SELLING AGREEMENT
This SELLING AGREEMENT is made as of this ____ day of __________,
1997, between IMAGEMATRIX CORPORATION, a Colorado corporation ("Company"), with
principal offices at 400 S. Colorado Boulevard, Suite 500, Denver, CO 80222, and
those persons whose names appear on the signature pages hereof ("Selling
Shareholders").
RECITALS:
WHEREAS, the Company has issued to Selling Shareholders shares of the
Company's Series A Convertible Preferred Stock ("Preferred Stock") and/or
warrants to purchase shares of the Company's Common Stock (the shares issuable
upon conversion of the Preferred Stock and upon exercise of said warrants being
hereinafter referred to as the "Shares");
WHEREAS, the Company intends to file a registration statement on Form
S-3 ("Registration Statement") with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 (the "Act"), registering the
Shares for sale;
WHEREAS, this Agreement is entered into between the Company and the
Selling Shareholders to facilitate a legal and orderly distribution of the
Shares pursuant to the Registration Statement.
NOW, THEREFORE, in consideration of the promises made herein and for
other good and valuable consideration, the parties agree as follows:
1. Covenants, Representations and Warranties of the Company.
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(a) The Company shall use its best efforts to keep the
Registration Statement effective so as to permit the public sale of the Shares
for a period of three (3) years after the effective date of the Registration
Statement.
(b) The Company will provide the Selling Shareholders with
sufficient copies of the Registration Statement (and prospectus contained
therein) as shall be required to satisfy prospectus delivery requirements under
federal and state securities laws.
(c) The Company will pay all expenses of the public offering of
the Shares except for fees of attorneys, accountants and other advisors retained
by the Selling Shareholders and brokerage and other selling commissions
associated with the distribution of the Shares.
(d)
(i) In the case of the happening, at any time after the
commencement of the offering of the Shares, and prior to its termination,
of any event which materially affects the Company or the Shares which
should be set forth in an amendment of or supplement to the Registration
Statement in order to make the statements therein not misleading, the
Company agrees, upon receiving knowledge of such event, to notify the
Selling Shareholders as promptly as possible of the happening of such an
event.
(ii) In such event, the Company agrees to prepare and furnish to
the Selling Shareholders copies of an amended Registration Statement or a
supplement to the Registration Statement (including the prospectus
contained therein) in such quantities as the Selling Shareholders may
reasonably request, in order that the Registration Statement as so amended
or supplemented will not contain any untrue statement of material fact, or
omit to state any material fact necessary in order to make the statements
therein not misleading in light of the circumstances under which they were
made. The Selling Shareholders agree temporarily to terminate the offering
of the Shares during the period between the notification by the Company to
the Selling Shareholders of the need for such amendment or supplement to
the Registration Statement and the time such amendment or supplement has
been completed. The duration of this time period shall be at the sole
discretion of the Company.
(e) The Company agrees to obtain the necessary state securities and
blue sky registrations or clearances in only those states in which it elects to
do so.
(f) No order preventing or suspending the use of any preliminary
prospectus contained in the Registration Statement has been issued by the
Commission, and such preliminary prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty does not apply to any state ments or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by and with respect to the Selling Shareholders expressly
for use therein.
(g) The Company meets the requirements for the use of Form S-3 under
the Act and the rules and regulations of the Commission.
(h) The Registration Statement and the final prospectus contained
therein and any further amendments or supplements thereto (including any
document incorporated by reference therein filed after the effective date of the
Registration Statement) will, when they become effective or are filed with the
Commission, as the case may be, conform in all material respects to the
requirements of the Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations of the Commission thereunder; all
documents incorporated by reference into the Registration Statement will conform
in all material respects to the requirements of the Commission thereunder; and
no part of the Registration Statement, the prospectus or any such
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amendment or supplement (including documents incorporated by reference therein)
will contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions in the Registration Statement or
prospectus made in reliance upon and in conformity with substantive information
furnished in writing to the Company by and with respect to the Selling
Shareholders expressly for use therein.
2. Covenants, Representations and Warranties of the Selling Shareholders.
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(a) In the case of the happening, at any time after the commencement
of the offering of the Shares, and prior to its termination, of any event which
materially affects the plan of distribution of the Shares, which event should be
set forth in an amendment of or supplement to the Registration Statement in
order to make the statements therein not misleading, the Selling Shareholders,
upon receiving knowledge of such event, agrees to notify the Company, as
promptly as possible, of the happening of such an event, whereupon the
provisions of Section l(d) (ii) above shall then apply.
(b) Each Selling Shareholder agrees to deliver copies of the final
prospectus contained in the Registration Statement, as it may be amended and
supplemented from time to time, to purchasers of the Shares as required by
applicable federal and state securities laws. Each Selling Shareholder agrees
that it will offer and sell the Shares in only those states as to which counsel
for the Company has advised each Selling Shareholder in writing that the
necessary state securities or blue sky clearances have been obtained. The
Selling Shareholders will notify the Company in writing at the time the
distribution of the Shares has been completed.
(c) Statements contained in the Registration Statement, the
prospectus or any amendments or supplements thereto (including any document
incorporated by reference therein) made in reliance upon and in conformity with
substantive information furnished in writing to the Company by and with respect
to the Selling Shareholders expressly for use therein do not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make such statements therein not misleading.
(d) If during the effectiveness of the Registration Statement, the
Company notifies the Selling Shareholders of the occurrence of any intervening
event that, in the opinion of the Company's legal counsel, causes the prospectus
included in the Registration Statement not to comply with the Act, each Selling
Shareholder, promptly after receipt of the Company's notice, shall cease making
any offers, sales, or other dispositions of the Shares included in the
Registration Statement until the Selling Shareholders receive from the Company
copies of a new, amended, or supplemented prospectus complying with the Act.
3. Suspension of Offering. It is understood that the Company and the
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Selling Shareholders will advise each other immediately, in writing, of the
receipt of any threat or the initiation of any steps or procedures by any
federal or state instrumentality or any individual which would impair or prevent
the offer of the Shares or the issuance of any suspension orders or other
prohibitions
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preventing or impairing the proposed offering. In the case of the happening of
any such event, neither the Company nor the Selling Shareholders will acquiesce
in such steps, procedures or suspension orders, and the Company agrees actively
to defend against any such actions or orders unless all parties agree in writing
to the acquiescence in such actions or orders.
4. Indemnification.
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(a) Company's Indemnification. The Company hereby agrees to indemnify
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and hold harmless each Selling Shareholder, its officers and directors, and each
other person, if any, who controls the Selling Shareholders within the meaning
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which the Selling Shareholders or any such person controlling the
Selling Shareholders may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or proceedings in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained, on the effective date thereof, in the
Registration Statement, or in any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, and will
reimburse the Selling Shareholders or such person controlling the Selling
Shareholders for any legal or other expenses reasonably incurred in connection
with investigating or defending any such loss, claim, damage, liability or
proceeding; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Selling Shareholders.
(b) Selling Shareholder's Indemnification. Each Selling Shareholder
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hereby agrees to indemnify and hold harmless the Company, its officers and
directors, and each other person, if any, who controls the Company within the
meaning of the Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company or such other person controlling the Company may
become subject under the Act or otherwise, but only to the extent that such
losses, claims, damages or liabilities (or proceedings in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in the Registration
Statement or in any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, which, in each such
case, has been made in or omitted from the Registration Statement, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by the Selling Shareholders and will reimburse the Company or
such person controlling the Company for any legal or other expenses reasonably
incurred in connection with investigating or defending any such loss, claim,
damage, liability or proceeding.
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5. Miscellaneous:
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(a) This Agreement is made pursuant to and governed by the laws of the
State of Colorado.
(b) Any notices by the Company to Selling Shareholders shall be deemed
delivered if in writing and delivered personally, or sent by certified mail, to
the Selling Shareholders addressed to them at their addresses as set forth in
the Company's books and records. Any notice by Selling Shareholders to the
Company shall be deemed delivered if in writing and delivered personally, or
sent by certified mail, addressed to the Company at its address as set forth at
the beginning hereof.
IN WITNESS WHEREOF, the parties have executed this Selling Agreement as of
the date first above written.
COMPANY: IMAGEMATRIX CORPORATION
By:_____________________________________
Gerald E. Henderson, President
SELLING SHAREHOLDERS:
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