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As filed with the Securities and Exchange Commission on February 18, 1998
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
UNIVIEW TECHNOLOGIES CORPORATION
(Exact name of Registrant as specified in its charter)
(Formerly CURTIS MATHES HOLDING CORPORATION)
Texas 3651 75-1975147
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
10911 Petal Street, Dallas, Texas 75238
(214) 503-8880
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Billy J. Robinson
Vice President, Secretary and General Counsel
uniView Technologies Corporation
10911 Petal Street, Dallas, Texas 75238
(214) 503-8880
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public:
From time to time after the registration statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box.[ ]
CALCULATION OF REGISTRATION FEE
Title of Each Amount Proposed Proposed
Class of To Be Maximum Maximum Amount of
Securities to Registered(1) Offering Price Aggregate Registration
be Registered Per Unit(2) Offering Price(2) Fee (3)
Common Stock,
$.01 par value 8,600,000 $0.27 $2,322,000 $684.99
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(1) Includes up to a maximum of 7,500,000 estimated shares of
Common Stock, issuable upon conversion of or otherwise with respect to
the Registrant's Series N Convertible Preferred Stock.
(2) Estimated solely for the purpose of calculating the
registration fee. Pursuant to Rule 457(c), the offering price and
registration fee are calculated upon the basis of the average of the high
and low trading prices of the Common Stock as reported by the Nasdaq
Stock Market on February 13, 1998.
(3) Previously paid with the initial filing of this Registration
Statement on November 25, 1997.
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, as amended,
or until this Registration Statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
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SUBJECT TO COMPLETION, DATED FEBRUARY 18, 1998
1,000,000 Shares of Common Stock Offered for Resale;
Up to 100,000 Shares of Common Stock Underlying Warrants,
Which Shares are being Registered for Resale upon Exercise of the Warrants;
Up to 7,500,000 Shares of Common Stock Convertible from Preferred Stock,
Which Shares are being Registered for Resale upon Conversion of the
Preferred Stock.
UNIVIEW TECHNOLOGIES CORPORATION
This Prospectus covers an aggregate total of 8,600,000 (estimated)
shares of Common Stock, par value $.01 per share (the "Shares") of
uniView Technologies Corporation, formerly Curtis Mathes Holding
Corporation, a Texas corporation (the "Company.") 1,000,000 Shares are
being offered for the account of security holders in a secondary
offering; up to 100,000 Shares underlying Warrants are being registered
for resale upon the exercise of Warrants; and up to a maximum of
7,500,000 (estimated) shares of Common Stock issuable upon conversion of
the Company's Series N Convertible Preferred Stock (the "Preferred
Stock") are being registered for resale upon conversion of the Preferred
Stock. The common and preferred security holders and the warrant holders
are hereinafter referred to as the "Selling Stockholders." See "Selling
Stockholders" and "Plan of Distribution."
The number of Shares included in this Prospectus as "Common Stock
Convertible from Preferred Stock," is based on a conversion price which
represents an average closing bid price of the Common Stock over five
consecutive trading days immediately prior to conversion. The Preferred
Stock is not convertible until after this Prospectus is declared
effective, and the actual conversion price and number of actual Shares
issuable upon conversion cannot be precisely determined until such time
as the Preferred Stock is actually converted. However, pursuant to the
Registration Rights Agreement between the Company and the preferred
security holders, the Company agreed to include in this Prospectus twice
the number of Shares that would have been issuable as if the Preferred
Stock had been converted on October 15, 1997, the closing date of the
transaction. Such conversion price is used merely for the purposes of
estimating and setting forth a number of shares for this Prospectus. The
actual number of Shares issuable upon conversion of the Preferred Stock
is subject to adjustment depending on the actual date of conversion in
the future and could be materially less or more than such estimated
amount, depending on factors which cannot be predicted by the Company
including, among other things, the future market price of the Common
Stock. See "Risk Factors - Possible Volatility of Stock Price." The
Company will not receive any of the proceeds from the sale by the Selling
Stockholders of the Shares to which this Prospectus relates. The Company
will only receive an economic benefit upon conversion of the Preferred
Stock and the exercise of the warrants held by the Selling Stockholders.
ANY INVESTMENT IN THE SECURITIES OFFERED HEREIN INVOLVES A HIGH DEGREE OF
RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 5 OF THIS PROSPECTUS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Price to Proceeds to Company
Public Discounts or other Persons
Per Share (1) (2) (3)
Total Maximum (4) (1) (2) (3)
(1) The Selling Stockholders may from time to time effect the sale of
their Shares at prices and at terms then prevailing or at prices
related to the then current market price. The Common Stock of the
Company is traded on the Nasdaq Stock Market under the symbol
"UVEW." On February 13, 1998, the average of the high and low
trading prices of the Common Stock as reported by the Nasdaq Stock
Market was $0.27 per share.
(2) The Selling Stockholders may pay regular brokers' commissions in
cash at the time(s) of the sale of their Shares.
(3) The Company will not receive any proceeds from the sales of the
Shares to which this Prospectus relates. The Selling Stockholders
will receive proceeds based on the market price of the Shares at the
time(s) of sale.
(4) Without deduction of expenses for the offering (all of which will be
borne by the Company), estimated to be approximately $2,698.
The date of this Prospectus is ______________.
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(Inside front cover page of Prospectus)
AVAILABLE INFORMATION
The Company is an electronic filer and is subject to the
informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The reports, proxy statements and other
information filed by the Company with the Commission can be inspected and
copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the Regional Offices of the Commission at 7 World Trade
Center, Suite 1300, New York, New York 10048 and 500 W. Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material also can be
obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The Commission
also maintains a World Wide Web site (http://www.sec.gov) that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. As the Common
Stock of the Company is quoted on the Nasdaq Stock Market, reports, proxy
statements and other information concerning the Company may be inspected
at the offices of the National Association of Securities Dealers, Inc. at
1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement
on Form S-3 (together with all amendments thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the shares of Common Stock offered hereby. This
Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. Such
additional information may be obtained from the Commission's principal
office in Washington, D.C. Statements contained in this Prospectus as to
the contents of any contract or other document referred to herein are not
necessarily complete, and in each instance reference is made to the copy
of such contract or other document filed as an exhibit to the
Registration Statement or to documents incorporated therein by reference,
each such statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(1) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1997, dated February 13, 1998 (the "December 1997
10-Q Report.")
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1997, dated November 12, 1997 (the "September
1997 10-Q Report.")
(3) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997, dated August 6, 1997 (the "1997 10-K Report.")
Any documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of this offering shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from
the date of filing of such documents.
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Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in
such proxy statement which is not, pursuant to the Commission's rules,
deemed to be "filed" with the Commission or subject to the liabilities of
Section 18 of the Exchange Act.
The Company will provide without charge to each person, including
any beneficial owner, to whom this Prospectus is delivered, upon the
written or oral request of such person, a copy of any and all information
that has been incorporated herein by reference (other than exhibits to
such documents unless such exhibits are specifically incorporated by
reference into such documents). Any such request should be directed to
the Company's principal executive offices: uniView Technologies
Corporation, 10911 Petal Street, Dallas, Texas 75238, Attention:
Investor Relations; telephone number (214) 503-8880.
The Offering
Common Stock Offered by the 1,000,000 Shares
Selling Stockholders
Common Stock Offered by the Up to 100,000 Shares
Company Upon Exercise of
Warrants
Common Stock Offered by the Up to 7,500,000 Shares
Company Upon Conversion of (estimated)
Preferred Stock
Common Stock Outstanding After 61,442,360 (estimated)
the Offering (1)
Use of Proceeds from Exercise Working capital and general
of Warrants corporate purposes
Nasdaq Stock Market Symbol UVEW
Risk Factors For a description of certain
risks inherent in an
investment in the Common
Stock, see "RISK FACTORS"
(1) Assumes the exercise of outstanding warrants to purchase 100,000
Shares at $1.50 per share and the conversion of Preferred Stock into
7,500,000 estimated Shares, which represents twice the number of
Shares that would have been issuable as if the Preferred Stock had
been convertible on October 15, 1997.
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RISK FACTORS
The following factors should be considered, together with the other
information in this Prospectus, in evaluating an investment in the
Company. When used in this Prospectus, the words "expects,"
"anticipates," "estimates" and similar expressions are intended to
identify forward-looking statements. Such statements, which may include
statements contained in the following "Risk Factors" section, are subject
to risks and uncertainties, discussed in greater detail in this section
below and elsewhere in this Prospectus, that could cause actual results
to differ materially from those projected or discussed. These forward-
looking statements speak only as of the date of this Prospectus. The
Company expressly disclaims any obligation or undertaking to release
publicly any updates or change in the Company's expectations with regard
thereto or any change in events, conditions or circumstances on which any
such statement may be based.
Prior Claims on Future Earnings
One of the Company's subsidiaries, Curtis Mathes Corporation (CMC),
is currently operating under a six-year plan of reorganization, effective
October 1, 1992 (the "Plan"). Until termination of the Plan, 1/2% of
gross sales of CMC, if any, must be paid monthly to a "Liquidating
Trustee," which has been designated by the Bankruptcy Court to administer
such payments on behalf of unsecured creditors in the order of priority.
CMC was the operating entity which historically sold commodity consumer
electronics products (televisions, VCR's, camcorders, and related
products) to consumers. In early 1996, CMC sold all of its remaining
inventory to a third party and negotiated a satisfaction of its primary
debt obligation with Deutsche Financial Services Corporation ("DFS").
CMC has had no sales since that time. However, in the event CMC does
generate any future revenue, its profitability will be affected to the
extent of the required payments.
Warranty Claims
Beyond the claim of the Trustee on any potential future earnings of
CMC, and as required by the Plan, CMC remains obligated to service past
outstanding product warranties. Cash balances were set aside, as required
by the Plan, to cover a portion of these estimated past product warranty
costs. CMC has additionally in the past reserved a portion of the total
product sales price to cover estimated product warranty costs. Although
management believes that the amount reserved is adequate to meet claim
requirements based upon historical data, there can be no assurance that
the reserves will always cover warranty claims filed during any
particular period. If warranty claims during any particular period
exceed projections, the Company must cover such claims out of its current
cash flow or other operating capital, thereby reducing the profitability
of the Company during such periods. Many of the warranties on products
sold in the past are expiring, and due to lower product sales by CMC in
the past few years, remaining warranty obligations are slowly
diminishing; however, until expiration of these past outstanding product
warranties, the Company's profitability will be affected to the extent
the current required warranty expenditures exceed the cash reserves
designated for that purpose.
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Increase in Cost of Finished Goods
uniView Marketing Corporation ("UMC"), formerly Curtis Mathes
Marketing Corporation, the operating entity which designed and markets
the Company's well known uniViewT Internet access product, is dependent
upon outside sources for manufacturing and assembly of all finished
goods, and is therefore subject to increases in the cost of such goods.
Such costs are typically stable in the short term because parts and
components are provided to UMC pursuant to seasonal contracts with
suppliers at an agreed cost. However, there can be no assurance that
such costs will not increase significantly in the future. Any such
increase in cost would either have to be absorbed by UMC, or would have
to be reflected in the sale price of the products at the consumer level,
which could in turn affect product sales levels.
Variable Economy
The consumer electronics industry is influenced significantly by
general economic conditions, including consumer behavior and consumer
confidence, the level of personal discretionary spending, interest rates
and credit availability. Variations in the general economy affecting
expendable consumer dollars impacts a consumer's willingness to expend
monies for the Company's product lines, which translates into
fluctuations in sales volumes for the Company. There can be no assurance
that a prolonged economic downturn would not have a material adverse
effect upon the profitability of the Company.
Excessive Inventory Levels
The market for consumer electronics products continues to be driven
by technological changes that are inherent to the industry. Management
makes every effort to maintain ample inventory to meet short term sale
requirements. However, the Company is in the same position as other
consumer electronics companies in attempting to accurately gauge consumer
demand, and there can be no assurance of sufficient consumer reaction and
demand upon the Company's product lines in the future to avoid
accumulating excessive inventory levels. In the event that consumer
demand is less than reasonably estimated, inventory on hand could exceed
the minimally acceptable levels, resulting in reduced cash flows and a
further restriction on the use of the Company's capital which is
dedicated to the inventory. Excessive inventory levels could also lead
to inventory obsolescence, which is discussed in the following section.
Inventory Obsolescence
Closely tied to excessive inventory levels is the risk of inventory
obsolescence. If inventory on hand reaches such a level that new models
of products cannot be rotated for sale to the consumer within a
reasonable period of time, the risk will increase that the Company may
not be able to sell the older models at the expected margin, resulting in
markdowns to move the products, all of which affects the profitability of
the Company.
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Dependence on New Product Introduction
The Company's future success will depend to a great extent upon the
timely introduction and market acceptance of successful new products to
the marketplace, such as the uniView Internet access product and the
uniView XpresswayT Internet Service Provider and Online Service. A
significant delay in the introduction of, or the presence of a defect in,
one or more of these new products could have a material adverse effect on
the ultimate success of such products and on the Company's business,
operating results and financial condition, particularly in view of the
seasonality of the Company's business related to the uniView set top box.
Further, because of the revenue typically associated with initial
shipments of a new product, delaying a product introduction expected near
the end of a fiscal quarter may materially adversely affect operating
results for that quarter. The process of developing television Internet
access products containing software-related components such as the
uniView and uniView Xpressway is extremely complex and is expected to
become more complex and expensive in the future as new platforms and
technologies are introduced or incorporated. This new technology also
requires and depends upon externally manufactured hardware components,
such as file servers, routers, modems, and other similar devices commonly
used in the computer industry, but not yet used on a wide scale for
television Internet access products.
In the past, the Company has experienced delays in the introduction
of certain new products. The Company anticipates that there may be
similar delays in developing and introducing new products in the future
and there can be no assurance that new products will be introduced on
schedule in the future or at all. Further, the market for these new
products is evolving and, in comparison with the overall market for
consumer electronics and Internet access products, is considered
relatively small, making it difficult to predict with any assurance the
future growth rate and size of the market. There can be no assurance
that new products introduced by the Company will achieve market
acceptance or generate significant revenues.
Changes in Technology and Industry Standards
The consumer electronics and Internet access industry is undergoing
rapid changes, including evolving industry standards, frequent new
product introductions and changes in consumer requirements and
preferences. The introduction of new technologies and products can
render the Company's existing and announced products obsolete or
unmarketable. The development cycle for products utilizing new
technology may be significantly longer than the Company's current
development cycle for products on existing and proposed technology and
may require the Company to invest resources in products that may not
become profitable. There can be no assurance that the expected demand
for the Company's products will materialize or continue or that the mix
of the Company's future product offerings will keep pace with
technological changes or satisfy evolving consumer preferences or that
the Company will be successful in developing and marketing future
products. Failure to develop and introduce new products and product
enhancements in a timely fashion could have a material adverse effect on
the Company's business, operating results and financial condition.
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Risk of Product Failures
Television Internet access products containing software-related
components as complex as those recently introduced by the Company may
contain undetected errors when first introduced. As any such undetected
errors become known to the Company, delays or lost revenues during the
period required to correct these errors can be expected. The Company has
experienced delays and significant technical support expenses in
connection with products in the past and there can be no assurance that,
despite testing by the Company, errors will not be found in new products
or releases after commencement of commercial shipments, resulting in loss
of or delay in market acceptance, which could have a material adverse
effect on the Company's business, operating results and financial
condition.
Limited Protection of Intellectual Property and Proprietary Rights; Risk
of Litigation
The Company regards its television Internet access technology
containing software-related components as proprietary and relies
primarily on a combination of trademark, copyright and trade secret laws,
employee and third-party nondisclosure agreements, and other methods to
protect these proprietary rights. As the number of television Internet
access products in the industry increases and the functionality of these
products overlap, infringement claims may also increase. There can be no
assurance that third parties will not assert infringement claims against
the Company in the future with respect to current or future products. As
is common in the industry, from time to time the Company receives notices
from third parties claiming infringement of intellectual property rights
of such parties. The Company investigates these claims and responds as
it deems appropriate. Policing unauthorized use of the Company's
products is also difficult and can be expected to be a recurring problem.
Further, the Company enters into transactions in countries where
intellectual property laws are not well developed or are poorly enforced.
Legal protections of the Company's rights may be ineffective in such
countries, and software-related products developed in such countries may
not be protectable in jurisdictions where protection is ordinarily
available. Any claim or litigation, with or without merit, could be
costly and could result in a diversion of management's attention, which
could have a material adverse effect on the Company's business, operating
results and financial condition. Adverse determinations in such claims
or litigation could also have a material adverse effect on the Company's
business, operating results and financial condition.
Dependence on Distribution Channels
UMC expects to sell its products through consumer electronics
stores, computer stores, mail order companies, direct mail, and through
the Internet. Sales to a limited number of distributors and retailers
are anticipated to constitute a substantial portion of UMC's net revenues
related to uniView. Minimum purchase obligations of any principal
distributor or retailer are not expected to be significant and the
Company expects to sell on a purchase order basis without a long-term
agreement to a majority of these entities. The loss of, or significant
reduction in sales attributable to, any of these distribution channels
could materially adversely affect the Company's business, operating
results and financial condition. Distribution and retailing businesses
in the consumer electronics industry have from time to time experienced
significant fluctuations in their businesses and there have been a number
<PAGE>
of business failures among these entities. The insolvency or business
failure of any significant distributor or retailer of the Company's
products could have a material adverse effect on the Company's business,
operating results and financial condition.
Seasonality of the Industry
UMC is expected to be subject to decreased sales and profitability
on the uniView line of products during the first and second quarters of
each calendar year, resulting from the seasonal effect of the consumer
buying season. Its operations must be supplemented during such periods
through its reserves or through other operations of the Company.
Although the Company typically plans ahead for this seasonal variation in
product sales, there can be no assurance that past budgetary expectations
will be adequate to cover such periods in the future.
Highly Competitive Industry
The industry in which the Company operates is intensely and
increasingly competitive and includes a large number of Internet service
providers and both domestic and foreign manufacturers of consumer
electronics products. Competition occurs principally in the areas of
style, quality, functionality, service, design and price. The Company
has positioned itself over the years in a niche market of high-end
consumer electronics home entertainment products and has chosen to
compete primarily on quality, rather than price and volume. However,
competition from competitors, with greater financial resources than the
Company, could adversely affect the Company's operating results by
forcing it to reduce its sales prices, offer enhanced credit arrangements
including longer payment terms, increase customer discounts or
incentives, increase spending for co-operative advertising arrangements
with customers, incur additional shipping costs, or provide other
services which could adversely affect the profitability of the Company.
It is already apparent that competition in the area of television
Internet access products and Internet service providers will be intense.
With the announcement of similar television Internet access devices by
several existing and start-up consumer electronics companies and, to the
extent that these competitors achieve product and brand name recognition,
product quality, price or other selling advantages, the Company could be
adversely affected. There can be no assurance that the Company will have
the resources required to respond effectively to market or technological
changes or to compete successfully in the future.
Off-Balance Sheet Risks
An "off-balance sheet risk" is one in which the ultimate obligation
of the Company may exceed the amount reported in the liability section of
the financial statements and which may be triggered by the default of a
third party on an obligation upon which the Company is contingently
liable. CMC is a party to financial instruments with such off-balance
sheet risks to meet the financing requirements of former CMC dealers. In
the normal course of business, CMC has transferred receivables from
qualified dealers to Deutsche Financial Services Corporation ("DFS")
under a repurchase agreement. The agreement requires CMC, in the event
of default by the dealer, to repurchase property that is collateral
(inventory consisting of consumer electronics products) for the financing
provided to the dealer. CMC is contingently liable to DFS for the
portion of the receivable which is defaulted through nonpayment or
<PAGE>
nonrecovery of the collateral. This amount is partially offset by
recovery of unsold products from such dealers, which can then be resold.
As dealer defaults occur in the future and the Company honors its
repurchase obligations, the profitability of the Company could be reduced
accordingly.
Absence of Profitable Operations in Recent Periods
The Company has reported a net loss in each of its last five fiscal
years. The Company purchased a computer chip company, Southwest Memory,
Inc. ("SWM") in December, 1992. It purchased CMC in November, 1993 and
sold SWM in December, 1994. In late 1994, UMC acquired the rights to
RealViewTM, a ten foot square projection television used in commercial
advertising applications. In April, 1996, UMC began development of
uniView, its television Internet access product. In late 1996 another
subsidiary, uniView Xpressway Corporation, initiated the uniView
Xpressway and offers its services as an Internet Service Provider and
Online Service. Although the character of the Company has changed over
the past couple of years, and management believes that operations will
improve, there is a limited operating history for the Company in its
present form and there can be no assurance that the present combination
of operating segments will be profitable in the future.
Limited Cash Flow
In recent years, the Company has not achieved a positive cash flow
from operations. Accordingly, the Company relies on available credit
arrangements and continued sales of its common and preferred stock to
fund operations until a positive cash flow from operations can be
achieved. If the Company is unable to achieve a positive cash flow from
operations, additional financing or placements will be required.
Management continually evaluates opportunities with various investors to
raise additional capital, without which, the Company's growth and
profitability could be restricted. Although management believes that
sufficient financing resources are available, there can be no assurance
that such resources will continue to be available to the Company or that
they will be available upon terms favorable to the Company.
Dependence on Key Personnel
The Company's success depends to a significant extent on the
performance and continued service of its senior management and certain
key employees. Competition for highly skilled employees with technical,
management, marketing, sales, product development and other specialized
training is intense, and there can be no assurance that the Company will
be successful in attracting and retaining such personnel. Specifically,
the Company may experience increased costs in order to attract and retain
skilled employees. In addition, there can be no assurance that employees
will not leave the Company or compete against the Company. The Company's
failure to attract additional qualified employees or to retain the
services of key personnel could materially adversely affect the Company's
business, operating results and financial condition.
Possible Volatility of Stock Price
The stock market has recently experienced significant price and
volume fluctuations that could continue in the future. These
fluctuations could adversely affect the market price of the Common Stock
without regard to the Company's operating performance. The market price
<PAGE>
for shares of the Company's Common Stock has varied significantly and may
be volatile depending on news announcements and changes in general market
conditions. The Company believes that factors such as quarterly
variations in the Company's financial results or the financial results of
competitors, general industry conditions, including competitive
developments, and general economic conditions could also cause uncertain
price fluctuations in the Common Stock. In addition, the shares being
registered under this Prospectus will become eligible for sale in the
public market after the Registration Statement becomes effective. The
shares are expected to have no underwriters and will therefore not be
subject to underwriter price stabilization transactions. No prediction
can be made as to the effect, if any, that sales of such securities, or
the availability of such securities for sale, will have on the market
prices prevailing from time to time for the Common Stock. However, even
the possibility that a substantial number of the Company's securities
may, in the near future, be sold in the public market may adversely
affect prevailing market prices for the Common Stock and could impair the
Company's ability to raise capital through the sale of its equity
securities.
Risks Related to Under-Priced Stocks
The Common Stock is currently listed on the Nasdaq SmallCap Market
("Nasdaq"). In order to continue to be listed on Nasdaq, however, the
Company must, as of February 23, 1998, maintain $2,000,000 in net
tangible assets (total assets less total liabilities and goodwill) or
market capitalization of $35,000,000 or $500,000 in net income for two of
the last three years, a $1,000,000 market value for the public float, two
market-makers, and a minimum bid price of $1.00 per share. After
February 23, 1998, if the price of the Common Stock drops below $1.00 per
share for 30 days, the Company will be notified of delisting proceedings
unless the stock closes at $1.00 or more for ten consecutive days, within
90 days of falling out of compliance. In the future, if the Company
fails to meet these maintenance criteria it may result in the delisting
of the Company's securities from Nasdaq, and trading, if any, of the
Company's securities would thereafter be conducted in the non-Nasdaq over-
the-counter market. If the Company's securities are delisted, an
investor could find it more difficult to dispose of, or to obtain
accurate quotations as to the market value of, the Company's securities.
In addition, if the Common Stock were to become delisted from trading on
Nasdaq and the trading price of the Common Stock were to remain below
$5.00 per share, trading in the Common Stock would also be subject to the
requirements of certain rules promulgated under the Securities Exchange
Act of 1934, as amended, which require additional disclosure by broker-
dealers in connection with any trades involving a stock defined as a
penny stock (generally, any non-Nasdaq equity security that has a market
price of less than $5.00 per share, subject to certain exceptions.) Such
rules require the delivery, prior to any penny stock transaction, of a
disclosure schedule explaining the penny stock market and the risks
associated therewith, and impose various sales practice requirements on
broker-dealers who sell penny stocks to persons other than established
customers and accredited investors (generally institutions.) For these
types of transactions, the broker-dealer must make a special suitability
determination for the purchaser and must receive the purchaser's written
<PAGE>
consent to the transaction prior to the sale. The additional burdens
imposed upon broker-dealers by such requirements may discourage broker-
dealers from effecting transactions in the Common Stock, which could
severely limit the market liquidity of the Common Stock and the ability
of purchasers in this offering to sell the Common Stock in the secondary
market.
Potential Dilution of Shareholders' Ownership Interests
As of February 17, 1998, there were 53,842,360 common shares of the
Company issued and outstanding, plus 947,662 common shares not yet issued
for a previous conversion of preferred stock. Assuming the issuance of
10,260,730 common shares in exchange for the total number of warrants and
vested stock options outstanding as of that date (without regard to
whether such shares are being registered hereunder), and the issuance of
common shares in conversion to Common Stock of all convertible preferred
stock outstanding as of that date (all preferred stock convertible into
approximately 15,488,596 common shares (based upon the conversion price
as of February 17, 1998), there would be approximately 80,539,348 common
shares outstanding. In such event, an existing shareholder before such
issuances would experience dilution of their ownership interest in the
Company to the extent such shareholder held none of the warrants or
preferred stock being exercised or converted. For example, an existing
10% shareholder before such issuances would become a 6.69% shareholder
after such issuance, assuming such shareholder held none of the warrants
or preferred stock being exercised or converted, and other existing
shareholders would experience a similar dilution of their ownership
interest in the Company.
Further assuming the exercise of all outstanding warrants and vested
stock options and the issuance of common shares in conversion to Common
Stock of all convertible preferred stock outstanding as of February 17,
1998, the pro forma net tangible book value of the Company would also
increase by the amount of the proceeds paid to the Company for the Common
Stock issued in exchange for the warrants and vested stock options
(approximately $9,980,770 or $0.124 per share increase.) "Pro forma net
tangible book value" represents the amount of total tangible assets, less
total liabilities, divided by the number of shares of Common Stock
outstanding after considering the issuance of Common Stock for
outstanding warrants and stock options and the conversion of Preferred
Stock into Common Stock. The increase results from giving effect to the
receipt by the Company of the net proceeds from the exercise of the
warrants and stock options.
The likelihood that the warrants and vested stock options will be
exercised increases as the market price of the stock rises above the
exercise price of the warrants and stock options. Approximately 1,700,000
of the warrants have a current exercise price above $2.00 and would not
likely be exercised at the current market price of the Company's stock.
(See page 17 herein for further discussion of the Warrants.)
Preferred Stock's Preference Over Common Stock
The Company's Preferred Stock has preferences over the Common Stock
in payment of dividends and in distributions to shareholders upon
dissolution of the Company. (See the description of Preferred Stock
beginning on page 16 herein for a more detailed description of these
preferences.) During ongoing operation of the Company, these preferences
mean very little; payment of dividends to Preferred Shareholders has no
<PAGE>
adverse effect upon Common Shareholders because the Company has not in
the past, and does not expect in the foreseeable future, to declare any
dividends on its Common Stock. However, in the event it became necessary
to dissolve the Company, to the extent of any assets remaining after
payment of all creditors of the Company, Preferred Shareholders would
receive the face amount and all accrued dividends on their Preferred
Stock before any distributions could be made to Common Shareholders. In
the event of a dissolution of the Company at the February 17, 1998 levels
of Common and Preferred Stock, because of the Preferred Stock
preferences, a Common Shareholder could receive a distribution which is
approximately $0.05 per share less than it would otherwise receive if
there were no shares of Preferred Stock outstanding.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sales of
the Shares by Selling Stockholders. The likelihood of the Company
receiving any proceeds from the exercise of the warrants increases as the
market price of the Company's stock increases above the exercise price of
the warrants. If the market price of the stock does not increase to the
required levels, the Company will most likely not receive any proceeds
from this offering. Assuming the exercise of the warrants to purchase
100,000 Shares at $1.50 per share (expiring in mid-2000), the net
proceeds to the Company from the sale of Shares issuable upon exercise of
the warrants would be approximately $150,000.
Any proceeds received by the Company upon exercise of the warrants
will be used for general corporate purposes, including, but not limited
to, operating and working capital requirements. Various uses of the
proceeds may include additional advertising, promotion, and development
of uniView and the uniView Xpressway.
SELLING STOCKHOLDERS
This Prospectus relates to 1,000,000 Shares, and to a maximum of
7,500,000 estimated Shares issuable upon the conversion of Preferred
Stock, which was issued pursuant to Securities Subscription Agreements
(the "Securities Subscription Agreements") between the Company and
certain Selling Stockholders. This Prospectus also relates to 100,000
Shares issuable upon the exercise of warrants, which were issued to J.P.
Carey, Inc., ("J.P. Carey"), pursuant to an agreement dated August 8,
1997, (the "J.P. Carey Agreement"), as partial consideration for
$2,000,000 of capital raised by J.P. Carey for the Company. See "Plan of
Distribution."
The "Number of Shares Underlying Warrants," and the "Maximum Number
of Shares Convertible from Preferred Stock" set out in the table below
represent the total number of Shares beneficially owned by the Selling
Stockholders before the offering. All of such Shares are being offered
for the account of the Selling Stockholders and after the offering the
Selling Stockholders will each own no Common Stock of the Company.
<PAGE>
Maximum
Number of Number of
Shares Shares
Relationship Number of Underlying Convertible from
Selling Stockholder to the Company Shares Warrants Preferred Stock
- ------------------- -------------- --------- --------- ----------------
SECURITIES ACQUIRED PURSUANT TO A SECURITIES SUBSCRIPTION AGREEMENT:
Arnold Pent Private Investor 1,000,000 N/A N/A
Thomson Kernaghan
& Co. Ltd. Private Investor N/A N/A 7,500,000
--------- --------- ---------
SUBTOTAL 1,000,000 N/A 7,500,000
WARRANTS ACQUIRED PURSUANT TO THE J.P. CAREY AGREEMENT:
J.P.Carey, Inc. (1) Finder N/A 100,000 N/A
--------- --------- ---------
SUBTOTAL N/A 100,000 N/A
TOTAL 1,000,000 100,000 7,500,000
GRAND TOTAL 8,600,000
(1) These warrants were issued by the Company to J.P. Carey, Inc.
pursuant to the J.P. Carey Agreement.
PLAN OF DISTRIBUTION
Securities Being Registered
The following securities are covered by this Prospectus:
1. The resale of 1,000,000 Shares owned by certain security
holders who acquired Common Stock of the Company pursuant to a Security
Subscription Agreement.
2. The resale by J.P. Carey of up to 100,000 Shares that may be
acquired upon the exercise of warrants issued pursuant to the J.P. Carey
Agreement.
3. The resale by the respective holders thereof of a maximum of
7,500,000 estimated Shares that may be acquired upon the conversion of
Preferred Stock issued pursuant to a Securities Subscription Agreement.
Plan of Distribution
The Shares being registered hereunder may be sold from time to time
by any of the Selling Stockholders, or by pledgees, donees, transferees
or other successors in interest, or by additional selling stockholders.
The Shares may be disposed of from time to time in one or more
transactions through any one or more of the following: (i) to purchasers
directly, (ii) in ordinary brokerage transactions and transactions in
which the broker solicits purchasers, (iii) through underwriters or
dealers who may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Stockholders or
such successors in interest and/or from the purchasers of the Shares for
whom they may act as agent, (iv) the pledge of the Shares as security for
any loan or obligation, including pledges to brokers or dealers who may,
<PAGE>
from time to time, themselves effect distributions of the Shares or
interests therein, (v) purchases by a broker or dealer as principal and
resale by such broker or dealer for its own account pursuant to this
Prospectus, (vi) a block trade in which the broker or dealer so engaged
will attempt to sell the Shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction and (vii)
an exchange distribution in accordance with the rules of such exchange,
including the NASDAQ SmallCap Market, prices and at terms then prevailing
or at prices related to the then current market price or at negotiated
prices and terms. In effecting sales, brokers or dealers may arrange for
other brokers or dealers to participate. The Selling Stockholders or
such successors in interest, and any underwriters, brokers, dealers or
agents that participate in the distribution of the Shares, may be deemed
to be "underwriters" within the meaning of the Securities, Act, and any
profit on the sale of the Shares by them and any discounts, commissions
or concessions received by any such underwriters, brokers, dealers or
agents may be deemed to be underwriting commissions or discounts under
the Securities Act.
The Company will pay all of the expenses incident to the offering
and sale of the Shares to the public other than underwriting discounts or
commissions, brokers' fees and the fees and expenses of any counsel to
the Selling Stockholders related thereto.
In the event of a material change in the plan of distribution
disclosed in this Prospectus, the Selling Stockholders will not be able
to effect transactions in the Shares pursuant to this Prospectus until
such time as a post-effective amendment to the Registration Statement is
filed with, and declared effective by, the Commission.
DESCRIPTION OF SECURITIES
Common Stock
The Company is authorized by its articles of incorporation, as
amended, to issue up to 80,000,000 shares of Common Stock, $.01 par
value, of which 53,842,360 shares were issued and outstanding as of
February 17, 1998, plus 947,662 common shares not yet issued for a
previous conversion of preferred stock. Holders of Common Stock are
entitled to one vote per share on all matters submitted to a vote of the
shareholders and do not have cumulative voting rights in the election of
directors. Accordingly, the holders of a majority of the outstanding
Common Stock can, if they so choose, elect all directors. The vote of
the holders of a majority of the shares entitled to vote, present in
person or represented by proxy, shall decide any question brought before
a meeting of the Company's shareholders at which a quorum is present. A
quorum consists of a majority of the issued and outstanding shares of the
Common Stock entitled to vote. The articles of incorporation of the
Company specify that a majority vote of shareholders shall be
determinative regardless of provisions requiring more than a majority
vote under the Texas Business Corporation Act.
All of the shares issuable upon exercise of warrants and conversion
of preferred stock will be fully paid and nonassessable. Holders of the
Common Stock have no preemptive or other subscription rights, and shares
of Common Stock have no redemption, sinking fund, or conversion
privileges. Holders of Common Stock are entitled to receive dividends
<PAGE>
when, as and if declared by the board of directors of the Company, out of
funds legally available therefor. In the event of liquidation or
dissolution of the Company, holders of Common Stock are entitled to share
ratably in all assets available for distribution to such shareholders.
Preferred Stock
The Company is authorized to issue up to 1,000,000 shares of
Preferred Stock, $1.00 par value, in one or more series, which, if
issued, would have certain preferences over the Common Stock. The
articles of incorporation of the Company vest the board of directors with
authority to establish and designate series of Preferred Stock and to fix
and determine the relative rights and preferences of any series so
established. As of February 17, 1998, outstanding Preferred Stock
consisted of (a) 140,000 shares of Series A Preferred Stock with an
annual dividend rate of 6%, a redemption value of $1.00 per share, and no
right to convert into Common Stock; (b) 3 shares of Series H Preferred
Stock with an annual dividend rate of 5%, a redemption value of $25,000
per share, and the right to convert such Preferred Stock into 50,000
shares of Common Stock, at a minimum conversion price of $1.50 per share;
(c) 30 shares of Series M Preferred Stock with a 3% dividend rate, a
redemption value of $33,250 per share, and the right to convert such
Preferred Stock, as of February 17, 1998, into approximately 4,210,526
shares of Common Stock at a variable conversion price based upon the
stock price of the Company's common stock for a period immediately
preceding the date of conversion; and (d) 80 shares of Series N Preferred
Stock with a 3% dividend rate, a redemption value of $33,250 per share,
and the right to convert such Preferred Stock, as of February 17, 1998,
into approximately 11,228,070 shares of Common Stock at a variable
conversion price based upon the stock price of the Company's common stock
for a period immediately preceding the date of conversion. The number of
shares issuable upon conversion of Series M Preferred Stock and Series N
Preferred Stock fluctuates with the stock price of the Company's common
stock, as reported by the Nasdaq Stock Market; as the stock price
increases, the number of shares issuable on conversion decreases; as the
stock price decreases, the number of shares issuable on conversion
increases. Conversions of Series M Preferred Stock and Series N
Preferred Stock are limited by the holdings of their owners; each owner
may not hold more than 4.9% of the Company's outstanding common stock at
any one time.
Such Preferred Stock has no voting rights. It has preference over
the Common Stock as to dividends, and no dividends can be declared or
paid on the Common Stock unless full dividends on all Preferred Stock
then outstanding for all past dividend periods and for the current period
had been declared and paid. Dividends on all Preferred Stock, regardless
of series, are cumulative. No dividend may be declared on shares of any
series of Preferred Stock for any dividend period unless all dividends
accumulated for all prior dividend periods have been declared on all
Preferred Stock then outstanding and a dividend for the same period is
declared at the same time upon all Preferred Stock outstanding in like
proportions to the dividend rate then declared. In the event of
dissolution, liquidation or winding up of the Company, whether voluntary
or involuntary, the holders of each series of the then outstanding
Preferred Stock would be entitled to receive the amount fixed for such
purpose in the resolution of the board of directors establishing the
respective series of Preferred Stock plus a sum equal to the amount of
all accumulated and unpaid dividends thereon. After such payment to the
holders of Preferred Stock, the remaining assets and funds of the Company
<PAGE>
could be distributed pro rata among the holders of the Common Stock. The
whole or any part of outstanding Series A, Series H, Series M, and Series
N Preferred Stock may be called for redemption and redeemed at any time
at the option of the Company, exercisable by the board of directors upon
thirty days' notice by mail to the holders of such shares as are to be
redeemed.
Warrants
As of February 17, 1998, the Company had outstanding warrants held
by various investors and vested stock options held by directors and
various employees which were exercisable for a total of 10,260,730 shares
of Common Stock. Directors and certain employees hold a total of
1,600,000 additional stock options, which vest at various times over the
next two years. Exercise prices of the warrants and stock options range
from a high of $4.50 per share, to a low of $0.11 per share and
expiration dates range from June, 1998 through April, 2002.
Debentures
As of February 17, 1998, the Company had no outstanding debentures.
The transfer agent and registrar for Common Stock is American Stock
Transfer & Trust Company, 40 Wall Street, New York, New York 10005.
RECENT DEVELOPMENTS
There have been no material changes in the Company's affairs since
the filing of the Company's December 1997 10-Q Report, which report has
been incorporated herein by reference.
LEGAL MATTERS
Certain legal matters in connection with the validity of the
securities offered hereby have been passed upon for the Company by Billy
J. Robinson. Mr. Robinson is an attorney who acts as counsel to the
Company. Mr. Robinson is also a director and owns 65,000 shares of
Common Stock and holds vested options to purchase an additional 75,000
shares of Common Stock.
EXPERTS
The financial statements and the related financial statement
schedules incorporated in this prospectus by reference from the Company's
Annual Report on Form 10-K as of June 30, 1997 and 1996, and for each of
the years in the three-year period ended June 30, 1997 have been audited
by King Griffin & Adamson P.C., independent certified public accountants,
as stated in their report which is incorporated herein by reference, and
has been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the Company's Articles of
Incorporation or Bylaws, or otherwise, the registrant has been advised
<PAGE>
that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of
such issue.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission registration fee paid $ 898
Transfer agent's fees 150
Costs of printing 150
Legal fees and expenses 500
Accounting fees and expenses 250
Blue sky fees and expenses 250
Miscellaneous expenses 500
------
Total estimated fees $2,698
All amounts estimated except for Securities and Exchange Commission
registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 2.02(16) and 2.02-1 of the Texas Business Corporation Act
empowers a corporation to indemnify its directors and officers or former
directors or officers and to purchase insurance with respect to liability
arising out of their capacity or status as directors and officers.
Article XIII of the Company's Articles of Incorporation, as amended,
provides that a director of the Company shall not be personally liable to
the Company or its shareholders for monetary damages for any act or
omission in his capacity as a director, except to the extent otherwise
expressly provided by a statute of the State of Texas. Article IX of the
Company's Bylaws provides for indemnification of officers and directors.
The Company has entered into Indemnity Agreements with all of its
officers, directors, and designated agents indemnifying them in
connection with services performed for the Company to the fullest extent
allowed by law.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3, including those incorporated herein
by reference.
Exhibit
Number Description of Exhibit
4.1 Articles of Incorporation of the Company, as amended,
defining the rights of security holders (filed as Exhibit
"3(i)" to the Company's Quarterly Report on Form 10-Q filed
with the Commission on February 13, 1998 and incorporated
herein by reference.)
4.2 Bylaws of the Company, as amended (filed as Exhibit
"3(ii)" to the Company's Quarterly Report on Form 10-Q filed
with the Commission on February 13, 1998 and incorporated
herein by reference.)
4.3 Series A Preferred Stock terms and conditions (filed as
Exhibit "4.3" to the Company's annual report on Form 10-K for
the fiscal year ended June 30, 1994 and incorporated herein by
reference.)
4.4 Series H Preferred Stock terms and conditions (filed as
Exhibit "4.4" to the Company's Registration Statement on Form S-
3 filed with the Commission on June 20, 1996 and incorporated
herein by reference.)
4.5 Form of warrant issued in connection with Series K
Preferred Stock (filed as Exhibit "4.4" to the Company's
Current Report on Form 8-K dated May 14, 1997 and incorporated
herein by reference.)
4.6 Series M Preferred Stock terms and conditions, as amended
(filed as Exhibit "4.7" to the Company's Registration Statement
on Form S-3 originally filed with the Commission on August 18,
1997 and incorporated herein by reference.)
4.7 Series N Preferred Stock terms and conditions (filed as
Exhibit "4.7" to the Company's Registration Statement on Form S-
3 originally filed with the Commission on November 25, 1997 and
incorporated herein by reference.)
4.8 Form of warrant issued in connection with the J.P. Carey
Agreement (filed as Exhibit "4.8" to the Company's Registration
Statement on Form S-3 originally filed with the Commission on
November 25, 1997 and incorporated herein by reference.)
5 Opinion of Billy J. Robinson.
23.1 Consent of King Griffin & Adamson P.C.
23.2 Consent of Billy J. Robinson (included in his opinion filed as
Exhibit 5.)
<PAGE>
24 Powers of Attorney (included on the Signature Page of the
Company's Registration Statement on Form S-3 originally filed
with the Commission on November 25, 1997 and incorporated
herein by reference.)
99.1 Agreement between the Company and J.P. Carey, Inc. dated
August 8, 1997 (the "J.P. Carey Agreement")(filed as Exhibit
"99.2" to the Company's Registration Statement on Form S-3
originally filed with the Commission on August 18, 1997 and
incorporated herein by reference.)
99.2 Form of Securities Subscription Agreement for Series N Preferred
Stock (filed as Exhibit "99.2" to the Company's Registration
Statement on Form S-3 originally filed with the Commission on
November 25, 1997 and incorporated herein by reference.)
99.3 Form of Securities Subscription Agreement for private
placement of Common Stock
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
<PAGE>
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that: (1) For
purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Company's Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Dallas, State of Texas, on February 18, 1998.
UNIVIEW TECHNOLOGIES CORPORATION
By: /s/ PAT CUSTER
Patrick A. Custer
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
Registration Statement on Form S-3 has been signed by the following
persons in the capacities and on the dates indicated.
Principal Executive Officer
/s/ PAT CUSTER Chairman of the Board, February 18, 1998
Patrick A. Custer President, Chief
Executive Officer
and Director
Principal Financial and Accounting Officer
/s/ F. SHELTON RICHARDSON, JR. Vice President, February 18, 1998
F. Shelton Richardson, Jr. Chief Financial
Officer
Additional Directors
/s/ BILLY J. ROBINSON Vice President, Secretary, February 18, 1998
Billy J. Robinson General Counsel and Director
<PAGE>
/s/ PAT CUSTER Director February 18, 1998
Patrick A. Custer,
as attorney-in-fact for
Edward M. Warren
/s/ PAT CUSTER Director February 18, 1998
Patrick A. Custer,
as attorney-in-fact for
Bernard S. Appel
EXHIBIT INDEX
Exhibit Number
4.1 Articles of Incorporation of the Company, as amended,
defining the rights of security holders (filed as Exhibit
"3(i)" to the Company's Quarterly Report on Form 10-Q filed
with the Commission on February 13, 1998 and incorporated
herein by reference.)
4.2 Bylaws of the Company, as amended (filed as Exhibit
"3(ii)" to the Company's Quarterly Report on Form 10-Q filed
with the Commission on February 13, 1998 and incorporated
herein by reference.)
4.3 Series A Preferred Stock terms and conditions (filed as
Exhibit "4.3" to the Company's annual report on Form 10-K for
the fiscal year ended June 30, 1994 and incorporated herein by
reference.)
4.4 Series H Preferred Stock terms and conditions (filed as
Exhibit "4.4" to the Company's Registration Statement on Form S-
3 filed with the Commission on June 20, 1996 and incorporated
herein by reference.)
4.5 Form of warrant issued in connection with Series K
Preferred Stock (filed as Exhibit "4.4" to the Company's
Current Report on Form 8-K dated May 14, 1997 and incorporated
herein by reference.)
4.6 Series M Preferred Stock terms and conditions, as amended
(filed as Exhibit "4.7" to the Company's Registration Statement
on Form S-3 originally filed with the Commission on August 18,
1997 and incorporated herein by reference.)
4.7 Series N Preferred Stock terms and conditions (filed as
Exhibit "4.7" to the Company's Registration Statement on Form S-
3 originally filed with the Commission on November 25, 1997 and
incorporated herein by reference.)
4.8 Form of warrant issued in connection with the J.P. Carey
Agreement (filed as Exhibit "4.8" to the Company's Registration
Statement on Form S-3 originally filed with the Commission on
November 25, 1997 and incorporated herein by reference.)
5* Opinion of Billy J. Robinson.
23.1* Consent of King Griffin & Adamson P.C.
<PAGE>
23.2 Consent of Billy J. Robinson (included in his opinion filed as
Exhibit 5.)
24 Powers of Attorney (included on the Signature Page of the
Company's Registration Statement on Form S-3 originally filed
with the Commission on November 25, 1997 and incorporated
herein by reference.)
99.1 Agreement between the Company and J.P. Carey, Inc. dated August 8,
1997 (the "J.P. Carey Agreement")(filed as Exhibit "99.2" to the
Company's Registration Statement on Form S-3 originally filed with
the Commission on August 18, 1997 and incorporated herein by
reference.)
99.2 Form of Securities Subscription Agreement for Series N
Preferred Stock (filed as Exhibit "99.2" to the Company's
Registration Statement on Form S-3 originally filed with the
Commission on November 25, 1997 and incorporated herein by
reference.)
99.3* Form of Securities Subscription Agreement for private
placement of Common Stock.
_________________
* Filed herewith.
<PAGE>
February 18, 1998
Curtis Mathes Holding Corporation
10911 Petal Street
Dallas, Texas 75238
Gentlemen:
I have acted as counsel to Curtis Mathes Holding Corporation, a
Texas corporation (the "Company") in connection with the proposed public
offering of up to 8,600,000 shares of the Company's Common Stock, $.01
par value (the "Common Stock"), as described in the Registration
Statement on Form S-3 filed with the Securities and Exchange Commission
on the date hereof (the "Registration Statement").
I have, as counsel, as I have deemed necessary examined such
corporate records, certificates and other documents and reviewed such
questions of law as I have deemed necessary, relevant or appropriate to
enable me to render the opinions expressed below. In rendering such
opinions, I have assumed the genuineness of all signatures and the
authenticity of all documents examined by me. As to various questions of
fact material to such opinions, I have relied upon representations of the
Company.
Based upon such examination and representations, I advise you that,
in my opinion:
A. The shares of Common Stock which are to be sold and delivered
by the Company and certain selling stockholders of the Company (the
"Selling Stockholders") as contemplated by the Plan of Distribution
specified in the Registration Statement, have been duly and validly
authorized by the Company and, in the case of the shares of Common Stock
to be sold by the Selling Stockholders, have been validly issued and are
fully paid and non-assessable.
B. The shares of Common Stock which are to be sold and delivered
by the Company pursuant to the exercise of the warrants, when issued and
delivered in accordance with the terms of the warrants, will be validly
issued, fully paid, and non-assessable.
I consent to the filing of this opinion as Exhibit "5" to the
Registration Statement and to the reference to myself under the caption
"Legal Matters" in the prospectus contained therein.
Sincerely,
/s/ Billy J. Robinson
Billy J. Robinson, General Counsel
Curtis Mathes Holding Corporation
<PAGE>
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Curtis Mathes Holding Corporation on Form S-3 of our report
dated August 6, 1997 appearing in the Annual Report on Form 10-K of
Curtis Mathes Holding Corporation as of June 30, 1997 and 1996 and for
each of the years in the three-year period ended June 30, 1997 and to the
reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
/s/ King Griffin & Adamson P.C.
KING GRIFFIN & ADAMSON P.C.
Dallas, Texas
February 18, 1998
<PAGE>
THE SHARES OF COMMON STOCK (THE "COMMON SHARES") OFFERED HEREIN
ARE SUBJECT TO SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY.
SECURITIES PURCHASE AGREEMENT
CURTIS MATHES HOLDING CORPORATION
Private Offering of Common Stock
In connection with the offer (the "Offering") and proposed issuance
of common shares, $0.01 par value per share ("Common Shares"), of Curtis
Mathes Holding Corporation, 10911 Petal Street, Dallas, Texas 75238 (the
"Company") at a price of $_____ per share, which represents 80% of the
five-day average closing bid price for the five trading days immediately
preceding the Closing Date, the undersigned prospective investor (the
"Investor") and the Company hereby agree as follows:
1. Subscription. The Investor hereby subscribes for the purchase
of the Common Shares and agrees to purchase the aggregate
number of Common Shares set forth in Paragraph 12 of this
agreement. The Company, in its sole discretion and for any
reason, may accept or reject this purchase in whole or in part
at any time prior to its execution hereof (the "Closing Date").
2. Restricted Shares. Investor recognizes that the Common Shares,
when issued, will not have been registered for public sale
under the Securities Act of 1933 (the "Securities Act") or the
securities laws of any state and that the share certificate
will bear a "Restricted Stock" legend as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
(1) AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER SAID ACT, OR (2) AN OPINION OF COMPANY
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED."
3. Registration Rights. In connection with the issuance of the
Common Shares offered pursuant to this agreement, the Company
will undertake to file a Registration Statement with the
Securities and Exchange Commission ("SEC") for registration of
the Common Shares on or before ___________, or at such earlier
time as may be mutually agreed between the parties, and will
use its best efforts to have such Registration Statement
declared effective at the earliest possible date.
4. Payment of Purchase Price. The Investor shall pay for the
Common Shares by a mutually agreed method of funding to the
Company on or before _________ (the "Closing Date.")
The parties hereby agree that, upon clearance of the funds for
payment of the purchase price, the Company shall cause Common
Share certificate(s) to be issued in the Investor's name and
delivered to Investor.
<PAGE>
5. Company's Conditions. The Company's obligation to issue and
sell the Common Shares shall be subject to the satisfaction (or
waiver by it) of the following conditions precedent:
(a) Performance. The Investor shall have tendered payment
for the Common Shares.
(b) Representations. Each representation and warranty made
by the Investor in this agreement shall be true and
correct in all material respects as though made on and as
of the Closing Date.
(c) Legality. No change shall have occurred in any law, rule
or regulation that would prohibit the consummation of any
transaction contemplated hereby.
(d) Litigation. No action, proceeding or investigation
shall have been commenced or threatened, nor shall any
other judgment or decree have been issued or be proposed
to be issued by any court, agency or authority to set
aside, restrain, enjoin or prevent the consummation of any
transaction contemplated hereby.
6. Representations and Warranties. The Investor makes the
representations, declarations and warranties set forth in this
Section with the intent that the same may be relied upon in
determining the Investor's suitability as a purchaser of the
Common Shares. If the Investor includes or consists of more
than one person or entity, the obligations of the Investor
shall be joint and several and the representations and
warranties herein contained shall be deemed to be made by and
be binding upon each such person or entity and their respective
legal representatives, heirs, executors, administrators,
successors and assigns.
(a) No Regulatory Review. The Investor is aware that this
is a limited private offering and that no federal, state
or other agency has made any finding or determination as
to the fairness of the investment nor made any
recommendation or endorsement of the Common Shares.
(b) Ability to Evaluate. The Investor, by reason of the
Investor's knowledge and experience in financial and
business matters, is capable of evaluating the risks and
merits of an investment in the Common Shares.
(c) Investment Intent. The Investor acknowledges that the
purchase of the Common Shares hereunder is being made for
the Investor's own account, or investment purposes only
and not with the present intention of distributing or
reselling the Common Shares in whole or in part. The
Investor further understands that the Common Shares are
not being sold to the Investor in a transaction registered
under the Securities Act of 1933, as amended (the "Act"),
or any other state securities laws. As a result, the
Investor understands that there will be restrictions on
the transfer and sale of the Common Shares. The Investor
further understands that the Company has agreed to file a
Registration Statement with the SEC with respect to the
<PAGE>
Common Shares no later than ___________. The Investor
hereby agrees not to sell or otherwise transfer the Common
Shares until the Investor has received notice from the
Company that the Registration Statement has been declared
effective. Investor hereby agrees to exercise the
registration rights granted hereby, and to sell the Common
Shares pursuant to the registration, only in a manner
consistent with the representations and warranties made by
Investor to the Company hereunder. Investor understands
that the SEC may in its discretion comment on certain
aspects of the Registration Statement and the transaction
and that such comments may cause delay in the Registration
Statement becoming effective. The Company shall have no
liability to Investor on account of any such delay
initiated by the SEC.
(d) Investment Information. The investor has received and
reviewed pertinent information regarding the Company,
including the most recent SEC Forms 10-K and 10-Q prior to
the execution of this Agreement and is capable of
understanding and evaluating the information contained
therein. Specifically, the Investor is fully aware of the
risks relating to the business of the Company and purchase
of the Common Shares. The Investor will rely solely upon
its independent investigation and analysis in making the
decision to purchase the Common Shares. In particular,
and without limiting the generality of the foregoing, the
Investor has not relied on, and the Investor's decision to
subscribe for Common Shares has not been influenced by:
(i) newspaper, magazine or other media articles or reports
related to the Company or its business; (ii) promotional
literature or other materials used by the Company for
sales or marketing purposes, or (iii) any other written or
oral statement of the Company or persons purporting to
represent the Company. The Investor has had the
opportunity to discuss all aspects of this transaction
with management of the Company, has made or has had the
opportunity to make such inspection of the books and
records of the Company as the Investor has deemed
necessary in connection with this investment, and any
questions asked have been answered to the satisfaction of
the Investor.
(e) Confidentiality. The Investor understands that the
Offering is confidential. The Investor has not
distributed information on the Offering to anyone other
than such legal or financial advisors as the Investor has
deemed necessary for purposes of evaluating an investment
in the Common Shares.
(f) Authorization and Formation of Investor. The
Investor, if a corporation, partnership, trust or other
form of business entity, is authorized and otherwise duly
qualified to purchase and hold the Common Shares and such
entity has not been formed for the specific purposes of
acquiring Common Shares in the Offering. If the Investor
<PAGE>
is one of the aforementioned entities, it hereby agrees
that upon request of the Company it will supply the
Company with any additional written information that may
be requested by the Company.
(g) Accredited Investor Status. The Investor is an
"accredited investor" as such term is defined in Rule
501(a) of Regulation D under the Act and within the
meaning of similar regulations under state securities laws
for the reasons indicated in the "Investor
Acknowledgments" accompanying this Agreement. If the
Investor is an individual, he or she is of majority age
and his or her marital status is as indicated in the
"Investor Acknowledgments." If the Investor is an entity,
the person executing this Securities Purchase Agreement on
behalf of the Investor is of majority age.
7. Reliance on Representations and Warranties: Indemnity.
The Investor understands that the Company will rely on the
representations and warranties of the Investor herein in
determining whether a sale of the Common Shares to the Investor
is in compliance with federal and applicable state securities
laws. The Investor hereby agrees to indemnify the Company and
its affiliates, and hold the Company and its affiliates and
agents harmless from and against any and all liability, damage,
cost or expense (including reasonable attorneys' fees) incurred
on account of or arising out of: (a) any inaccuracy in the
Investor's declarations, representations and warranties set
forth in this Subscription Agreement; (b) the disposition of
any of the Common Shares which the Investor will receive,
contrary to the Investor's declarations, representations and
warranties in this Subscription Agreement; (c) any lawsuit or
proceeding based upon a claim that said declarations,
representations or warranties were inaccurate or misleading or
otherwise cause for obtaining damages or redress from the
Company or any of its affiliates or the disposition of all or
any part of the Investor's Common Shares; and (d) the
Investor's failure to fulfill any or all of the Investor's
obligations herein.
8. Updating Information. All of the information set forth
herein with respect to the Investor, including, without
limitation, all of the representations and warranties set forth
in Paragraph 6 of this agreement, is correct and complete as of
the date hereof and, if there should be any material change in
such information prior to the acceptance of this subscription
by the Company, the Investor will immediately furnish the
revised or corrected information to the Company.
9. Notices. Any notice or other communications required or
permitted hereunder shall be sufficiently given if in writing
and sent by registered or certified mail, postage prepaid,
return receipt requested, if to the Company at the address set
forth on the first page of this Subscription Agreement, and to
Investor, at the address set forth in Paragraph 12 of this
Subscription Agreement, or, to such other address as either the
Company or the Investor shall designate to the other by notice
in writing in accordance with this Paragraph 9.
<PAGE>
10. Governing Law. This Subscription Agreement shall be governed by
and construed in accordance with the laws of Texas.
11. Representations and Warranties of the Company. The Company
represents and warrants to Investor as follows:
(a) The Company has legal capacity, power and authority to
enter into and perform this Agreement and to consummate
the transaction contemplated hereby.
(b) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid
and binding obligation of the Company, enforceable against
the Company in accordance with its terms.
(c) The execution and delivery of this agreement and the
performance of the obligations imposed hereunder will not
result in a violation of any order, decree or judgment of
any court or governmental agency having jurisdiction over
Company or Company's properties, will not conflict with,
constitute a default under, or result in the breach of,
any contract agreement or other instrument to which the
Company is a party or is otherwise bound and no consent,
authorization or order of, or filing or registration with,
any court or governmental agency is required for the
execution, delivery and performance of this agreement.
(d) There is no litigation or proceeding or, to the best of
the Company's knowledge, threatened, against the Company
which would affect the validity or performance of this
agreement.
(e) Upon consummation of the transaction contemplated hereby,
the Investor will own the Common Shares free and clear of
all liens, claims, charges and other encumbrances and the
delivery of the Common Shares to Investor pursuant to this
agreement will transfer legal and valid title thereto,
free and clear of all liens, claims, charges and other
encumbrances.
(f) The Company will pay all transfer fees and expenses.
(g) The Common Shares when issued and delivered will be duly
and validly authorized and issued fully-paid and
nonassessable and will not subject the holders thereof to
personal liability by reason of being such holders. There
are no preemptive rights of any shareholder of the
Company.
(h) The Company hereby agrees to indemnity and hold harmless
the Investor from and against any liability, damage, cost
or expense incurred as a result of breach by the Company
of any representation, warranty or covenant of the Company
hereunder.
<PAGE>
12. Signatures. The Investor declares under penalty of perjury
that the statements, representations and warranties contained
herein and in the following Investor Acknowledgments are true,
correct and complete and that this Securities Purchase
Agreement was executed as of ____________.
INVESTOR: ______________________________
______________________________
(Signature) (Title)
______________________________
(Print Name)
Exact Name(s) in which ownership of Securities is to be registered:
______________________________________
Principal Place of Business: _________________________________________
_________________________________________
_________________________________________
Federal Tax ID Number: __________________________________________
Amount of Subscription $ ______________
AGREED AND ACCEPTED:
CURTIS MATHES HOLDING CORPORATION
By:______________________________
Patrick A. Custer
President and CEO
APPENDIX "A"
INVESTOR ACKNOWLEDGMENTS
In order to induce the Company to accept the foregoing Securities
Subscription Agreement, the Investor expressly acknowledges the following
by placing his or her initials (or, if the Investor is a person other
than an individual, the initials of an individual duly empowered to act
for the Investor) in each of the spaces provided below:
THE INVESTOR HAS RECEIVED, HAS CAREFULLY REVIEWED INFORMATION ON THE
COMPANY AND HAS MADE AN INDEPENDENT INVESTIGATION AND ANALYSIS OF THE
INVESTMENT.
THE INVESTOR HAS CAREFULLY READ THE FOREGOING SECURITIES
SUBSCRIPTION AGREEMENT AND IN PARTICULAR, HAS CAREFULLY READ AND
UNDERSTANDS THE INVESTOR'S REPRESENTATIONS AND WARRANTIES MADE THEREIN
AND CONFIRMS THAT ALL SUCH REPRESENTATIONS AND WARRANTIES ARE TRUE AND
CORRECT.
THE INVESTOR QUALIFIES UNDER THE FOLLOWING CATEGORY OR CATEGORIES OF
DEFINITIONS OF "ACCREDITED INVESTOR" (INDICATE EACH APPLICABLE CATEGORY):
(1) The Investor is a natural person whose individual net worth, or
joint net worth with that person's spouse, exceeds $1,000,000.
(______) Yes (______) No
<PAGE>
(2) The Investor is a natural person who had an individual income
in excess of $200,000 in each of the two most recent years or
joint income with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation of
realizing the same income level in the current year.
(______) Yes (______) No
(3) The Investor is a broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
(______) Yes (______) No
(4) The Investor is an insurance company, a registered securities
broker or dealer, a licensed Small Business Investment Company,
a registered investment company, a business development company
as defined in Section 2(a)(48) of the Investment Company Act of
1940 or a private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940.
(______) Yes (______) No
(5) The Investor is an organization described in Section 501(c)(3)
of the Internal Revenue Code of 1986, as amended, or a
corporation, Massachusetts or similar business trust or
partnership, not formed for the specific purpose of acquiring
the Units, with total assets in excess of $5,000,000.
(______) Yes (______) No
(6) The Investor is a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Units offered, whose purchase is directed by a person who
has such knowledge and experience that he or she is capable of
evaluating the merits and risks of the proposed investment.
(______) Yes (______) No
(7) The Investor is a bank, savings and loan association or similar
institution acting in its individual or fiduciary capacity, or
an employee benefit plan with total assets in excess of
$5,000,000.
(______) Yes (______) No
(8) The Investor is a Plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality of
a state or its political subdivisions for the benefit of its
employees, with total assets in excess of $5,000,000.
(______) Yes (______) No
<PAGE>
(9) The Investor is an employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974 ("ERISA"),
the investment decisions for which are made by a plan
fiduciary, as defined in Section 3(21) of ERISA, which is
either a bank, savings and loan association, insurance company,
or registered investment adviser, or is an employee benefit
plan that has total assets in excess of $5,000,000.
(______) Yes (______) No
(10) The Investor is an entity in which all of the equity owners are
accredited investors or individuals who are accredited
investors (as defined above).
(______) Yes (______) No
IN WITNESS WHEREOF, the Investor has executed and delivered this
Investor Acknowledgment as of the day and year specified above.
Official Signatory of Investor:
_______________________________
(Signature)
Name Printed: _______________________
Title: ______________________________
