EXHIBIT 1.0
eVISION USA.COM, INC.
QUALIFIED INDEPENDENT UNDERWRITER AGREEMENT
NEIDIGER, TUCKER, BRUNER, INC.
300 Plaza Level
1675 Larimer Street
Denver, Colorado 80202
Gentlemen:
eVision USA.Com, Inc., a Colorado corporation (the "Company"), has filed a
registration statement with the Securities and Exchange Commission
("Commission"), to register shares of the Company's common stock ("Securities")
for resale by the selling shareholders named therein.
You have agreed to act as a qualified independent underwriter within the
meaning of Rule 2720 of the National Association of Securities Dealers, Inc.
("NASD") in connection with the registration statement.
In consideration of the mutual agreements contained herein, the Company and
you hereby agree as follows:
1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with, you that:
1.1 The registration statement (No. 333-81563), and amendments
thereto, with respect to the Securities, including a preliminary form of
prospectus, has been carefully prepared and has been filed with the
Commission. Such registration statement, as finally amended and revised at
the time such registration statement was or is declared effective by the
Commission (including the information contained in the form of final
prospectus, if any, filed with the Commission pursuant to Rule 424(b) under
the Act) and as thereafter amended by post-effective amendment, if any, is
herein referred to as the "Registration Statement." The related final
prospectus in the form first filed with the Commission pursuant to Rule
424(b) or, if no such filing is required, as included in the Registration
Statement, or any supplement thereto, is herein referred to as the
"Prospectus". The prospectus subject to completion in the form included in
the Registration Statement at the time of the initial filing of the
Registration Statement with the Commission, and each such prospectus as
amended from time to time until the date of the Prospectus, is referred to
herein as the "Preliminary Prospectus." Reference made herein to each
Preliminary Prospectus or the Prospectus, as amended or supplemental, shall
include all documents and information incorporated by reference therein
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Each Preliminary Prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects
with the Act. The Company has prepared and filed such amendments to the
Registration Statement since its initial filing with the Commission, if
any, as may have been required to the date hereof, and will file such
additional amendments thereto as may hereafter be required. There have been
delivered to you copies of the Registration Statement and each amendment
thereto, if any, including one copy of any document filed under the
Exchange Act and deemed to be incorporated by reference into the
Registration Statement, together with one copy of each exhibit filed
therewith or incorporated by reference therein, and of each Preliminary
Prospectus and of the Prospectus you have requested. For purposes of this
Agreement, "Rules and Regulations" means the rules and regulations adopted
by the Commission under either the Act or the Exchange Act, as the context
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requires. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to EDGAR.
1.2 No stop order preventing or suspending the use of or requiring the
recirculation of any Preliminary Prospectus has been issued by the
Commission nor have any proceedings been instituted for that purpose. Each
Preliminary Prospectus, at the time of first delivery to you for
distribution, conformed in all material respects to the requirements of the
Act and the Rules and Regulations, 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 the Company makes no representation or warranty as to the
information contained in or omitted from any Preliminary Prospectus in its
reliance upon and in conformity with written information furnished to the
Company by or on behalf of you expressly for use with reference to you in
connection with the preparation of the Registration Statement.
1.3 As of the time the Registration Statement (or any post-effective
amendment thereto) is or was declared effective by the Commission, the
Registration Statement and the Prospectus contain and will contain all
statements which are required to be made therein and conform and will
conform in all material respects to the requirements of the Act and the
Rules and Regulations, and neither the Registration Statement nor the
Prospectus contains or will contain any untrue statement of a material fact
or omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to the
information contained in or omitted from the Registration Statement or the
Prospectus in its reliance upon and in conformity with written information
furnished to the Company by or on behalf of you expressly for use in
connection with the preparation of the Registration Statement.
1.4 The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state or country of
its organization, with full corporate power and authority and has all
consents, authorizations, approvals, orders, licenses, certificates and
permits of and from all third parties, including without limitation,
federal, state, local and other governmental authorities and all courts and
other tribunals, as are necessary and material to enable the Company to
own, lease, license and use its properties and assets and conduct its
business as described in the Prospectus. The Company has not received
notice of or has knowledge of any basis for any proceeding or action for
the revocation or suspension of any such consent, authorization, approval,
order, license, certificate or permit or any other action or proposed
action by any regulatory authority having jurisdiction over the Company
that would have a material adverse effect on the Company. The Company is
duly qualified to do business and is in good standing in each jurisdiction
in which the character of the business conducted by it or the location of
the properties owned or leased by it makes such qualification necessary,
except where the failure to do so would not result in a material adverse
effect upon the Company.
1.5 The capitalization of the Company is, and upon consummation of the
transactions contemplated hereby will be, in all material respects as set
forth in the Prospectus. The outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
have no rights of rescission with respect thereto which, if exercised,
would have a material adverse effect on the Company. None of such shares
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has been issued by the Company in violation of any preemptive or similar
rights or, to the Company's knowledge, in violation of federal or state
securities laws. Except as described in the Prospectus, there is no
commitment, plan or arrangement to issue, and no outstanding option,
warrant, convertible security or other instrument which is convertible into
or exercisable ort exchangeable for capital stock of the Company. The
capital stock of the Company, all stock option, stock bonus and other stock
plans or arrangements relating to any capital stock of the Company conform
in all material respects to the descriptions thereof contained in the
Prospectus.
1.6 The Securities have been duly authorized and, when issued and paid
for as provided in the Prospectus, will be validly issued, fully paid and
nonassessable. No person has any preemptive or other similar rights with
respect to any of the Securities or the issue and sale thereof.
1.7 Deloitte & Touche LLP and KPMG LLP, which have audited the
financial statements and related notes of the Company filed with the
Commission as part of the Registration Statement, are, and during the
periods covered by their reports were, independent certified public
accountants with respect to the Company as required by the Act and the
Rules and Regulations.
1.8 The financial statements of the Company, together with related
notes, and schedules as set forth in the Registration Statement, comply
with all material respects with the requirements of the Act and the Rules
and Regulations and present fairly the financial position and the results
of operations of the Company, at the indicated dates and for the indicated
periods. Such financial statements have been prepared in accordance with
generally accepting accounting principals consistently applied throughout
the periods involved and with the Rules and Regulations, and all
adjustments necessary for a fair presentation of results for such periods
have been made. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (a) transactions
are executed in accordance with management's general or specific
authorization and (b) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and the rules of regulatory authorities having
jurisdiction over the Company. No other financial statements or schedules
are required to be included or incorporated by reference in the
Registration Statement or the Prospectus. The selected financial data and
summary financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
the financial statements in the Registration Statement.
1.9 The minute books and stock record books of the Company are
complete and correct and accurately reflect all material actions taken at
meetings of the shareholders and directors of the Company, and all
committees thereof, including, without limitation, the audit committee and
compensation committee, and all issuances and transfers of any shares of
the capital stock of the Company.
1.10 The Company has filed with the appropriate federal, state and
local governmental agencies, and all foreign countries and political
subdivisions thereof, all tax returns, including franchise tax returns,
which are required to be filed (or has duly obtained extensions of time of
the filing thereof) and has paid all taxes shown on such returns and all
assessments received by them to the extent that the same have become due.
The provisions for income taxes payable, if any, shown on the financial
statements filed with or as part of the Registration Statement are
sufficient for all accrued and unpaid foreign and domestic taxes, whether
or not disputed, and for all periods to and including the dates of such
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financial statements. The Company has not executed or filed with any taxing
authority, foreign or domestic, any agreement extending the period of
assessment or collection of any income taxes and is not a party to any
pending action or proceeding by any foreign or domestic governmental agency
for assessment or collection of taxes; and no claims for assessment or
collection of taxes have been asserted against the Company.
1.11 Since the respective dates as of which information is given in
the Registration Statement and except as contemplated by the Prospectus,
there has not been (i) any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business condition (financial or other), earnings, results of operations or
properties of the Company, whether or not occurring in the ordinary course
of business; (ii) any transaction entered into or any liability or
obligation, absolute or contingent, incurred by the Company which is
material to the Company or is otherwise required to be disclosed in the
Registration Statement; (iii) except as disclosed in the Registration
Statement, any change in the capital stock of the Company, any increase in
the short-term or long term debt (including capitalized lease obligations)
of the Company, or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock of the Company; or
(iv) any dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock or any acquisition by the Company
of any capital stock of the Company. The Company has no material contingent
obligations or commitments which are not disclosed in the Registration
Statement.
1.12 The Company maintains insurance of the type and in the amounts as
are prudent and generally deemed adequate for its business and consistent
with insurance maintained by similar companies in similar businesses,
including general liability insurance, performance guaranty bonds, and
insurance covering all real and personal property owned or leased by the
Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, including computer failure, all of which
insurance is in full force and effect. The Company has not been refused any
insurance or bonding coverage sought or applied for; and the Company has no
reason to believe that it will not be able to renew its existing insurance
coverage and any performance guaranty bonds as and when such coverage
expires or to obtain similar coverage from insurers and bonding firms of
recognized financial responsibility.
1.13 Except as disclosed in the Prospectus, there is no litigation or
governmental proceeding to which the Company is a party or to which any
property of the Company is subject or which is pending in which either the
Company has been served or, to the best knowledge of the Company, is
otherwise pending or threatened against the Company which, if adversely
determined, will result in any material adverse change in the financial
condition, results of operations, business or prospects of the Company or
which is required to be disclosed in the Prospectus which has not been so
disclosed. To the best knowledge of the Company, no labor dispute by the
employees of the Company exists or is imminent and which, if it now exists
or comes to exist, is expected materially to affect adversely the financial
condition, results of operations, business or prospects of the Company or
which is required to be disclosed in the Prospectus.
1.14 This Agreement constitutes the valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except insofar as rights to indemnity and/or contribution may be limited by
federal or state securities laws or the public policy underlying such laws
and except as enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally,
and be subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The
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Securities have been duly and validly authorized by the Company and, to the
extent already issued, have been validly issued and are fully paid and
nonassessable and, to the extent not yet issued, upon payment in accordance
with the instruments which they underlie, will be validly issued, fully
paid and nonassessable.
1.15 The Company is not in violation of or in default under, and the
circumstances of the transactions contemplated herein and the fulfillment
of the terms hereof will not conflict with or result in a violation of or
default under, the Articles of Incorporation, Bylaws of the Company, or
under foreign or domestic judgment, decree, order, statute, rule or
regulation applicable to the Company or any of their respective properties,
or under any permit, lease, license, contract, indenture, mortgage, deed of
trust, loan agreement or other agreement, instrument or obligation to which
the Company is a party or by which it or any of its properties is bound.
Each approval, consent, order, authorization, designation, declaration or
filing by or with any regulatory, administrative or other governmental body
or court necessary in connection with the execution and delivery of the
Company of this Agreement and the consummation of the transactions
contemplated hereby (except additional step as may be required by the
National Association of Securities Dealers, Inc. (the "NASD"), or which may
be necessary to qualify the Securities for public offering under state
securities or "Blue Sky" Laws) has been obtained or made and is in full
force and effect.
1.16 Except as disclosed in the Prospectus, the business and
operations conducted by the Company are being conducted in compliance in
all material respects with all applicable federal, state and local laws.
1.17 The descriptions in the Registration Statement and the Prospectus
of material contracts, including the Company's licenses, leases, and other
agreements, are accurate in all material respects and present fairly the
information required to be disclosed, and there are no contracts or other
documents required to be described in the Registration Statement under the
Act or the Rules and Regulations which have not been so described or filed
as required.
1.18 Each material contract or other instrument (however characterized
or described) to which the Company is a party or by which its property or
business is or may be bound or affected and to which reference is made in
the Prospectus has been duly and validly executed by the Company, is in
full force and effect in all material respects and is enforceable against
the parties thereto in accordance with is terms, subject, as to enforcement
of remedies, to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the rights of creditors generally; and
none of such contracts or instruments has been assigned by the Company and
neither the Company nor, to the best knowledge of the Company, any other
party is in default thereunder, which default would have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company, and, to the best knowledge of the Company, no
event has occurred which, with the lapse o time or the giving of notice, or
both, would constitute a default thereunder and would have a material
adverse effect on the business, prospects, financial condition or results
of operations of the Company.
1.19 Each employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")
("Employee Benefit Plan") and each bonus, retirement, pension, profit
sharing, stock bonus, thrift, stock option, stock purchase, incentive,
severance, deferred or other compensation or welfare benefit plan, program,
agreement or arrangement of, or applicable to employees of the Company
("Benefit Plan"), which is presently in existence, or was in existence at
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any time during the prior five calendar years, was or has been established,
maintained, and operated in all material respects in compliance with all
applicable federal, state and local statutes, orders, governmental rules
and regulations, including, but not limited to, ERISA and the Internal
Revenue Code of 1986, as amended (the "Code"). The Company does not, either
directly or indirectly as a member of a controlled group within the meaning
of Sections 414(b), (c), (m) and (o) of the Code ("Controlled Group"), have
any material liability that remains unsatisfied for (A) the termination of
any single employer plan under Section 4062 or 4064 of ERISA, (B) any
interest payments under Section 302(e) of ERISA or Section 412(m) of the
Code, (C) any excise tax imposed by Section 4971, Section 4972, Section
4975 or Section 4979 of the Code, (D) any minimum funding contributions
under Section 302(c)(11) of ERISA or Section 412(c)(11) of the Code, (E)
any accumulated funding deficiency within the meaning of Section 412(a) of
the Code, whether or not waived, or (F) to the Internal Revenue Service,
the Department of Labor, the Pension Benefit Guaranty Corporation, or any
Benefit Plan or any multiemployer plan (as defined in Section 3(37) of
ERISA)("Multiemployer Plan") under Subtitle D or Subtitle E of Title IV of
ERISA, under Subchapter D of Chapter 1 of Subtitle A of the Code or under
Chapter 43 of Subtitle D of the Code. No action, suit, grievance,
arbitration or other matter of litigation or claim with respect to any
Benefit Plan (other than routine claims for benefits made in the ordinary
course of plan administration for which plan administrative procedures have
not been exhausted) is pending or, to the Company's knowledge, threatened
or imminent against or with respect to any Benefit Plan, any member of a
Controlled Group that includes the Company, or any fiduciary within the
meaning of Section 3(21) of ERISA with respect to a Benefit Plan which, if
determined adversely to the Company, would have a material adverse effect
on the Company. Neither the Company, nor any member of a Controlled Group
that includes the Company has knowledge of any facts that would give rise
to any action, suit, grievance, arbitration or any other manner of
litigation or claim with respect to any Benefit Plan.
1.20 The Company has not taken and will not take, directly or
indirectly, any action (and does not know of any action by its directors,
officers or stockholders or by others) designated to or which has
constituted or which might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Securities. 1.21 All transactions during the Company's current or last
fiscal year between the Company and any person who is or was during such
time period an officer or director or the owner of 5% or more of the
outstanding voting stock of the Company have been disclosed in the
Prospectus to the extent required by the Act and the Rules and Regulations;
and the terms of each such transaction are and were in all material
respects fair to the Company and no less favorable to the Company than the
terms that could have been obtained from unrelated parties.
1.22 To the best knowledge of the Company after due inquiry, the
Company owns or has the irrevocable right to use all patents, trademarks,
assumed names, trade names, copyrights, and other intellectual property
rights (collectively referred to herein as "Intellectual Property Rights")
necessary to conduct its business as now conducted or proposed to be
conducted as described in the Prospectus. The Company has no knowledge of
(i) any infringement or claimed infringement by it of any Intellectual
Property Rights of any third party or (ii) any infringement by any third
party of any such intellectual property right of the Company. Except as set
forth in the Prospectus, the Company is not obligated for any liability to
make any payment by way of royalty, fee or otherwise to any owner or
licensee of, or other claimant to, any Intellectual Property Rights with
respect to the Company's use thereof or in connection with the conduct of
the business of the Company.
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1.23 The Company has good and marketable title to, or valid and
enforceable leasehold estates in, all items of real and personal property
described or referred to in the Prospectus to be owned or leased by it free
and clear of all liens of any kind whatsoever, other than (i) those
referred to in the Prospectus and (ii) liens for taxes not yet due and
payable.
1.24 Except as disclosed in the Registration Statement and the
Prospectus, the Company has not issued, sold or offered for sale within the
last three years any shares of its common stock, any right to acquire any
shares of its common stock or any securities or instrument exercisable for
or convertible into any shares of its common stock.
1.25 There are no agreements, claims, payments, issuances,
arrangements or understandings, whether oral or written, for services in
the nature of a finder's, consulting or origination fee with respect to the
sale of the Securities or payments, issuances, arrangements or
understandings with respect to the Company or any of its officers,
directors, stockholders, partners, employees, or affiliates that may affect
your compensation, as determined by the NASD or for which the Company or
you may be responsible.
1.26 Neither the Company nor to best of the Company's knowledge any
officer, director or employee of or agent acting on behalf of the Company
has at any time (i) made any contributions to any candidate for political
office in violation of law, or failed to disclose fully any contributions
to any candidate for political office in accordance with any applicable
statute, rule, regulation or ordinance requiring such disclosure, (ii) made
any payment to any governmental officer or official, or other person
charged with similar public or quasi-public duties, other than payments
required or allowed by applicable law, (iii) made any payment outside the
ordinary course of business to any purchasing or selling agent or person
charged with similar duties of any entity to which the Company sells or
from which the Company buys products for the purpose of influencing such
agent or person to buy products from or sell products to the Company, or
(iv) engaged in any transaction on behalf of th Company, except for
transactions, bank accounts and funds which have been and are reflected in
the normally maintained books and records of the Company.
1.27 Except as set forth in the Prospectus, no officer, director or
principal stockholder of the Company, nor any "affiliate" or "associate"
(as these terms are defined in Rule 405 promulgated under the Rules and
Regulations) of any of the foregoing persons or entities, has or has had,
either directly or indirectly, (i) an interest in any person or entity that
(A) furnishes or sells services or products that are furnished or sold or
are proposed to be furnished or sold by the Company, or (B) purchases from
or sells or furnishes to the Company any goods or services, or (ii) a
beneficial interest in any contract or agreement to which the Company is a
party or by which it may be bound or affected. Except as set forth in the
Prospectus, there are no existing or proposed agreements, arrangements,
understandings, or transactions between or among the Company and any
officer, director, or principal stockholder of the Company, or any partner,
affiliate or associate of any of the foregoing persons or entities.
1.28 The Company is not, and upon completion of the transactions
contemplated hereby will not be, required to register as an investment
company under the Investment Company Act of 1940, as amended.
1.29 The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Securities other than such Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company, subject to the Representative's prior written approval thereof or
consent thereto.
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1.30 No action has been taken suspending the registration or
qualification of the Securities in any jurisdiction nor have any
proceedings been initiated or threatened for any such purpose.
2. Compensation. As total compensation for your acting as a qualified
independent underwriter in connection with the Registration Statement, the
Company will pay you $50,000, of which $15,000 will be nonrefundable and paid to
you immediately upon your acceptance and execution of this letter agreement and
of which $35,000 will be paid to you on the date the Registration Statement is
declared effective by the Commission.
3. No Participation in Offering by You. It is understood that you will not
participate in the offering being made by the Registration Statement.
4. Covenants of the Company. The Company covenants and agrees with you as
follows:
4.1 If the Registration Statement has not yet been declared effective,
the Company shall use its best efforts to cause the Registration Statement
and any amendment thereto to become effective under the Act and, upon
notification from the Commission that the Registration Statement or any
amendment thereto has become effective, shall so advise you immediately, in
writing. The Company shall comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 424(b) under the Act
and notify you in writing of all such filings. The Company shall notify you
promptly of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for
additional information; the Company shall carefully prepare and file with
the Commission promptly upon your request, any amendment of or supplement
to the Registration Statement or Prospectus which, in your reasonable
opinion, may be necessary or advisable in connection with the distribution
of the Securities; and the Company shall not file or make any amendment of
or supplement to the Registration Statement or the Prospectus which is not
approved by you after reasonable notice from the Company to you, which
approval shall not be unreasonably withheld or delayed. The Company shall
notify the NASD of the effectiveness of the Registration Statement and any
amendment thereto and shall comply with all rules of the NASD with respect
to the Registration Statement, the Prospectus or any amendment thereto. The
Company shall advise you immediately of the issuance by the Commission, any
state securities commission or any other regulatory body of any stop order
or other order suspending the effectiveness of the Registration Statement,
suspending or preventing the use of any Preliminary Prospectus or the
Prospectus or suspending the qualification of the Securities for offering
or sale in any jurisdiction, or of the institution of any proceedings for
any such purpose; and the Company shall use its best efforts to prevent the
issuance of any stop order or other such order and, should a stop order or
other such order be issued, to obtain as soon as possible the lifting
thereof.
4.2 Within the time during which a prospectus relating to the
Securities is required to be delivered under the Act, the Company shall
comply with all requirements imposed upon it by the Act and the Exchange
Act, as now and hereafter amended, and by the Rules and Regulations, as
from time to time in force, so far as is necessary to permit the
continuance of sales of or dealings in the Securities as contemplated by
the provisions hereof and the Prospectus. If during such period any event
occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or would omit to state
a material fact necessary to make the statements therein, in light of
circumstances then existing, not misleading, or if during such period it is
otherwise necessary, in the opinion of the Company or in your opinion, to
amend the Registration Statement or supplement the Prospectus to comply
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with the Act, the Company or you, as the case may be, shall promptly notify
the other party and the Company shall amend the Registration Statement or
supplement the Prospectus (at the expense of the Company) so as to correct
such statement or omission or effect such compliance.
4.3 The Company shall make generally available to its security holders
(and shall deliver to you), in the manner contemplated by Rule 158(b) under
the Act as soon as practicable but in any event not later than 45 days
after the end of its fiscal quarter in which the first anniversary date of
the effective date of Registration Statement occurs, an earnings statement
satisfying the requirements of Section 11(a) of the Act covering a period
of at least 12 consecutive months beginning after the effective date of the
Registration Statement; and will advise you in writing when such statement
has been made available.
5. Costs and Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, the Company will pay all costs, expenses and fees
incident to the performance of the obligations of the Company under this
Agreement, including, without limiting the generality of the foregoing the
following: (i) all expenses (including stock transfer taxes, if any) incurred in
connection with the issuance of the Securities, (ii) all fees and expenses
(including, without limitation, fees and expenses of the Company's accountants
and counsel, but excluding fees and expenses of your counsel) in connection with
the preparation, printing, filing, delivery and shipping of the Registration
Statement (including the financial statements therein and all amendments and
exhibits thereto), each Preliminary Prospectus and the Prospectus as amended or
supplemented, and the printing, delivery and shipping of this Agreement and
other underwriting documents, (iii) all filing fees and fees and disbursements
of Company counsel incurred in connection with the qualification of the
Securities under state securities laws, (iv) the filing fees of the Commission
and NASD, (v) the cost of printing certificates representing the common stock,
(vi) the cost and charges of the transfer agent or registrar, (vii) all other
costs and expenses incident to the performance of the obligations of the Company
hereunder which are not otherwise provided for in this section.
6. Indemnification.
6.1 The Company will indemnify and hold harmless you, your officers,
directors and counsel and each person, if any, who controls you within the
meaning of the Act or the Exchange Act, from and against any losses,
claims, damages, expenses, liabilities or actions in respect thereof
("Claims"), joint and several, to which you, your officers, directors or
counsel or each such controlling person may become subject under the Act,
the Exchange Act, Blue Sky Laws or other federal or state statutory laws or
regulations, at common law or otherwise (including payments made in
settlement of any litigation, if such settlement is effected with the
written consent of the Company), insofar as such Claims arise out of or are
based upon any breach of any representation, warranty or covenant made by
the Company in this Agreement, or any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus o any amendment or supplement
thereto, or in any application or other document executed by the Company or
based upon written information furnished by the Company and filed in any
state or other jurisdiction to qualify any of the Securities for offer/sale
under the securities laws thereof or filed with the SEC or any securities
association or exchange (any such document, application or information
being hereinafter called an "Application") or arise out of or are 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 (with respect to the Prospectus, in light of the
circumstances under which they were made). The Company agrees to reimburse
each such indemnified party for any legal fees or other expense as incurred
by such indemnified party in connection with investigating, preparing to
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defend or defending against or appearing as a third-party witness in
connection with such Claims; provided, however, the Company will not be
liable in any such case to the extent that any such Claims arise out of or
are based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or in any
Application in reliance upon and in conformity with written information
furnished by you to the Company pursuant to this Agreement. The
indemnification obligations of the Company as provided herein are in
addition to any in no way limit any liability the Company may otherwise
have.
6.2 You agree to indemnify and hold harmless the Company, each of its
directors and officers and each person, if any, who controls the Company
within the meaning of the Act or the Exchange Act against any Claim to
which the Company, or any such director, officer or controlling person may
become subject under the Act, the Exchange Act, Blue Sky Laws or other
federal or state statutory laws or regulations, at common law or otherwise
(including payments made in settlement of any litigation, if such
settlement is effected with your written consent) insofar as such Claim
arises out of or is based upon any untrue or alleged untrue statement of
any material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application, or arises out of or is based upon the omission or alleged
omission to state a material fact required to be stated therein or
necessary to make the statements therein (with respect to the Prospectus,
in light of the circumstances under which they were made), 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 Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto or in any Application in
reliance solely upon and in conformity with written information furnished
by you to the Company pursuant to this Agreement. Your indemnification
obligations as provided above are in addition to any liabilities you may
otherwise have.
6.3 Promptly after receipt by an indemnified party under this section
of notice of the commencement of any action in respect of a Claim, such
indemnified party will, if a Claim in respect thereof is made against an
indemnifying party under this section, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve an indemnifying party from any
liability it may have to any indemnified party under this section or
otherwise, except to the extent that the indemnifying party is prejudiced
in its ability to defend such action. In case any such action is brought
against any indemnified party, and such indemnified party notifies an
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate in and, to the extent that he, she or it may
wish, jointly with all other indemnifying parties, similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and any indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to the indemnified party and/or other indemnified
parties which are different from or additional to those available to any
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties.
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6.4 Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the
defense of such action and upon approval by the indemnified party of
counsel selected by the indemnifying party, the indemnifying party will not
be liable to such indemnified party under this section for any legal fees
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (a) the indemnified party shall
have employed separate counsel in connection with the assumption of legal
defenses in accordance with the last sentence of Section 6.3 (it being
understood, however, that the indemnifying party shall not be liable for
the legal fees and expenses of more than one separate counsel approved by
you, if you, your officers, directors, counsel or controlling persons are
the indemnified parties); (b) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after the
indemnified party's notice to the indemnifying party of commencement of the
action; or (c) the indemnifying party has authorized the employment of
counsel at the expense of the indemnifying party.
6.5 If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under subsection 6.1 or 6.2 hereof in
respect of any Claim referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall, subject to the
limitations hereinafter set forth, contribute to the amount paid or payable
by such indemnified party as a result of such Claim (a) in such proportion
as is appropriate to reflect the relative benefits received by the Company
and you from the offering of the Securities, or (b) if the allocation
provided by clause (a) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (a), but also the relative fault of the Company and
you in connection with the statements or omissions which resulted in such
Claim, as well as any other relevant equitable considerations. The relative
benefits received by each of the Company and you shall be deemed to be in
such proportion so that you are responsible for $50,000 and the Company is
responsible for the remaining portion. The relative fault of the Company
and you shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or you and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The amount paid or payable by a party as a result of the
Claims referred to above shall be deemed to include, subject to the
limitations set forth in subsections 6.3 and 6.4 of this section, any legal
or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
6.6 If any proceeding is brought in a court of competent jurisdiction
against any person in respect of which indemnification or contribution may
be sought under this Section 6, the other parties hereto hereby (a) consent
to the jurisdiction of the court in which such proceeding is brought for
purposes of enforcing this Section 6, (b) agree that process issuing from
such court may be served upon them by any other person seeking
indemnification or contribution; and (c) agree that they may be joined as
additional defendants in any such proceeding.
7. Survival of Indemnities, Contribution, Warranties and Representations.
The indemnity and contribution agreements contained in Section 6 and the
representations, warranties and agreements of the Company in Sections 1 and 4
hereof shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
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8. Notices. Except as otherwise provided in this Agreement, (a) whenever
notice is required by the provisions hereof to be given to the Company, such
notice shall be in writing and hand delivered or sent by mail or facsimile
transmission to eVision USA.Com, Inc., One Norwest Center, 1700 Lincoln Street,
32nd Floor, Denver, Colorado 80203, facsimile number: (303) 860-6353, Attn:
Secretary, and (b) whenever notice is required by the provisions hereof to be
given to you, such notice shall be in writing and hand delivered or sent by mail
or facsimile transmission to Neidiger, Tucker, Bruner, Inc., 300 Plaza Level,
1675 Larimer Street, Denver, Colorado 80202, facsimile number: (303) 623-9310,
Attn: Corporate Finance Department.
9. Parties. This Agreement shall inure solely to the benefit of and shall
be binding upon you, the Company and the controlling persons, directors and
officers referred to in Section 6 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provisions herein contained. No purchaser of
Securities shall be deemed to be a successor by reason merely of such purchase.
10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado without giving any effect to
any choice of law or conflict of law provision or rule whether of the State of
Colorado or any other jurisdiction that would cause the application of the laws
of any jurisdiction other than the State of Colorado. The parties agree to the
exclusive jurisdiction of the courts of the State of Colorado or of the United
States of America for the District of Colorado, and irrevocably submit to such
jurisdiction, which jurisdiction shall be exclusive, in connection with any
action brought by any party hereto relating to this Agreement or the
transactions which are the subject matter hereof.
11. Entire Agreement; Amendments. This Agreement constitutes the entire
agreement of the parties hereto and supersedes all prior written or oral
agreements, understandings, and negotiations with respect to the subject matter
hereof. This Agreement may not be amended except in a writing signed by you and
the Company.
12. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement. The parties agree, however, that in the
event any provision of this Agreement shall be declared invalid or
unenforceable, the parties shall negotiate a new provision achieving to the
extent possible the purpose of the invalid provision.
If the foregoing correctly sets forth the understanding between you and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among the Company and
you.
Very truly yours,
eVISION USA.COM, INC.
By: /s/ Tony Chan
Tony Chan
Chief Operating Officer
12
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Confirmed and accepted As
of the 22nd day of June,
2000:
NEIDIGER, TUCKER, BRUNER, INC.
By: /s/ Anthony B. Petrelli
Anthony B. Petrelli
Senior Vice President
13
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NEIDIGER TUCKER BRUNER, INC. 1675 Larimer Street, Suite 300
Investment Bankers Denver, Colorado 80202
Member NASD / SPC Phone (303) 825-1825
(800) 525-3086
Fax (303) 825-3789
www.ntbinc.com
August 8, 2000
eVision USA.Com, Inc.
1700 Lincoln Street, 32nd Floor
Denver, CO 80203
Re: Qualified Independent Underwriter Agreement
Gentlemen:
On June 22, 2000, Neidiger Tucker Bruner, Inc. ("Neidiger") entered into
that certain Qualified Independent Underwriter Agreement ("Agreement") with
eVision USA.Com, Inc. ("eVision"), relating to eVision's registration statement
filed with the Securities and Exchange Commission to register shares of
eVision's common stock for resale by the selling shareholders named therein.
Under the Agreement, Neidiger agreed to act as a qualified independent
underwriter within the meaning of Rule 2720 of the National Association of
Securities Dealers, Inc. ("NASD") in connection with the registration statement.
Under Section 2 of the Agreement, eVision agreed to pay Neidiger total
compensation of $50,000 for acting as a qualified independent underwriter in
connection with the registration statement, of which $15,000 was agreed to be
nonrefundable and payable immediately upon execution of the Agreement. Neidiger
acknowledges that eVision paid the sum of $15,000 to Neidiger upon execution of
the Agreement.
Based upon eVision's request and for compliance with NASD Rule 2710,
Neidiger hereby agrees to amend Section 2 of the Agreement with respect to the
$15,000 initial payment, such that the $15,000 payment made by eVision shall be
considered an advance against out-of-pocket accountable expenses actually
anticipated to be incurred by Neidiger for acting as a qualified independent
underwriter in connection with eVision's registration statement. In addition,
Neidiger agrees that the $15,000 payment made by eVision shall no longer be
nonrefundable, and therefore Section 2 of the Agreement shall be amended so that
any amounts not actually incurred against out-of-pocket accountable expenses
shall be returned to eVision upon expiration of the effective period of the
registration statement.
All remaining provisions of the Agreement shall remain in full force and
effect other than as specifically stated above.
<PAGE>
If the foregoing correctly sets forth eVision's understanding with Neidiger
with respect to amending the Agreement, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
amendment to the Agreement.
Sincerely yours,
NEIDIGER TUCKER BRUNER, INC.
By: /s/ Anthony B. Petrelli
----------------------------
Anthony B. Petrelli,
Senior Vice President
Accepted and agreed:
eVISION USA.COM, INC.
By: /s/ Tony Chan
----------------------------
Tony Chan,
Chief Operating Officer
Date: August 8, 2000
