EXHIBIT 1. Underwriting Agreement between ATI and Equitrade Securities
Corporation.
UNDERWRITING AGREEMENT
406,504 Common Stock
July 2, 1998
Mr. Xxx Xxxxxxx
Compliance Officer
Equitrade Securities Corporation
00000 Xxxxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Dear Mr. Xxx Xxxxxxx:
1. Introduction. AZTEK Technologies, Inc., a Vancouver, British
Columbia corporation (the "Company"), has an authorized capitalization of
100,000,000 shares of Common Stock, no par value. The Company has issued
and outstanding 2,072,109 shares of Common Stock. This Agreement
contemplates
that you will use your best efforts to sell, for the account of the Company,
406,504 Common Shares at a price of $ 2.46 per Common Share. The term
"Shares," as used herein, includes as many of the Common Shares as are issued
and sold pursuant to the terms hereof unless the context indicates otherwise.
The Company hereby agrees with you as follows:
2. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, you that:
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement (File No.
0-29540) on Form 10-SB and prepared and filed one or more amendments thereto
covering the registration of the Shares under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(b) The Registration Statement (and any post effective
amendment thereto) will fully comply with the applicable provisions of the
Exchange Act and the Rules and Regulations thereunder, and that Registration
Statement does not contain any untrue statement of a material fact and does
not omit to state any material fact required to be stated therein or
necessary in order to make the statement therein not misleading, and at all
subsequent times thereto up to and including the Closing Date. The
Registration Statement (and the Offering Circular as amended or supplemented)
complies with the provisions of the Exchange Act and the Rules and Regulations
thereunder and does not contain any untrue statement of a material fact and
does not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Vancouver,
British Columbia and the Company has full power and authority (corporate and
other) to own its properties and conduct its business as described in the
Offering Circular and as being conducted, and is in compliance in all material
respects with the laws requiring its qualification to do business as a foreign
corporation in all other jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification.
(d) The Shares have been duly authorized, and when issued and
delivered as contemplated by this Agreement, will have been validly issued
and will be fully paid and nonassessable, and conform to the description
thereof contained in the Offering Circular. No further approval or authority
of the stockholders or the Board of Directors of the Company will be required
for the issuance and sale of the Shares as contemplated herein.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and this Agreement constitutes a legal, valid and
binding obligation of the Company, enforceable in accordance with its terms
and is in all respects in full compliance with all applicable provisions of
the securities laws.
(f) The execution and delivery of this Agreement, and the
performance by the Company hereunder and thereunder will not conflict with,
result in a breach or violation of or constitute a default under any
agreement or instrument to which the Company is a party or the corporate
charter or by-laws of the Company or any law, order, rule, regulation, decree
or injunction of any jurisdiction, court or governmental agency or body, and
no consent, approval, authorization or order of, or filing with any
governmental agency or body is required for the performance by the Company of
this Agreement, with the exception of the filing with the Vancouver Stock
Exchange.
(g) The Registration Statement, as originally filed or as
amended and supplemented, if the Company shall have filed with the Commission
any amendment thereof or supplement thereto complies with the applicable
provisions of the Securities Exchange Act and the Rules and Regulations
thereunder and does not contain any untrue statement of a material fact and
does not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(h) The Company has not given any information or made any
representations in connection with the offering of the Shares, written or
oral, other than as contained in the Offering Circular or the Registration
Statement.
3. Offering and Sale of the Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company appoints you as its
exclusive agent to effect sales of the Shares for the account of the Company
at the offering price of $2.46 per Share and upon the other terms and
conditions set forth herein and in the Offering Circular, and you agree to
use your best efforts as such agent to sell the Shares during the term of
this
Agreement upon the terms and conditions set forth herein and in the Offering
Circular.
As compensation for your services hereunder, the Company will, at the
Closing (as hereinafter defined), pay Equitrade commissions of $0.1476 per
Share (i.e., 6% percent of the gross proceeds of the offering) resulting from
the sale of Shares pursuant to the offering contemplated herein. Your
appointment shall commence upon the date of the execution of this Agreement,
and shall continue for a period (such period, including any extension thereof
as hereinafter provided, being herein called the "Offering Period") of 30
days (and for a period of up to 30 additional days if extended by agreement of
the Company and you), unless all of the Shares have previously been
subscribed
for.
The parties hereto specifically acknowledge the past role of a company
called Select Capital Advisors ("Select"). In a prior offering circular, as
well as the initial filing of the Form 10-SB with the U. S. Securities
Exchange Commission ("Commission"), the original agreement between the issuer
and Select was disclosed as a material agreement. The Commission raised
substantial concerns about the role of Select because the company is not an
NASD member firm, nor is the company registered with the Commission as a
broker-dealer/ underwriter and, as such, it is not authorized to sale
securities in the United States. The prior agreement between Aztek and Select
is null and void. The issuer herein recognizes and acknowledges Select has
extended considerable time, effort and funds on its behalf. Aztek agrees
reimburse Select for expenses in an amount not to exceed $40,000.00 (Forty
Thousand Dollars). Said reimbursement shall be paid from current or future
revenues of the Company and not from the proceeds of the instant offering.
Under no circumstances shall Select execute any trades or sales of the
Company's securities in connection with the instant offering. The issuer
believes the investors will be comprised of natural persons or corporate
entities that were initially identified by Select during the existence of the
former agreement, which is now null and void. The purchasers of the shares
must represent that they are "accredited investors" as that term is
understood pursuant to the federal securities laws (and set forth at 17
C.F.R.§ 230.501 (a)(1998)). Any and all sales or trades shall be
conducted and consummated by Equitrade The parties hereto expressly agree
Select is not an underwriter and shall not engage in conduct relative to the
instant offering that may cause one to consider its activities to be
consistent with those of an underwriter.
All checks received by you from applicants to purchase shall be made
payable to "AZTEK TECHNOLOGIES, INC. ACCOUNT. The brokerage account shall be
established by Aztek Technologies, Inc., after the execution of the instant
agreement by both parties hereto. Equitrade Securities Corporation shall
maintain insurance for the account for an amount not to exceed one million
dollars. You will promptly deliver to the Company one photocopy of each
Subscription Agreement, the Company will mail an interim receipt to each such
applicant to purchase for the amount deposited in the Account on behalf of
such applicant to purchase. Any entity selected by you to process orders for
Shares on behalf of applicants to purchase may deliver cash or checks and
Subscription Agreements received from such applicants and you deliver to the
company an executed photocopy of the Subscription Agreement and appendix 16
A of the offering circular.
It is understood that you shall have the right to refuse to forward any
Subscription Agreement, and in such event you shall promptly remit all funds
received by you to the person on whose behalf such funds were submitted to
you.
4. Closing. Subject to the prior termination of the offering as
provided herein, there shall be a closing (the "Closing") at the offices of,
Equitrade Securities Corporation located at 00000 Xxxxxxxx Xxxxx, Xxxx
Xxxxxx, Xxxxxxxxxx 00000, or via international teleconference not later than
five days immediately following the termination of the Offering Period (the
"Closing Date"). Such Closing shall include the following: (i) payment for
the Shares to the Company by release of funds and delivery to the Company of
properly completed and executed Subscription Agreements to each purchaser;
(ii) deliver by the Company of certificates for the Shares purchased by each
purchaser; and (iii) payment by the Company to you, out of the proceeds of
the offering the commission referred to in Section 3 for each Share sold.
The
certificates for Shares to be delivered at the Closing will be in definitive
form in such denominations and registered in such names as you request at
least three business days prior to the Closing Date and will be made
available
at the above office for checking and packaging at least one full business day
prior to the Closing Date.
5. Covenants of the Company. The Company covenants and agrees with
you that:
(a) The Company has caused the registration statement as filed
and any subsequent amendments thereto to become effective.
(b) The Company has furnished to you true and accurate copies
of the Registration Statement filed with the U.S. Securities and Exchange
Commission.
(c) During the period of two years from the date hereof, the
Company will furnish to you, as soon as practicable after the end of each
fiscal year, a copy of its annual report to security holders for such fiscal
year, and during such period the Company will also furnish to you as soon as
available, a copy of each report and such other information concerning the
Company as you may reasonably request.
(d) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder for the purposes set forth in the
Offering Circular.
(e) During the course of the offering of the Shares the Company
will not take directly or indirectly any action designed to or that might, in
the future, reasonably be expected to cause or result in stabilization or
manipulation of the price of the Shares.
(f) The Company has been approved for listing on the over the
counter bulletin board.
6. Expenses. Any and all expenses of the offering shall be borne by
the underwriter.
7. This Agreement has been duly authorized, executed and delivered by the
Company, and (assuming due authorization, execution and delivery by you)
constitutes a legal, valid and binding agreement of the Company, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws affecting enforcement of
creditors rights generally and to equitable principles that may restrict the
availability of remedies and except as rights to indemnity hereunder may be
limited under the provisions of the federal securities laws.
8. The required action has been taken by the Company under the
Securities Exchange Act to make the public offering and consummate the sale
of the Shares pursuant to this Agreement; the issue and sale by the Company
of
the Shares and the execution and delivery of this Agreement and the
performance by the Company of its obligations hereunder and thereunder will
not conflict with, result in a breach of, or constitute a default under any
agreement or instrument known to such counsel to which the Company is a party
or any applicable law, order, rule, regulation, decree or injunction of any
jurisdiction, court or governmental agency or body or the corporate charter
or by-laws of the Company; and no consent, approval, authorization or order
of, or filing with, any court or body is required in connection with the
issuance or sale of the Shares by the Company or for the performance by the
Company of this Agreement.
No notice of disapproval has been issued or proceedings for that purpose
has been instituted by the Commission, the NASD, or any state securities or
Blue Sky authority with respect to the distribution arrangements relating to
the offering of the Shares.
9. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless you and each person, if any, who you control within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any damages or liabilities to which the Company or any such director, officer
or controlling person may become subject, insofar as such losses, claims,
damages or liabilities or actions are caused by untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Offering Circular, or any amendment or supplement thereto or
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
you specifically for use therein.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action, such indemnified party will,
if
a claim in respect thereof is to be made against the indemnifying party under
this Section 9, notify the indemnifying party of the commencement thereof;
but the omission to so notify the indemnifying party will relieve it from any
liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
10. Termination. You shall have the right to terminate this
Agreement and the offering of the Shares at any time prior to the Closing if,
between the date hereof and the Closing Date, there shall have been any
declaration of war by the Government of the United States, an event resulting
in (i) the general establishment of minimum prices by either the Commission
or the National Association of Securities Dealers, or (ii) the declaration of
a bank moratorium by authorities of the United States or of the State of
California, the effect of which in your judgment makes it impracticable or
inadvisable to proceed with the offering.
11. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of Company and its officers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of and
investigation, or statement as to the results thereof, made by or on behalf
of you, the Company or any of its officers, directors or controlling persons,
and will survive payment to the Company for the Shares. If this Agreement is
terminated pursuant to Section 10 hereof or if for any reason the sale of the
Shares is not consummated, the Company shall not be responsible for the
expenses incurred by you.
12. Notices. All communications hereunder will be in writing and, if
sent to you, will be mailed, delivered, or faxed (714-699-1183) and confirmed
to you at Equitrade Securities Corporation, 00000 Xxxxxxxx Xxxxx, Xxxx
Xxxxxx, Xxxxxxxxxx 00000. All communications hereunder to the issuer shall be
in writing and, will be mailed, delivered, or faxed (000) 000-0000 and
confirmed to you at Aztek Technologies, Inc. 000 Xxxxxxxx Xxxxxx, Xxxxx # 0,
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0.
13. Successors. This Agreement will inure to the benefit and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 9, and no
other person will have any right or obligation hereunder.
14. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
15. Counterparts and Facsimile . This Agreement may be executed in
counterparts, all of which, taken together, shall constitute a single
agreement. In the event the appropriate parties execute the facsimile
version of the instant agreement, said facsimile shall have the same force and
effect as the hard copy.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the instant Agreement, whereupon it
will become a binding agreement among the Company and you in accordance with
its terms.
Very truly yours,
AZTEK TECHNOLOGIES, INC.
By: /s/ Xxxx Sintichakis
--------------------------------
Xxxxxxx Sintichakis, President
The foregoing Underwriting Agreement is herein confirmed and accepted as of
the date first above written.
/s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, Senior Compliance
Officers Equitrade Securities
Corporation
