Exhibit 4.4


 


IVOW, INC.


 


February 22, 2006


 


Dawson James Securities,
Inc.


925 South Federal Highway


6th Floor


Boca Raton, FL 33432


 


Re:  Selling Agreement (the “Agreement”)


 


Dear
Mr. Keyser:


 


iVow, Inc., a Delaware
corporation (the “Seller”), proposes to offer and sell (the “Offering”), to
selected investors, upon the terms set forth herein and in the Subscription
Agreement and the Confidential Private Placement Memorandum (which
collectively, together with the attachments and exhibits thereto, is referred to
as the “Offering Document”), a copy of which has been delivered to you, up to
290,000 units (the “Units”) at
a price per Unit equal to 70% of the
Company’s common stock price, based on the average closing price of the Company’s
common stock for the ten (10) trading days immediately preceding the First
Closing (the “Per Unit Price”); each Unit consisting of one share of common stock (the “Common
Stock”) and a warrant to purchase one-half of a share of common stock
(the “Warrants”). The Warrants shall have an exercise price equal to the Per
Unit Price, a term of five years, and be in the form attached to the Offering
Document. (The Units are sometimes referred to hereafter as the “Offered
Securities”). Dawson James Securities, Inc. (the “Selling Agent”) agrees to
offer and sell on an exclusive “best efforts, all or none” basis, that number
of Units that results in an aggregate sales price of at least $500,000  (the “Minimum Number”), and on a best efforts
basis with respect to additional Units up to a maximum of 290,000 Units during
the offering period described in the Offering Document (the “Offering Period”).
Capitalized terms used and not otherwise defined herein shall have the
respective meanings set forth in the Offering Document. It is intended that the
offer, offer for sale and sale of the Offered Securities will be made only to “accredited
investors” (as such term is defined in Rule 501(a) of Regulation D of the
Securities Act of 1933, as amended (the “1933 Act”) and will be exempt from the
federal registration requirements of the 1933 Act, pursuant to
Regulation D promulgated under Section 3(b) and/or Section 4(2),
respectively, of the 1933 Act and will qualify for an exemption from
registration, if necessary, under the applicable state securities laws and
regulations.


 


The Seller hereby
confirms its agreement with Selling Agent as follows:


 


1.             Offer
and Sale of Offered Securities by Selling Agent; Compensation; Closing.


 


1.1           On the basis of Selling Agent’s
representations, covenants and warranties, the Seller appoints Selling Agent
the exclusive agent of the Seller for the period commencing on the date of the
completion of the Offering Document and ending on February


 

















 


17, 2006, unless extended by the Seller and Selling Agent by their
mutual agreement for a period not to exceed an additional thirty (30) days (“Offering
Termination Date”), to use Selling Agent’s best efforts to offer and sell, on
the terms and conditions set forth in this Agreement (and the Term Sheet
attached hereto as Exhibit A) and in the Offering Document, subject only
to Selling Agent’s right to engage participating broker-dealers pursuant to
Section 2 hereof. The Selling Agent hereby accepts such appointment and
agrees pursuant to the terms and conditions set forth herein and in the
Offering Document to use its best efforts to offer and sell the Offered
Securities as agent for the Seller during the period specified above, and to
attempt to find suitable accredited purchasers for the Offered Securities
acceptable to the Seller.


 


1.2           Prior to and subject to the closing,
subscription proceeds from the sale of the Offered Securities will be deposited
in an escrow account with an escrow agent to be mutually agreeable to Seller
and the Selling Agent (the “Escrow Agent”). The Seller will be responsible for
setting up the Escrow Account, pursuant to an escrow agreement among the
Seller, the Selling Agent and the Escrow Agent, which escrow agreement will be
approved by the Selling Agent. Subscribers will be instructed to make their
checks payable to the Escrow Agent for the benefit of iVow, Inc., or shall
cause the wire transfer of immediately available funds in favor of the Escrow
Agent for iVow, Inc., in accordance with instructions provided by the Selling
Agent. Unless at least the Minimum Number of Units have been sold during the
Offering Period (as the same may be extended by the mutual agreement of the
Selling Agent and the Seller), the Offering will be terminated at the end of
the Offering Period, no Offered Securities will be sold in the Offering and all
subscription proceeds will be refunded to subscribers by the Escrow Agent,
without interest thereon. If subscriptions for at least the Minimum Number of
Units are received by the end of the Offering Period (as the same may be
extended by the mutual agreement of the Selling Agent and the Seller), a
closing (the “First Closing”) will occur as soon as possible after
subscriptions for the Minimum Number have been accepted by the Seller and all
other conditions precedent to closing have occurred to the sole satisfaction of
the Selling Agent. After the First Closing, one or more subsequent closings
(the “Additional Closings”) may occur thereafter on such dates as mutually
determined by the Seller and the Selling Agent, but in no event later than ten
(10) days after the end of the Offering Period. (The First Closing and any
Additional Closing shall each be referred to herein as a “Closing” and the last
of the Closings shall be referred to as the “Final Closing”).


 


1.3           For purposes hereof, the Minimum
Number of Units shall not be deemed to have been sold unless (x) subscription
agreements, completed and fully executed by subscribers who are accredited
investors have been received covering the Minimum Number of the Units and (y)
all checks, drafts and wire transfers submitted by such subscribers in payment
of the purchase price of such Units have been received by the Escrow Agent and
have cleared so that there are “good funds” in the Escrow Account at least
equal to the aggregate purchase price of the Minimum Number of Units.


 


1.4           As compensation for the Selling Agent’s
services hereunder, the Seller shall pay to Selling Agent in cash a selling
commission (“Commission”) upon each Closing, in an amount equal to eight
percent (8%) of the aggregate offering price of the Offered Securities sold by
the Selling Agent or its authorized agent at such Closing. At each Closing of
the


 


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Offering, the Seller shall pay the Selling Agent its Commission
relating to the sale of the Offered Securities that are subject of the Closing
provided that the Seller or counsel for the Seller has received all documents,
including but not limited to, an executed Subscription Agreement for each
investor (“Subscription Documents”) previously furnished to Selling Agent which
the Selling Agent is required to deliver to the Seller or counsel for the
Seller prior to Closing. All or any portion of such Commission may be re-allowed
to Participating Broker-Dealers (as hereinafter defined). No Offered Securities
shall be considered to have been sold by Selling Agent or any Participating
Broker-Dealer selected by Selling Agent unless the purchaser is acceptable to
the Seller, and no compensation will be payable with respect to any agreement
for the purchase of Offered Securities if the Subscription Agreement therefor
is not actually accepted by the Seller. Anything in this Agreement to the
contrary notwithstanding, the Seller shall not be required to pay a Commission
to Selling Agent and Selling Agent shall not be entitled to a Commission,
pursuant to this Section 1.4 or any other provision, if to do so would
cause the Seller to violate federal or state securities laws, regulations or
rules or any other law applicable to the Offering. For purposes of clarity, the
Selling Agent shall not be entitled to any Commission upon the future exercise
of the Warrants sold as part of the Units.


 


1.5           The Seller will pay all of its costs
relating to the Offering contemplated hereby, including, without limitation,
audit expenses, issuance costs and taxes, counsel fees for the preparation of
the Offering Documents, filing fees and disbursements of counsel relating to
the qualification of the Offered Securities under federal securities laws, and
legal fees and expenses of counsel in connection with qualifying the Offered
Securities under the state blue sky laws. To the extent required by law, the
Seller shall qualify the Offered Securities for offer and sale in those
jurisdictions designated by the Selling Agent and reasonably acceptable to the
Seller. The Seller’s counsel shall be responsible for state blue sky securities
laws compliance by the Seller.


 


1.6           The Seller shall pay the Selling
Agent at the First Closing a non-accountable expense allowance (the “Expense
Allowance”) of $25,000, $10,000 of which shall be advanced to Selling Agent
contemporaneous with the execution of this Agreement.


 


1.7           Once the Offered Securities are sold,
or the Offering Period terminates, the agency between the Seller and the
Selling Agent shall terminate. The Selling Agent, on the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, accepts such appointment as the limited agent of
the Seller and agrees to use its best efforts to find purchasers for the
Offered Securities.


 


1.8           Upon each Closing of the sale of the
Offered Securities offered by the Seller hereunder, the Seller will issue to
the Selling Agent at a purchase price of $.001 per warrant, a warrant to
purchase that number of Units equal to eight percent (8%) of the Units sold at
such Closing (the “Selling Agent’s Warrants”). The Selling Agent’s Warrants
shall be exercisable at any time during the five (5) years from the date of
First Closing at an exercise price equal to the Per Unit Price. The Selling
Agent’s Warrants shall be in the form and shall contain the provisions set
forth in Exhibit B attached hereto.


 


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1.9           Each Closing shall be held at the
offices of the Selling Agent, 925 S. Federal Highway, 6th Floor, Boca Raton, FL
33432, or in an alternative location and at such time and date as Selling Agent
and the Seller may mutually agree.


 


1.10         The holders of the Units will be provided
with registration rights with respect to the shares of common stock underlying
the Warrants and the Common Stock. The Company shall file a Registration
Statement on Form S-1 or S-3, as may be applicable, covering the Common Shares
and Warrant Shares no later than 45 days after the Final Closing, and have the
Registration Statement declared effective within one hundred fifty (150) days
after the Closing.


 


2.             Participating
Broker-Dealers. The Seller hereby authorizes Selling Agent to engage other
qualified broker-dealers (the “Participating Broker-Dealers”) to assist the
Selling Agent in the placement of the Offered Securities; provided that during
all times that each such Participating Broker-Dealer shall offer and sell the
Offered Securities, each such Participating Broker-Dealer shall be registered
as a broker-dealer under the Securities Exchange Act of 1934 (the “1934 Act”),
shall be a member in good standing of the National Association of Securities
Dealers, Inc. (“NASD”), and shall be authorized to offer and sell the Offered
Securities under the laws of the jurisdictions in which the Offered Securities
will be offered and sold by such Participating Broker-Dealer. All Participating
Broker-Dealers will be required to execute a Participating Broker-Dealer
Agreement, the form of which is subject to the reasonable approval of the
Seller, with Selling Agent containing substantially the same terms and
conditions as this Agreement, including, without limitation, the
representations and warranties contained in Section 3.2 below and provisions
for indemnification of the Seller to the same extent as your indemnification
provided in Section 7 below. Any commissions, fees, or expenses payable to
such Participating Broker-Dealers will be paid by the Selling Agent and not by
the Seller.


 


3.             Representations,
Warranties and Covenants.


 


3.1           The
Seller represents, warrants and covenants to Selling Agent that, except as set
forth in Schedule 3.1 hereof or in the Offering Document:


 


(a)           The
Seller and each subsidiary is a corporation duly formed and validly existing
and in good standing under the laws of the jurisdiction of its incorporation as
in effect on the date of this Agreement, with adequate power and authority to
enter into and perform this Agreement and to own its property and to conduct
its business as described in the Offering Document and in Seller’s reports
required to be filed by it with the SEC pursuant to the 1933 Act, the 1934 Act
or otherwise (“SEC Reports”); and the Seller and each subsidiary is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification except for such
jurisdictions in which the failure to qualify in the aggregate would not have
material and adverse effect on the earnings, affairs or business prospects of
the Seller or any such subsidiary (a “Material Adverse Effect”) and in which
jurisdictions such failure may be cured without such Material Adverse Effects;
the execution and delivery of this Agreement by the Seller has been duly and
validly authorized and will not result in a breach of its Certificate of
Incorporation or By-laws; and when executed and 


 


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delivered by both
parties hereto, this Agreement will be a valid and binding obligation of the
Seller, assuming the due execution by the Selling Agent, enforceable in
accordance with its terms (except to the extent that enforceability of the
indemnification provisions may be limited under applicable securities laws and
except as enforcement may be limited by bankruptcy, moratorium or other laws
affecting creditors’ rights or general principles of equity); and the execution
and delivery of this Agreement, the consummation of the transactions herein
contemplated and compliance with the terms of this Agreement by the Seller do
not and will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any agreement or any applicable
law, rule, regulation, judgment, order or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Seller, to which the Seller is a party or by which it is bound;


 


(b)           The Offering Document and the SEC
Reports do not contain and will not contain, at any time between the date
hereof and to and including the date of each Closing, any untrue statement of a
material fact and does not omit nor during such period will 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;


 


(c)           Except as is otherwise disclosed in
the Offering Document or the SEC Reports, there is no litigation or
governmental proceeding pending or, to the best of its knowledge, threatened
against or involving the property or business of the Seller or any subsidiary
of the Seller that would result in a Material Adverse Effect;


 


(d)           Except as is otherwise disclosed in
the Offering Document or the SEC Reports, no material defaults exist in the due
performance and observance of any material obligation, term, covenant or
condition of any agreement or instrument to which the Seller or any subsidiary
is a party or by which they are bound that would result in a Material Adverse
Effect;


 


(e)           The
offer, offer for sale, and sale of the Offered Securities have not been and
will not be registered with the Securities and Exchange Commission (the “SEC”)
except as contemplated in the Offering Document. The Company’s actions with
respect to the offer, offer for sale and sale of the Offered Securities will be
pursuant to the exemptions from the registration requirements of Section 5
of the 1933 Act provided by Section 4(2) thereof and/or by
Regulation D thereunder;


 


(f)            To the best of its knowledge and
belief, assuming the offer, offer for sale and sale of the Offered Securities
is made in compliance with the terms of the Offering Document, the applicable
filings with the SEC and any applicable Blue Sky laws, and subject to the
performance of the Selling Agent’s obligations hereunder, the Seller will have
complied in all material respects with the 1933 Act and with all state
securities laws and regulations applicable to it in connection with the offer,
offer for sale, and sale of the Offered Securities. The Seller has not taken
and will not take any action in conflict with the 1933 Act or applicable state
or foreign securities or Blue Sky laws, or which would make the exemption,
qualification or registration pursuant to applicable federal or state
securities or Blue Sky laws unavailable with respect to the offer, offer for
sale and sale of the Offered Securities. The Seller and its officers, directors
or partners are not subject to any disqualification, including


 


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but not limited to any judgment, decree, order or decision issued by
the SEC, any state or foreign securities regulatory authority, any court of
competent jurisdiction or the United States Postal Service. In offering the
Offered Securities, the Seller will comply with all applicable federal, state
or foreign securities laws, including the rules covering exemptions from
registration;


 


(g)           Subject
to the performance of the Selling Agent’s obligations hereunder, the Offered
Securities, upon the payment therefor and issuance thereof, will conform to all
statements and descriptions in relation thereto contained in the Offering
Document and will have the rights set forth in the Seller’s Certificate of
Incorporation;


 


(h)           To
the best of the Seller’s knowledge, the Seller has neither been engaged in, nor
been the subject of, any of the actions or proceedings specified in
subsection (a) of Rule 262 promulgated under Section 3(b) of the
1933 Act, or any substantially similar provisions under the securities laws of
any state in which the Offered Securities are to be sold, such that no
exemption from registration would be available for the offering of the Offered
Securities by the Seller under applicable federal or state securities laws;


 


(i)            Since
the respective dates as of which information is given in the SEC Reports, (i)
there has been no material adverse change in the condition, business, property,
capital commitments, working capital and liabilities or prospects of the Seller
or any subsidiary, financial or otherwise; (ii) the property and business of
the Seller materially conform to the descriptions thereof contained in the SEC
Reports; (iii) there have been no material liabilities or obligations incurred
or material transactions entered into by the Seller or any subsidiary other
than those in the ordinary course of business; (iv) there have been no
dividends or distributions of any kind declared, paid or made by the Seller on
its capital stock; (v) there has not been any change in the capital stock, or
any material increase in the current or long-term debt except as disclosed in
the SEC Reports, or any issuance of options, warrants, convertible securities
or other rights to purchase the capital stock of the Seller or any subsidiary;
and (vi) there have been no transactions between the Seller, shareholders
owning five percent (5%) or more of its issued and outstanding capital stock,
the Seller’s officers and/or directors, nor have there been any corporate
opportunities taken or assumed by controlling shareholders, officers or
directors, that are not fully disclosed in the SEC Reports.


 


(j)            The
Seller will notify the Selling Agent immediately and confirm the notice in
writing (i) of the issuance by the SEC or by any state attorney general or
securities administrator of any order enjoining the sale of the Offered
Securities or suspending the effectiveness of any qualification of the Offered
Securities for sale or (ii) of the initiation of any proceedings for that
purpose. The Seller will make every reasonable effort to prevent the issuance
of any such order and, if any such order shall at any time be issued, to obtain
the lifting thereof at the earliest possible moment;


 


(k)           The
audited and unaudited combined financial statements of the Seller (including
the related notes) included in the SEC Reports present fairly the financial
position of the Seller and its subsidiaries at the dates indicated; said
financial statements have been prepared in conformity with United States
generally accepted accounting principles


 


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applied on a
consistent basis, except as expressly qualified therein, and are in conformity
with Regulation S-X promulgated under the Act;


 


(l)            Except
as set forth in the SEC Reports, the Seller does not have any subsidiaries and
does not own any interest in any other corporation, partnership, joint venture
or other entity;


 


(m)          As
of the date of this Agreement, the Seller and its subsidiaries have not agreed,
or agreed in principle, to any merger or acquisition, or combination with, of
any other corporation, partnership, person, party, entity or trust or the sale
of its business or assets to any other corporation, partnership, person, party,
entity or trust;


 


(n)           The
Seller and its subsidiaries have not, directly or indirectly, at any time
during their existence (i) made any unlawful contribution to any candidate for
political office, or failed to disclose fully any contribution in violation of
law, or (ii) made any payment to any federal, state or foreign governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any jurisdiction thereof;


 


(o)           To
the best of Seller’s knowledge, the Seller and its subsidiaries have filed all
necessary federal, state, local, foreign and other tax returns required to be
filed by them and have paid all taxes shown as due thereon; the Seller and its
subsidiaries have not been notified, either orally or in writing, that any
state, local, federal or foreign taxing authority is conducting or intends to
conduct an audit of any tax return or report filed by the Seller and its
subsidiaries or concerning their business or properties; and the Seller has no
knowledge of any tax deficiency which has been asserted or threatened against
the Seller and any subsidiary which would materially and adversely affect the
business, properties, financial condition, results of operations, liabilities
or working capital of the Seller;


 


(p)           The
Seller and its subsidiaries make and keep accurate books and records and
maintain internal accounting controls which provide reasonable assurance that
(i) transactions are executed in accordance with management’s authorization,
(ii) transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (iii)
access to their assets is permitted only in accordance with management’s
authorization, and (iv) the reported assets are compared with existing assets
at reasonable intervals;


 


(q)           There are no pre-emptive rights
applicable to any of the Seller’s outstanding securities, or granted by the
Seller to any person or party;


 


(r)            The
capitalization of the Seller is as described in the SEC Reports and the Seller
has outstanding no more than 2,367,726 
shares of its Common Stock as of the date hereof; all presently
outstanding shares of the Seller’s Common Stock are duly and validly authorized
and issued, fully paid and non-assessable and contain no preemptive rights; the
Seller has not contracted for the issuance of any additional equity securities
other than as set forth herein or as contemplated or described in the Offering Document
and no shares of any other classes of equity securities are issued and
outstanding except as follows: 
outstanding


 


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options to
purchase 416,877 shares of common stock; outstanding warrants to purchase
1,417,753 shares of common stock and up to 45,607 shares of common stock
issuable to the prior stockholders of Sound Health Solutions, Inc. (“SHS”).


 


(s)           The Seller agrees that, for a period of Twelve
months (12) months from the date hereof, it shall not solicit any offer to buy
from or offer to sell to any person introduced to the Seller by the Selling
Agent in connection with the Offering, any securities of the Seller or provide
the name of any such person to any other securities broker or dealer or selling
agent. For purposes of this subsection, a person shall be considered to have
been “introduced to the Seller” by the Selling Agent only so long as Seller
delivers an investment presentation to such person as part of the “road show”
for the Offering as arranged by the Selling Agent, each of whose name(s) shall
be thereafter listed and set forth on a schedule to this Agreement, which shall
be updated from time to time. In the event that the Seller or any of its
affiliates, directly or indirectly, solicits, offers to buy from or offers to
sell to any such person any such securities, or provides the name of any such
person to any other securities broker or dealer or selling agent, and such
person purchases such securities or purchases securities of the Seller from any
other securities broker or dealer or selling agent, the Seller shall pay to the
Selling Agent an amount equal to eight percent (8.0%) of the aggregate purchase
price of the securities so purchased by such person.


 


(t)            The Seller
is currently in compliance with (i) all applicable, material provisions of the
Sarbanes-Oxley Act of 2002, and the rules and regulations promulgated
thereunder, and (ii) all listing standards and rules promulgated by the NASD,
except to the extent that non-compliance with such requirements in subsections
(i) or (ii) would not result in a Material Adverse Effect.


 


3.2           The
Selling Agent represents and warrants to the Seller as follows:


 


(a)           The
Selling Agent is, has been and will be at all times during the Offering Period,
a Delaware corporation duly organized and validly existing under the laws of
the state of its incorporation, with all requisite power and authority to enter
into and perform this Agreement; the execution and delivery of this Agreement
by the Selling Agent has been duly and validly authorized; and when executed
and delivered by the Seller, this Agreement will be a valid and binding
obligation of the Selling Agent enforceable in accordance with its terms
subject to:  (i) due authorization,
execution and delivery hereof by the Seller; (ii) the enforcement of remedies
under applicable bankruptcy, insolvency and other laws affecting creditors’
rights generally and moratorium laws from time to time in effect; (iii) general
equitable principles which may limit the right to obtain the remedy of specific
performance; and (iv) the public policy limitation on indemnification under the
federal securities laws;


 


(b)           The
Selling Agent shall not offer or sell the Offered Securities in any state or
states without the approval of the Seller and completion by the Seller of all,
or any, Blue Sky filings for such states and shall not offer or sell the
Offered Securities in any state or states in which it is not qualified or
registered as a broker-dealer or authorized to engage in the brokerage
business; and


 


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(c)           The
Selling Agent is (i) a broker-dealer registered with the SEC pursuant to the
1934 Act, and no proceeding has been initiated to revoke such registration;
(ii) a member in good standing of the NASD; and (iii) a broker-dealer
registered with the securities authorities of each jurisdiction in which it is
required to be registered in connection with the offers or sales of the Offered
Securities, and all such offers or sales will be made only by individuals
licensed as required by all applicable federal and state securities laws. The
Selling Agent agrees to maintain each of the foregoing memberships and
registrations in good standing throughout the Offering Period.


 


4.             Sale
and Delivery of Offered Securities.


 


4.1           No sale of Offered Securities shall
take place or be regarded as effective unless and until accepted by the Seller,
such acceptance to occur at Closing, and the Seller reserves the right in its
sole and absolute discretion to refuse to sell Offered Securities to any or all
persons at any time. Selling Agent shall send to the Seller and to the Escrow
Agent designated in Section 1.2, with copies to counsel for the Seller, all
acceptable executed Subscription Documents, promptly upon receipt of the same,
subject to any reasonable delay occasioned by further inquiry as to a
prospective purchaser’s qualification or requests by the Seller or Selling
Agent for further information from a prospective purchaser. The Seller shall notify
Selling Agent as to whom to send the originals of such executed Subscription
Documents and to whom to send copies. Selling Agent shall promptly send each
such prospective purchaser’s payment for his Offered Securities to the Escrow
Agent. Subject to review by counsel for the Seller, the Seller shall notify
Selling Agent whether such prospective purchaser will be accepted by the Seller
at Closing within ten (10) business days after receipt of the executed
subscription documents for each prospective purchaser of Offered Securities,
but in no event later than the earlier of (i) the date the parties have agreed
to for Closing or (ii) the Offering Termination Date. For every prospective
purchaser of Offered Securities whose subscription is rejected, the Seller will
promptly return all of such prospective purchaser’s executed Subscription
Documents to Selling Agent for return to the prospective purchaser, and will
notify the Escrow Agent to return the funds received to such prospective
purchaser without interest and without deduction.


 


5.             Conditions
to the Obligations of the Seller.


 


The
obligations of the Seller hereunder are subject to the accuracy of Selling
Agent’s representations and warranties, to the observance and performance by
Selling Agent of its obligations hereunder, and to the following further
conditions (any of which may be waived in writing in whole or in part by the
Seller):


 


(a)           Selling Agent shall not have taken or
failed to take any action at any time at or prior to Closing, which, in the opinion
of the Seller or counsel for Seller, conflicts or would conflict with, or
otherwise make unavailable, the exemption from registration requirements for
the offer and sale of the Offered Securities under applicable securities laws
and regulations.


 


(b)           If any of the conditions specified in
this Section 5 shall not have been fulfilled when and as required by this
Agreement to be fulfilled, all the obligations of the


 


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Seller under this Agreement may be terminated in writing at any time at
or prior to Closing, and any such termination shall be without liability to the
parties, and further provided that the obligations under Section 7 and
Section 9.1 shall nevertheless survive and continue thereafter.


 


6.             Conditions
of the Obligations of the Selling Agent.


 


The obligations of the
Selling Agent to act as agent hereunder, to find purchasers for the Offered
Securities, and to attend and to deliver documents at Closing shall be subject
to the following conditions:


 


(a)           Between the date hereof and Closing,
the Seller and its subsidiaries shall not have sustained any loss on account of
fire, explosion, flood, accident, calamity or other cause, of such character as
results in a Material Adverse Effect on the Seller and its subsidiaries,
whether or not such loss is covered by insurance.


 


(b)           Between the date hereof and Closing,
there shall be no material litigation instituted or threatened against the
Seller or any subsidiary (other than as set forth in the Offering Document) and
there shall be no material proceeding instituted or threatened before or by any
federal or state commission, regulatory body or administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable ruling, decision
or finding would materially adversely affect the business, franchises,
licenses, permits, operations or financial condition or income of the Seller.


 


(c)           Except as contemplated herein or as
set forth in the Offering Document, during the period subsequent to the date
hereof, and prior to Closing, the Seller and each subsidiary:  (i) shall have conducted its business in the
usual and ordinary manner as the same was being conducted on the date hereof,
and (ii) except in the ordinary course of its business, the Seller and each
subsidiary shall not have incurred any liabilities or obligations (direct or
contingent), or disposed of any assets, or entered into any material
transaction or suffered or experienced any substantially adverse change in its
condition, financial or otherwise, or in its working capital position. At
Closing, the capitalization of the Seller shall be substantially the same as
set forth in the Offering Document.


 


(d)           The authorization for the issuance
and delivery of the Offered Securities and the Offering Document and related
materials, and for the execution and delivery of this Agreement, and all other
legal matters incident thereto, shall be reasonably satisfactory in all
respects to counsel for Selling Agent.


 


(e)           The Seller shall have furnished to
the Selling Agent the opinion, dated the Closing Date, of its counsel, which
opinion shall be reasonably acceptable to the Selling Agent and its counsel


 


(f)            The representations and warranties
of the Seller made in this Agreement or in any document or certificate
delivered to the Selling Agent pursuant hereto shall be true and correct on and
as of the Closing with the same force and effect as though such representations
and warranties have been made on and as of the Closing, and the Selling Agent


 


10

















 


shall have
received a certificate, dated the Closing Date, to such effect executed by the
Chairman of the Board or President of the Seller.


 


(g)           The Seller shall have performed and
complied in all material respects with all covenants, terms and agreements to
be performed and complied with by the Seller on or before the Closing.


 


(h)           The Seller shall have provided such
certificates as the Selling Agent shall reasonably request.


 


(i)            The Seller and its President shall
provide certificates to the Selling Agent certifying that the proceeds of the
Offering will be used in accordance with the uses designated in “Use of
Proceeds” in the Offering Document.


 


7.             Indemnification.


 


7.1           The
Seller agrees to indemnify and hold harmless Selling Agent and each person, if
any, who controls Selling Agent within the meaning of the 1933 Act or the 1934
Act (together, the “Acts”), the Selling Agent’s affiliated entities, partners,
employees, legal counsel and agents (the “SA Indemnified Parties”) against any
losses, claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses and disbursements (and any and all actions, suits,
proceedings and investigations in respect thereof and any and all legal and
other costs, expenses and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise), joint or several, to which
Selling Agent or such person may be subject, under the Acts or otherwise,
including, without limitation, the costs, expenses and disbursements, as and
when incurred, of investigating, preparing or defending any such action, suit,
proceeding or investigation (whether or not in connection with litigation in
which the Selling Agent is a party), directly or indirectly, caused by,
relating to, based upon, arising out of, or in connection with (i) the
violation or breach of any representation, warranty or covenant or agreement of
the Seller set forth in this Agreement or in any instrument, document,
agreement or certificate delivered by the Seller in connection herewith; (ii)
any untrue statement or omission or any alleged untrue statement or omission in
the Offering Document or selling material, excluding information contained in
or omitted from the Offering Document or selling material in reliance upon, and
in conformity with, information furnished to the Seller by Selling Agent or any
Participating Broker-Dealer specifically for use in preparation of the Offering
Document or selling material, as the case may be; (iii) any information
provided by or on behalf of Seller in order to qualify or exempt the Offered
Securities for sale in any jurisdiction; or (iv) the failure of the Seller to
comply with the provisions of the Acts and the regulations thereunder,
including Regulation D; and will reimburse the SA Indemnified Parties for
any legal or other expenses reasonably incurred by the SA Indemnified Parties
in connection with investigation of or defending against any such loss, claim,
expense, damage, liability, (or actions in respect thereof); provided, however,
that the Seller shall not be required to indemnify the SA Indemnified Parties
for any payment made to any claimant in settlement of any suit or claim unless
such payment is agreed to by the Seller (which agreement shall not be
unreasonably withheld) or by a court having jurisdiction of the controversy. This
indemnity agreement shall remain in full force and effect notwithstanding any
investigation made by Selling Agent or on Selling Agent’s behalf, shall


 


11

















 


survive
consummation of the sale of the Offered Securities hereunder and shall be in
addition to any liability which the Seller may otherwise have.


 


7.2           Selling
Agent agrees to indemnify and hold harmless the Seller and each person, if any,
who controls the Seller within the meaning of the Acts, Seller’s affiliated
entities, partners, employees, legal counsel and agents (the “Seller
Indemnified Parties”) against any losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses and disbursements
(and any and all actions, suits, proceedings and investigations in respect
thereof and any and all legal and other costs, expenses and disbursements in
giving testimony or furnishing documents in response to a subpoena or
otherwise), joint or several (including, without limitation, the costs,
expenses and disbursements, as and when incurred, of investigating, preparing
or defending any such action, suit, proceeding or investigation (whether or not
in connection with litigation in which the Seller is a party)), to which the
Seller or any such person may be subject, under the Acts or otherwise, insofar
as such losses, claims, expenses, damages or liabilities (or actions in respect
thereof) which (i) arise out of or are based upon any untrue statement or
omission or any alleged untrue statement or omission in the Offering Document
contained in or omitted from the Offering Document in reliance upon, and in
conformity with, information furnished to the Seller by Selling Agent or any
Participating Broker-Dealer or either of them specifically for use in
preparation of the Offering Document or selling material, as the case may be or
(ii) are directly or indirectly, caused by, relating to, based upon, arising
out of, or in connection with the violation or breach of any representation,
warranty or covenant or agreement of the Selling Agent set forth in this
Agreement or in any instrument, document, agreement or certificate delivered by
the Selling Agent in connection herewith); and will reimburse the Seller
Indemnified Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending against any such loss, claim,
expense, damage, liability, (or actions in respect thereof); provided, however,
that Selling Agent shall not be required to indemnify the Seller Indemnified
Parties for any payment made to any claimant in settlement of any suit or claim
unless such payment is approved by a court having jurisdiction over the
controversy or Selling Agent agrees to such settlement (which agreement shall
not be unreasonably withheld); and provided further that Selling Agent shall
not be liable under this Section 7.2 for any losses, claims, expenses,
damages or liabilities arising out of any act or failure to act on the part of
any other person except Selling Agent, its partners, employees and agents
(including registered representatives) or any Participating Broker-Dealer. This
indemnity agreement shall remain in full force and effect notwithstanding any
investigation made by or on behalf of the Seller and shall survive consummation
of the sale of the Offered Securities hereunder and the termination of this
Agreement, and shall be in addition to any liability which Selling Agent may
otherwise have. Notwithstanding the foregoing, in no event shall the amount
that the Selling Agent is required to indemnify the Seller Indemnified Parties,
exceed in the aggregate the compensation received by the Selling Agent
hereunder, except in the case of fraud on the part of the Selling Agent.


 


7.3           The indemnified party shall notify
the indemnifying party in writing promptly after the summons or other first
legal process giving information of the nature of any and all claims which have
been served upon the indemnified party. In case any action is brought against
any indemnified party upon any such claim, the indemnifying party shall be
entitled to participate at its own expense in the defense, or if it so elects,
in accordance with


 


12

















 


arrangements
satisfactory to any other indemnifying party or parties similarly notified, to
assume the defense thereof, with counsel who shall be satisfactory to such
indemnified party and other indemnified parties who are defendants in such
action; and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and the retaining of such
counsel by the indemnifying party, the indemnifying party shall not be liable to
such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, other than the reasonable costs of investigation, unless the
indemnified party shall have reasonably concluded that there are or may be
defenses available to it which are different from or in addition to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf of the
indemnified party), in any of which circumstances such expenses shall be borne
by the indemnifying party.


 


8.             Termination
of Agreement.


 


8.1           This
Agreement shall terminate:


 


(a)           If
at any time after commencement of the Offering, any material condition of
Seller’s obligations hereunder shall not have been met or shall cease to be met
and Selling Agent shall have given to the Seller notice of Selling Agent’s
desire to terminate this Agreement on account of the nonfulfillment of such
condition; or


 


(b)           At
such time as all of the Offered Securities shall have been sold and the
subscriptions therefor have been accepted or the Offering Termination Date has
been reached, whichever shall first occur.


 


Notwithstanding the termination of this Agreement in
accordance with the foregoing provisions of this Section 8, the respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Seller and Selling Agent set forth in or made pursuant to
this Agreement will remain operative and in full force and effect.


 


8.2           If this Agreement is terminated
pursuant to Section 8.1(a) above, the Selling Agent shall have no
liability to the Seller, and if this Agreement is terminated pursuant to
Section 8.1(b) above, the Seller shall have no liability to the Selling
Agent.


 


9.             Miscellaneous.


 


9.1           Except as otherwise specifically
provided in this Agreement or as may be otherwise agreed between the parties
hereto, Selling Agent, on the one hand, and the Seller, on the other, shall
each pay their respective expenses incident to this Agreement and the
transactions contemplated hereby (including, without limitation, the fees and
disbursements of their respective counsel), and no party to the Agreement shall
have any liability for such expenses incurred by any other party.


 


9.2           It is understood and agreed that
Selling Agent’s relationship to the Seller is that of an independent contractor
and that nothing herein shall be construed to create a


 


13

















 


relationship of
partners, affiliates, joint venturers or employer and employee between Selling
Agent or either of them and the Seller.


 


9.3           No rights or interests arising
hereunder may be assigned except with the prior written consent of both the
Seller and the Selling Agent. Subject to this limitation, this Agreement shall
inure to the benefit and be binding upon Selling Agent and the Seller and their
respective successors and assigns. This Agreement is intended to be and is for
the sole and exclusive benefit of the parties hereto, and their respective
successors and assigns and for the benefit of no other person. Except as
provided in this Agreement, nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, other than the parties to it
and their respective successors and assigns, any legal or equitable right,
remedy or claim under or with respect to this Agreement or any of its
provisions. No purchaser of Offered Securities shall be construed as a
successor or assign merely by reason of such purchase.


 


9.4           If any portion of this Agreement
shall be held invalid or inoperative, then so far as is reasonable and
possible:


 


(a)           the
remainder of this Agreement shall be considered valid and operative; and


 


(b)           to the extent possible under
applicable law, effect shall be given to the intent manifest by the portion
held invalid or inoperative.


 


9.5           This Agreement may be executed in a
number of identical counterparts and by facsimile, each of which shall be
deemed to be an original, but all of which constitute, collectively, one and
the same Agreement; but, in making proof of this Agreement, it shall not be
necessary to produce or account for more than one counterpart.


 


9.6           This Agreement may not be modified or
amended except by written agreement executed by each of the parties to this
Agreement.


 


9.7           Whenever the context so requires, the
masculine shall include the feminine and neuter, and the singular shall include
the plural, and conversely. The words “shall” and “will” and “agrees” are
mandatory, “may” is permissive.


 


9.8           The parties to this Agreement
covenant and agree that they will execute any other and further instruments and
documents which reasonably are or may become necessary or convenient to
effectuate and carry out this Agreement.


 


9.9           This Agreement (and the other
documents and agreements referenced herein) contains the entire understanding
between the parties and supersedes prior understandings or written or oral
agreements between the parties with respect to the subject matter of this
Agreement.


 


9.10         This Agreement shall be construed and
governed by the laws of the State of Florida. Each party hereby consents to any
and all actions or controversies arising from


 


14

















 


this agreement shall be have venue in the exclusive jurisdiction of the
state and federal courts located in Palm Beach County, Florida. Any terms and
conditions of this Agreement which are inconsistent with the terms and
conditions of the Offering Document, shall be modified to conform to the terms
and conditions set forth in the Offering Document.


 


9.11         All notices or communications, except
as otherwise specifically provided, shall be in writing, and, if sent to any
party, shall be mailed, delivered or telegraphed and confirmed to that party at
the address set forth below:


 


	
  If to the Seller:

  	
   

  	
  iVow, Inc.

  
	
   

  	
   

  	
  11455
  El Camino Real

  
	
   

  	
   

  	
  San
  Diego, CA 92130

  
	
   

  	
   

  	
  Attn: Michael H. Owens, President & CEO

  
	
   

  	
   

  	
   

  
	
  With a copy
  contemporaneously

  	
   

  	
   

  
	
   

  	
   

  	
  by like means:

  
	
   

  	
   

  	
  Heller Ehrman LLP

  
	
   

  	
   

  	
  4350
  La Jolla Village Drive, 7th Floor

  
	
   

  	
   

  	
  San
  Diego, CA 92122

  
	
   

  	
   

  	
  Attn:
  Jeffrey C. Thacker, Esq.

  



 


15

















 


	
  If to Selling Agent,
  to:

  	
   

  	
  Dawson James
  Securities,

  
	
   

  	
   

  	
  925 S. Federal Highway

  
	
   

  	
   

  	
  6th Floor

  
	
   

  	
   

  	
  Boca Raton, FL 33432

  
	
   

  	
   

  	
  Attention: Robert
  Keyser

  
	
   

  	
   

  	
   

  
	
  With a copy
  contemporaneously

  	
   

  	
   

  
	
   

  	
   

  	
  by like means:

  
	
   

  	
   

  	
  Blank Rome LLP

  
	
   

  	
   

  	
  1200 North Federal
  Highway, Suite 417

  
	
   

  	
   

  	
  Boca Raton, FL 33432

  
	
   

  	
   

  	
  Attention: Bruce C.
  Rosetto, Esq.

  



 


9.12         All of the terms of this Agreement,
including all representations, warranties, covenants and agreements of Selling
Agent and the Seller, shall survive completion of the Offering for three years.


 


9.13         Section titles or captions contained in
this Agreement are inserted only as a matter of convenience and for reference. Those
titles in no way define, limit, extend or describe the scope of this Agreement,
or the intent of any provision of this Agreement.


 


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If the foregoing
correctly sets forth the understanding between us, please indicate acceptance
by signing in the space provided below for that purpose and return to us a
counterpart hereof so signed, whereupon this letter and Selling Agent’s
acceptance shall constitute a binding agreement between us.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  IVOW, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael H. Owens

  	
   

  
	
   

  	
   

  	
  (Authorized Officer)

  



 


The foregoing Selling
Agreement for iVow, Inc. is hereby accepted and agreed to as of the date first
above written.


 


	
  DAWSON JAMES
  SECURITIES, INC.

  
	
  As Selling Agent 

  
	
   

  
	
  By:

  	
  /s/ Robert D. Keyser

  	
   

  
	
   

  	
  (Authorized Officer) 

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ David H. Weinstein

  	
   

  
	
   

  	
  (Authorized Officer)

  
					



 


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