SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
[X] QUARTERLY REPORT (AMENDED) PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________
Commission File Number 2-93668-FW
UNIVIEW TECHNOLOGIES CORPORATION
(Exact name of Registrant as specified in its charter)
Texas 75-1975147
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10911 Petal Street, 75238
Dallas, Texas (Zip Code)
(Address of principal executive offices)
(214) 503-8880
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the Registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. YES X NO__
At October 29, 1999, there were 19,653,935 shares of Registrant's
common stock outstanding.
<PAGE>
GENERAL INDEX
Page
Number
PART I.
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS 3
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 8
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK 11
PART II.
OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS 11
ITEM 5. OTHER INFORMATION 13
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 14
SIGNATURES 15
EXHIBIT INDEX 16
<PAGE>
UNIVIEW TECHNOLOGIES CORPORATION
and Subsidiaries
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
UNIVIEW TECHNOLOGIES CORPORATION and Subsidiaries
Consolidated Balance Sheets
September 30 June 30
1999 1999
------------ -----------
(Unaudited)
ASSETS
Cash & cash equivalents $ 1,906,745 $ 4,412,664
Accounts Receivable 1,192,146 1,117,308
Note Receivable 14,694 -
Inventory, net 440,949 436,583
Prepaid Expenses 551,379 28,283
------------ -----------
Total Current Assets 4,105,913 5,994,838
------------ -----------
OTHER ASSETS
Software development, net 1,731,624 1,690,958
Licenses, net 137,500 151,250
Property and equipment, net 1,587,549 1,310,207
Trademark, net 3,515,577 3,576,636
Goodwill, net 1,284,503 1,302,699
Other 669,325 54,180
------------ -----------
Total Other Assets 8,926,078 8,085,930
------------ -----------
TOTAL ASSETS $ 13,031,991 $14,080,768
============ ===========
<PAGE>
UNIVIEW TECHNOLOGIES CORPORATION and Subsidiaries
Consolidated Balance Sheets - Continued
September 30 June 30
1999 1999
------------ -----------
(Unaudited)
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current Maturities of long-term debt $ 288,160 $ 366,447
Current maturities of capital leases 112,757 55,168
Trade accounts payable 377,515 778,485
Line of Credit 720,073 710,858
Accrued and other current liabilities 1,074,909 1,142,095
------------ -----------
Total Current Liabilities 2,573,414 3,053,053
------------ -----------
Long Term Debt
Obligation under notes payable,
less current maturities 2,282,140 2,590,017
Obligation under capital leases,
less current maturities 16,287 100,720
------------ -----------
Total Liabilities 4,871,841 5,743,790
------------ -----------
STOCKHOLDERS' EQUITY
Preferred stock, cumulative, $1.00 par value;
1,000,000 shares authorized:
Series A, 140,000 shares issued and 130,000
and 140,000 shares outstanding at September
30, 1999, and June 30, 1999, respectively 130,000 140,000
Series H, 55 shares issued and 3 shares and 3
shares outstanding at September 30, 1999
and June 30, 1999, respectively (liquidation
preference of $75,000 and $75,000) 3 3
Series 1999-D1, 720 shares issued and 720 shares
and 720 shares outstanding at September 30,
1999 and June 30, 1999, respectively (liquidation
preference of $18,000,000 and $18,000,000) 720 720
Series 1999-C, 44 shares issued and 0 shares and 44
shares outstanding at September 30, 1999 and
June 30, 1999, respectively
(liquidation preference of $0 and $1,100,000) - 44
Series 1999-E, 96 shares issued and 0 shares and
96 shares outstanding at September 30, 1999 and
June 30, 1999, respectively
(liquidation preference of $0 and $2,400,000) - 96
Common stock, $.10 par value; 80,000,000 shares
authorized; 19,293,935 and 15,013,150 shares issued
and outstanding at September 30, 1999,
and June 30, 1999 1,929,394 1,501,315
Additional Paid In Capital 51,203,160 49,128,729
Accumulated Deficit (45,103,127) (42,433,929)
------------ -----------
Total Stockholders' Equity 8,160,150 8,336,978
------------ -----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 13,031,991 $14,080,768
============ ===========
<PAGE>
UNIVIEW TECHNOLOGIES CORPORATION and Subsidiaries
Consolidated Statements of Operations (Unaudited)
Three Months Ended
September 30 September 30
1999 1998
------------ -----------
REVENUES
Net Sales of Products $ 2,300,975 $ 3,964,874
Net Sales of Services 444,080 427,117
------------ -----------
TOTAL REVENUE 2,745,055 4,391,991
------------ -----------
COST OF REVENUES 2,017,248 3,456,529
------------ -----------
Gross Profit 727,807 935,462
OPERATING EXPENSES (3,167,872) (2,818,558)
------------ -----------
Operating Loss (2,440,065) (1,883,096)
------------ -----------
OTHER INCOME (EXPENSE)
Other expense (100,001) (22,694)
Interest expense (95,888) (83,271)
------------ -----------
Total Other Income (Expense) (195,889) (105,965)
------------ -----------
NET LOSS $ (2,635,954) $(1,989,061)
============ ===========
Loss per share attributable to common stockholders
Basic and Diluted $ (0.16) $ (0.19)
Weighted average common shares outstanding
Basic and Diluted 16,221,812 10,243,171
<PAGE>
UNIVIEW TECHNOLOGIES CORPORATION and Subsidiaries
Consolidated Statement of Cash Flows (Unaudited)
Three Months Ended
September 30 September 30
1999 1998
------------ -----------
CASH FLOWS FROM OPERATING ACTIVITIES
Net Loss $ (2,635,954) $(1,989,061)
Adjustments to reconcile net loss to cash
provided by (used in) operating activities:
Depreciation and Amortization 773,807 613,986
Changes in assets and liabilities, net of
effects from acquisitions and dispositions:
Accounts payable and accrued liabilities (134,030) (443,702)
Accounts receivable (74,839) (327,545)
Inventory (4,366) 135,002
Prepaid expense (648,096) (7,020)
------------ -----------
Cash provided by (used in) operating activities (2,723,478) (2,018,340)
------------ -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property and equipment (313,956) (29,821)
Collections on note receivable - 103,103
Issuance of note receivable (14,694) -
------------ -----------
Cash provided by (used in) investing activities (328,650) 73,282
------------ -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from line of credit 2,177,224 -
Principal payments on line of credit (2,168,009) -
Principal payments on long-term debt (86,163) (130,180)
Principal payments on capital lease obligations (26,843) (2,057)
Proceeds from exercise of stock warrants 650,000 -
------------ -----------
Cash provided by (used in) financing activities 546,209 (132,237)
------------ -----------
NET INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS (2,505,919) (2,077,295)
CASH AND CASH EQUIVALENTS, BEGINNING 4,412,664 2,284,988
------------ -----------
CASH AND CASH EQUIVALENTS, ENDING $ 1,906,745 $ 207,693
============ ===========
<PAGE>
UNIVIEW TECHNOLOGIES CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1999
(Unaudited)
BASIS OF PRESENTATION
The interim financial statements and summarized notes included
herein were prepared, without audit, in accordance with generally
accepted accounting principles for interim financial information,
pursuant to rules and regulations of the Securities and Exchange
Commission. Because certain information and notes normally included in
complete financial statements prepared in accordance with generally
accepted accounting principles were condensed or omitted pursuant to such
rules and regulations, it is suggested that these financial statements be
read in conjunction with the Consolidated Financial Statements and the
Notes thereto, included in the Company's Annual Report on Form 10-K for
the preceding fiscal year. These interim financial statements and notes
hereto reflect all adjustments which are, in the opinion of management,
necessary for a fair statement of results for the interim periods
presented. Such financial results, however, should not be construed as
necessarily indicative of future earnings.
CREDIT AGREEMENT/NOTES PAYABLE
The Company's subsidiary, Network America, Inc. has a $2.15 million
credit facility with FINOVA Capital Corporation secured by its accounts
receivable. The outstanding balance under this agreement at September
30, 1999 totaled $720,073. This facility contains various financial
covenants, including among other things, minimum net worth, maintenance
of certain fixed charge ratios and maximum allowable indebtedness to net
worth, with all of which Network America is currently in compliance.
Outstanding notes at the end of the period were $2,570,301,
including a note of $1.5 million that is convertible into Common Stock at
$.625 per share, a note of $741,000 that is convertible into Common Stock
at $1.00 per share, and some other small notes payable.
PURCHASE OF ASSETS
The Company purchased certain assets of Zirca Corporation on
September 22, 1999 for $300,000 cash and 360,000 shares of the Company's
common stock in a transaction valued at $975,000. This transaction is
included in the financial statements ending September 30, 1999.
FINANCING TRANSACTIONS
During the first fiscal quarter the Company received $650,000 and issued
1.5 million shares of Common Stock pursuant to the exercise ofwarrants.
The Company also issued an additional 2,780,785 shares of Common
Stock during the reporting period.
SUBSEQUENT EVENTS
The Company entered into a Sale and Purchase Agreement effective
October 29, 1999 to acquire 51% of certain assets of Softgen International,
Inc. for 1,175,000 shares of the Company's Common Stock and warrants to acquire
another 1,175,000 shares of common stock at $3.00 per share for three years.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Forward Looking Statements
This report may contain "Forward Looking Statements," which are our
expectations, plans, and projections which may or may not materialize,
and which are subject to various risks and uncertainties, including
statements concerning expected expenses, Year 2000 readiness, and the
adequacy of our sources of cash to finance our current and future
operations. When used in this report, the words "plans," "believes,"
"expects," "anticipates," "estimates" and similar expressions are
intended to identify forward-looking statements. Factors which could
cause actual results to materially differ from our expectations include
the following: general economic conditions and growth in the high tech
industry; competitive factors and pricing pressures; changes in product
mix; the timely development and acceptance of new products; Year 2000
readiness of our suppliers, and the risks described from time to time in
the our SEC filings. These forward-looking statements speak only as of
the date of this report. We expressly disclaim any obligation or
undertaking to release publicly any updates or change in our expectations
or any change in events, conditions or circumstances on which any such
statement may be based, except as may be otherwise required by the
securities laws.
Overview
uniView Technologies Corporation offers the expertise and innovative
tools necessary to create fully customized video-on-demand, interactive
application, e-commerce, and other interactive broadband services.
Building on a foundation of interactive broadband technology, and the
understanding of end user requirements, we have merged our Internet
access technologies and existing applications with the technologies of
our development partners to deliver the future of interactive networking
products and services. In 1997, we introduced our first revolutionary
set top box and, today, we use convergence devices and integration
expertise to design custom broadband networks for clients in multi-level
marketing, hospitality, medical facilities, utilities, banking, and
telecommunications. In addition to complete network system design and
integration, we also offer Web site development, web site hosting, and
full international Internet access, as well as produce research and
development and customer service. More information about us can be found
at our Web site, www.uniView.net.
The following discussion provides information to assist in the
understanding of the Company's financial condition and results of
operations for the fiscal quarter ended September 30, 1999. It should be
read in conjunction with the Consolidated Financial Statements and Notes
thereto appearing in the Company's Annual Report on Form 10-K for fiscal
year ended June 30, 1999.
<PAGE>
Results of Operations
Revenues. Total sales for the first fiscal quarter ended September
30, 1999 were $2,745,000, compared to sales of $4,392,000 for the same
quarter last year. Revenues decreased primarily as a result of the sale
of one of our computer consulting subsidiaries, CompuNet Support Systems,
Inc. Most of the sales for the reporting period can be attributed to
network system design and integration services provided through our
subsidiary, Network America, Inc.; however, we continue to expect our
Advanced Systems Group to make significant contributions to revenue from
recently announced contracts during the coming year.
Gross Profit. Gross profit for the first fiscal quarter was
approximately $728,000, compared to $935,000 for the same quarter last
year. Gross margin, as a percentage of sales, in the first fiscal
quarter was 26.5%, compared to 21.3% gross margin for the same quarter
last year. The increase in gross margin resulted primarily from the
implementation of additional cost saving measures related to the sale of
products and services. The decrease in overall gross profit can be
attributed to the decrease in overall revenues for this period.
Operating Expenses. Total operating expenses for the first fiscal
quarter increased by $349,000 over the same quarter last year. This
increase can be attributed primarily to non-recurring public company
expenses of approximately $545,000, which consist of filing fees and
brokerage fees paid mostly in common stock during the quarter.
Significant components of operating expenses for the period consisted of
$1,031,000 for compensation; $187,000 for facilities; $120,000 in accrued
non-recurring legal fees paid during the quarter; $152,000 for online
service expense; and $422,000 for amortization of software development
costs, trademark and goodwill.
Liquidity and Capital Resources
Cash Flows From Operations. Cash used by operations for the fiscal
quarters ended September 30, 1999 and 1998 were $2,723,000 and
$2,018,000, respectively. Major components of cash flows from operations
for the current quarter included: $774,000 for depreciation and
amortization; an increase of $134,000 in accounts payable and accrued
liabilities; an increase of $648,000 for prepaid expenses related to TV
listings for our set top box; and the effects of a $2,636,000 loss from
operations.
Cash Flows From Investing Activities. During the first quarter, we
purchased $314,000 of property, plant, and equipment as compared to
$30,000 during the same period last year.
Cash Flows from Financing Activities. We generated net cash from
financing activities of $546,000 during the quarter ended September 30,
1999. The primary source of these funds were proceeds from the exercise
of warrants. During the same quarter last year, we generated no proceeds
from financing activities; however, $132,000 was used for principal
payments on debt and lease obligations.
<PAGE>
Other Matters
Cash Flow
During the fiscal quarter ended September 30, 1999, we did not
achieve a positive cash flow from operations. Accordingly, we continue
to rely on cash on hand, as well as available borrowing arrangements and
continued sale of our common stock and preferred stock to fund operations
until a positive cash flow from operations can be achieved. We expect to
achieve a positive cash flow in the coming fiscal year; however, if we
are unable to achieve a positive cash flow from operations, additional
financing or placements will be required. We continually evaluate
opportunities with various investors to raise additional capital, without
which, our growth and profitability could be restricted. Although we
believe that sufficient financing resources are available, there can be
no assurance that such resources will continue to be available to us or
that they will be available upon favorable terms.
Readiness for Year 2000
We have recognized the need to ensure that our operations and
relationships with vendors and other third parties will not be adversely
impacted by software processing errors arising from the calculations
using the Year 2000 ("Y2K") and beyond.
We have created a company-wide Y2K team to identify and resolve Y2K
issues associated with our internal information systems, internal non-
information systems, the products and services we sell, and our major
suppliers of products and services. (Non-information systems include
telephone systems; fax machines; facilities systems regulating alarms,
building access and sprinklers; and other miscellaneous systems and
processes.) We established a Y2K program coordinator to ensure these
programs are implemented across the Company. The coordinator provides a
single point of reference, both internal, and external, for us. In
addition, we continue to monitor our suppliers, customers, vendors and
financial service organizations regarding their Year 2000 compliance. In
some cases, to meet Y2K readiness, we have replaced suppliers or
eliminated suppliers from consideration for new business.
We believe that our Year 2000 review, new information system
implementation, and other necessary remediation actions are substantially
complete. Our products are Y2K compliant. Our internal financial
reporting system has been upgraded to a Y2K compliant system. We believe
that all of our non-information systems are substantially compliant.
However, there can be no assurance that further Y2K remediation will not
be required as we become aware of additional information.
While we have contingency plans in place to address most issues
under our control, an infrastructure problem outside of our control could
result in a delay in delivery of products of services depending on the
nature and severity of the problems. We would expect that most utilities
and service providers would be able to restore service within days
although more pervasive system problems involving multiple providers
could last two to four weeks or more depending on the complexity of the
systems and the effectiveness of their contingency plans. Although we
are dedicating significant resources towards attaining Y2K readiness,
<PAGE>
there is no assurance we will be successful in our efforts to identify
and address all Y2K issues. Even if we act in a timely manner to
complete all of our assessments; identify, develop and implement
remediation plans believed to be adequate; and develop contingency plans
believed to be adequate, some problems may not be identified or corrected
in time to prevent material adverse consequences to the Company.
The discussion above regarding costs, risks and other forward-
looking statements regarding Y2K is based on our best estimates given
information that is currently available and is subject to change. As we
continue to progress with our Y2K initiatives, we may discover that
actual results will differ materially from these estimates.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed to market risk from changes in interest rates which
may adversely affect our financial position, results of operations and
cash flows. In seeking to minimize the risks from interest rate
fluctuations, we manage exposures through our regular operating and
financing activities. We do not use financial instruments for trading or
other speculative purposes and we are no party to any leveraged financial
instruments.
We are exposed to interest rate risk primarily through our borrowing
activities, which are described in the "Long-Term Debt" Notes to the
Consolidated Financial Statements of our Annual Report on Form 10-K for
fiscal year ended June 30, 1999, which are incorporated herein by
reference.
PART II - OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
Sales of equity securities during the reporting period that were not
registered under the Securities Act of 1933 consisted of the following:
On August 9, 1999 we issued 64,000 shares of our Common Stock to an
accredited investor as a finder's fee in connection with our acquisition
of Video Management, Inc. in 1998. The issuance was made pursuant to the
exemption from registration provided by SEC Regulation D.
On August 9, 1999 we issued 40,000 shares of our Common Stock to an
accredited investor as a placement fee in connection with our Series 1999-
D1 Preferred Stock. The issuance was made pursuant to the exemption from
registration provided by SEC Regulation D.
On August 11, 1999 we issued 250,000 shares of our Common Stock to
an accredited investor in pre-payment for TV listings utilized in
connection with our set top box. The issuance was made pursuant to the
exemption from registration provided by SEC Regulation D.
On August 17, 1999 we issued 240,000 shares of our Common Stock to
an accredited investor as a placement fee in connection with our 1999.1
Convertible Debenture. The issuance was made pursuant to the exemption
from registration provided by SEC Regulation D.
<PAGE>
On August 25, 1999 we issued 7,767 shares of our Common Stock
pursuant to conversion of a portion of our outstanding Series A Preferred
Stock. Series A Preferred Stock contains no provision relating to
conversion into Common Stock and the conversion price was determined by
agreement at $1.50 per share. The issuance was made pursuant to the
exemption from registration provided by SEC Regulation D, in that (a) the
investor or his purchaser representative is reasonably believed to have
such knowledge and experience in financial and business matters that he
is capable of evaluating the merits and risks of the investment, (b) the
investor or his purchaser representative were provided with required
information and an opportunity to obtain additional information a
reasonable period of time prior to the transaction, and (c) the investor
or his purchaser representative were advised of the limitations on resale
of the Common Stock. (The terms and conditions of Series A Preferred
Stock are contained in an exhibit previously filed with the SEC, as
reflected in the Exhibit Index of this Form 10-Q.)
On September 30, 1999 we issued 11,932 shares of our Common Stock to
accredited investors pursuant to conversion of accumulated dividends due
on our Series 1999-C Preferred Stock. The issuance was made pursuant to
the exemption from registration provided by SEC Regulation D. We
received no additional cash for the conversion, as we received cash upon
the purchase and issuance of the preferred shares in May 1999. The
dividends were converted at $1.97 per share, which represents the average
closing sale price of the Common Stock for the five days ending on the
date of conversion. (The terms and conditions of Series 1999-C Preferred
Stock are contained in an exhibit previously filed with the SEC, as
reflected in the Exhibit Index of this Form 10-Q.)
On September 30, 1999 we issued 4,390 shares of our Common Stock to
accredited investors pursuant to conversion of accumulated interest due
on our 1999.2 Convertible Debenture. The issuance was made pursuant to
the exemption from registration provided by SEC Regulation D. We
received no additional cash for the conversion, as we received cash upon
the purchase and issuance of the debenture in March 1999. The interest
was converted at $1.97 per share, which represents the average closing
sale price of the Common Stock for the five days ending on the date of
conversion. (The terms and conditions of the 1999.2 Debenture are
contained in an exhibit previously filed with the SEC, as reflected in
the Exhibit Index of this Form 10-Q.)
ITEM 5. OTHER INFORMATION
Annual Shareholders' Meeting
The date of our 1999 annual shareholders' meeting has been advanced
by more than 30 days from the date of the 1998 annual shareholders'
meeting, which was held on May 13, 1999. The 1999 annual shareholders'
meeting will be held at 17300 North Dallas Parkway, Suite 2050, Dallas,
Texas 75248, on December 9, 1999, at 4:30 P.M., Texas time, for the
following purposes:
1. Election of directors to serve until the next Annual Meeting of
Shareholders or until their respective successors are elected
and qualified.
2. Ratification of the appointment of Grant Thornton LLP as
independent auditors for the Company for fiscal year ending
June 30, 2000.
<PAGE>
3. Approval of the Company's 1999 Equity Incentive Plan.
4. Ratification of stock options granted to employees and
directors.
5. Transaction of such other business as may properly come
before the meeting or any postponements or adjournments thereof
(the "Annual Meeting.")
Only those Shareholders of record at the close of business on
October 29, 1999 will be entitled to receive notice of, and vote at the
meeting. The proxy statement for the 1999 annual shareholders' meeting
was mailed to shareholders on or about November 9, 1999. Reference is
made to the proxy statement for more information.
Acquisition or Disposition of Assets
Zirca Corporation
On September 22, 1999 we consummated the acquisition of certain
assets of Zirca Corporation ("Zirca") pursuant to an Acquisition
Agreement. The consideration given for the acquisition was valued at
$975,000, and consisted of $300,000 in cash and Three Hundred Sixty
Thousand (360,000) shares of Registrant's par value $.10 common stock
(the "Common Stock"). The number of shares of Common Stock was determined
by dividing $675,000 by the closing last trade price of the Common Stock
as of September 15, 1999 ($1.875 per share). The purchase price was
established through arms length negotiations between the parties,
considering the historical revenues and business prospects of Zirca and
the market price of Registrant's Common Stock.
The assets were acquired from Zirca Corporation, a Texas
corporation, located at 13800 Senlac Drive, Farmers Branch, Texas 75234.
There exists no material relationship between that entity and the
Registrant or any of its affiliates, any director or officer of the
registrant, or any associate of any such director or officer.
Separate financial statements and pro forma financial information
for the acquisition of these assets are not required to be filed, as the
transaction is not deemed to be material under SEC regulations. This
financial information will be consolidated into our financial statements
pursuant to reporting requirements.
Softgen International, Inc.
Subsequent to the end of the reporting period, on October 29, 1999,
the Registrant consummated the acquisition of 51% of certain assets of
Softgen International, Inc. ("Softgen"), pursuant to a Sale and Purchase
Agreement. The consideration given for the acquisition was One Million
One Hundred One Hundred Seventy-five Thousand (1,175,000) shares of
Registrant's par value $.10 common stock (the "Common Stock") and
warrants to purchase One Million One Hundred Seventy-five Thousand
(1,175,000) shares of Registrant's Common Stock, exercisable at Three and
NO/100 Dollars ($3.00) per share for three (3) years (the "Warrants").
The purchase price was established through arms length negotiations
between the parties, considering the historical revenues and business
prospects of Softgen and the current market price of Registrant's Common
Stock.
<PAGE>
The assets were acquired from Softgen International, Inc., a British
Virgin Islands corporation, with an office at 8150 N. Central Expressway,
Suite 1201, Dallas, Texas 75206. There exists no material relationship
between Softgen and the Registrant or any of its affiliates, any director
or officer of the registrant, or any associate of any such director or
officer.
Part of the acquired assets consists of general office equipment
used in the computer consulting business and the Registrant intends to
continue such use.
It is impracticable at this time to provide the required financial
statements and pro forma financial information for the acquisition of
these assets. The Registrant expects to file such financial statements
and pro forma financial information as soon as practicable, but not later
than January 12, 2000.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Reference is made to the Exhibit Index beginning on page 16 of
this Form 10-Q for a list of all exhibits filed with and
incorporated by reference in this report.
(b) Reports on Form 8-K
During the three months ended September 30, 1999 the Company
filed no Current Reports on Form 8-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
uniView Technologies Corporation
(Registrant)
By: /s/ Patrick A. Custer
Patrick A. Custer, President
(Principal Financial and Duly
Authorized Officer)
Date: November 12, 1999
<PAGE>
UNIVIEW TECHNOLOGIES CORPORATION
and Subsidiaries
EXHIBIT INDEX
Exhibit Number Description of Exhibits Sequential Page Number
2.1* Sale and Purchase Agreement dated as of October 29, 1999,
between the Company and Softgen International, Inc., et
al., concerning the purchase of certain assets of Softgen
International, Inc. 17
3(i) Articles of Incorporation of the Company, as amended (f
iled as Exhibit "4.1" to the Company's Registration
Statement on Form S-3 filed with the Commission on May 13,
1998 and incorporated herein by reference.) N/A
3(ii) Bylaws of the Company, as amended (filed as Exhibit "3(
ii)" to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1999 and incorporated herein by
reference.) N/A
4.1 Form of Common Stock Certificate of the Company (filed as
Exhibit "4.2" to the Company's annual report on Form 10-K for
the fiscal year ended June 30, 1994 and incorporated herein by
reference.) N/A
4.2 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.) N/A
4.3 Series H Preferred Stock terms and conditions (filed as Exhibit
"4.4" to the Company's Registration Statement on Form S-3
originally filed with the Commission on June 20, 1996 and
incorporated herein by reference.) N/A
4.4 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 filed with the Commission on July 20,
1998 and incorporated herein by reference.) N/A
4.5 Form of warrant issued in connection with Series 1998-A1
Preferred Stock (filed as Exhibit "4.7" to the Company's
Registration Statement on Form S-3 filed with the Commission
on July 20, 1998 and incorporated herein by reference.) N/A
4.6 Series 1999-C Preferred Stock terms and conditions (filed as
Exhibit "4.5" to the Company's Registration Statement on Form
S-3 filed with the Commission on June 28, 1999 and
incorporated herein by reference.) N/A
4.7 Series 1999-D1 Preferred Stock terms and conditions (filed as
Exhibit "4.6" to the Company's Registration Statement on
Form S-3 filed with the Commission on June 28, 1999 and
incorporated herein by reference.) N/A
<PAGE>
4.8 Form of warrant issued in connection with Founder's Equity fee
agreement and Associates Funding Group, Inc. (filed as Exhibit
"4.7" to the Company's Registration Statement on Form S-3
filed with the Commission on June 28, 1999 and incorporated
herein by reference.) N/A
4.9 Form of Securities Purchase Agreement for 1999.1 and 1999.2
Convertible Debenture (filed as Exhibit "4.9" to the Company's
Quarterly Report on Form 10-Q for the quarter ended December
31, 1998 and incorporated herein by reference.) N/A
4.10 Extension Agreement for Note and Security Agreement with
Geneva Reinsurance Company, Ltd. dated March 16, 1999 allowing
conversion of the remaining principal balance of the note into
common stock (filed as Exhibit "4.17" to the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 1999
and incorporated herein by reference.) N/A
27* Financial Data Schedule (for EDGAR filing purposes only.) 36
99.1* Acquisition Agreement dated as of September 22, 1999, between
the Company and Zirca Corporation concerning the purchase of
certain assets of Zirca Corporation. 37
_______________
* Filed herewith.
<PAGE>
SALE AND PURCHASE AGREEMENT
This Sale and Purchase Agreement ("Agreement") dated as of October
29, 1999, by and between Softgen International, Inc., a British Virgin
Islands corporation, including its wholly owned subsidiaries, Softgen
Asia PTE Ltd. and Softgen, Inc. (collectively, the "Softgen Group"), and
uniView Softgen Corporation, a Texas corporation ("uniView Softgen").
uniView Technologies Corporation, a Texas corporation ("uniView
Technologies") and the undersigned "Softgen Shareholders", join in this
Agreement to the extent and for the purposes stated herein.
INTRODUCTION
Softgen Group desires to sell and uniView Softgen desires to
purchase all of the assets of Softgen Group on the terms and conditions
set forth in this Agreement.
In consideration of the mutual promises of the parties; in reliance
on the representations, warranties, covenants, and conditions contained
in this Agreement; and for other good and valuable consideration, the
parties agree as follows:
DEFINITIONS
Defined Terms. In addition to terms defined elsewhere in this
Agreement, the following terms shall have the meanings assigned to them
herein, unless the context otherwise indicates, both for purposes of this
Agreement and all Exhibits and Schedules referenced herein:
"Affiliate" shall mean, as to an entity, any other entity
controlling, controlled by, or under common control with such first
entity. As used in this definition, the term "control" shall mean the
power, directly or indirectly, to vote more than fifty percent (50%) of
the outstanding voting stock of a corporation or more than fifty percent
(50%) of the equity of an unincorporated entity, or the right, directly
or indirectly, to designate a majority of the directors of an entity (in
the case of a corporation) or the person(s) exercising similar functions
(in the case of an unincorporated entity).
"Business" shall mean Softgen Group's computer telephony integration
(CTI) business.
"Copyrights" shall mean all of Softgen Group's copyrights (all of
which are unregistered) and all information, descriptive material,
computer programs, sales bulletins, catalogs, product literature,
advertising materials, customer lists, prospect lists, outstanding
quotations, sales leads, and such other documents related to the Software
and the Business as may be of assistance to Buyer connection with the
promotion of sales of the Software, whether or not copyrighted or
copyrightable.
<PAGE>
"Software" shall mean all of Softgen Group's drawings, sketches,
diagrams, specifications, engineering records, engineering notes and
notebooks, operating instructions, know-how, data, technology,
methodology, and other physical and written descriptions and embodiments,
including object code, application code, and source code to developed
software related to the Business, commonly known as "CIMphony," and
related software.
ARTICLE 1: SALE
1.01 Sale of Assets. Softgen Group agrees to sell, convey, transfer,
assign, and deliver to uniView Softgen, and uniView Softgen agrees to
purchase or accept from Softgen Group, all of the following assets of
Softgen Group, free and clear of all Liens (other than the Assumed
Liabilities):
(a) All of Softgen Group's rights and interests in and to the
contracts, agreements, purchase orders, real estate leases, and personal
property leases, all of which are described on Schedule 1, attached to
and incorporated fully into this Agreement; and all of Softgen Group's
claims and rights under all notes, evidences of indebtedness, and
deposits; and all rights and claims to refunds and adjustments of any
kind owned by Softgen Group.
(b) All furniture, fixtures, equipment, supplies, and other items
described on Schedule 2, attached to and incorporated fully into this
Agreement, and all sundry items of a like character that, although not
described on Schedule 2, are owned by Softgen Group and are situated on
or about the premises of Softgen Group's customers or are in transit.
(c) All accounts receivable of Softgen Group as of October 15,
1999, less all accounts receivable collected in the ordinary course of
business during the period commencing October 16, 1999, and ending on the
Closing Date, plus all accounts receivable generated in the ordinary
course of business during the same period.
(d) All right, title, and interest in and to all of the following
owned by Softgen Group:
(i) The trademarks, service marks, copyrights, patents, patent
applications, and trade names listed on Schedule 3, attached to and
incorporated fully into this Agreement.
(ii) All trademarks, service marks, copyrights, and trade
names, whether or not listed on Schedule 3.
(iii) All applications for or registrations of any of these
items, promotional designs, concepts, literature, rights against
other persons in respect to these items, and other promotional
properties.
(iv) All formulae, know-how, pricing policies, patent rights,
patent applications, letters patents, trade secrets, inventions,
models, processes, market information, market analyses, marketing
plans, operating or management policies, procedures, and forms,
computer software, computer operating procedures, and all other
proprietary rights used or useful or developed for use in the
business of Softgen Group.
<PAGE>
(e) All right, title, and interest of Softgen Group in and to the
name "Softgen", or any variant of the name.
(f) All papers and records (whether in written or other form) of
any kind presently in or in the future coming into the care, custody, or
control of Softgen Group relating to any of the assets sold to uniView
Softgen pursuant to this Agreement or the acquisition or past, present,
or future operation of Softgen Group, including but not limited to:
customer lists, supplier lists, distributor lists, purchase and sales
records, blueprints, specifications, personnel and labor relations
records, environmental control records, accounting and financial records,
maintenance records, operating and management manuals, computer systems
and software documentation, blank forms, blank checks, other blank
instruments, and plans and designs of products and equipment.
(g) All stocks, bonds, and other securities owned by Softgen Group
listed on Schedule 4, attached to and incorporated fully into this
Agreement.
(h) All amounts in Softgen Group's bank accounts reflected in the
September 30, 1999 Financial Statements of Softgen Group, less all
amounts paid from such accounts in the ordinary course of business of
Softgen Group for ordinary operating expenses from that date to Closing
Date, plus all amounts added to the operating account in the ordinary
course of business during the same period.
(i) All permits, licenses, franchises, consents, authorities,
special authorities, and other similar acts of any government body
(federal, state, local, or foreign) held by Softgen Group that may
lawfully be assigned or transferred, subject to any action by such body
that may be required in connection with such assignment or transfer.
1.02 Purchase Price. In consideration of the sale and transfer of the
assets of Softgen Group and the representations, warranties, and
covenants of Softgen Group, and others, set forth in this Agreement,
uniView Softgen shall pay the following:
1.02.1 Securities. uniView Softgen shall cause to be issued
and shall deliver to Softgen Group, or designee(s), within thirty
(30) days after the execution of all documentation required or
contemplated by this Agreement, (A) original stock certificate(s)
representing an aggregate of One Million One Hundred Seventy-five
Thousand (1,175,000) shares of $0.10 par value common stock of
uniView Technologies (the "Shares") and warrants to purchase One
Million One Hundred Seventy-five Thousand (1,175,000) shares of
$0.10 par value common stock of uniView Technologies, exercisable at
Three and NO/100 Dollars ($3.00) per share for three (3) years (the
"Warrants"); and (B) shares of common stock representing a 49%
ownership interest in uniView Softgen.
<PAGE>
Each recipient ("Recipient") of common shares and warrants (the
"Securities") shall execute a separate letter ("Investment Letter")
containing substantially the following representations: that the
Recipient is acquiring the Securities for its own account for
investment purposes only and not with a view towards distribution;
that it understands and agrees that it must bear the economic risks
of the Securities for an indefinite period of time. Except as
expressly set forth in the Investment Letter, no representations or
warranties have been made to Recipient by uniView Technologies, the
officers or directors of uniView Technologies, or any agent,
employee or affiliate of any of them regarding uniView Technologies.
Recipient has conducted whatever investigations and due diligence
activities it deems appropriate in connection with its acquisition
of the Securities. Recipient understands that no federal or state
governmental authority has made any finding or determination
relating to the fairness of an investment in the Securities and that
no federal or state governmental authority has recommended or
endorsed, or will recommend or endorse, the Securities. Recipient,
in making the decision to acquire the Securities, has relied upon
independent investigation made by it and has not relied on any
information or representations made by third parties. Recipient
understands that the Securities have not been registered under the
Securities Act or under state securities laws and therefore it
cannot dispose of any or all of the Securities unless and until such
Securities are subsequently registered under the Securities Act and
applicable state securities laws or exemptions from such
registration are available. Recipient acknowledges that a legend
substantially as follows will be placed on the certificates
representing the Securities.
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) ), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (2) PURSUANT TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 OR OTHER
EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE), AND IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR OTHER JURISDICTION.
1.02.2 Assumed Liabilities. uniView Softgen shall assume on
the Closing Date all duties and obligations of Softgen Group
pursuant to certain contracts, agreements, purchase orders, and
leases and shall assume the payment of trade payables for vendors
and suppliers which are directly related to the Business, as
described on Schedule 1.
1.02.3 "Hurst Note". Leslie Leland and Cameron E. Hurst
agree to accept Two Hundred Ninety-three Thousand Five Hundred
(293,500) shares of uniView Technologies' par value $.10 common
stock, and Sixty-three Thousand and NO/100 Dollars ($63,000.00 USD)
in full payment of that one certain promissory note in the original
principal sum of Seven Hundred Fifty Thousand Dollars ($750,000
USD), payable by Softgen International, Inc. to Leslie Leland and
Cameron E. Hurst.
<PAGE>
1.03 Allocation of Purchase Price. The parties agree that the purchase
price shall be allocated as mutually agreed within thirty (30) days from
the Closing Date and set forth in Schedule 5 to this Agreement. The
allocation shall be used by the parties in reporting the transaction
contemplated by this Agreement for federal and state tax purposes.
1.04 Closing. Consummation of this transaction (the "Closing") shall
take place at the offices of uniView Softgen located at 10911 Petal
Street, Dallas, Texas 75238 on October 29, 1999, or at such other time,
date, and place mutually agreed upon in writing by Softgen Group and
uniView Softgen ("Closing Date"). Within thirty (30) days after the
Closing, each party shall execute, deliver and file each document,
agreement and instrument required or contemplated by this Agreement to be
so executed, delivered and filed in connection with the transactions
contemplated by this Agreement. The documents shall include agreements
and instruments of transfer, conveyance, assignment and assumption
appropriate and customary for the purpose of consummating this
transaction.
1.05 Escrow. All Securities and cash payments making up the Purchase
Price shall be placed in escrow by uniView Softgen and shall be paid and
transferred to Softgen Group, or designee(s), within thirty (30) days
after the execution of all documentation required or contemplated by this
Agreement.
ARTICLE 2: SOFTGEN GROUP AND SOFTGEN SHAREHOLDERS' REPRESENTATIONS AND
WARRANTIES
Softgen Group and Softgen Shareholders hereby represent and warrant
to uniView Softgen that the following facts and circumstances are true
and correct:
2.01 Organization. Softgen International, Inc. and each of its
subsidiaries is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is organized
and has the requisite corporate power and authority to carry on its
business as now being conducted. Softgen International, Inc. and each of
its subsidiaries is duly qualified or licensed to do business and is in
good standing in each jurisdiction in which the nature of its business or
the ownership or leasing of its properties makes such qualification or
licensing necessary, other than in such jurisdictions where the failure
to be so qualified or licensed (individually or in the aggregate) would
not have a "material adverse effect" on Softgen Group. Softgen
International, Inc. has delivered to uniView Softgen complete and correct
copies of its articles of incorporation and bylaws and the articles of
incorporation and bylaws or other organizational documents of its
subsidiaries, each case as amended to the date of this Agreement.
<PAGE>
2.02 Ownership. The Softgen Shareholders are the majority owners of
Softgen International, Inc., and Softgen International, Inc. is the sole
owner of Softgen, Inc. and Softgen Asia PTE Ltd. All of the named
companies have the full right to sell or dispose of their assets as they
may choose.
2.03 Ownership in Other Companies. Softgen, Inc. and Softgen Asia PTE
Ltd. have no interest in any other corporation, firm, business, or
partnership, nor any subsidiaries.
2.04 Officers and Directors. Softgen Group has delivered to uniView
Softgen a true and correct list of all officers and directors of Softgen
International, Inc., Softgen, Inc. and Softgen Asia PTE Ltd.
2.05 Financial Statements. Softgen Group has delivered to uniView
Softgen complete and correct copies of its financial statements. The
financial statements consist of balance sheets and statements of income
and retained earnings for the period ending December 31, 1998, and
unaudited statements for the nine-month period ending September 30, 1999
("Financial Statements"). The Financial Statements present fairly and
accurately the financial position, results of operations, and changes in
financial position of Softgen Group at the dates and for the periods
covered, in each case in conformity with generally accepted and
consistently applied accounting principles. There are no liabilities or
obligations of Softgen Group, accrued, absolute, contingent, inchoate, or
otherwise that arose out of or relate to any matter, act, or omission
occurring from September 30, 1999, to the date of this Agreement, other
than liabilities or obligations incurred in the normal course of
business. Since September 30, 1999, there have not been:
(a) Any material adverse change in financial condition, operations,
sales, or net income of Softgen Group.
(b) Any loss, damage, or destruction to properties or assets,
tangible or intangible (whether or not covered by insurance).
(c) Any change in policy regarding compensation payable to or to
become payable to any of Softgen Group's officers, directors, employees,
or agents.
(d) Any labor dispute, disturbance, or attempt to organize a union.
(e) Any proposed law or regulation or any actual event or condition
of any character that is known to Softgen Group that materially adversely
affects the business or future prospects of Softgen Group.
(f) Any claim, litigation, event, or condition of any character,
that materially adversely affects the business or future prospects of
Softgen Group.
(g) Any issuance, purchase of, or agreement to issue or purchase
shares of capital stock or other securities of Softgen Group.
<PAGE>
(h) Any mortgage, pledge, lien, or encumbrance made or agreed to be
made on any of Softgen Group's assets or properties, tangible or
intangible.
(i) Any sale, transfer, other disposition of, or agreement to sell,
transfer, or dispose of Softgen Group's properties or assets, tangible or
intangible, except as contemplated in this Agreement and except in the
normal course of business and then only for full and fair value received.
(j) Any borrowings or agreements to borrow by or from Softgen Group.
(k) Any loans, advances, or agreements with respect to any loans or
advances, other than to customers in the normal course of business and
that have been properly reflected as "accounts receivable" on Softgen
Group's books.
(l) Any transaction outside the ordinary course of business.
(m) Any dividends or distributions paid or declared, or any
repayment of loans or other obligations to the shareholders of Softgen
Group, except for $63,000 paid collectively to Leslie Leland and Cameron
E. Hurst.
(n) Any capital expenditure .made by Softgen Group in excess of
$25,000.
(o) Any agreement by Softgen Group to do any of the items described
in Subparagraphs (a) through (n), above.
2.06 Taxes. All federal, state, local, and foreign income, ad valorem,
excise, sales, use, payroll, unemployment, and other taxes and
assessments ("Taxes") that are due and payable by Softgen Group have been
properly computed, duly reported, fully paid, and discharged. There are
no unpaid Taxes that are or could become a lien on the property or assets
of Softgen Group or require payment by Softgen Group, except for current
Taxes not yet due and payable. All current Taxes not yet due and payable
by Softgen Group have been properly accrued on the balance sheets of
Softgen Group. Softgen Group has not incurred any liability for
penalties, assessments, or interest under the Internal Revenue Code. No
unexpired waiver executed by or on behalf of Softgen Group with respect
to any Taxes is in effect.
2.07 Real Property. Softgen Group has delivered to uniView Softgen a
complete and accurate legal description of each parcel of real property
owned by, leased to, or leased by Softgen Group together with either a
true and correct survey or a substantially true and correct plat of each
parcel, when available; and true, correct, and complete copies of all
real property leases. All of the material real property leases are valid
and in full force. There does not exist any default or event that with
notice, lapse of time, or both will constitute a default under any of
these lease agreements.
2.08 Other Tangible Personal Property. Softgen Group has delivered to
uniView Softgen complete and correct copies of its equipment, furniture,
fixtures, and other personal property, which constitutes all the items of
tangible personal property owned by, in the possession of, or used by
Softgen Group in connection with Softgen Group's business.
<PAGE>
2.09 Other Intangible Property. Softgen Group has delivered to uniView
Softgen a true and complete list of all intangible assets, other than
those specifically referred to elsewhere in this Agreement, and the
location of evidences of title to such intangible assets.
2.10 Title to Assets and Properties. Softgen Group has good and
marketable title to all of its assets and properties, tangible and
intangible, that are material to Softgen Group's business and future
prospects. These assets and properties constitute all of the assets and
interests in assets that are used in Softgen Group's business. All of
these assets are free and clear of mortgages, liens, pledges, charges,
encumbrances, equities, claims, easements, rights of way, covenants,
conditions, and restrictions, except for the following:
(a) Those disclosed in Softgen Group's balance sheets as of
September 30, 1999, included in the Financial Statements, or in the
Exhibits to this Agreement.
(b) The lien of current Taxes not yet due and payable.
(c) Possible minor matters that, in the aggregate, are not
substantial in amount and do not materially detract from or interfere
with the present or intended use of any of the assets and properties nor
materially impair business operations.
All real property and tangible personal property of Softgen Group
are in good operating condition and repair, ordinary wear and tear
excepted. Softgen Group is in possession of all premises leased to
Softgen Group from others. No officer, director, or employee of Softgen
Group, nor any spouse, child, or other relative of any of these persons
owns or has any interest, directly or indirectly, in any of the real or
personal property owned by or leased by Softgen Group or in any
copyrights, patents, trademarks, trade names, or trade secrets licensed
by Softgen Group. Softgen Group does not occupy any real property in
violation of any law, regulation, or decree that would materially
adversely affect its business or future prospects.
2.11 Customers and Sales. Softgen Group has delivered to uniView Softgen
a correct and current list of all customers of Softgen Group together
with summaries of the sales made to each customer during the most recent
fiscal year. Softgen Group has no information or is not aware of any
facts indicating that any of these customers intend to cease doing
business with Softgen Group or to materially alter the amount of the
business that they are presently doing with Softgen Group.
2.12 Insurance Policies. Softgen Group has delivered to uniView Softgen
a list and description of all insurance policies concerning the assets
and properties. Softgen Group has maintained and now maintains insurance
on all of the assets and properties of a type customarily insured. The
insurance covers property damage by fire or other casualty, as well as
adequately protects against all normal liabilities, claims, and risks
against which it is customary to insure.
<PAGE>
2.13 Contracts; Consents. Softgen Group has delivered to uniView Softgen
true and correct lists, with copies when available, of all material oral
and written contracts or arrangements obligating Softgen Group, including
without limitation, union contracts, guarantees, bids, commitments, joint
venture or partnership agreements, contracts with municipalities and
other governmental entities, pledges and other security agreements, and
copies of standard form customer contracts. uniView Softgen shall have
the right to review any nonmaterial contract upon request. There are no
consents or approvals required from any third party with respect to this
transaction. Softgen Group is not a party to, nor are Softgen Group's
assets and properties bound by, any distributor's or manufacturer's
representative, agency agreement, output or requirements agreement,
agreement not entered into in the ordinary course of business, indenture,
mortgage, deed of trust, lease, or any agreement that is unusual in
nature, duration, or amount. There is no default or event that with
notice, lapse of time, or both will constitute a default by any party to
any of the material contracts. Softgen Group has not received any notice
that any party to any of the contracts intends to cancel or terminate any
of the contracts or to exercise or not exercise any options under any of
the contracts. Neither Softgen Group nor Softgen Group is a party to,
nor are Softgen Group's assets or properties bound by, any contract that
is materially adverse to the business, property, or financial condition
of Softgen Group.
2.14 Laws and Regulations. Softgen Group is not in default or in
violation of any law; regulation; court order; or order of any federal,
state, municipal, foreign, or other government department, board, bureau,
agency, or instrumentality, wherever located, that would materially
adversely affect its business or future prospects.
2.15 Litigation. There are no pending, outstanding, or threatened
claims; legal, administrative, or other proceedings; or suits,
investigations, inquiries, complaints, notices of violation, judgments,
injunctions, orders, directives, or restrictions against or involving
Softgen Group or any of the assets, properties, or business of Softgen
Group or any of Softgen Group's officers, directors, employees, or
stockholders that will materially adversely affect Softgen Group, its
assets, properties, or business. To the best of Softgen Group's
knowledge and belief, after conducting a due diligence investigation,
there is no basis for any of these proceedings against any of Softgen
Group's assets, properties, persons, or entities. Softgen Group is not
presently engaged in any legal action to recover moneys due Softgen Group
or for damages sustained by Softgen Group.
2.16 Fringe Benefit Plans; Employment Contracts. Softgen Group has
delivered to uniView Softgen a complete description and copies of all
employment agreements in effect with Softgen Group and a complete
description of all fringe benefits and perquisites available to Softgen
Group's officers, directors, and employees (and, if any, furnished to
consultants, agents, and independent contractors), whether required by
law or otherwise, including but not limited to, pension, profit sharing,
life insurance, medical, bonus, incentive and similar plans, use of
automobiles, credit cards, expense accounts and allowances, club
memberships, sharing of costs or expenses, vacation, and similar
benefits, together with the approximate annual cost of each benefit and
perquisite. When available, copies of the plans, agreements, or
arrangements regarding each benefit are also attached. The provisions
and operations of all such programs and plans are in compliance in all
material respects with all applicable material laws and government rules
<PAGE>
and regulations. Softgen Group acknowledges that uniView Softgem has the
right to accept or reject any such employment contract on a case by case
basis. There are no unfunded pension or similar liabilities regarding
any employee of Softgen Group. All pension plans have been properly
funded as to current and past service costs, have at all times been
administered in compliance in all material respects with all applicable
requirements of ERISA and any other applicable laws, and Softgen Group
does not maintain any "pension plan" as defined in ERISA that is
unfunded. Softgen Group has delivered to uniView Softgen a list of all
states in which Softgen Group has employees and the status of
unemployment insurance accounts in each state.
2.17 Receivables. Softgen Group has delivered to uniView Softgen a true
and correct list of all accounts receivable and notes receivable of
Softgen Group. All listed accounts and notes receivable of Softgen Group
are bona fide receivables, arose in the ordinary course of business by
Softgen Group, and require no further performance by Softgen Group. No
material objection, claim, or offset has been made regarding the
receivables and the receivables are current and collectible in the normal
course of business within ninety (90) days from the Closing Date without
resort to litigation or the retention of collection services.
2.18 Other Liabilities and Obligations. Softgen Group has delivered to
uniView Softgen a true and correct list of all liabilities and
obligations of Softgen Group to be assumed by uniView Softgen and not
disclosed elsewhere in this Agreement of any kind, character, and
description whether accrued, absolute, contingent, or otherwise, and
whether or not required to be disclosed or accrued in the financial
statements of Softgen Group.
2.19 Reserves. Softgen Group has delivered to uniView Softgen a true and
correct list of all reserves for contingent liabilities.
2.20 Trade Names, Trademarks, Copyrights, and Patents. Schedule 3
attached to this Agreement contains a true and correct list of all
trademarks, trademark registrations or applications, service marks, trade
names, copyrights, copyright registrations or applications, trade
secrets, patents, inventions, industrial models, processes, designs,
formulae, and applications for patents (collectively called "Intellectual
Properties") owned by Softgen Group. These Intellectual Properties are
the only ones used and needed by Softgen Group in conducting its
business. Softgen Group has the right and authority to use all of these
Intellectual Properties as necessary to enable Softgen Group to conduct
its business in the manner presently conducted. The use of these
Intellectual Properties does not and will not conflict with, infringe, or
violate any patent, copyright, or other proprietary right of any person,
firm, or corporation, nor is Softgen Group now infringing on any right
belonging to any person, firm, or corporation. Softgen Group is not a
party to any license, agreement, or arrangement, whether as a licensee,
licensor, or otherwise with respect to the Intellectual Properties. All
of the Intellectual Properties are free and clear of any liens,
encumbrances, restrictions, or legal or equitable claims of others.
Softgen Group has taken all necessary security measures to protect the
secrecy, confidentiality, and value of these Intellectual Properties.
<PAGE>
2.21 Bank Accounts. Softgen Group has delivered to uniView Softgen a
true and correct list of the names and addresses of all banks or other
financial institutions in which Softgen Group has an account, deposit, or
safe deposit box. Also included are the names of all persons authorized
to draw on these accounts or deposits or who have access to them and the
account numbers of each account.
2.22 Business Operations. The business operations of Softgen Group are
and have been for the past five years, or if not in existence for five
years, for the term of its existence, in material compliance with all
laws, treaties, rulings, directives, and similar regulations of all
government authorities having jurisdiction over such business insofar as
failure to comply could materially adversely affect Softgen Group's
business and future prospects.
2.23 Authority. Softgen Group has full power and authority to execute,
deliver, and consummate this Agreement, subject to the conditions to
Closing set forth in this Agreement. All reports and returns required to
be filed by each with any government and regulatory agency with respect
to this transaction have been properly filed. Except as otherwise
disclosed in this Agreement, no notice to or approval by any other
person, firm, or entity, including governmental authorities, is required
of Softgen Group to consummate the transaction contemplated by this
Agreement.
2.24 Full Disclosure. No representation, warranty, or covenant made to
uniView Softgen in this Agreement nor any document, certificate, exhibit,
or other information given or delivered to uniView Softgen pursuant to
this Agreement contains or will contain any untrue statement of a
material fact, or omits or will omit a material fact necessary to make
the statements contained in this Agreement or the matters disclosed in
the related documents, certificates, information, or exhibits not
misleading.
2.25 Brokers. Neither Softgen Group nor any of Softgen Group's officers,
directors, employees, or stockholders, has retained, consented to, or
authorized any broker, investment banker, or third party to act on
Softgen Group's behalf, directly or indirectly, as a broker or finder in
connection with the transactions contemplated by this Agreement, except
for Nations Investment Corp., Ltd.
ARTICLE 3: UNIVIEW SOFTGEN'S REPRESENTATIONS AND WARRANTIES
uniView Softgen represents and warrants to Softgen Group that:
3.01 Authority. uniView Softgen has full power and authority to execute,
deliver, and consummate this Agreement subject to the conditions to
Closing set forth in this Agreement. All corporate acts, reports, and
returns required to be filed by uniView Softgen with any government or
regulatory agency with respect to this transaction have been or will be
properly filed prior to the Closing Date. No provisions exist in any
contract, document, or other instrument to which uniView Softgen is a
party or by which uniView Softgen is bound that would be violated by
consummation of the transactions contemplated by this Agreement.
<PAGE>
3.02 Brokers. Neither uniView Softgen, nor any of uniView Softgen's
officers, directors, or employees, has retained, consented to, or
authorized any broker, investment banker, or third party to act on its
behalf, directly or indirectly, as a broker or finder in connection with
the transactions contemplated by this Agreement, except for Nations
Investment Corp., Ltd.
3.03 Organization and Standing of uniView Softgen. uniView Softgen is a
corporation duly organized, validly existing, and in good standing under
the laws of the state of Texas, with corporate power to own property and
carry on its business as it is now being conducted.
ARTICLE 4: COVENANTS
Softgen Group covenants with uniView Softgen that Softgen Group
will, from and after the date of this Agreement:
4.01 Preservation of Business. Cooperate with uniView Softgen to
preserve intact its personnel and to keep available the services of all
of its employees, agents, independent contractors, and consultants
commensurate with Softgen Group's business requirements.
4.02 Preservation of Customer Relations. Cooperate with uniView Softgen
to preserve intact the present customers of Softgen Group and the
goodwill of all customers and others with respect to the business.
4.03 Notification of Litigation. Promptly notify uniView Softgen in
writing of any threatened claims; legal, administrative, or other
proceedings, suits, investigations, inquiries, complaints, notices of
violation, or other process; or other judgments, orders, directives,
injunctions, or restrictions against or involving Softgen Group or its
personnel that could adversely affect uniView Softgen.
4.04 Cooperate in Publicity. Coordinate any written publicity regarding
this transaction with uniView Softgen.
4.05 Maintain Existing Agreements. Not modify, amend, cancel, or
terminate any of Softgen Group's existing contracts or agreements, or
agree to do so.
4.06 Nonsolicitation. Except as specifically provided below, the parties
shall not, for a period of two (2) years from the Closing Date, on their
own behalf or on behalf of any other entity, hire, solicit or seek to
hire, any employee of the other party or their Affiliates or in any other
manner attempt directly or indirectly to influence, induce or encourage
any employee of either of the parties or their Affiliates to leave the
employment of such other parties or their Affiliates.
4.07 Noncompete. The sale herein is exclusive in all respects and
Softgen Group agrees that after the Closing Date, it will not, and will
use its best efforts to cause its officers, employees, agents and
Affiliates to not, except as expressly requested by uniView Softgen or
otherwise required to carry out the provisions of this Agreement:
(a) Provide technical information or assistance relating to the
Software or Business to any person or organization other than uniView
Softgen or persons authorized by uniView Softgen to receive such
information or assistance; or
<PAGE>
(b) Assist any other person or organization in engaging in the
design, development, engineering or sale of the Software; or
(c) Directly or indirectly reveal to anyone or utilize in any way
the Software (i) except as required by this Agreement or (ii) as
expressly requested by uniView Softgen.
4.08 Board of Directors Resignations. Upon uniView Softgen's request,
Softgen, Inc. and Softgen Asia PTE Ltd. shall secure the resignations of
directors currently serving on their board of directors.
4.09 Confidentiality and Noncompete Agreements. All key employees of
Softgen Group, as identified by uniView Softgen and Softgen Group, shall
execute and deliver to uniView Softgen a confidentiality and
noncompetition agreement in a form acceptable to uniView Softgen.
ARTICLE 5: CONDITIONS TO UNIVIEW SOFTGEN'S OBLIGATION TO CLOSE
The obligation of uniView Softgen to Close under this Agreement is
subject to each of the following conditions (any one of which may, at the
option of uniView Softgen, be waived in writing by uniView Softgen)
existing on the Closing Date, or such earlier date as the context may
require.
5.01 Representations and Warranties. Each of the representations and
warranties of Softgen Group in this Agreement, the disclosures contained
in the exhibits and schedules to this Agreement, and all other
information delivered under this Agreement shall be true in all material
respects.
5.02 Compliance With Conditions. Softgen Group shall each comply with
and perform all agreements, covenants, and conditions in this Agreement
required to be performed and complied with by each of them. All
requisite action (corporate and other) in order to consummate this
Agreement shall be properly taken by Softgen Group.
5.03 Suit or Proceeding. No suit or proceeding, legal or administrative,
relating to any of the transactions contemplated by this Agreement shall
be overtly threatened or commenced that, in the sole discretion of
uniView Softgen and its counsel, would make it inadvisable for uniView
Softgen to Close this transaction.
5.04 Government Approvals and Filings. All necessary government
approvals and filings regarding this transaction shall be received or
made prior to the Closing Date in substantially the form applied for to
the reasonable satisfaction of uniView Softgen and its counsel. Any
applicable waiting period for the approvals and filings shall be expired.
5.05 Corporate and Stockholder Action. All corporate and stockholder
action necessary to consummate the transactions contemplated in this
Agreement shall be properly taken by Softgen Group. uniView Softgen
shall receive copies of all appropriate resolutions of Softgen Group's
board of directors and shareholders relating to this Agreement. The
resolutions shall be certified by their respective corporate secretaries.
<PAGE>
ARTICLE 6: CONDITIONS TO SOFTGEN INTERNATIONAL'S OBLIGATION TO CLOSE
The obligation of Softgen Group to Close under this Agreement is
subject to each of the following conditions (any one of which at the
option of Softgen Group may be waived in writing by Softgen Group)
existing on the Closing Date.
6.01 Corporate Action. uniView Softgen shall take appropriate corporate
action regarding this transaction authorizing uniView Softgen to enter
into and complete this transaction.
6.02 Government Approvals. All necessary government approvals regarding
this transaction, if any, shall be received prior to the Closing Date, in
substantially the form applied for and to the reasonable satisfaction of
uniView Softgen and its counsel.
ARTICLE 7: PARTIES' OBLIGATIONS AFTER THE CLOSING
7.01 Securities. uniView Softgen shall cause to be issued and shall
deliver to Softgen Group, or designee(s), within thirty (30) days after
the execution of all documentation required or contemplated by this
Agreement, (A) original stock certificate(s) representing an aggregate of
One Million One Hundred Seventy-five Thousand (1,175,000) shares of $0.10
par value common stock of uniView Technologies (the "Shares") and
warrants to purchase One Million One Hundred Seventy-five Thousand
(1,175,000) shares of $0.10 par value common stock of uniView
Technologies, exercisable at Three and NO/100 Dollars ($3.00) per share
for three (3) years (the "Warrants"); and (B) shares of common stock
representing a 49% ownership interest in uniView Softgen.
7.02 Employment Agreements. Within thirty (30) days following the
Closing Date, Leslie Leland and Cameron E. Hurst agree to execute and
deliver to uniView Softgen employment agreements with uniView Softgen
upon such terms as may be mutually agreed.
7.03 Preservation of Goodwill. Following the Closing Date, Softgen Group
will restrict its activities so that uniView Softgen's reasonable
expectations with respect to the goodwill, business reputation, employee
relations, and prospects connected with the assets and properties
purchased under this Agreement will not be materially impaired.
7.04 Change of Name. Softgen International, Inc. agrees that, after the
Closing Date, it will change its name and will not use or employ in any
manner, directly or indirectly, the name of Softgen or any variation of
the name. Softgen Group also agrees that, in order to comply with this
covenant, it will take and cause to be taken all necessary action,
including filing a withdrawal notice for any assumed name certificate
bearing Softgen Group's name or any variant of the name, that Softgen
Group has previously filed.
7.05 Access to Records. From and after the Closing Date, Softgen Group
shall allow uniView Softgen and its counsel, accountants, and other
representatives access to records that are, after the Closing Date, in
the custody or control of Softgen Group. Softgen Group shall give access
as uniView Softgen reasonably requires in order to comply with its
obligations under law or when reasonably necessary for the business
operations of Softgen Group.
<PAGE>
7.06 Nonsolicitation of Employees. Prior to the second anniversary of
the Closing Date, Softgen Group shall not solicit any employee of uniView
Softgen or any employee of Softgen Group retained by uniView Softgen
after the Closing Date to leave employment with uniView Softgen or its
Affiliates.
7.07 Documentation. Softgen Group shall execute, if appropriate, and
shall deliver to uniView Softgen:
(a) One or more bills of sale in a form acceptable to uniView
Softgen sufficient to convey to uniView Softgen all rights, title, and
interest in and to all of the fixtures, equipment, and items of
personalty being sold to uniView Softgen under the terms of this
Agreement.
(b) One or more instruments of assignment in a form acceptable to
uniView Softgen assigning to uniView Softgen the exclusive rights to: all
contract rights, leases, accounts receivable, copyrights, pending
copyright applications, patents, and pending patent or trademark
applications and all trade secrets of Softgen Group being sold to uniView
Softgen under the terms of this Agreement.
(c) All documentation in the possession of Softgen Group and Softgen
Group necessary to operate and to use all assets being sold to uniView
Softgen in this Agreement.
(d) Instruments of assignment and transfer of all of the issued and
outstanding capital stock of Softgen, Inc. and Softgen Asia PTE Ltd.,
free and clear of all liens, claims, and encumbrances in form and
substance satisfactory to uniView Softgen's counsel. Simultaneously with
the consummation of the transfer, Softgen Group shall put uniView Softgen
in full possession and enjoyment of all properties and assets of Softgen
Group.
Further Assurances. Softgen Group, at any time before or after the
Closing Date, shall execute, acknowledge, and deliver to uniView Softgen
any further deeds, assignments, conveyances, other assurances, documents,
and instruments of transfer reasonably requested by uniView Softgen.
Softgen Group shall also take any other action consistent with the terms
of this Agreement that may be reasonably requested by uniView Softgen for
the purpose of assigning, transferring, granting, conveying, and
confirming to uniView Softgen or reducing to possession any or all
property and assets to be conveyed and transferred by this Agreement. If
requested by uniView Softgen, Softgen Group further agrees to prosecute
or otherwise enforce in its own name for the benefit of uniView Softgen
any claims, rights, or benefits of Softgen Group that are transferred to
uniView Softgen by this Agreement and that require prosecution or
enforcement in Softgen Group's name. Any prosecution or enforcement of
claims, rights, or benefits under this paragraph shall be solely at
uniView Softgen's expense, unless the prosecution or enforcement is made
necessary by a breach of this Agreement by Softgen Group.
7.08 uniView Softgen's Obligation. uniView Softgen shall deliver to
Softgen Group against delivery of the items specified above, an
instrument of assumption sufficient to evidence the assumption of the
obligations and liabilities by uniView Softgen agreed to be assumed by
uniView Softgen in this Agreement.
<PAGE>
ARTICLE 8: INDEMNIFICATION
8.01 Covenant to Indemnify and Hold Harmless. Softgen Group and the
Softgen Shareholders ("Indemnitors") covenant and agree to indemnify,
defend, and hold harmless uniView Softgen from and against any and all
claims, suits, losses, judgments, damages, and liabilities including any
investigation, legal, and other expenses incurred in connection with and
any amount paid in settlement of any claim, action, suit, or proceeding
(collectively called "Losses"), other than those Losses disclosed in this
Agreement or any Exhibit delivered pursuant to this Agreement, to which
uniView Softgen may become subject, if such Losses arise out of or are
based upon any facts and circumstances (or alleged facts and
circumstances) that could result in or give rise to a misrepresentation,
breach of warranty, or breach of covenant by Softgen Group to uniView
Softgen in this Agreement. This right to indemnification is in addition
to any other right available to uniView Softgen under this Agreement.
8.02 Income Taxes. Without limiting the provisions of Paragraph 8.01,
Indemnitors shall indemnify, defend, and hold harmless uniView Softgen
from and against any Losses to which uniView Softgen may become subject
insofar as such Losses arise out of or are based on any tax on or
measured by the net income of Softgen Group in any period on or before
the Closing Date. The indemnifications provided in this Paragraph 8.02
and in Paragraph 8.01, above, are cumulative and neither provision shall
limit or in any other way affect the right of uniView Softgen under the
other provision.
8.03 Notification and Defense of Claims or Actions. When uniView Softgen
proposes to assert the right to be indemnified under this Article 8 with
respect to third-party claims, actions, suits, or proceedings, uniView
Softgen shall, within 30 days after the receipt of notice of the
commencement of the claim, action, suit, or proceeding, notify
Indemnitors in writing, enclosing a copy of all papers served or
received. On receipt of the notice, Indemnitors shall have the right to
direct the defense of the matter, but uniView Softgen shall be entitled
to participate in the defense and, to the extent that uniView Softgen
desires, to jointly direct the defense with Indemnitors with counsel
mutually satisfactory to uniView Softgen and Indemnitors, at Indemnitors'
expense. uniView Softgen shall also have the right to employ its own
separate counsel in any such action. The fees and expenses of uniView
Softgen's counsel shall be paid by uniView Softgen unless: (a) the
employment of the counsel has been authorized by Indemnitors; (b) uniView
Softgen has reasonably concluded that there may be a conflict of interest
between Indemnitors and uniView Softgen in the conduct of the defense of
such action; or (c) Indemnitors have not, in fact, employed counsel
satisfactory to uniView Softgen to assume the defense of the action. In
each of these cases, the fees and expenses of uniView Softgen's counsel
shall be paid by Indemnitors. Neither Indemnitors nor uniView Softgen
shall be liable for any settlement of any action or claim described in
this Article 8 that is effected without their consent.
ARTICLE 9: GENERAL PROVISIONS
9.01 Survival of Representations, Warranties, and Covenants.
Notwithstanding any investigation heretofore or hereafter made by or on
behalf of any of the parties to this Agreement, the representations,
warranties, covenants, and agreements of the parties contained in this
Agreement or contained in any writing delivered pursuant to this
Agreement shall survive the Closing Date for a period of two (2) years.
<PAGE>
9.02 Notices. All notices that are required or that may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered personally
or by registered or certified mail, return receipt requested, postage
prepaid as follows:
If to Softgen Group: 8150 N. Central Expressway, Suite 1201,
Dallas, Texas 75206
ATTN: Leslie Leland, President
If to uniView Softgen: 10911 Petal Street,
Dallas, Texas 75238
ATTN: Patrick A. Custer, CEO
9.03 Assignment of Agreement. This Agreement shall be binding on and
inure to the benefit of the parties to this Agreement and their
respective successors and permitted assigns. This Agreement may not be
assigned by any other party without the written consent of all parties
and any attempt to make an assignment without consent is void.
9.04 Governing Law. This Agreement shall be construed and governed by
the laws of the state of Texas.
9.05 Amendments; Waiver. This Agreement may be amended only in writing
by the mutual consent of all of the parties, evidenced by all necessary
and proper corporate authority. No waiver of any provision of this
Agreement shall arise from any action or inaction of any party, except an
instrument in writing expressly waiving the provision executed by the
party entitled to the benefit of the provision.
9.06 Entire Agreement. This Agreement, together with any documents and
exhibits given or delivered pursuant to this Agreement, constitutes the
entire agreement between the parties to this Agreement. No party shall
be bound by any communications between them on the subject matter of this
Agreement unless the communication is (a) in writing, (b) bears a date
contemporaneous with or subsequent to the date of this Agreement, and (c)
is agreed to by all parties to this Agreement. On execution of this
Agreement, except for a Confidentiality and Nondisclosure Agreement
executed by the parties on or about October 19, 1999, all prior
agreements or understandings between the parties shall be null and void.
9.07 Reliance Upon Representations and Warranties. The parties mutually
agree that, notwithstanding any right of uniView Softgen to fully
investigate the affairs of Softgen Group and notwithstanding any
knowledge of facts determined or determinable by uniView Softgen pursuant
to the investigation or right to investigate, uniView Softgen may fully
rely upon the representations, warranties, and covenants made to uniView
Softgen in this Agreement and on the accuracy of any document,
certificate, or exhibit given or delivered to uniView Softgen pursuant to
this Agreement. Knowledge by an agent of uniView Softgen of any facts
not otherwise disclosed in this Agreement or in a document, certificate,
or exhibit delivered to uniView Softgen pursuant to this Agreement shall
not constitute a defense by Softgen Group for indemnification of uniView
Softgen under Article 8 or for any claim for misrepresentation or breach
of any warranty, agreement, or covenant under this Agreement or any
exhibit, certificate, or document delivered under this Agreement.
<PAGE>
uniView Softgen Corporation Softgen International, Inc.
By:__/s/ Patrick A. Custer__________ By: __/s/ Leslie Leland__________
Patrick A. Custer, President Leslie Leland, President
By: ___/s/ Victor Ang_________
Victor Ang, Chairman and CEO
Softgen Asia PTE Ltd. Softgen, Inc.
By:__/s/ Leslie Leland_________ By:___/s/ Leslie Leland_________
Leslie Leland, President Leslie Leland, President
Softgen Shareholders:
__/s/ Cameron E. Hurst__ __/s/ Leslie Leland__ __/s/ Victor Ang__
Cameron E. Hurst Leslie Leland Victor Ang
Nations Corp. Ltd.
By: __/s/ D. Ronald Allen_______
D. Ronald Allen, Agent
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
FINANCIAL STATEMENTS AT September 30, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FORM 10-Q FOR FISCAL QUARTER ENDED September 30, 1999.
</LEGEND>
<S> <C>
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-START> JUL-01-1999
<PERIOD-END> SEP-30-1999
<PERIOD-TYPE> 3-MOS
<CASH> 1,906,745
<SECURITIES> 0
<RECEIVABLES> 1,206,840
<ALLOWANCES> 0
<INVENTORY> 440,949
<CURRENT-ASSETS> 4,105,913
<PP&E> 5,685,265
<DEPRECIATION> 4,097,716
<TOTAL-ASSETS> 13,031,991
<CURRENT-LIABILITIES> 2,573,414
<BONDS> 0
0
130,723
<COMMON> 1,929,394
<OTHER-SE> 6,100,033
<TOTAL-LIABILITY-AND-EQUITY> 13,031,991
<SALES> 2,300,975
<TOTAL-REVENUES> 2,745,055
<CGS> 1,856,195
<TOTAL-COSTS> 2,017,248
<OTHER-EXPENSES> 3,267,873
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 95,888
<INCOME-PRETAX> (2,635,954)
<INCOME-TAX> 0
<INCOME-CONTINUING> (2,635,954)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,635,954)
<EPS-BASIC> (0.16)
<EPS-DILUTED> (0.16)
</TABLE>
<PAGE>
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "Agreement"), dated September 22,
1999, is by and between Zirca Corporation, a Texas corporation ("Seller"),
and uniView Technologies Advanced Systems Group, Inc. a Texas corporation
("Buyer"). Interphase Corporation, a Texas corporation ("Interphase")
and uniView Technologies Corporation, a Texas corporation ("uniView"),
join in this Agreement to the extent and for the purposes stated herein.
RECITALS. Buyer desires to acquire properties and assets of Seller,
as described on Exhibit A hereto, from Seller, and Seller agrees to sell
such properties and assets to Buyer, on the terms and conditions set
forth herein.
In consideration of the premises and the foregoing, the terms
hereof, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby covenant and agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 Defined Terms . In addition to terms defined elsewhere in this
Agreement, the following terms shall have the meanings assigned to them
herein, unless the context otherwise indicates, both for purposes of this
Agreement and all Exhibits and Schedules referenced herein:
"Affiliate" shall mean, as to a Person, any other Person
controlling, controlled by, or under common control with such first
person. As used in this definition, the term "control" shall mean the
power, directly or indirectly, to vote more than fifty percent (50%) of
the outstanding voting stock of a corporation or more than fifty percent
(50%) of the equity of an unincorporated entity, or the right, directly
or indirectly, to designate a majority of the directors of a Person (in
the case of a corporation) or the person(s) exercising similar functions
(in the case of an unincorporated Person).
"Assets" shall mean the properties and assets listed or described on
Exhibit A attached hereto and shall include Software, Trademark, Patent
Rights and Copyrights, as hereinafter defined.
"Assigned Contracts" shall mean those contracts, commitments and
obligations described in Exhibit B attached hereto.
"Assumed Liabilities" shall mean (i) those liabilities and
obligations of Seller listed on Exhibit C attached hereto and (ii) the
future performance of the Assigned Contracts.
"Business" shall mean Seller's web-based pre-paid calling card and
transaction processing business.
"Closing" shall mean (i) the transfer of the Assets by Seller to
Buyer, and the transfer by Buyer and uniView to Seller of the Purchase
Price, and (ii) the consummation of the other Transactions contemplated
to take place on the Closing Date.
<PAGE>
"Copyrights" shall mean, to the extent existing, all of Seller's
copyrights (all of which are unregistered) and all information,
descriptive material, computer programs, sales bulletins, catalogs,
product literature, advertising materials, customer lists, prospect
lists, outstanding quotations, sales leads, and such other documents
related to the Software and the Business as may be of assistance to Buyer
connection with the promotion of sales of the Software, whether or not
copyrighted or copyrightable.
"IRS" shall mean the Internal Revenue Service.
"Law" or "Laws" shall mean any and all applicable statutes, laws,
ordinances, proclamations, regulations, published requirements, orders,
decrees and rules of any foreign, federal, state or local government,
political subdivision or governmental or regulatory authority, agency,
board, bureau, commission, instrumentality or court or quasi-governmental
authority, including, without limitation, those covering environmental,
tax, energy, safety, health, transportation, bribery, record keeping,
zoning, discrimination, antitrust and wage and hour matters, and in each
case as amended and in effect from time to time.
"Lien" shall mean any lien, pledge, security interest, mortgage or
other similar encumbrance.
"Material Adverse Effect" shall mean a material adverse effect on
the Assets, or on the business, operations or condition (financial or
otherwise) of the Business.
"Patent Rights" shall mean, to the extent existing, all concepts,
ideas, inventions, trade secrets, know-how (whether patentable or not)
related to the Software.
"Person" shall mean an individual, an entity, a government, a
political subdivision of a government or a government agency.
"Retained Liabilities" shall mean any and all debts, liabilities or
obligations of Seller arising from events, transactions or occurrences
with respect to the period before the Closing (other than the Assumed
Liabilities).
"Software" shall mean, to the extent existing, all of Seller's
drawings, sketches, diagrams, specifications, engineering records,
engineering notes and notebooks, operating instructions, know-how, data,
technology, methodology, and other physical and written descriptions and
embodiments, including application code, to internally developed software
related to the Business and reflected on Exhibit A, which Seller has
designed and tested;
"Sublease" shall mean that certain Sublease Agreement in the form
attached as Exhibit D to be executed by uniView and Interphase at the
Closing.
"Transactions" shall mean the transactions contemplated by this
Agreement.
"Trademark" shall mean the "Zirca" trademark.
<PAGE>
ARTICLE 2 - PURCHASE AND SALE OF ASSETS
2.1 Asset Acquisition. Subject to the terms and conditions set
forth in this Agreement, at the Closing Seller shall sell, assign,
transfer, convey and deliver or cause to be delivered to Buyer, and Buyer
shall purchase and acquire from Seller, all right, title and interest of
Seller in and to the Assets, including the Software, Trademark, Patent
Rights and Copyrights, free and clear of all Liens (other than the
Assumed Liabilities). Seller agrees to promptly execute and deliver all
papers and perform such other acts which are reasonably necessary to
transfer to Buyer or perfect in Buyer the rights, title and interest
hereby conveyed, including separate assignments where necessary, all of
the same being in form and substance reasonably satisfactory to counsel
for Seller and Buyer.
2.2 Assumed Liabilities; Retained Liabilities.
(a) At the Closing, Buyer will assume, and shall pay, perform
and/or discharge as and when due, the Assumed Liabilities, including, but
not limited to, future performance of the Assigned Contracts.
(b) Notwithstanding anything herein to the contrary, Buyer
shall not assume, become liable for, or agree to pay, perform or
discharge the Retained Liabilities.
2.3 Purchase Price. Subject to the terms and conditions of this
Agreement and as consideration for the sale and transfer of the Assets to
Buyer, Buyer shall pay to Seller cash and uniView shall deliver Common
Stock to Seller as follows (the "Purchase Price"):
(a) At Closing, Buyer shall pay to Seller Three Hundred
Thousand Dollars ($300,000.00) cash; and
(b) In partial consideration for the sale and transfer of the
Assets, Software, Trademark, Patent Rights and Copyrights, uniView shall
cause to be issued and shall deliver to Seller within three (3) days
after the expiration of the fifteen (15) day notice period required by
NASDAQ, but in no event later than thirty (30) days after the Closing
Date, an original stock certificate representing Three Hundred Sixty
Thousand (360,000) shares of $0.10 par value of Common Stock of uniView
(the "Shares"). The number of Shares to be issued has been determined by
dividing Six Hundred Seventy Five Thousand ($675,000.00) by the closing
last trade price of uniView's Common Stock as of September 15, 1999
reported by NASDAQ reporting system which price uniView and Seller agree
to be One and 875/1000 ($1.875). uniView represents and warrants that
the issuance of the Shares has been authorized by all necessary action,
corporate or otherwise, and that upon delivery of the stock certificates
representing the Shares, the Shares shall be validly issued, fully paid,
and non-assessable.
<PAGE>
Seller represents that it is acquiring the Shares for its own
account for investment purposes only and not with a view towards
distribution. Seller understands and agrees that it must bear the
economic risks of the Shares for an indefinite period of time. Except as
expressly set forth above, no representations or warranties have been
made to Seller by uniView, the officers or directors of uniView, or any
agent, employee or affiliate of any of them regarding uniView. Seller
has conducted whatever investigations and due diligence activities it
deems appropriate in connection with its acquisition of the Shares.
Seller understands that no federal or state governmental authority has
made any finding or determination relating to the fairness of an
investment in the Shares and that no federal or state governmental
authority has recommended or endorsed, or will recommend or endorse, the
Shares. Seller, in making the decision to acquire the Shares, has relied
upon independent investigation made by it and has not relied on any
information or representations made by third parties. Seller understands
that the Shares have not been registered under the Securities Act or
under state securities laws and therefore it cannot dispose of any or
all of the Shares unless and until such Shares are subsequently
registered under the Securities Act and applicable state securities laws
or exemptions from such registration are available. Seller acknowledges
that a legend substantially as follows will be placed on the certificates
representing the Shares.
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE SECURITIES ACT) ), AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 OR OTHER EXEMPTION UNDER THE SECURITIES
ACT (IF AVAILABLE), AND IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR OTHER JURISDICTION.
2.4 The Closing .
(a) The Closing shall be held at the offices of Interphase,
13800 Senlac Drive, Farmers Branch, Texas 75234, at 10:00 a.m., Dallas
time, on September 27, 1999, or such other date and at such other place
as the parties shall agree to in writing (the "Closing Date"). Title to,
ownership of, control over, and risk of loss of, the Assets shall pass to
Buyer at the Closing.
(b) No action taken at the Closing with respect to the
consummation of the Transactions shall be deemed to have been taken until
such time as the last of any such actions is taken or completed.
(c) At or before the Closing, each party shall cause to be
prepared, and at the Closing the parties shall execute, deliver and file,
each document, agreement and instrument required or contemplated by this
Agreement to be so executed, delivered and filed in connection with the
Transactions and which have not been theretofore accomplished. The
documents of transfer ("Transfer Documents") shall include the General
Bill of Sale and Assignment in the form of Exhibit E, the Sublease, and
other agreements and instruments of transfer, conveyance, assignment and
assumption appropriate and customary for the purpose of consummating the
Transactions.
<PAGE>
2.5 Purchase Price Allocation . Seller and Buyer hereby agree
that, for all accounting and foreign, federal, state and local tax
reporting purposes, the Purchase Price shall be allocated in accordance
with the Allocation Schedule (herein so-called) attached hereto as
Exhibit F, including without limitation in connection with the
preparation and filing of any required forms with the IRS so that the
information reflected on such forms shall be consistent.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Existence and Good Standing . Seller is a corporation duly
organized, validly existing and in good standing under Texas Laws.
Seller has full corporate power and authority to carry on the Business as
it is now being conducted, to own and operate its assets, properties and
business, to enter into and to perform this Agreement and to sell,
transfer and convey the Assets to Buyer.
3.2 Capitalization . Interphase owns all of the issued and
outstanding shares of capital stock of Seller.
3.3 Authorization; Validity of Agreement . The execution, delivery
and performance by Seller of this Agreement, the Transfer Documents and
each of the other agreements and instruments contemplated hereby to which
Seller is, or is to be, a party have been duly authorized and approved by
the Board of Directors of Seller and by Interphase, as the sole
shareholder of Seller, and no further corporate action on the part of
Seller is necessary to fully authorize such execution, delivery and
performance. This Agreement, the Transfer Documents and each of the
other agreements and instruments contemplated hereby to which Seller is,
or is to be, a party, have been, or when executed will be, duly executed
and delivered by Seller and are the legal, valid and binding obligations
of Seller enforceable against Seller in accordance with their terms.
3.4 No Conflict with Other Instruments . The execution and
delivery by Seller of this Agreement, the Transfer Documents and the
other agreements and instruments to be executed by Seller hereunder or
thereunder, and the consummation of the transactions contemplated
hereunder or thereunder by Seller will not (a) result in the creation of
any Lien upon any Asset, (b) result in a breach or violation of or
constitute a default under Seller's Articles of Incorporation or Bylaws
or, assuming consent is obtained from those Persons listed on Schedule
3.5, any document or agreement, or (c) violate any Law.
3.5 Consents and Approvals. Except with regard to the software
licenses described in Section 3.6 below or as otherwise set forth on
Schedule 3.5 attached hereto, no authorization, consent, approval, permit
or license of, or filing with, any Person is required to authorize, or is
required in connection with, the execution, delivery and performance of
this Agreement or the agreements contemplated hereby on the part of
Seller.
<PAGE>
3.6 Title . Upon consummation of the Transactions, Buyer shall
receive good and unencumbered title to the Assets, free and clear of all
Liens, other than the Liens included within the Assumed Liabilities.
Notwithstanding the foregoing, Seller makes no representations or
warranties as to the transferability of any software licenses pertaining
to any software (e.g. Windows 98), other than the Software, as defined
hereinabove, transferred to Buyer in conjunction with the transfer of the
Assets, and the failure by Seller to obtain the applicable licensor's
consent to the transfer of the software license shall not be deemed a
violation of this Agreement or Seller's obligations hereunder.
3.7 Condition of Assets. The Assets are being transferred and
conveyed in an "AS IS and WHERE IS" condition, and Seller makes no
representations or warranties regarding the Assets or the quality or
condition thereof, except as expressly set for in this Agreement.
3.8 Patents, Trademark and Copyrights . Seller has an application
pending with the United States Patent and Trademark Office with regard to
the Trademark. Seller is the owner of the Patent Rights, Copyrights,
and, to the best of its knowledge, the Trademark, including all common
law, statutory and other rights therein, free and clear of any rights or
claims or licenses of others, and has not entered into any agreements or
contracts authorizing others to use the Patent Rights, Trademark and
Copyrights; (b) to the best of Seller's knowledge, no person or entity is
infringing or has threatened to infringe any of the Patent Rights,
Trademark or Copyrights and Seller has not requested any person or entity
to cease or modify any activity or product or to take out a license for
such activity or product by reason of past, present or prospective
infringement of any Patent Rights, Trademark or Copyrights; (c) to the
best of Seller's knowledge, use of the Trademark, Copyrights and the use
of the Software will not constitute infringement of another's Trademark,
Patent Rights or Copyrights or otherwise constitute unfair competition or
trade secret infringement; (d) there is no pending or, to the best of
Seller's knowledge, threatened litigation related in any way to the
validity, use or enforceability of any of the Trademark, Patent Rights or
Copyrights, and all of the right, title and interest in and to the
Software, Trademark and Copyrights acquired by Buyer under this Agreement
are free and clear of all Liens; (e) subject to obtaining Landlord's
consent to the Sublease, upon execution and delivery of this Agreement
and the documents identified herein, Seller will have conveyed to Buyer
good and unencumbered title to the Assets, including the Software (but
not including the software licenses pertaining to software other than the
Software, as defined herein), Patents, and Copyrights, and to the best of
its knowledge the Trademark, free and clear of all Liens; (f) Seller has
entered into no contracts or other obligations with respect to the
Software except those heretofore disclosed in writing to Buyer, the
benefits of which have been assigned to Buyer, and Seller has not and
will not enter into any agreement or other obligation which in any way
limits or would limit the rights of Buyer to the Software, Patents,
Trademark and Copyrights; (g) this Agreement and all obligations and
undertakings by Seller hereunder are in compliance with the laws of the
State of Texas and all other applicable laws; and (h) all test results,
complaints and other data and communications known to Seller as of the
date of this Agreement, evidencing any material defect or problem in the
Software or with respect to its design, operation, reliability, or the
like, have been disclosed to Buyer in writing.
<PAGE>
3.9 Litigation . There are no suits, actions, claims, inquiries,
investigations by any private or governmental body, legal, administrative
or arbitration proceedings pending or, to the knowledge of Seller,
threatened, against or affecting Seller with respect to the Business, or
affecting Seller or the Assets, or which question the validity or
legality of the Transactions. Seller does not know of any basis or
grounds for any such suit, action, claim, inquiry, investigation or
proceeding which are currently assertable affecting the Business, Seller
or the Assets and which, if determined adversely against Seller, could
reasonably be expected to have a Material Adverse Effect.
3.10 Brokerage Fees . There are no claims for investment bankers'
fees, brokerage commissions, finders' fees or similar compensation in
connection with the Transactions based on any arrangement or agreement
made by or on behalf of Seller.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
4.1 Existence and Good Standing . Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Texas and has all requisite corporate power to enter into and
perform this Agreement.
4.2 Capitalization . uniView owns all of the issued and
outstanding shares of capital stock of Buyer.
4.3 Authorization; Validity of Agreement . The execution, delivery
and performance by Buyer of this Agreement, the Transfer Documents and
each of the other agreements and instruments contemplated hereby to which
Buyer is a party have been duly authorized and approved by all necessary
action by Buyer, and no further corporate action is necessary on the part
of Buyer, to fully authorize such execution, delivery and performance.
This Agreement, the Transfer Documents and each of the other agreements
and instruments contemplated hereby to which Buyer is, or is to be, a
party have been, or when executed will be, duly executed and delivered
by Buyer and are the legal, valid and binding obligation of Buyer
enforceable against Buyer in accordance with their terms.
4.4 No Conflict With Other Instruments . The execution and
delivery of this Agreement and consummation of the Transactions will not
(a) result in a breach or violation of, constitute a default under, or
result in the creation of any Lien upon any of the properties or assets
of Buyer pursuant to (i) the Certificate of Incorporation or Bylaws of
Buyer, as presently in effect, or (ii) any indenture, mortgage, lease,
loan agreement or other agreement or instrument to which Buyer is a party
or by which it is bound or to which any of the properties of Buyer are
subject or (b) violate any provision of any law, statue, rule,
regulation, judgment or decree, domestic or foreign, applicable to Buyer.
4.5 Consents and Approvals. No authorization, consent, approval,
permit or license of, or filing with, any Person is required to
authorize, or is required in connection with, the execution, delivery and
performance of this Agreement or the agreements contemplated hereby on
the part of Buyer.
<PAGE>
4.6 Brokerage . There are no claims for investment bankers' fees,
brokerage commissions, finders' fees or similar compensation in
connection with the Transactions based on any arrangement or agreement
made by or on behalf of Buyer for which Seller is or may be liable.
ARTICLE 5 - AGREEMENTS AND COVENANTS OF THE PARTIES
Seller and Interphase, on the one hand, and Buyer and uniView, on
the other hand, covenant and agree with each other as follows:
5.1 Sublease. At the Closing, uniView and Interphase shall
execute and deliver the Sublease.
5.2 Registration Rights Agreement. At the Closing, uniView and
Seller shall execute and deliver a Registration Rights Agreement in the
form attached hereto as Exhibit G. The Registration Rights Agreement
provides for, among other things, certain piggy back and demand
securities registration rights in favor of Seller as more fully described
therein.
5.3 Nonsolicitation. Except as specifically provided in Section
5.4 below, Seller and Interphase, on the one hand, and Buyer and uniView,
on the other hand, shall not, during the stated term of the Sublease, on
their own behalf or on behalf of any other Person, hire, solicit or seek
to hire, any employee of either of the other two parties or their
Affiliates or in any other manner attempt directly or indirectly to
influence, induce or encourage any employee of either of the other two
parties or their Affiliates to leave the employment of such other parties
or their Affiliates.
5.4 Hiring of Employees. At Closing, Buyer shall offer to employ
those employees of Seller listed on Schedule 5.4 attached hereto, for a
minimum period of 90 days commencing on the Closing Date, on such terms
and conditions as are agreed upon by Buyer and the applicable employee.
5.5 Restrictions on Seller. The sale herein is exclusive in all
respects and Seller agrees that after the Closing Date, Seller will not,
and will use its best efforts to cause its officers, employees, agents
and Affiliates to not, except as expressly requested by Buyer or
otherwise required to carry out the provisions of this Agreement:
(a) Provide technical information or assistance relating to the
Software to any person or organization other than Buyer or persons
authorized by Buyer to receive such information or assistance; or
(b) Assist any other person or organization in engaging in the
design, development, engineering or sale of the Software; or
(c) Directly or indirectly reveal to anyone or utilize in any way
the Software (i) except as required by this Agreement or (ii) as
expressly requested by Buyer.
5.6 Assignments. At Closing, or as soon thereafter as is
practicable, Seller or Interphase, as applicable, shall assign to Buyer
the Trademark and any other uses of the name "Zirca", including domain
names and assumed names. After the Closing Date, Seller agrees to change
its corporate name and to not use or employ in any manner, directly or
indirectly, the name "Zirca" or any variation thereof.
<PAGE>
ARTICLE 6 - MISCELLANEOUS
6.1 Nature of Statements; Survival . Notwithstanding any
investigation heretofore or hereafter made by or on behalf of any of the
parties to this Agreement, the representations and warranties contained
in this Agreement shall survive the Closing for a period of two (2) years
from the Closing Date.
6.2 Indemnity . Seller and Interphase agree to indemnify and hold
harmless Buyer, as well as its officers, directors, agents, attorneys and
Affiliates (collectively, "Buyer's Group"), from and against all losses,
claims, obligations, demands, assessments, penalties, liabilities, costs,
damages, reasonable attorneys' fees and expenses (collectively "Claims")
asserted against or incurred by Buyer's Group by reason of or resulting
from the untruth, breach or failure of any representation or warranty
made by Seller or Interphase under or contained in this Agreement or in
any of the Transfer Documents, or the breach or failure by Seller or
Interphase to perform any of its covenants, commitments, agreements or
obligations under or contained in this Agreement or in any of the
Transfer Documents. Without limiting the generality of the foregoing,
Seller and Interphase agree to indemnify and hold harmless Buyer from and
against any Claims by reason of or resulting from any occurrence, event
or transaction arising out of or relating to the use, ownership or
operation of the Assets prior to the Closing, except to the extent such
Claims relate to the Assumed Liabilities.
Buyer and uniView agree to indemnify and hold harmless Seller, as
well as its officers, directors, agents, attorneys and Affiliates
(collectively, "Seller's Group"), from and against all losses, claims,
obligations, demands, assessments, penalties, liabilities, costs,
damages, reasonable attorneys' fees and expenses (collectively "Claims")
asserted against or incurred by Seller's Group by reason of or resulting
from the untruth, breach or failure of any representation or warranty
made by Buyer or uniView under or contained in this Agreement or in any
of the Transfer Documents, or the breach or failure by Buyer or uniView
to perform any of its covenants, commitments, agreements or obligations
under or contained in this Agreement or in any of the Transfer Documents.
Without limiting the generality of the foregoing, Buyer and uniView agree
to indemnify and hold harmless Seller from and against any Claims by
reason of or resulting from any occurrence, event or transaction arising
out of or relating to the use, ownership or operation of the Assets
subsequent to the Closing.
6.3 No Third Party Beneficiaries . Except to the extent a third
party is expressly given rights herein, any agreement contained,
expressed or implied in this Agreement shall be only for the benefit of
the parties hereto and their respective legal representatives,
successors, and permitted assigns and such agreements shall not inure to
the benefit of the obligees of any indebtedness of any party hereto, it
being the intention of the parties hereto that no Person or entity shall
be deemed a third party beneficiary of this Agreement, except to the
extent a third party is expressly given rights herein.
6.4 Remedies . In addition to the rights and remedies of the
parties specifically provided for herein, each party hereto shall have
such other remedies as shall be available under applicable law or in
equity for the other party's breach or failure to perform any of its
representations, warranties, covenants, agreements or obligations under
or contained in this Agreement.
<PAGE>
6.5 Assignment . Neither party to this Agreement may sell,
transfer, assign, pledge, or hypothecate its rights, interests, or
obligations under this Agreement without the consent of the other party.
Notwithstanding the foregoing, either party hereto may assign this
Agreement, or its rights, interests and obligations hereunder to one or
more Affiliates. Such assignment shall not be deemed to release the
assigning party from this Agreement, and the assigning party shall remain
responsible for the performance of this Agreement by its assignee.
6.6 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under applicable present or future
laws, such provision shall be fully severable, and this Agreement shall
be construed and enforced as if such illegal, invalid, or unenforceable
provision never comprised a part of this Agreement; and the remaining
provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision
or by its severance herefrom. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there shall be added automatically
as part of this Agreement, a provision as similar in its terms to such
illegal, invalid, or unenforceable provision as may be possible and be
legal, valid, and enforceable.
6.7 Costs, Expenses, and Legal Fees. If either party hereto brings
an action at law or in equity against the other in order to enforce the
provision of this Agreement, the prevailing party in such action (whether
plaintiff or defendant) shall be entitled to recover reasonable
attorneys' fees and expense for the other. Except as otherwise expressly
provided in the immediately preceding sentence, the parties hereto shall
pay their own expenses separately incurred in connection with the
preparation and review of this Agreement and the transactions
contemplated hereby.
6.8 Waiver. The waiver by either party of any breach or provision
of this Agreement must be in writing. No waiver of any breach or
failure by either party to enforce any of the terms or conditions of this
Agreement at any time shall, in any manner, limit or waive such party's
right thereafter to enforce and to compel strict compliance with every
term and condition hereof. One or more waivers of any breach of any
covenant, term, or provision of this Agreement by any party shall not be
construed as a waiver of a subsequent breach of the same covenant, term,
or provision nor shall it be considered a waiver of any other then
existing or subsequent breach of a different covenant, term, or
provision.
<PAGE>
6.9 Notices. Any notice or communication pursuant hereto must be
in writing and given by (a) deposit in the mail, addressed to the party
to be notified, postage prepaid and registered or certified with return
receipt requested, (b) delivery in person or by courier service or
overnight delivery service, or (c) transmission by telecopy. Each notice
or communication that is mailed, delivered, or transmitted in the manner
described above shall be deemed sufficiently given, served, sent, and
received, in the case of mailed notices, on the third business day
following the date on which it is mailed and, in the case of notices
delivered by hand, courier service, or telecopy, at such time as it is
delivered to the addressee (with the delivery receipt or the affidavit of
messenger being proof of delivery) or at such time as delivery is refused
by the addressee upon presentation. For purposes of notice, the
addresses of the parties shall be as set forth beside their signatures to
this Agreement. Any party may change its address for notice by written
notice given to the other party.
6.10 Miscellaneous. This Agreement (a) supersedes any and all other
agreements, either oral or written, between the parties hereto with
respect to the subject matter hereof and contains all of the covenants
and agreements between the parties with respect thereto, (b) may be
executed in counterparts, each of which shall constitute an original, but
all of which shall constitute one document, and (c) shall be binding upon
the parties hereto, together with their respective successors and
permitted assigns. There are no oral agreements between the parties to
this Agreement. No change or modification of this Agreement shall be
valid or binding upon the parties hereto, nor shall any waiver of any
term or condition in the future be so binding, unless such change or
modification or waiver shall be in writing and signed by the parties
hereto. The terms "herein," "hereto," "hereof," and "hereby" refer to
this Agreement as a whole unless the context clearly requires otherwise.
The captions in this Agreement are for convenience of reference only.
Faxed copies of manually executed signature pages to this Agreement will
be fully binding and enforceable without the need for delivery of the
manually executed signature page. This Agreement shall not be construed
against the party responsible for, or primarily responsible for,
preparing this Agreement. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF TEXAS, WITHOUT REGARD
TO CONFLICT OF LAW RULES OF SUCH STATE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
ZIRCA CORPORATION
Address:
Zirca Corporation
13800 Senlac Drive By: /s/ Steven P. Kovac
Farmers Branch, Texas 75234 Name: Steven P. Kovac
Telecopy No. (214) 654-5510 Title: Vice President, CFO
Attn: Steve Kovac
<PAGE>
With a copy to:
David H. Segrest
Gardere & Wynne , L.L.P.
3000 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201-4761
Telecopy No. 214-999-4667
UNIVIEW TECHNOLOGIES ADVANCED SYSTEMS GROUP, INC.
Address:
uniView Technologies Advanced Systems Group, Inc.
10911 Petal Street
Dallas, Texas 75238 By: /s/ Pat Custer
Attn: Patrick Custer Name: Patrick A. Custer
Title: President
With a copy to:
Billy Robinson,
General Counsel
Uniview Technologies Corporation
10911 Petal Street
Dallas, Texas 75238
JOINDER
For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Interphase Corporation and uniView
Technologies Corporation, each by its signature hereto, join in the
execution of the above and foregoing Acquisition Agreement (the
"Agreement") and agree to be bound by the terms thereof to such extent
and for such purposes as expressed in the Agreement.
INTERPHASE CORPORATION
By: /s/ Steven P. Kovac
Name: Steven P. Kovac
Title: Vice President, CFO
UNIVIEW TECHNOLOGIES CORPORATION
By: /s/ Pat Custer
Name: Patrick A. Custer
Title: President
