Underwriting Agreement
Exhibit 1
June 13, 2007
ThinkEquity Partners LLC
Feltl and Company, Inc., d/b/a Feltl and Company
As Representatives of the several Underwriters
c/o ThinkEquity
Partners LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Wireless Ronin Technologies, Inc., a Minnesota corporation (the
“Company”), proposes to issue and sell to the
several underwriters named in Exhibit A hereto (the
“Underwriters”) an aggregate of
3,000,000 shares of its common stock, $.01 par value
per share (the “Common Stock”) and an
additional 600,000 shares of Common Stock if and to the extent
that such additional shares have been registered pursuant to a
Rule 462(b) Registration Statement (as defined below) (the
“Rule 462(b) Firm Shares”), and the
selling shareholder identified on Exhibit B hereto
(the “Selling Shareholders”) propose to sell to
the Underwriters an aggregate of 1,000,000 shares of Common
Stock. The 3,000,000 shares of Common Stock and any
Rule 462(b) Firm Shares to be sold by the Company and the
1,000,000 shares of Common Stock to be sold by the Selling
Shareholders are collectively called the “Firm
Shares.” In addition, the Company has granted to the
Underwriters an option to purchase up to an additional
600,000 shares of Common Stock, and an additional 90,000
shares of common stock if and to the extent that such shares
have been registered pursuant to a Rule 462(b) Registration
Statement (the “Rule 462(b) Optional
Shares”), as provided in Section 2 of this
Underwriting Agreement (this “Agreement”). The
600,000 shares of Common Stock subject to the Underwriters’
option to purchase and any Rule 462(b) Optional Shares are
collectively called the “Optional Shares”. The
Firm Shares and any Optional Shares purchased by the
Underwriters are collectively called the “Offered
Shares.” ThinkEquity Partners LLC, a Delaware limited
liability company (“ThinkEquity”) and Feltl and
Company, Inc., d/b/a Feltl and Company, a Minnesota corporation
(“Feltl”) have agreed to act as representatives
of the several Underwriters (in such capacity, the
“Representatives”) in connection with the
offering and sale of the Offered Shares.
The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) a
registration statement on
Form SB-2
(File
No. 333-142999),
which contains a form of prospectus to be used in connection
with the public offering and sale of the Offered Shares. Such
registration statement, as amended, including the financial
statements, exhibits and schedules thereto, in the form in which
it was declared effective by the Commission under the Securities
Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Securities
Act”), including any information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430A
under the Securities Act, is called the “Registration
Statement.” Any registration statement filed by the
Company pursuant to Rule 462(b) under the Securities Act is
called the “Rule 462(b) Registration
Statement,” and from and after the date and time of
filing of the Rule 462(b) Registration Statement, the term
“Registration Statement” shall include the
Rule 462(b) Registration Statement. Such prospectus, in the
form first used by the Underwriters to confirm sales of the
Offered Shares, is called the “Prospectus.” All
references in this Agreement to (i) the Registration
Statement, the Rule 462(b) Registration Statement, a
preliminary prospectus or the Prospectus, or any amendments or
supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System
(“XXXXX”) and (ii) the Prospectus shall be
deemed to include the “electronic Prospectus” provided
for use in connection with the offering of the Offered Shares as
contemplated by Section 3(l) of this Agreement.
The Company and the Selling Shareholders hereby confirm their
respective agreements with the Underwriters as follows:
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Each preliminary prospectus and the Prospectus, complied or will
comply in all material respects with the applicable provisions
of the Securities Act, and if filed by electronic transmission
pursuant to XXXXX (except as may be permitted by
Regulation S-T
under the Securities Act), was identical to the copy thereof
delivered to the Underwriters for use in connection with the
offer and sale of the Offered Shares. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto, at the time it became or
becomes effective, complied or will comply in all material
respects with the applicable provisions of the Securities Act
and did not and will not, through the date of any Option Closing
Date (as defined below) and completion of the Underwriters’
distribution of the Offered Shares, contain any 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 the light of the circumstances under which they were made,
not misleading. The Prospectus and any prospectus included
within the Disclosure Package (as defined below), each as
amended or supplemented, as of the Initial Sale Time (as defined
below), as of the First Closing Date (as defined below) or any
Option Closing Date, as the case may be, did not and will not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties set
forth in the two immediately preceding sentences do not apply to
statements in or omissions from the Registration Statement, any
Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by the Representatives expressly for use
therein, it being understood and agreed that the only such
information furnished by the Representatives to the Company
consists of the information described in Section 9(b)
below. There are no agreements or understandings (including
those that have not been reduced to writing) or other documents
required to be described in the Prospectus or to be filed as
exhibits to the Registration Statement which have not been
described or filed as required
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Representatives specifically for use therein, it being
understood and agreed that the only such information furnished
by the Representatives consists of the information described as
such in Section 9(b) hereof.
(f) The Underwriting Agreement. This
Agreement has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company and its
Subsidiaries (as defined below) enforceable in accordance with
its terms, except as rights to indemnification hereunder may be
limited by applicable law and except as the enforcement hereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable
principles.
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data set forth under the captions “Prospectus
Summary — Summary of Selected Financial
Information,” “Capitalization,” “Selected
Financial Data,” “Management’s Discussion and
Analysis of Financial Condition and Results of Operations”
and elsewhere in the preliminary prospectus included the
Disclosure Package and the Prospectus fairly present the
information set forth therein on a basis consistent with that of
the financial statements contained in the Registration Statement.
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(iii) only, for such violations as would not, individually
or in the aggregate, result in a Material Adverse Change. The
execution, delivery and performance of this Agreement by the
Company and consummation of the transactions contemplated
hereby, by the Disclosure Package and by the Prospectus
(i) have been duly authorized by all necessary corporate
action and will not result in any Default under the charter or
bylaws of the Company or any of its Subsidiaries, (ii) will
not conflict with or constitute a breach of, or Default or a
Debt Repayment Triggering Event (as defined below) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its Subsidiaries pursuant to, or require the consent of any
other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, Debt Repayment Triggering Events
(as defined below), liens, charges or encumbrances as would not,
individually or in the aggregate, result in a Material Adverse
Change, and (iii) will not result in any violation of any
law, regulation, order or decree applicable to the Company or
any of its Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
Subsidiaries or any of its or their properties, except for such
violations as would not, individually or in the aggregate,
result in a Material Adverse Change. No consent, approval,
authorization or other order of, or registration or filing with,
any court or other governmental or regulatory authority or
agency, is required for the execution, delivery and performance
of this Agreement by the Company and consummation of the
transactions contemplated hereby, by the Disclosure Package and
by the Prospectus, except such as have been obtained or made by
the Company or its Subsidiaries and are in full force and effect
under the Securities Act, applicable state securities or blue
sky laws and from the National Association of Securities
Dealers, Inc. (the “NASD”), and (B) such
consents, approvals, authorizations, orders, registrations or
qualifications that, if not obtained or made, would not
individually or in the aggregate result in a Material Adverse
Change. As used herein, a “Debt Repayment Triggering
Event” means any event or condition which gives, or
with the giving of notice or lapse of time would give, the
holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or its Subsidiaries.
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Intellectual Property Rights are licensed to the Company and its
Subsidiaries) the licensor thereof has infringed, or received
any notice of infringement of or conflict with, any rights of
others with respect to the Intellectual Property; and
(iv) there is no dispute between any of the Company and its
Subsidiaries and any licensor with respect to any Intellectual
Property Right. The Company and its Subsidiaries have taken all
steps necessary or appropriate to protect, maintain and
safeguard the Intellectual Property Rights for which improper or
unauthorized disclosure would impair its value or validity and
has entered into appropriate and enforceable
(i) nondisclosure and confidentiality agreements,
(ii) invention assignment and other assignment agreements
with all current employees and contractors, and all past
employees and contractors to the extent necessary to so protect,
maintain and safeguard the Intellectual Property Rights, and
(iii) has made appropriate filings and registrations in
connection with the foregoing.
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the Underwriters may engage in passive market making
transactions in the Offered Shares on The Nasdaq Capital Market
tier of the NASDAQ Stock Market, LLC in accordance with
Regulation M under the Exchange Act.
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potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys’ fees or
penalties arising out of, based on or resulting from the
presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased or operated
by the Company or its Subsidiaries, now or in the past
(collectively, “Environmental Claims”), pending
or, to the best of the Company’s knowledge, threatened
against the Company or its Subsidiaries or any person or entity
whose liability for any Environmental Claim the Company or its
Subsidiaries have retained or assumed either contractually or by
operation of law; (iii) to the best of the Company’s
knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge, presence
or disposal of any Material of Environmental Concern, that
reasonably could result in a violation of any Environmental Law
or form the basis of a potential Environmental Claim against the
Company or its Subsidiaries or against any person or entity
whose liability for any Environmental Claim the Company or its
Subsidiaries has retained or assumed either contractually or by
operation of law, and neither the Company nor its Subsidiaries
is subject to any pending or threatened proceeding under
Environmental Law to which a governmental authority is a party
and which is reasonably likely to result in monetary sanctions
of $100,000 or more.
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term of any such Authorizations, except for any failure to
possess or violation of any Authorization as would not,
individually or in the aggregate, result in a Material Adverse
Change; (iv) has not received notice of any pending or
threatened claim, suit, proceeding, hearing, enforcement, audit,
investigation, arbitration or other action from any Governmental
Authority or third party alleging that any Company operation or
activity is in violation of any Applicable Laws or
Authorizations and the Company has no knowledge or reason to
believe that any such Governmental Authority or third party is
considering any such claim, suit, proceeding, hearing,
enforcement, audit, investigation, arbitration or other action;
(v) has not received notice that any Governmental Authority
has taken, is taking or intends to take action to limit,
suspend, modify or revoke any Authorizations and the Company has
no knowledge or reason to believe that any such Governmental
Authority is considering such action; (vi) has filed,
obtained, maintained or submitted all reports, documents, forms,
notices, applications, records, claims, submissions and
supplements or amendments as are required by all Applicable Laws
or Authorizations and all such reports, documents, forms,
notices, applications, records, claims, submissions and
supplements or amendments were complete and correct on the date
filed (or were corrected or supplemented by a subsequent
submission), except for any failure to file, obtain, maintain,
or submit, and any failure to be complete and correct as would
not result, individually or in the aggregate, in a Material
Adverse Change; and (vii) has not, either voluntarily or
involuntarily, initiated, conducted, or issued or caused to be
initiated, conducted or issued, any recall, market withdrawal or
replacement, post-sale warning or other notice or action
relating to an alleged lack of efficacy of any product, any
alleged product defect, or violation on any Applicable Laws or
Authorizations; the Company is not aware of any facts that would
cause the Company to initiate any such notice or action; and the
Company does not have any knowledge or reason to believe that
any Governmental Authority or third party intends to initiate
any such notice or action.
(kk) MD&A. There are no
transactions, arrangements or other relationships that are
required to be disclosed in the Disclosure Package and the
Prospectus by the Commission’s “Statement About
Management’s Discussion and Analysis of Financial Condition
and Results of Operations” that are not so disclosed or
described as required.
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requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the USA Patriot Act, the money
laundering statutes of all jurisdictions to which the Company
and its Subsidiaries are subject, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering
Laws”), and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving any of the Company and its Subsidiaries
with respect to the Money Laundering Laws is pending, or to the
knowledge of the Company, threatened.
Any certificate signed by an officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters
shall be deemed to be a representation and warranty by the
Company to the Underwriters as to the matters set forth therein.
The Company acknowledges that the Underwriters and, for purposes
of the opinions to be delivered pursuant to Section 6
hereof, counsel to the Company and to the Underwriter, will rely
upon the accuracy and truthfulness of the foregoing
representations and hereby consents to such reliance.
(a) The Underwriting Agreement. This
Agreement has been duly authorized, executed and delivered by or
on behalf of such Selling Shareholder and is a valid and binding
agreement of such Selling Shareholder, enforceable in accordance
with its terms, except as rights to indemnification hereunder
may be limited by applicable law and except as the enforcement
hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
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(f) No Registration, Pre-emptive, Co-Sale or Other
Similar Rights. Such Selling Shareholder
(i) does not have any registration or other similar rights
to have any equity or debt securities registered for sale under
the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as are
described in the Prospectus, (ii) does not have any
preemptive right, co-sale right or right of first refusal or
other similar right to purchase any of the Offered Shares that
are to be sold by the Company or the other Selling Shareholder
to the Underwriters pursuant to this Agreement, except for such
rights as such Selling Shareholder has waived prior to the date
hereof or as have been described in the Registration Statement
and Prospectus, and (iii) does not own any warrants,
options or similar rights to acquire, and does not have any
right or arrangement to acquire, any capital stock, right,
warrants, options or other securities from the Company, other
than those disclosed in the Registration Statement and the
Prospectus.
(h) Disclosure Made by such Selling Shareholder in the
Prospectus. All information furnished by or on
behalf of such Selling Shareholder in writing expressly for use
in the Registration Statement, the Disclosure Package and the
Prospectus is, and on the First Closing Date will be, true,
correct, and complete in all material respects, and does not,
and on the First Closing Date will not, contain any untrue
statement of a material fact or omit to state any material fact
necessary to make such information not misleading. Such Selling
Shareholder confirms as accurate the number of shares of Common
Stock set forth opposite such Selling Shareholder’s name in
the Prospectus under the caption “Principal and Selling
Shareholders” (both prior to and after giving effect to the
sale of the Offered Shares).
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offering material in connection with the offering and sale of
the Offered Shares other than a preliminary prospectus, the
Disclosure Package, the Prospectus or the Registration Statement
or other materials, if any, permitted by the Securities Act.
Such Selling Shareholder acknowledges that the Underwriters and
counsel to the Underwriters, will rely upon the accuracy and
truthfulness of the foregoing representations and hereby
consents to such reliance.
(b) The First Closing Date. Delivery of
the Firm Shares to be purchased by the Underwriters and payment
therefor shall be made at the offices of Xxxxxx Xxxxxxx
Xxxxxx & Brand, LLP, 00 Xxxxx 0xx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000 (or such other
place as may be agreed to by the Company and the
Representatives) at 9:00 a.m. Minneapolis, Minnesota
time, on June 19, 2007, or such other time as the
Representatives shall designate by notice to the Company (the
time and date of such closing are called the “First
Closing Date”). The Company and the Selling
Shareholders hereby acknowledge that circumstances under which
the Representatives may provide notice to postpone the First
Closing Date as originally scheduled include any determination
by the Company, the Selling Shareholders or the Representatives
to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the
provisions of Section 7.
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opposite the name of such Underwriter bears to the total number
of Firm Shares. The Representatives may cancel the option at any
time prior to its expiration by giving written notice of such
cancellation to the Company.
It is understood that the Representatives have been authorized,
for their own accounts and the accounts of the several
Underwriters, to accept issuance, transfer and delivery of and
receipt for, and make payment of the purchase price for, the
Firm Shares and any Optional Shares the Underwriters have agreed
to purchase. Each of ThinkEquity and Feltl, individually and not
as a Representative of the several Underwriters, may (but shall
not be obligated to) make payment for any Offered Shares to be
purchased by any Underwriter whose funds shall not have been
received by the Representatives by the First Closing Date or the
applicable Option Closing Date, as the case may be, for the
account of such Underwriter, but any such payment shall not
relieve such Underwriter from any of its obligations under this
Agreement.
The Selling Shareholder hereby agrees that it will pay all stock
transfer taxes, stamp duties and other similar taxes, if any,
payable upon the sale or delivery of the Offered Shares to be
sold by the Selling Shareholder to the several Underwriters, or
otherwise in connection with the performance of the Selling
Shareholder’s obligations hereunder.
(g) Delivery of Prospectus to the
Underwriter. Not later than 12:00 p.m.
(Minneapolis, Minnesota time) on the second business day, or
such shorter period as may be required by law, following the
date the Offered Shares are first released by the Underwriters
for sale to the public, the Company shall deliver or cause to be
delivered copies of the Prospectus in such quantities and at
such places as shall be agreed upon and requested by the
Representatives.
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with the requirements of Rules 164 and 433 of the
Securities Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the
Commission, legending and record keeping.
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request by an investor or his or her representative within the
Prospectus Delivery Period, the Company shall transmit or cause
to be transmitted promptly, without charge, a paper copy of the
Prospectus.
Notwithstanding the foregoing, if (a) during the period
that begins on the date that is 15 calendar days plus three
business days before the last day of the
Lock-up
Period and ends on the last day of the
Lock-up
Period, the Company issues an earnings release or material news
or a material event relating to the Company occurs; or
(b) prior to the expiration of the
Lock-up
Period, the Company announces that it will release earnings
results during the
15-day
period beginning on the last day of the
Lock-up
Period, then the restrictions imposed in this clause shall
continue to apply until the expiration of the date that is 15
calendar days plus three business days after the date on which
the issuance of the earnings release or the material news or
material event occurs, unless the Representatives waive such
extension. The Company will provide the Representatives and each
individual subject to the
180-day
restricted period pursuant to the
lock-up
agreements described in Section 3(B)(a) with prior written
notice of any such announcement that gives rise to an extension
of the
Lock-Up
Period or such180-day restricted period.
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(a) The Company agrees to pay all costs, fees and expenses
incurred in connection with the performance of its obligations
hereunder, including, without limitation (i) all expenses
incident to the issuance and delivery of the Offered Shares
(including all printing and engraving costs), (ii) all fees
and expenses of the registrar and transfer agent of the Common
Stock, (iii) all necessary issue, transfer and other stamp
taxes imposed on the Company in connection with the issuance and
sale by the Company of the Offered Shares to the Underwriters,
(iv) all fees and expenses of the Company’s counsel,
independent public or certified public accountants and other
advisors, (v) all costs and expenses incurred in connection
with the preparation, printing, filing, shipping and
distribution of the Registration Statement (including financial
statements, exhibits, schedules, consents and certificates of
experts), each Issuer Free Writing Prospectus, each preliminary
prospectus, the Prospectus and any Prospectus wrapper, and all
amendments and supplements thereto, and this Agreement,
(vi) all filing fees, and reasonable attorneys’ fees
and expenses incurred by the Company and the Underwriters in
connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any
part of the Offered Shares for offer and sale under the state
securities or blue sky laws or any foreign jurisdiction, and
preparing and printing a “Blue Sky Survey” or
memorandum, and any supplements thereto, advising the
Underwriter of such qualifications, registrations and
exemptions, (vii) the filing fees incident to, and the
reasonable fees and expenses of counsel for the Underwriters in
connection with, the NASD’s review and approval of the
Underwriter’s participation in the offering and
distribution of the Offered Shares, (viii) the fees and
expenses associated with including the Offered Shares on The
NASDAQ Stock Market LLC, (ix) all other fees, costs and
expenses referred to in Item 25 of Part II of the
Registration Statement, (x) the costs and expenses of the
Company relating to investor presentations on any “road
show” undertaken in connection with the marketing of the
Offered Shares, including, without limitation, expenses
associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged by the Company or
the Underwriters (with the Company’s prior consent which
shall not unreasonably be withheld) in connection with the road
show presentations, lodging expenses of the Underwriter and
officers of the Company and any such consultants, and all
transportation expenses, in connection with the road show,
(xi) a nonaccountable expense allowance payable to the
Underwriters equal to one percent (1%) of the public offering
price of the Firm Shares payable on the First Closing Date,
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less the refundable $50,000 deposit already paid by the Company
to the Representatives, (xii) the reasonable fees and
expenses of the Underwriters in connection with due diligence
meetings with the investment community, and (xiii) in
addition to the fees and expenses of counsel to the Underwriters
specifically identified above in this Section 5(a), all
other reasonable fees and expenses of such counsel incurred
incident to and in connection with the performance of the
Underwriting obligations under and the transactions contemplated
by this Agreement; provided, however, that the fees and
expenses required to be paid by the Company under subsections
5(a)(xii) and (xiii) above shall not exceed $50,000 in the
aggregate. Except as otherwise provided in this Agreement, the
Underwriters shall pay their own respective expenses, including
the fees and disbursements of their legal counsel.
(i) the Company, if required, shall have filed the
Prospectus with the Commission (including the information
required by Rule 430A under the Securities Act) in the
manner and within the time period required by Rule 424(b) under
the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement
containing the information required by such Rule 430A, and
such post-effective amendment shall have become effective;
(ii) all material required to be filed by the Company
pursuant to Rule 433(d) under the Securities Act shall have
been filed with the Commission within the applicable time
periods prescribed for such filings under such Rule 433;
(iii) no stop order suspending the effectiveness of the
Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment to the Registration
Statement, shall be in effect and no proceedings for such
purpose shall have been instituted or threatened by the
Commission; and
(iv) the NASD shall have raised no objection to the
fairness and reasonableness of the underwriting terms and
arrangements.
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(i) for the period from and after the date of this
Agreement and prior to such closing date, there has not occurred
any Material Adverse Change;
(ii) the representations, warranties and covenants of the
Company set forth in Sections 1A and 3A of this Agreement
are true and correct with the same force and effect as though
expressly made on and as of such closing date;
(iii) the Company has complied with all the agreements
hereunder and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to such closing
date; and
(iv) (A) any financial projections presented to the
Representatives for their review were prepared in good faith and
represent the Company management’s best estimate of the
Company’s financial condition following the First Closing
Date; and (B) the net proceeds to be derived from the
offering that is the subject hereof are sufficient to fund the
Company’s operations for at least twelve (12) months
following the First Closing Date.
(j) Lock-Up
Agreement from Certain Securityholders of the Company other than
the Selling Shareholder. On or prior to the date
hereof, the Company shall have furnished to the Representatives
an agreement in the form of Exhibit B hereto, or in such
other form that is satisfactory to the Representatives, from
each director and officer of the Company, and such agreement
shall be in full force and effect on each of the First Closing
Date and any Option Closing Date.
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(i) the representations, warranties and covenants of such
Selling Shareholder set forth in Section 1B and 3B of this
Agreement are true and correct in all material respects (except
for any such representation or warranty that is by its terms
qualified by materiality, which representation or warranty shall
be true and correct) with the same force and effect as though
expressly made by such Selling Shareholder on and as of such
First Closing Date; and
(ii) such Selling Shareholder has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date.
If any condition specified in this Section 6 is not
satisfied when and as required to be satisfied, this Agreement
may be terminated by the Representatives by notice to the
Company and the Selling Shareholders at any time on or prior to
the First Closing Date and, with respect to the Optional Shares,
at any time prior to the applicable Option Closing Date, which
termination shall be without liability on the part of any party
to any other party, except that Section 5, Section 7,
Section 9 and Section 10 shall at all times be
effective and shall survive such termination.
Prior to such effectiveness, this Agreement may be terminated by
any party by notice to each of the other parties hereto, and any
such termination shall be without liability on the part of
(a) the Company to the Representatives or the other
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Underwriters, except that the Company shall be obligated to
reimburse the expenses of the Representatives and the other
Underwriters to the extent required by Sections 5 and 7
hereof, (b) the Representatives to the Company, except as
provided in Section 7, or (c) any party hereto to any
other party except that the provisions of Section 9 and
Section 10 shall at all times be effective and enforceable
and shall survive such termination.
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insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of
or is based upon any untrue or alleged untrue statement of a
material fact contained in the Registration Statement, any
Issuer Free Writing Prospectus, any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or
arises out of or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in
each 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 the Registration Statement, any
Issuer Free Writing Prospectus, any preliminary prospectus, or
the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with written information
furnished to the Company or the Selling Shareholders by the
Representatives expressly for use therein; and to reimburse the
Company, or any such director, officer, Selling Shareholder or
controlling person, for any legal and other expenses (subject to
Section 9(c) hereof) reasonably incurred by the Company, or
any such director, officer, Selling Shareholder or controlling
person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability,
expense or action. Each of the Company and each of the Selling
Shareholders hereby acknowledges that the only information that
the Underwriter has furnished to the Company and the Selling
Shareholders expressly for use in the Registration Statement,
any Issuer Free Writing Prospectus, any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) are
the statements set forth under “Commissions and
Expenses,”
“Lock-Up
Agreement” (but excluding the first three sentences
thereof), and “Stabilization; Short Positions and Penalty
Bids” subheadings under the caption
“Underwriting” in the Prospectus. The indemnity
agreement set forth in this Section 9(b) shall be in
addition to any liabilities that each Underwriter may otherwise
have.
23
such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement,
compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity
was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action,
suit or proceeding and does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on
behalf of any indemnified party.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth
in Section 9(c), any legal or other fees or expenses
reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions
set forth in Section 9(c) with respect to notice of
commencement of any action shall apply if a claim for
contribution is to be made under this Section 10; provided,
however, that no additional notice shall be required with
respect to any action for which notice has been given under
Section 9(c) for purposes of indemnification.
The Company, the Selling Shareholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant
to this Section 10 were determined by pro rata allocation
or by any other method of allocation which does not take account
of the equitable considerations referred to in this
Section 10.
Notwithstanding the provisions of this Section 10, no
Underwriter shall not be required to contribute any amount in
excess of the underwriting commissions or discount received by
such Underwriter in connection with the Offered Shares
underwritten by it and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligation
to contribute pursuant to this Section 10 are several, and
not joint, in proportion to their respective underwriting
commitments as set forth opposite their names in
Schedule A. For purposes of this Section 10, each
officer, director and employee of an Underwriter and each
person, if any, who controls such Underwriter within the meaning
of the Securities Act and the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls
the Company with the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as the
Company.
24
11. Termination of this Agreement. Prior
to the First Closing Date, this Agreement may be terminated by
the Representatives by notice given to the Company and the
Selling Shareholders if at any time (a) trading in or
listing of any of the Company’s securities shall have been
suspended or limited by the Commission or by The NASDAQ Stock
Market LLC or trading in securities generally on either The
NASDAQ Stock Market LLC or the New York Stock Exchange shall
have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such stock
exchanges by the Commission or the NASD; (b) a general
banking moratorium shall have been declared by any federal, New
York, Delaware or Minnesota authorities or a material disruption
in commercial banking or securities settlement or clearing
services in the United States has occurred; or (c) there
shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity, or any
change in the United States or international financial markets,
or any substantial change or development involving a prospective
substantial change in the United States’ or international
political, financial or economic conditions, as in the
reasonable judgment of the Representatives is material and
adverse and makes it impracticable or inadvisable to market the
Offered Shares in the manner and on the terms described in the
Prospectus or to enforce contracts for the sale of securities;
(d) in the judgment of the Representatives, there shall
have occurred any Material Adverse Change; or (e) the
Company shall have sustained a loss by strike, fire, flood,
earthquake, storm, accident or other calamity of such character
as in the reasonable judgment of the Underwriter may interfere
materially with the conduct of the business and operations of
the Company regardless of whether or not such loss shall have
been insured. Any termination pursuant to this Section 11
shall be without liability on the part of (x) the Company
or the Selling Shareholders to the Underwriters, except that the
Company and the Selling Shareholders shall be obligated to
reimburse the expenses of the Representatives and the
Underwriters pursuant to Section 5 and Section 7
hereof, (y) the Underwriters to the Company or the Selling
Shareholders, or (z) any party hereto to any other party,
except that the provisions of Section 9 and Section 10
shall at all times be effective and shall survive such
termination.
12. Default of Underwriters. If any
Underwriter or Underwriters default in their obligations to
purchase the Common Shares hereunder on either the First or any
Second Closing Date and the aggregate number of shares of
Offered Shares that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%)
of the total number of Offered Shares that the Underwriters are
obligated to purchase on such Closing Date, the Representatives
may make arrangements satisfactory to the Company for the
purchase of such Offered Shares by other persons, including any
of the Underwriters, but if no such arrangements are made by
such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Shares that such
defaulting Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of shares of Offered Shares with respect to
which such default or defaults occur exceeds ten percent (10%)
of the total number of shares of Offered Shares that the
Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to the Representatives and the Company
for the purchase of such Common Shares by other persons are not
made within 36 hours after such default, this Agreement
will terminate without liability on the part of any
non-defaulting Underwriters or the Company, except as provided
in Section 14 (provided that if such default occurs with
respect to Offered Shares after the First Closing Date, this
Agreement will not terminate as to the Firm Common Shares or the
Offered Shares purchased prior to such termination). As used in
this Underwriting Agreement, the term “Underwriter”
includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter
from liability for its default.
25
broad range of transactions that involve interests that differ
from those of the Company and the Selling Shareholders and that
no Underwriter has any obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary
relationship; and (v) no Underwriter has provided any
legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company and each Selling
Shareholder has consulted its own legal, accounting, regulatory
and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and
the Selling Shareholders, on one hand, and the Underwriters, on
the other hand, with respect to the subject matter hereof. The
Company and each Selling Shareholder hereby waives and releases,
to the fullest extent permitted by law, any claims that the
Company or such Selling Shareholder may have against any
Underwriter with respect to any breach or alleged breach of
agency or fiduciary duty.
If to the Representatives:
ThinkEquity Partners LLC and Feltl and Company
As Representatives of the several Underwriters
c/o ThinkEquity Partners LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Chief Compliance Officer
As Representatives of the several Underwriters
c/o ThinkEquity Partners LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Chief Compliance Officer
with copies to:
Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP
00 Xxxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
00 Xxxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to the Company or its Subsidiaries:
Wireless Ronin Technologies, Inc.
00000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
00000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
with a copy to:
Xxxxxx and Xxxxxx, P.A.
00 Xxxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
00 Xxxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
26
If to the Selling Shareholder:
Spirit Lake Tribe
X.X. Xxx 000
Xxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Attention: Chairman
X.X. Xxx 000
Xxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Attention: Chairman
with a copy to:
Xxxxx X. Xxxxxxxxx
000 Xxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Facsimile: (000) 000-0000
000 Xxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Facsimile: (000) 000-0000
Any party hereto may change the address for receipt of
communications by giving written notice to the others.
19. Governing Law and Consent to
Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF MINNESOTA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SUCH STATE. ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (“RELATED PROCEEDINGS”) MAY BE
INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA
LOCATED IN HENNEPIN COUNTY, MINNESOTA, OR THE COURTS OF THE
STATE OF MINNESOTA IN EACH CASE LOCATED IN MINNEAPOLIS OR ST.
XXXX, MINNESOTA (COLLECTIVELY, THE “SPECIFIED
COURTS”), AND EACH OF THE COMPANY, ITS SUBSIDIARIES AND
THE UNDERWRITER IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION
(EXCEPT FOR PROCEEDINGS INSTITUTED IN REGARD TO THE ENFORCEMENT
OF A JUDGMENT OF ANY SUCH COURT (A “RELATED
JUDGMENT”), AS TO WHICH SUCH JURISDICTION IS
NON-EXCLUSIVE) OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR
PROCEEDING. SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT
BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH ABOVE SHALL BE
EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER
PROCEEDING BROUGHT IN ANY SUCH COURT. EACH OF THE COMPANY, ITS
SUBSIDIARIES AND THE UNDERWRITER IRREVOCABLY AND UNCONDITIONALLY
WAIVE ANY
27
OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR OTHER
PROCEEDING IN THE SPECIFIED COURTS AND IRREVOCABLY AND
UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH SUIT, ACTION OR OTHER PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
Each of the parties hereto acknowledges that it is a
sophisticated business person who was adequately represented by
counsel during negotiations regarding the provisions hereof,
including, without limitation, the indemnification provisions of
Section 9 and the contribution provisions of
Section 10, and is fully informed regarding said
provisions. Each of the parties hereto further acknowledges that
the provisions of Sections 9 and 10 hereto fairly allocate
the risks in light of the ability of the parties to investigate
the Company, its affairs and its business in order to assure
that adequate disclosure has been made in the Registration
Statement, any preliminary prospectus and the Prospectus (and
any amendments and supplements thereto), as required by the
Securities Act and the Exchange Act.
[SIGNATURE PAGES
FOLLOW]
28
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed
copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in
accordance with its terms.
Very truly yours,
WIRELESS RONIN TECHNOLOGIES, INC.
| By: |
|
Xxxxxxx X. Xxxx
Chairman, President and Chief Executive Officer
SPIRIT LAKE TRIBE
By: _
_
Name: _
_
Title: _
_
29
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
THINKEQUITY PARTNERS LLC
| By: |
|
Xxxx X. Xxx
Partner
FELTL AND COMPANY, INC.
| By: |
|
Xxxx X. Xxxxx
Chief Executive Officer
30
SCHEDULE A
UNDERWRITERS
|
Number of Firm |
Number of Firm |
|||||||
|
Shares to be |
Shares to be |
|||||||
|
Purchased |
Purchase |
|||||||
|
(w/o
Rule 462(b) |
(with maximum
Rule |
|||||||
|
Underwriters
|
Firm Shares) | 462(b) Firm Shares) | ||||||
|
ThinkEquity Partners LLC
|
1,800,000 | 2,070,000 | ||||||
|
Feltl and Company, Inc.
|
1,800,000 | 2,070,000 | ||||||
|
Barrington Research Associates,
Inc.
|
400,000 | 460,000 | ||||||
|
Total
|
4,000,000 | 4,600,000 | ||||||
SCHEDULE B
SELLING
SHAREHOLDERS
|
Number of Firm |
||||
|
Selling
Shareholders
|
Shares to be Sold | |||
|
Spirit Lake Tribe
|
1,000,000 | |||
|
Total
|
1,000,000 | |||
SCHEDULE 1
SCHEDULE OF
FREE WRITING PROSPECTUSES
INCLUDED IN THE
DISCLOSURE PACKAGE
EXHIBIT A
FORM OF
OPINION OF COUNSEL FOR THE COMPANY
EXHIBIT B
FORM OF
LOCK-UP
AGREEMENT
,
2007
ThinkEquity Partners LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Feltl and Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Re: Wireless Ronin
Technologies, Inc. (the “Company”)
Ladies and Gentlemen:
The undersigned, an owner of record or beneficially, or a
pledgee, of common stock, $0.01 par value per share, of the
Company (“Common Stock”) or securities convertible
into or exchangeable or exercisable for Common Stock,
understands and acknowledges that the Company has filed or
intends to file with the Securities and Exchange Commission (the
“Commission”) a registration statement on
Form S-1,
Form SB-2
(if eligible), or other applicable Form (the “Registration
Statement”) for the offer and sale of shares of Common
Stock to the public, including shares subject to an
over-allotment option to be described in the Registration
Statement (collectively, the “Shares”). The
undersigned recognizes that the public offering will be of
benefit to the undersigned and will benefit the Company by,
among other things, raising additional capital for its
operations. The undersigned further understands that the
Company, as issuer, and ThinkEquity Partners LLC and Feltl and
Company, as the representatives of the underwriters, (the
“Representatives”) to be named in that certain
proposed underwriting agreement expected to be entered into in
connection with the public offering of the Shares (the
“Underwriting Agreement”) will be relying upon the
representations and agreements of the undersigned contained in
this letter agreement (this “Agreement”) in carrying
out the public offering and in entering into the Underwriting
Agreement.
In order to induce the Representatives to proceed with the
public offering, the undersigned agrees, for the benefit of the
Company and the Representatives, that should such public
offering be effectuated, the undersigned will not (and will
cause any spouse, domestic partner or minor child or immediate
family member of the spouse, domestic partner or the undersigned
living in the undersigned’s household not to), without the
prior written consent of the Representatives (which consent may
be withheld in the Representatives’ sole discretion),
during the 180 day period commencing on the effective date
of the Registration Statement (the
“Lock-Up
Period”), directly or indirectly:
(i) sell, offer to sell, contract to sell, pledge,
hypothecate, grant any option to purchase, transfer or otherwise
dispose of, grant any rights with respect to, or file (or
participate in the filing of) a registration statement with the
Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder with respect to, or be
the subject of any hedging, short sale, derivative or other
transaction that is designed to, or reasonably expected to lead
to, or result in, the effective economic disposition of, any
Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock now owned or hereafter acquired
by the undersigned or with respect to which the undersigned (or
the undersigned’s spouse, domestic partner or minor child
or immediate family member of the spouse, domestic partner or
the undersigned living in the undersigned’s household) has
or hereafter acquires record or beneficial ownership over;
(ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of ownership of Common Stock or any securities
convertible into or exercisable or exchangeable for Common
Stock, whether any such transaction is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise;
(iii) otherwise effect any disposition of any Common Stock
or any securities convertible into or exercisable or
exchangeable for Common Stock; or
(iv) publicly announce an intention to do any of the
foregoing.
Notwithstanding the above, if (a) during the period that
begins on the date that is 15 calendar days plus three business
days before the last day of the
Lock-Up
Period and ends on the last day of the
Lock-Up
Period, the Company issues an earnings release or material news
or a material event relating to the Company occurs; or
(b) prior to the expiration of the
Lock-Up
Period, the Company announces that it will release earnings
results during the
16-day
period beginning on the last day of the
Lock-Up
Period, then the restrictions imposed by this Agreement shall
continue to apply until the expiration of the date that is 15
calendar days plus three business days after the date on which
the issuance of the earnings release or the material news or
material event occurs.
The undersigned hereby agrees and consents to the entry of stop
transfer instructions with the Company’s transfer agent and
registrar against the transfer of shares of Common Stock or
securities convertible into or exchangeable or exercisable for
Common Stock held by the undersigned except in compliance with
this Agreement.
This Agreement is irrevocable and will be binding on the
undersigned and the respective successors, heirs, personal
representatives and assigns of the undersigned.
[Signature
Page Follows]
Signature
Please Print Name
For Entity Signature:
Print Name of Entity
By
_
_
(Indicate capacity of person signing if signing as custodian,
trustee, or on behalf of an entity)
EXHIBIT C
FORM OF OPINION OF COUNSEL FOR THE SELLING
SHAREHOLDERS