provisions of this Underwriting Agreement to be given to the Company, such notice shall be in writing
addressed to the Company as follows:
Pelion Systems, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
with a copy to:
Xxxx, Plant, Xxxxx, Xxxxx &
Xxxxxxx, P.A.
3400 City Center, 00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, Esq.
11.2 Notice to the Underwriter. Whenever notice is required by the provisions
of this Agreement to be given to the Underwriter, such notice shall be given in writing addressed to the Underwriter as follows:
Bathgate Capital Partners, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X.
X. Xxxxxx
with a copy to:
Xxxxxx & Xxxxxxx, LLC
0000 X. Xxxxxx
Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
11.3 Effective Date of Notices. Such notices shall be effective on the date of
delivery set forth on the receipt if the notice is sent by registered or certified mail or any expedited delivery, or, if sent regular mail, three days from the day of mailing.
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SECTION 12
12.3. Governing Law. The validity,
interpretation and construction of this Agreement and of each part hereof will be governed by the laws of the State of Colorado.
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Please confirm that the foregoing correctly sets forth the Agreement between you
and the Company.
Very truly yours,
ATTEST: |
PELION SYSTEMS, INC. | |||||||
By: |
|
By: |
| |||||
Secretary |
Xxxxxx Xxxxxxxx, CEO |
WE HEREBY CONFIRM AS OF THE DATE HEREOF THAT THE ABOVE SETS FORTH
THE AGREEMENT BETWEEN THE COMPANY AND US.
BATHGATE CAPITAL PARTNERS LLC | ||
By: |
| |
Xxxxx X. X. Xxxxxx, Member |
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