As filed with the Securities and Exchange Commission on March 8, 2000
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
UNIVIEW TECHNOLOGIES CORPORATION
(Exact name of Registrant as specified in its charter)
Texas 541512 75-1975147
(State or other (Primary North American (I.R.S. Employer
jurisdiction of Industry Classification Identification No.)
incorporation or System Number)
organization)
17300 North Dallas Parkway, Suite 2050, Dallas, Texas 75248
(972) 233-0900
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Billy J. Robinson
Vice President, Secretary and General Counsel
uniView Technologies Corporation
17300 North Dallas Parkway, Suite 2050, Dallas, Texas 75248
(972) 233-0900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public:
From time to time after the registration statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box.[ ]
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CALCULATION OF REGISTRATION FEE
Title of Each Amount Proposed Proposed
Class of To Be Maximum Maximum Amount of
Securities to Registered(1) Offering Price Aggregate Registration
be Registered Per Unit(2) Offering Price(2) Fee
Common Stock,
$.10 par value 4,245,434 $5.16 $21,906,439 $5,783.30
(1) Includes 2,910,434 shares of Common Stock and up to 1,335,000
shares of Common Stock issuable upon the exercise of warrants.
(2) Estimated solely for the purpose of calculating the registration
fee. Pursuant to Rule 457(c), the offering price and registration fee are
calculated upon the basis of the average of the high and low trading prices
of the Common Stock as reported by the Nasdaq Stock Market on March 1, 2000.
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, as amended,
or until this Registration Statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
UNIVIEW TECHNOLOGIES CORPORATION
17300 North Dallas Parkway, Suite 2050
Dallas, Texas 75248
(972) 233-0900
Nasdaq Stock Market - UVEW
Securities offered by selling security holders:
* 2,910,434 shares of common stock, par value $.10 ("Common Stock");
and
* 1,335,000 shares of Common Stock issuable upon exercise of warrants.
Selling security holders will offer the Securities to the public at
a price related to the market price at the time of each sale. On
March 1, 2000 the average of the high and low trading prices of the
Common Stock as reported by the Nasdaq Stock Market was $5.16 per share.
The Company will receive no proceeds from sales by the selling security
holders. The Company will only receive proceeds in the future if and
when any of the selling security holders exercise their warrants. The
selling security holders will receive net proceeds at the time of each
sale based on the sale price less brokers' commissions.
-----------------------------------
This investment involves a high degree of risk. You should purchase
shares only if you can afford a complete loss. See "Risk Factors"
beginning on page 2.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon
the adequacy or accuracy of this prospectus. Any representation to the
contrary is a criminal offense.
_________________, 2000
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ABOUT THE COMPANY
Dallas based uniView Technologies Corporation has aggregated a
unique architecture of key companies offering competencies and expertise
in video on demand, set top solutions, computer telephony integration
software ("CTI"), innovative customer care applications, consulting
services, e-business solutions, and interactive broadband connectivity.
The companies market their products and services both domestically and
internationally focusing on multi-level marketing, hospitality,
utilities, banking, telecommunications and fortune 1,000 companies.
uniView's four companies include Advanced Systems Group, Network America,
uniView Softgen and the Products Group. More information about us can be
found at our Web site, www.uniView.com.
FORWARD LOOKING STATEMENTS
When used in this Prospectus, the words "plans," "expects,"
"anticipates," "estimates," "believes" and similar expressions are
intended to identify forward-looking statements. Such statements,
including statements contained in the following "Risk Factors" section,
are subject to risks and uncertainties that could cause actual results to
differ materially from those discussed. These forward-looking statements
speak only as of the date of this Prospectus. We expressly disclaim any
obligation or undertaking to release publicly any updates or change in
our expectations with regard thereto or any change in events, conditions
or circumstances on which any such statement may be based.
RISK FACTORS
You should consider the following factors, together with the other
information in this Prospectus, in evaluating an investment in the
Company.
RISKS RELATED TO COMPANY OPERATIONS
Limited Operating History; Absence of Profitable Operations in Recent
Periods
We have reported a net loss in each of our last five fiscal years
from a combination of various operating segments. In 1993, we purchased
Curtis Mathes Corporation ("CMC"), which specialized in manufacturing and
marketing consumer electronics products related to the home entertainment
industry. In 1996 we phased out CMC's operations and inventory. In 1997
we developed our uniViewr set top box technologies for the convergence of
the Internet and television. In 1998 and 1999 we acquired other
computer-related companies, consolidated operations and moved to a
different business model focused on licensing our technologies and
providing computer-related consulting services. As you can see, our
corporate character and direction has changed in the recent past and we
have a limited operating history in our present form under our current
business model. We believe that we are positioned to be at the forefront
of the interactive broadband services industry, but we make no assurance
that the expected demand for our technologies and services under our
current business model will materialize or increase at the expected rate.
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Limited Cash Flow; Additional Financing Required
In recent years, we have not achieved a positive cash flow from
operations. We continue to rely on sales of common and preferred stock
and available credit arrangements to supplement our ongoing financial
needs. Until we become self-supporting, we will have to utilize
additional equity or debt financing. We continually evaluate
opportunities with various investors to raise additional capital. We
have in the past raised all of the financing necessary to fund ongoing
operations. We make no assurance that such resources will continue to be
available to us or that they will be available upon favorable terms. A
lack of sufficient financial resources to fund operations until our
business plan begins to produce the expected returns could have a
material adverse effect on our business, operating results and financial
condition.
Dependence on Key Personnel
Our success depends to a significant extent on the performance and
continued service of our senior management and certain key employees.
Competition for highly skilled employees with technical, management,
marketing, sales, product development and other specialized training is
intense, and there can be no assurance that we will be successful in
attracting and retaining such personnel. Specifically, we may experience
increased costs in order to attract and retain skilled employees. In
addition, employees may leave or compete against us. Our failure to
attract additional qualified employees or to retain the services of key
personnel could materially adversely affect our business, operating
results and financial condition.
RISKS RELATED TO THE COMPANY'S COMMON STOCK
Additional Shares for Sale
The shares being registered under this Prospectus may be sold after
registration in the public market. The shares are expected to have no
underwriters and will therefore not be subject to underwriter price
stabilization transactions. The possibility that a substantial number of
our securities may, in the near future, be sold in the public market
could adversely affect prevailing market prices for the Common Stock. A
depressed stock price could further impair our ability to raise
additional capital through the sale of equity securities. Such
impairment of our ability to raise necessary financing for ongoing
operations could have a material adverse effect on our business,
operating results and financial condition. See "Risk Factors -- Limited
Cash Flow; Additional Financing Required," on page 3.
Risks Related to Under-Priced Stocks
The Common Stock is currently listed on the Nasdaq SmallCap Market
("Nasdaq"). In order to continue to be listed on Nasdaq we must
maintain, among other things, a minimum bid price of $1.00 per share and
net tangible assets of $2 million.
If we fall out of compliance with the Nasdaq listing requirements,
our securities may be delisted from Nasdaq. Any trading of our
securities after that would have to be conducted in the over-
the-counter market. If that happens, an investor could find it more
difficult to sell our securities or to obtain accurate market quotations.
<PAGE>
Also, if the securities are delisted and the trading price remains below
$5.00 per share, trading would be subject to certain other rules of the
Exchange Act. Such rules require additional disclosure by broker-dealers
in connection with any trades involving a stock defined as a "penny
stock." "Penny stock" is defined as any non-Nasdaq equity security that
has a market price of less than $5.00 per share, subject to certain
exceptions. Such rules require the delivery of a disclosure schedule
explaining the penny stock market and the risks associated with that
market before entering into any penny stock transaction. The rules also
impose various sales practice requirements on broker-dealers who sell
penny stocks to persons other than established customers and accredited
investors. For these types of transactions, the broker-dealer must make
a special suitability determination for the purchaser and must receive
the purchaser's written consent to the transaction prior to the sale.
The additional burdens imposed upon broker-dealers by such requirements
could discourage broker-dealers from effecting transactions in the
securities. This could severely limit the market liquidity of the
securities and the ability to sell the securities in the secondary
market.
Potential Dilution of Shareholders' Ownership Interests
As of March 1, 2000 we had issued (1) 21,644,801
shares of Common Stock; (2) warrants and vested employee stock options
that could be exercised into 4,076,360 shares of Common Stock; and (3)
convertible securities that could be converted into approximately
7,644,333 shares of Common Stock. If the holders of all outstanding
warrants, options, and convertible securities exchanged their holdings
for Common Stock on that date, there would be approximately 33,365,494
shares of Common Stock outstanding. Such an event would dilute an
existing shareholder's ownership interest in the Company. (For example,
an existing 10% shareholder before such event would become a 6%
shareholder after such event. All other existing shareholders would
experience similar dilution). Such an event would increase our net
tangible book value by the amount of the proceeds we received for issuing
Common Stock in exchange for the warrants and options (approximately
$10,574,065 or $0.32 per share increase). "Pro forma net tangible book
value" represents the amount of total tangible assets, less total
liabilities, divided by the number of shares of Common Stock outstanding
after such event. See "DESCRIPTION OF SECURITIES," on page 9.
Preferred Stock's Preference over Common Stock
Our Preferred Stock has preferences over the Common Stock in payment
of dividends and in distributions to shareholders upon our dissolution.
During ongoing operations, these preferences mean very little. However,
if it became necessary to dissolve the Company and if any assets remain
after payment of creditors, we would have to distribute them first to our
Preferred Shareholders to pay the face amount and all accrued dividends
on their Preferred Stock. After that we could make distributions to
Common Shareholders. If dissolution occurred at the March 1, 2000
levels of Common and Preferred Stock, a Common Shareholder could receive
a distribution which is approximately $0.84 per share less than it would
otherwise receive if there were no shares of Preferred Stock outstanding.
See "DESCRIPTION OF SECURITIES: Preferred Stock," on page 9.
<PAGE>
RISKS RELATED TO OUR TECHNOLOGIES AND SERVICES
Changes in Technology and Industry Standards
We operate in a marketplace that changes rapidly. Changes in
industry standards, frequent innovations and changes in customer
preferences could render our technologies and services unmarketable if we
are slow to anticipate or adjust to these changes. We may have to
develop new technologies or modify our existing technologies and services
to keep pace with these changes. Pursuit of these technological advances
will require substantial expenditures, and we make no assurance that we
will succeed in adapting our technologies as rapidly or as successfully
as our competitors. Our competitors may have better financing and could
gain advantage by implementing new technologies and services more quickly
and at lower cost. Failure to adapt our technologies or to develop and
introduce new technologies and enhancements in a timely fashion could
have a material adverse effect on our business, operating results and
financial condition.
Dependence on the Internet
We expect to derive a significant portion of our future income from
our Internet-related technologies and Internet advertising revenues. Our
future success will depend to a great extent upon the continued growth in
the use of the Internet by consumers and the increased use of the
Internet for commercial purposes, including use as an advertising medium.
If the expected rate of growth in the use of the Internet does not occur,
or if it occurs at a slower pace than expected, our business, operating
results and financial condition could be materially adversely affected.
RISKS RELATED TO THE INDUSTRY
Highly Competitive Industry
We operate in an industry that is intensely and increasingly
competitive. It includes a large number of Internet-related companies
and computer consulting companies. A number of companies have announced
Internet-television convergence technologies similar to ours. Oracle has
promoted a low-cost Internet access technology in the form of a "network
computer" device. Sony and Phillips market an Internet-television
convergence device from WebTV Networks. Video game devices
such as the Sega Saturn, the Sony Playstation and the Nintendo 64 also
provide Internet access. Television manufacturers have announced plans
to introduce Internet access into their products or through set-top
boxes, using technologies supplied by others. Personal computer
manufacturers, such as Gateway 2000, are introducing products that offer
full-fledged television viewing combined with Internet access. Operators
of cable television systems also plan to offer Internet access in
conjunction with cable service. We also compete with various national
and local Internet service and content providers such as America Online,
the Microsoft Network, AT&T Corp., and MCI Communications Corporation.
Competition occurs principally in the areas of style, quality,
functionality, service, design, product features and price. Our
competitors may develop Internet access products and services that are
superior to ours. They may be priced competitively with ours. They may
achieve greater market acceptance than ours. Many of our competitors may
have greater financial, technical, marketing and/or personnel resources
<PAGE>
than we do. This competitive environment could (1) limit the number of
customers that are willing to utilize our technologies and services, (2)
require price reductions and increased spending on technology
development, marketing, network capacity, and content procurement, and
(3) limit our ability to develop new technologies and services. Any of
the foregoing events could have a material adverse effect on our
business, financial condition and operating results.
In addition, some of our competitors may be acquired by, receive
investments from or enter into other commercial relationships with
larger, well-established and well-funded companies. We make no assurance
that we will have the resources required to continue to respond
effectively to these competitive pressures. See "Risk Factors -- Limited
Cash Flow; Additional Financing Required," on page 3.
Government Regulation; Legal Uncertainties; International Business Risks
The Federal Communications Commission ("FCC") provides mandatory
guidelines for the electronic emissions of licensed products containing
our technologies. Several federal and state government agencies,
legislative bodies and courts, including the FCC, the Federal Trade
Commission and the Internal Revenue Service further impact our
technologies and services. A number of legislative and regulatory
proposals from various international bodies and foreign and domestic
governments in the areas of telecommunication regulation, access charges,
encryption standards, content regulation, consumer protection,
intellectual property, privacy, electronic commerce, and taxation, among
others, are currently under consideration. We cannot predict whether
such proposals will be adopted or whether they would be favorable or
unfavorable to the industry.
There are certain other significant risks inherent in doing business
on an international level, for example: (1) unexpected changes in
regulatory requirements, (2) uncertain political risks, (3) export
restrictions, (4) export controls relating to encryption technology such
as that utilized by the uniView technologies, (5) tariffs and other trade
barriers, (6) fluctuations in currency exchange rates, and (7)
potentially adverse tax consequences. Any one or all of the foregoing
could adversely impact our future planned international operations.
Limited Protection of Intellectual Property and Proprietary Rights; Risk
of Litigation
We regard our Internet-television convergence technologies
containing software-related components as proprietary. We rely primarily
on a combination of trademark, copyright and trade secret laws,
nondisclosure agreements, and other methods to protect these proprietary
rights. As the number of Internet-television convergence technologies in
the industry increases and the functionality of these technologies
overlap, infringement claims may also increase. Third parties may assert
infringement claims against us in the future with respect to current or
future technologies. As is common in the industry, from time to time we
receive notices from third parties claiming infringement of intellectual
property rights. We investigate these claims and respond as we deem
appropriate. Policing unauthorized use of our technologies is also
difficult and can be expected to be a recurring problem. We expect to
enter into transactions in countries where intellectual property laws may
not be well developed or are poorly enforced. Any claim or litigation,
with or without merit, could be costly and could result in a diversion of
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our attention, which could have a material adverse effect on our
business, operating results and financial condition.
USE OF PROCEEDS
The Company will receive proceeds only when any of the selling
security holders exercise their warrants. If that occurs, any proceeds
received by the Company will be used for general corporate purposes
including operating and working capital requirements. Various uses of
the proceeds may include additional advertising, promotion, and further
development of the uniView technologies.
SELLING SECURITY HOLDERS
The following table sets forth the total number of shares that were
beneficially owned by the selling security holders before the offering.
All of such shares are being offered for the account of the selling
security holders and after the offering the selling security holders will
each own no Common Stock of the Company. The table assumes that the
number of shares to be offered and sold constitute all of the shares of
Common Stock beneficially owned by the selling security holders.
Number of
Shares
Relationship to Number of Underlying
Selling Security Holder the Company Shares Warrants
SECURITIES ACQUIRED PURSUANT TO A SECURITIES PURCHASE AGREEMENT:
Scotty D. Cook Private Investor 33,333 N/A
Founders Equity Group, Inc. Private Investor 133,333 N/A
Donald F. Moorehead Private Investor 33,333 N/A
George O. Moorehead Private Investor 33,333 N/A
Timothy Schweizer Private Investor 33,333 N/A
Thomas J. Spackman, Jr. Private Investor 33,333 N/A
Stoli, Ltd. Private Investor 33,333 N/A
Founders Equity Finder 32,000 N/A
Securities, Inc.
Bonanza Partners, Ltd. Private Investor 100,000 60,000
Founders Equity Group, Inc. Private Investor 9,619 N/A
Founders Equity Group, Inc. Private Investor 75,000 N/A
SECURITIES ACQUIRED PURSUANT TO ACQUISITION OF ZIRCA ASSETS BY THE COMPANY:
Zirca Corporation Private Investor 360,000 N/A
SECURITIES ACQUIRED PURSUANT TO ACQUISITION OF SOFTGEN INTERNATIONAL
ASSETS BY THE COMPANY:
Founders Equity Group, Inc. Private Investor 150,000 N/A
Cameron E. Hurst Employee 123,684 352,500
Leslie Leland Employee 123,684 352,500
Nations Corp., Ltd. Private Investor 327,632 235,000
Nations Investment
Corp., Ltd. Finder 47,250 N/A
Trinity Business
Technologies Limited Private Investor 300,000 235,000
Varga Investments, Inc. Private Investor 150,000 N/A
<PAGE>
SECURITIES ACQUIRED PURSUANT TO PAST TRANSACTIONS:
Scotty D. Cook Private Investor 1,464 N/A
Founders Equity Group, Inc. Private Investor 5,966 N/A
Founders Equity Group, Inc. Private Investor 2,926 N/A
Founders Equity Group, Inc. Private Investor 204,145 N/A
Regina Katz Private Investor 7,767 N/A
Donald F. Moorehead Private Investor 2,983 N/A
George O. Moorehead Private Investor 2,983 N/A
Pacific Continental Finder 40,000 N/A
Securities Corp.
Lewis D. Rowe Private Investor 240,000 100,000
TVData Technologies, L.P. Private Investor 250,000 N/A
Edward M. Warren Director 20,000 N/A
TOTAL 2,910,434 1,335,000
GRAND TOTAL 4,245,434
PLAN OF DISTRIBUTION
The Shares being registered hereunder may be sold from time to
time by any of the selling security holders, or by pledgees, donees,
transferees or other successors in interest, or by additional selling
stockholders. The Shares may be disposed of from time to time in one or
more transactions through any one or more of the following: (1) to
purchasers directly, (2) in ordinary brokerage transactions and
transactions in which the broker solicits purchasers, (3) through
underwriters or dealers who may receive compensation in the form of
underwriting discounts, concessions or commissions from the selling
security holders or such successors in interest and/or from the
purchasers of the Shares for whom they may act as agent, (4) the pledge
of the Shares as security for any loan or obligation, including pledges
to brokers or dealers who may, from time to time, themselves effect
distributions of the Shares or interests therein, (5) purchases by a
broker or dealer as principal and resale by such broker or dealer for its
own account pursuant to this Prospectus, (6) a cross or block trade in which
the broker or dealer so engaged will attempt to sell the Shares as agent but
may position and resell a portion of the block as principal to facilitate
the transaction and (7) an exchange distribution in accordance with the
rules of such exchange, including the NASDAQ SmallCap Market, prices and
at terms then prevailing or at prices related to the then current market
price, at negotiated prices and terms or otherwise. In effecting sales,
brokers or dealers may arrange for other brokers or dealers to
participate. The selling security holders or such successors in
interest, and any underwriters, brokers, dealers or agents that
participate in the distribution of the Shares, may be deemed to be
"underwriters" within the meaning of the Securities, Act, and any profit
on the sale of the Shares by them and any discounts, commissions or
concessions received by any such underwriters, brokers, dealers or agents
may be deemed to be underwriting commissions or discounts under the
Securities Act. In addition, any Shares held by the selling security
holders or such successors in interest that qualify for sale pursuant to
Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to the Registration Statement of which this Prospectus is a
part.
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The Company will pay all of the expenses incident to the offering
and sale of the Shares to the public other than underwriting discounts or
commissions, brokers' fees and the fees and expenses of any counsel to
the selling security holders related thereto.
In the event of a material change in the plan of distribution
disclosed in this Prospectus, the selling security holders will not be
able to effect transactions in the Shares pursuant to this Prospectus
until such time as a post-effective amendment to the Registration
Statement is filed with, and declared effective by, the SEC.
DESCRIPTION OF SECURITIES
Common Stock
The Company is authorized by its articles of incorporation, as
amended, to issue up to 80 million shares of Common Stock, $.10 par
value, of which we had issued 21,644,801 shares as of
March 1, 2000. Holders of Common Stock are entitled to one vote per
share on all matters submitted to a vote of the shareholders and do not
have cumulative voting rights in the election of directors. Accordingly,
the holders of a majority of the outstanding Common Stock can, if they so
choose, elect all directors. The vote of the holders of a majority of
the shares entitled to vote, present in person or represented by proxy,
shall decide any question brought before a meeting of the Company's
shareholders at which a quorum is present. A quorum consists of a
majority of the issued and outstanding shares of the Common Stock
entitled to vote. The articles of incorporation of the Company specify
that a majority vote of shareholders shall be determinative regardless of
provisions requiring more than a majority vote under the Texas Business
Corporation Act.
All of the shares issuable upon exercise of warrants will be fully
paid and nonassessable. Holders of the Common Stock have no preemptive
or other subscription rights, and shares of Common Stock have no
redemption, sinking fund, or conversion privileges. Holders of Common
Stock are entitled to receive dividends when, as and if declared by the
board of directors of the Company, out of funds legally available
therefor. In the event of liquidation or dissolution of the Company,
holders of Common Stock are entitled to share ratably in all assets
available for distribution to such shareholders.
Preferred Stock
The Company is authorized to issue up to 1,000,000 shares of
Preferred Stock, $1.00 par value, in one or more series, which, if
issued, would have certain preferences over the Common Stock. The
articles of incorporation of the Company vest the board of directors with
authority to establish and designate series of Preferred Stock and to fix
and determine the relative rights and preferences of any series so
established. As of March 1, 2000, outstanding Preferred Stock
consisted of:
(1) $30,000 face value of Series A Preferred Stock with an annual
dividend rate of 6%, and no right to convert into Common Stock.
(2) $50,000 face value of Series H Preferred Stock with an annual
dividend rate of 5% and the right to convert such Preferred Stock into
3,333 shares of Common Stock at a minimum conversion price of $15.00 per
share.
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(3) $18 million face value of Series 1999-D1 Preferred Stock with a
5% annual dividend rate and the right to convert such Preferred Stock
into 4.5 million shares of Common Stock at a fixed conversion price of
$4.00 per share. Conversions are limited by the holdings of their
owners, as each owner may not hold more than 4.99% of the Company's
outstanding common stock at any one time without giving the Company
advance notice that it intends to waive this restriction.
None of the Preferred Stock has any voting rights. It has
preference over the Common Stock as to dividends, and no dividends can be
declared or paid on Common Stock unless all dividends on Preferred Stock
have been declared and paid. Dividends on all Preferred Stock are
cumulative. No dividend may be declared or paid on shares of any series
of Preferred Stock unless they are paid on all series. In the event of
dissolution, liquidation or winding up of the Company, the holders of
each series of Preferred Stock would be entitled to receive the face
amount of the Preferred Stock plus all accumulated and unpaid dividends.
After such payment to the holders of Preferred Stock, the remaining
assets and funds of the Company could be distributed pro rata among the
holders of the Common Stock. Upon notice from the board of directors to
the holders, all or any part of any series of outstanding Preferred Stock
may be called for redemption and redeemed.
Warrants and Employee Stock Options
As of March 1, 2000, various investors held warrants and
directors and various employees held vested stock options which were
exercisable for a total of 4,076,360 shares of Common Stock. Certain key
employees hold an additional 800,000 stock options, which vest at various
times over the next twelve (12) months. Other employees hold
approximately 367,000 stock options, which vest at various times over the
next three years. Exercise prices of all warrants and stock options
range from a high of $39.40 per share, to a low of $1.00 per share and
expiration dates range from March 2000 through December 2004.
Convertible Debentures
As of March 1, 2000, outstanding Convertible Debentures
consisted of:
(1) $741,000 principal balance of a 1997 Convertible Note with an
annual percentage rate of 18% and the right to convert such note into
approximately 741,000 shares of Common Stock at a fixed conversion price
of $1.00 per share.
(2) $1.5 million principal balance of a 1999 Convertible
Debentures, with a 6% annual percentage rate and the right to convert
such debentures into a total of 2.4 million shares of Common Stock at a
fixed conversion price of $.625 per share.
The transfer agent and registrar for Common Stock is American Stock
Transfer & Trust Company, 40 Wall Street, New York, New York 10005.
RECENT DEVELOPMENTS
Except as may be reflected in this Prospectus, there have been no
material changes in the Company's affairs since the filing of the
Company's reports which have been incorporated herein by reference.
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The Securities and Exchange Commission ("SEC") allows us to
"incorporate" into this Prospectus information from other documents we
file with the SEC. This means that we can disclose important information
to you by referring to those other documents. We are incorporating in
this Prospectus the documents listed below, except where the information
contained in those documents is different from the information contained
in this Prospectus.
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1999, dated September 10, 1999 (the "1999 10-K Report").
(2) The Company's Quarterly Report (Amended) on Form 10-Q for the fiscal
quarter ended September 30, 1999, dated November 12, 1999 (the "September
1999 10-Q Report").
(3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1999, dated February 18, 2000 (the "December 1999 10-Q
Report").
(4) The Company's Proxy Statement dated November 5, 1999 (the "Proxy
Statement").
We are also incorporating in this Prospectus all future documents we
may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") prior to termination
of this offering, which will update and supersede the information you
read in this Prospectus. (If any proxy statement is incorporated by
reference herein, such incorporation shall not include any information
contained in such proxy statement which is not, pursuant to the SEC's
rules, deemed to be "filed" with the SEC or subject to the liabilities of
Section 18 of the Exchange Act).
We will provide at no cost to each person, including any beneficial
owner, to whom this Prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in this Prospectus
but not delivered with the Prospectus. You may make a written or oral
request for this information to: uniView Technologies Corporation, 17300
North Dallas Parkway, Suite 2050, Dallas, Texas 75248, Attention:
Investor Relations; telephone number (972) 233-0900.
WHERE YOU CAN FIND MORE INFORMATION
The Company files annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy any
Company filing at the SEC's Public Reference Room, 450 Fifth Street,
N.W., Washington, D.C. 20549. (You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-
0330). You may also obtain any Company filing electronically through the
EDGAR Database located at the SEC's Internet site (http://www.sec.gov).
You may view additional information about the Company at our Internet
site (http://www.uniView.com). (The information posted at our Internet
site is not incorporated into this Prospectus).
This Prospectus is part of a Registration Statement on Form S-3 that
we have filed with the SEC. The Registration Statement contains more
information than is included in this Prospectus. You may review the
complete registration statement in the manner set forth above.
<PAGE>
LEGAL MATTERS
Certain legal matters in connection with the validity of the
securities offered hereby have been passed upon for the Company by Billy
J. Robinson. Mr. Robinson is an attorney who acts as counsel to the
Company. Mr. Robinson is also a director and owns 17,889 shares of
Common Stock and holds vested options to purchase another 430,000 shares
of Common Stock.
EXPERTS
The financial statements and the related financial statement
schedules incorporated in this prospectus by reference from the Company's
Annual Report on Form 10-K as of June 30, 1999 and for the year then ended
have been audited by Grant Thornton LLP. The financial statements as of
June 30, 1998 and for each of the years ended in the two-year period ended
June 30, 1998 have been audited by King Griffin & Adamson P.C. The reports
by the foregoing independent certified public accountants have been
incorporated herein by reference and have been so incorporated in
reliance upon the report of such firm given upon their authority as
experts in accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the Company's Articles of
Incorporation or Bylaws, or otherwise, the Company has been informed that
in the opinion of the SEC such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
If a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission registration fee $5,783
Transfer agent's fees 150
Costs of printing 150
Legal fees and expenses 500
Accounting fees and expenses 250
Blue sky fees and expenses 250
Miscellaneous expenses 500
------
Total estimated fees $7,583
All amounts estimated except for Securities and Exchange Commission
registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 2.02(16) and 2.02-1 of the Texas Business Corporation Act
empowers a corporation to indemnify its directors and officers or former
directors or officers and to purchase insurance with respect to liability
arising out of their capacity or status as directors and officers.
Article XIII of the Company's Articles of Incorporation, as amended,
provides that a director of the Company shall not be personally liable to
the Company or its shareholders for monetary damages for any act or
omission in his capacity as a director, except to the extent otherwise
expressly provided by a statute of the State of Texas. Article IX of the
Company's Bylaws provides for indemnification of officers and directors.
The Company has entered into Indemnity Agreements with all of its
officers, directors, and designated agents indemnifying them in
connection with services performed for the Company to the fullest extent
allowed by law.
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3, including those incorporated herein
by reference.
Exhibit
Number Description of Exhibit
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. (filed as
Exhibit "2.1" to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 1999 and incorporated herein by
reference.)
2.2* Acquisition Agreement dated as of September 22, 1999, between the
Company and Zirca Corporation, concerning the purchase of certain
assets of Zirca Corporation.
<PAGE>
4.1 Articles of Incorporation of the Company, as amended, defining the
rights of security holders (filed as Exhibit "4.1" to the Company's
Registration Statement on Form S-3 originally filed with the
Commission on May 13, 1998 and incorporated herein by reference.)
4.2 Bylaws of the Company, as amended, defining the rights of security
holders (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.)
4.3 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.)
4.4* Form of Securities Purchase Agreement for private placement to
Founders Equity Group, Inc., Donald F. Moorehead, George O.
Moorehead, Thomas J. Spackman, Jr., Stoli, Ltd., Timothy Schweizer,
and Scotty D. Cook.
4.5* Form of Securities Purchase Agreement for private placement to
Bonanza Partners, Ltd.
4.6* Form of warrant issued in connection with private placement to
Bonanza Partners, Ltd.
4.7* Form of warrant issued in connection with acquisition of certain
assets of Softgen International, Inc.
4.8* Form of Registration Rights Agreement between the Company and
shareholders of Softgen International, Inc.
4.9* Registration Rights Agreement between the Company and Zirca
Corporation.
4.10* Registration Rights Agreement between the Company and TVData
Technologies, L.P.
4.11 Agreement between the Company and Pacific Continental Securities
Corp. dated as of June 3, 1998 (the "Pacific Continental
Agreement.") (filed as Exhibit "99.1" to the Company's Registration
Statement on Form S-3 filed with the Commission on July 20, 1998 and
incorporated herein by reference.)
4.12* Registration Rights Agreement between the Company and Bonanza
Partners, Ltd.
5* Opinion of Billy J. Robinson.
23.1* Consent of King Griffin & Adamson P.C.
23.2* Consent of Grant Thornton LLP.
23.3* Consent of Billy J. Robinson (included in his opinion filed as
Exhibit 5.)
24 Powers of Attorney (included on the Signature Page of the
Registration Statement.)
<PAGE>
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that: (1) For
purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on
March 8, 2000.
UNIVIEW TECHNOLOGIES CORPORATION
By: /s/ PATRICK A. CUSTER
Patrick A. Custer
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Patrick A. Custer and
Billy J. Robinson, each of whom may act without joinder of the other, his
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign, execute and file with the
Commission and any state securities regulatory board or commission any
documents relating to the proposed issuance and registration of the
securities offered pursuant to this Registration Statement on Form S-3
under the Securities Act of 1933, including any amendment or amendments
relating thereto, which amendments may make such changes in the
Registration Statement as such attorney may deem appropriate, with all
exhibits and any and all documents required to be filed with respect
thereto with any regulatory authority, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done
in and about the premises in order to effectuate the same as fully to all
intents and purposes as he might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act, this
Registration Statement on Form S-3 has been signed by the following
persons in the capacities and on the dates indicated.
Principal Executive Officer and
Principal Financial and Accounting Officer
/s/ PATRICK A. CUSTER Chairman of the Board, March 8, 2000
Patrick A. Custer President, Chief Executive
Officer and Director
Additional Directors
/s/ BILLY J. ROBINSON Vice President, Secretary, March 8, 2000
Billy J. Robinson General Counsel and Director
/s/ EDWARD M. WARREN Director March 8, 2000
Edward M. Warren
/s/ BERNARD S. APPEL Director March 8, 2000
Bernard S. Appel
<PAGE>
EXHIBIT INDEX
Exhibit Number Sequential
Description of Exhibit 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. (filed as
Exhibit "2.1" to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 1999 and incorporated herein by
reference.)
N/A
2.2* Acquisition Agreement dated as of September 22, 1999, between the
Company and Zirca Corporation, concerning the purchase of certain
assets of Zirca Corporation. 22
4.1 Articles of Incorporation of the Company, as amended, defining the
rights of security holders (filed as Exhibit "4.1" to the Company's
Registration Statement on Form S-3 originally filed with the
Commission on May 13, 1998 and incorporated herein by reference.)
N/A
4.2 Bylaws of the Company, as amended, defining the rights of security
holders (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
4.3 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
4.4* Form of Securities Purchase Agreement for private placement to
Founders Equity Group, Inc., Donald F. Moorehead, George O.
Moorehead, Thomas J. Spackman, Jr., Stoli, Ltd., Timothy Schweizer,
and Scotty D. Cook. 47
4.5* Form of Securities Purchase Agreement for private placement to
Bonanza Partners, Ltd.
54
4.6* Form of warrant issued in connection with private placement to
Bonanza Partners, Ltd.
61
4.7* Form of warrant issued in connection with acquisition of certain
assets of Softgen International, Inc. 67
4.8* Form of Registration Rights Agreement between the Company and
shareholders of Softgen International, Inc. 73
4.9* Registration Rights Agreement between the Company and Zirca
Corporation. 86
4.10* Registration Rights Agreement between the Company and TVData
Technologies, L.P. 100
<PAGE>
4.11 Agreement between the Company and Pacific Continental Securities
Corp. dated as of June 3, 1998 (the "Pacific Continental
Agreement.") (filed as Exhibit "99.1" 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
4.12* Registration Rights Agreement between the Company and Bonanza
Partners, Ltd. 114
5* Opinion of Billy J. Robinson. 123
23.1* Consent of King Griffin & Adamson P.C. 124
23.2* Consent of Grant Thornton LLP. 125
23.3* Consent of Billy J. Robinson (included in his opinion filed as
Exhibit 5.) 123
24* Powers of Attorney (included on the Signature Page of the
Registration Statement.) 19
_________________
* Filed herewith.
<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.
"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
<PAGE>
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.
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
<PAGE>
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.
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.
<PAGE>
(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.
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.
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.
<PAGE>
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.
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,
<PAGE>
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.
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.
<PAGE>
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.
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,
<PAGE>
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.
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
<PAGE>
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.
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
<PAGE>
Telecopy No. (214) 654-5510 Title: Vice President, CFO
Attn: Steve Kovac
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
Address: GROUP, INC.
uniView Technologies Advanced
Systems Group, Inc.
10911 Petal Street By: /s/ Patrick A. Custer
Dallas, Texas 75238 Name: Patrick A. Custer
Attn: Patrick 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/ Patrick A. Custer
Name: Patrick A. Custer
Title: President
<PAGE>
Exhibit A
Assets
Exhibit B
Assigned Contracts
Exhibit C
Assumed Liabilities
Future performance of Assigned Contracts.
Exhibit D
Sublease Agreement
Exhibit E
General Bill of Sale, Assignment, and Assumption Agreement
Exhibit F
Allocation Schedule
$615,140.00 of the Purchase Price shall be allocated to the Assets, and
$359,860 of the Purchase Price shall be allocated to developed software.
Exhibit G
Registration Rights Agreement
Schedule 3.5
Required Consent
Principal Life Insurance Company as Landlord under Prime Lease
Schedule 5.4
List of Employees
<PAGE>
THE SHARES OF COMMON STOCK (THE "COMMON SHARES") OFFERED HEREIN
ARE SUBJECT TO SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY.
SECURITIES PURCHASE AGREEMENT
UNIVIEW TECHNOLOGIES CORPORATION
Private Offering of Common Stock
In connection with the offer (the "Offering") and proposed issuance
of common shares, $0.10 par value per share ("Common Shares"), of uniView
Technologies Corporation, 17300 North Dallas Parkway, Suite 2050, Dallas,
Texas 75248 (the "Company") for a total investment in the Company as
shown on the signature page hereof, the undersigned prospective
investor(s) (the "Investor") and the Company hereby agree as follows:
1. Subscription. The Investor hereby subscribes for the purchase of
the Common Shares and agrees to purchase the aggregate number of
Common Shares set forth on the signature line of this Agreement.
The Company, in its sole discretion and for any reason, may accept
or reject this purchase in whole or in part at any time prior to its
execution hereof (the "Closing Date").
2. Restricted Shares. Investor recognizes that the Common Shares, when
issued, will not have been registered for public sale under the
Securities Act of 1933 (the "Securities Act") or the securities laws
of any state and that the share certificate will bear a "Restricted
Stock" legend as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT FOR
SUCH SECURITIES UNDER SAID ACT, OR (2) AN OPINION OF COMPANY COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED."
3. Registration Rights. (a) Piggyback Registration. If, at any
time during the six (6) month period following the Closing Date, the
Company shall file a registration statement with the SEC, the
Company shall give Investor prior notice of the filing of such
registration statement. If requested by Investor in writing within
five (5) business days after receipt of any such notice, the Company
shall register all or, at each Investor's option, any portion of the
Common Shares, concurrently with the registration of such other
securities, all to the extent requisite to permit the public
offering and sale of the Common Shares through the facilities of the
Nasdaq Stock Market, and will use its best reasonable efforts
through its officers, directors, auditors, and counsel to cause such
registration statement to become effective as promptly as
practicable. Notwithstanding the foregoing, if the Company believes
in good faith that the distribution of all or a portion of the
Shares requested to be included in the registration concurrently
with the securities being registered by the Company would materially
adversely affect the distribution of such securities by the Company
for its own account or pursuant to previous commitments made to
other investors, then Investor shall delay the offering and sale of
the Shares (or the portions thereof so designated) for such period.
<PAGE>
(b) Demand Registration. If, at any time after the six (6) month
period following the Closing Date, the Company shall receive a
written request from each Investor to register the sale of all or
part of such Common Shares, the Company shall, as promptly as
practicable prepare and file with the Commission a registration
statement sufficient to permit the public offering and sale of the
Common Shares through the facilities of the Nasdaq Stock Market, and
will use its best reasonable efforts through its officers,
directors, auditors, and counsel to cause such registration
statement to become effective as promptly as practicable. The
registration statement filed by the Company pursuant to this section
may include securities sold by the Company or on behalf of persons
other than Investor.
4. Payment of Purchase Price. The Investor shall pay for the Common
Shares by a mutually agreed method of funding to the Company on or
before _____________, or as may be otherwise mutually agreed by the
parties (the "Closing Date.")
The parties hereby agree that, upon clearance of the funds for
payment of the purchase price, the Company shall cause Common Share
certificate(s) to be issued in the Investor's name and delivered to
Investor.
5. Company's Conditions. The Company's obligation to issue and sell
the Common Shares shall be subject to the satisfaction (or waiver by
it) of the following conditions precedent:
(a) Performance. The Investor shall have tendered payment for the
Common Shares.
(b) Representations. Each representation and warranty made by
the Investor in this agreement shall be true and correct in all
material respects as though made on and as of the Closing Date.
(c) Legality. No change shall have occurred in any law, rule or
regulation that would prohibit the consummation of any transaction
contemplated hereby.
(d) Litigation. No action, proceeding or investigation shall
have been commenced or threatened, nor shall any other judgment or
decree have been issued or be proposed to be issued by any court,
agency or authority to set aside, restrain, enjoin or prevent the
consummation of any transaction contemplated hereby.
6. Representations and Warranties. The Investor makes the
representations, declarations and warranties set forth in this
Section with the intent that the same may be relied upon in
determining the Investor's suitability as a purchaser of the Common
Shares. If the Investor includes or consists of more than one
person or entity, the obligations of the Investor shall be joint and
several and the representations and warranties herein contained
shall be deemed to be made by and be binding upon each such person
or entity and their respective legal representatives, heirs,
executors, administrators, successors and assigns.
<PAGE>
(a) No Regulatory Review. The Investor is aware that this is a
limited private offering and that no federal, state or other agency
has made any finding or determination as to the fairness of the
investment nor made any recommendation or endorsement of the Common
Shares.
(b) Ability to Evaluate. The Investor, by reason of the
Investor's knowledge and experience in financial and business
matters, is capable of evaluating the risks and merits of an
investment in the Common Shares.
(c) Investment Intent. The Investor acknowledges that the purchase
of the Common Shares hereunder is being made for the Investor's own
account, or investment purposes only and not with the present
intention of distributing or reselling the Common Shares in whole or
in part. The Investor further understands that the Common Shares
are not being sold to the Investor in a transaction registered under
the Securities Act of 1933, as amended (the "Act"), or any other
state securities laws. As a result, the Investor understands that
there will be restrictions on the transfer and sale of the Common
Shares. The Investor further understands that the Company has
agreed to file a Registration Statement with the SEC with respect to
the Common Shares at the earliest practicable time. The Investor
hereby agrees not to sell or otherwise transfer the Common Shares
until the Investor has received notice from the Company that the
Registration Statement has been declared effective. Investor hereby
agrees to exercise the registration rights granted hereby, and to
sell the Common Shares pursuant to the registration, only in a
manner consistent with the representations and warranties made by
Investor to the Company hereunder. Investor understands that the
SEC may in its discretion comment on certain aspects of the
Registration Statement and the transaction and that such comments
may cause delay in the Registration Statement becoming effective.
Except as otherwise set forth herein, the Company shall have no
liability to Investor on account of any such delay initiated by the
SEC.
(d) Investment Information. The investor has received and reviewed
pertinent information regarding the Company, including the most
recent SEC Forms 10-K and 10-Q prior to the execution of this
Agreement and is capable of understanding and evaluating the
information contained therein. Specifically, the Investor is fully
aware of the risks relating to the business of the Company and
purchase of the Common Shares. The Investor will rely solely upon
its independent investigation and analysis in making the decision to
purchase the Common Shares. In particular, and without limiting the
generality of the foregoing, the Investor has not relied on, and the
Investor's decision to subscribe for Common Shares has not been
influenced by: (i) newspaper, magazine or other media articles or
reports related to the Company or its business; (ii) promotional
literature or other materials used by the Company for sales or
marketing purposes, or (iii) any other written or oral statement of
the Company or persons purporting to represent the Company. The
Investor has had the opportunity to discuss all aspects of this
transaction with management of the Company, has made or has had the
opportunity to make such inspection of the books and records of the
Company as the Investor has deemed necessary in connection with this
investment, and any questions asked have been answered to the
satisfaction of the Investor.
<PAGE>
(e) Confidentiality. The Investor understands that the Offering
is confidential. The Investor has not distributed information on
the Offering to anyone other than such legal or financial advisors
as the Investor has deemed necessary for purposes of evaluating an
investment in the Common Shares.
(f) Authorization and Formation of Investor. The Investor,
if a corporation, partnership, trust or other form of business
entity, is authorized and otherwise duly qualified to purchase and
hold the Common Shares and such entity has not been formed for the
specific purposes of acquiring Common Shares in the Offering. If
the Investor is one of the aforementioned entities, it hereby agrees
that upon request of the Company it will supply the Company with any
additional written information that may be requested by the Company.
(g) Accredited Investor Status. The Investor is an "accredited
investor" as such term is defined in Rule 501(a) of Regulation D
under the Act and within the meaning of similar regulations under
state securities laws for the reasons indicated in the "Investor
Acknowledgments" accompanying this Agreement. If the Investor is an
individual, he or she is of majority age and his or her marital
status is as indicated in the "Investor Acknowledgments." If the
Investor is an entity, the person executing this Securities Purchase
Agreement on behalf of the Investor is of majority age.
7. Reliance on Representations and Warranties. The Investor
understands that the Company will rely on the representations and
warranties of the Investor herein in determining whether a sale of
the Common Shares to the Investor is in compliance with federal and
applicable state securities laws.
8. Updating Information. All of the information set forth herein
with respect to the Investor, including, without limitation, all of
the representations and warranties set forth in Paragraph 6 of this
agreement, is correct and complete as of the date hereof and, if
there should be any material change in such information prior to the
acceptance of this subscription by the Company, the Investor will
immediately furnish the revised or corrected information to the
Company.
9. Notices. Any notice or other communications required or permitted
hereunder shall be sufficiently given if in writing and sent by
registered or certified mail, postage prepaid, return receipt
requested, if to the Company at the address set forth on the first
page of this Subscription Agreement, and to Investor, at the address
set forth in Paragraph 12 of this Subscription Agreement, or, to
such other address as either the Company or the Investor shall
designate to the other by notice in writing in accordance with this
Paragraph 9.
10. Governing Law. This Subscription Agreement shall be governed by and
construed in accordance with the laws of Texas.
11. Representations and Warranties of the Company. The Company
represents and warrants to Investor as follows:
(a) The Company has legal capacity, power and authority to enter
into and perform this Agreement and to consummate the transaction
contemplated hereby.
<PAGE>
(b) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with
its terms.
(c) The execution and delivery of this agreement and the
performance of the obligations imposed hereunder will not result in
a violation of any order, decree or judgment of any court or
governmental agency having jurisdiction over Company or Company's
properties, will not conflict with, constitute a default under, or
result in the breach of, any contract agreement or other instrument
to which the Company is a party or is otherwise bound and no
consent, authorization or order of, or filing or registration with,
any court or governmental agency is required for the execution,
delivery and performance of this agreement.
(d) There is no litigation or proceeding or, to the best of the
Company's knowledge, threatened, against the Company which would
affect the validity or performance of this agreement.
(e) Upon consummation of the transaction contemplated hereby, the
Investor will own the Common Shares free and clear of all liens,
claims, charges and other encumbrances and the delivery of the
Common Shares to Investor pursuant to this agreement will transfer
legal and valid title thereto, free and clear of all liens, claims,
charges and other encumbrances.
(f) The Company will pay all transfer fees and expenses.
(g) The Common Shares when issued and delivered will be duly and
validly authorized and issued fully-paid and nonassessable and will
not subject the holders thereof to personal liability by reason of
being such holders. There are no preemptive rights of any
shareholder of the Company.
(h) The Company hereby agrees to indemnity and hold harmless the
Investor from and against any liability, damage, cost or expense
incurred as a result of breach by the Company of any representation,
warranty or covenant of the Company hereunder.
12. Signatures. The Investor declares under penalty of perjury that
the statements, representations and warranties contained herein and
in the following Investor Acknowledgments are true, correct and
complete and that this Securities Purchase Agreement was executed as
of January 26, 2000.
INVESTOR:
____________________________ (Name of company)
Tax ID: _______________________
<PAGE>
By:______________________________
Name printed:_____________________
Title: ____________________________
Registered Address: _____________________________________________________
AGREED AND ACCEPTED:
UNIVIEW TECHNOLOGIES CORPORATION
By:______________________________
Patrick A. Custer
President and CEO
APPENDIX "A"
INVESTOR ACKNOWLEDGMENTS
In order to induce uniView Technologies Corporation (the "Company")
to accept the foregoing Securities Purchase Agreement between the parties
dated as of an even date herewith, the Investor expressly acknowledges
the following by placing his or her initials (or, if the Investor is a
person other than an individual, the initials of an individual duly
empowered to act for the Investor) in each of the spaces provided below:
THE INVESTOR HAS RECEIVED, HAS CAREFULLY REVIEWED INFORMATION ON THE
COMPANY AND HAS MADE AN INDEPENDENT INVESTIGATION AND ANALYSIS OF THE
INVESTMENT.
THE INVESTOR HAS CAREFULLY READ THE FOREGOING SECURITIES
SUBSCRIPTION AGREEMENT AND IN PARTICULAR, HAS CAREFULLY READ AND
UNDERSTANDS THE INVESTOR'S REPRESENTATIONS AND WARRANTIES MADE THEREIN
AND CONFIRMS THAT ALL SUCH REPRESENTATIONS AND WARRANTIES ARE TRUE AND
CORRECT.
THE INVESTOR QUALIFIES UNDER THE FOLLOWING CATEGORY OR CATEGORIES OF
DEFINITIONS OF "ACCREDITED INVESTOR" (INDICATE EACH APPLICABLE CATEGORY):
(1) The Investor is a natural person whose individual net worth, or
joint net worth with that person's spouse, exceeds $1,000,000.
(______) Yes (______) No
(2) The Investor is a natural person who had an individual income
in excess of $200,000 in each of the two most recent years or
joint income with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation of
realizing the same income level in the current year.
(______) Yes (______) No
<PAGE>
(3) The Investor is a broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
(______) Yes (______) No
(4) The Investor is an insurance company, a registered securities
broker or dealer, a licensed Small Business Investment Company,
a registered investment company, a business development company
as defined in Section 2(a)(48) of the Investment Company Act of
1940 or a private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940.
(______) Yes (______) No
(5) The Investor is an organization described in Section 501(c)(3)
of the Internal Revenue Code of 1986, as amended, or a
corporation, Massachusetts or similar business trust or
partnership, not formed for the specific purpose of acquiring
the Units, with total assets in excess of $5,000,000.
(______) Yes (______) No
(6) The Investor is a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Units offered, whose purchase is directed by a person who
has such knowledge and experience that he or she is capable of
evaluating the merits and risks of the proposed investment.
(______) Yes (______) No
(7) The Investor is a bank, savings and loan association or similar
institution acting in its individual or fiduciary capacity, or
an employee benefit plan with total assets in excess of
$5,000,000.
(______) Yes (______) No
(8) The Investor is a Plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality of
a state or its political subdivisions for the benefit of its
employees, with total assets in excess of $5,000,000.
(______) Yes (______) No
(9) The Investor is an employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974 ("ERISA"),
the investment decisions for which are made by a plan
fiduciary, as defined in Section 3(21) of ERISA, which is
either a bank, savings and loan association, insurance company,
or registered investment adviser, or is an employee benefit
plan that has total assets in excess of $5,000,000.
(______) Yes (______) No
<PAGE>
(10) The Investor is an entity in which all of the equity owners are
accredited investors or individuals who are accredited
investors (as defined above).
(______) Yes (______) No
IN WITNESS WHEREOF, the Investor has executed and delivered this
Investor Acknowledgment as of January 26, 2000.
Official Signatory of Investor:
_______________________________
(Signature)
Name Printed: _______________________
Title: ______________________________
<PAGE>
THE SHARES OF COMMON STOCK (THE "COMMON SHARES") OFFERED HEREIN
ARE SUBJECT TO SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY.
SECURITIES PURCHASE AGREEMENT
UNIVIEW TECHNOLOGIES CORPORATION
Private Offering of Common Stock
In connection with the offer (the "Offering") and proposed issuance
of common shares, $0.10 par value per share ("Common Shares") and
warrants to purchase Common Shares of uniView Technologies Corporation,
17300 North Dallas Parkway, Suite 2050, Dallas, Texas 75248 (the
"Company"), the undersigned prospective investor(s) (the "Investor") and
the Company hereby agree as follows:
1. Subscription. The Investor hereby subscribes for the purchase of
the Common Shares and agrees to purchase the aggregate number of
Common Shares set forth on the signature page of this Agreement, at
the price reflected therein. The Company, in its sole discretion
and for any reason, may accept or reject this purchase in whole or
in part at any time prior to its execution hereof (the "Closing
Date").
2. Restricted Shares. Investor recognizes that the Common Shares, when
issued, will not have been registered for public sale under the
Securities Act of 1933 (the "Securities Act") or the securities laws
of any state and that the share certificate will bear a "Restricted
Stock" legend as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT FOR
SUCH SECURITIES UNDER SAID ACT, OR (2) AN OPINION OF COMPANY COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED."
3. Registration Rights. The Company shall, as promptly as
practicable, but no later than sixty (60) days after the date of
execution of this Agreement, prepare and file with the Commission a
registration statement sufficient to permit the public offering and
sale of the Common Shares through the facilities of the Nasdaq Stock
Market, and will use its best reasonable efforts through its
officers, directors, auditors, and counsel to cause such
registration statement to become effective as promptly as
practicable thereafter. The registration statement filed by the
Company pursuant to this section may include securities sold by the
Company or on behalf of persons other than Investor.
4. Payment of Purchase Price. The Investor shall pay for the Common
Shares by wire transfer of funds into the following bank account on
or before close of business on December 31, 1999 (the "Closing
Date"). Time is of the essence in this transaction.
The parties hereby agree that, upon receipt of the funds for payment
of the purchase price, the Company shall cause Common Share
certificate(s) to be issued in the Investor's name and delivered to
Investor.
<PAGE>
5. Company's Conditions. The Company's obligation to issue and sell
the Common Shares shall be subject to the satisfaction (or waiver by
it) of the following conditions precedent:
(a) Performance. The Investor shall have tendered payment for the
Common Shares.
(b) Representations. Each representation and warranty made by
the Investor in this agreement shall be true and correct in all
material respects as though made on and as of the Closing Date.
(c) Legality. No change shall have occurred in any law, rule or
regulation that would prohibit the consummation of any transaction
contemplated hereby.
(d) Litigation. No action, proceeding or investigation shall
have been commenced or threatened, nor shall any other judgment or
decree have been issued or be proposed to be issued by any court,
agency or authority to set aside, restrain, enjoin or prevent the
consummation of any transaction contemplated hereby.
6. Representations and Warranties. The Investor makes the
representations, declarations and warranties set forth in this
Section with the intent that the same may be relied upon in
determining the Investor's suitability as a purchaser of the Common
Shares. If the Investor includes or consists of more than one
person or entity, the obligations of the Investor shall be joint and
several and the representations and warranties herein contained
shall be deemed to be made by and be binding upon each such person
or entity and their respective legal representatives, heirs,
executors, administrators, successors and assigns.
(a) No Regulatory Review. The Investor is aware that this is a
limited private offering and that no federal, state or other agency
has made any finding or determination as to the fairness of the
investment nor made any recommendation or endorsement of the Common
Shares.
(b) Ability to Evaluate. The Investor, by reason of the
Investor's knowledge and experience in financial and business
matters, is capable of evaluating the risks and merits of an
investment in the Common Shares.
(c) Investment Intent. The Investor acknowledges that the purchase
of the Common Shares hereunder is being made for the Investor's own
account, or investment purposes only and not with the present
intention of distributing or reselling the Common Shares in whole or
in part. The Investor further understands that the Common Shares
are not being sold to the Investor in a transaction registered under
the Securities Act of 1933, as amended (the "Act"), or any other
state securities laws. As a result, the Investor understands that
there will be restrictions on the transfer and sale of the Common
Shares. The Investor further understands that the Company has
agreed to file a Registration Statement with the Securities and
Exchange Commission (the "SEC") with respect to the Common Shares at
the earliest practicable time. The Investor hereby agrees not to
sell or otherwise transfer the Common Shares until the Investor has
received notice from the Company that the Registration Statement has
been declared effective. Investor hereby agrees to exercise the
<PAGE>
registration rights granted hereby, and to sell the Common Shares
pursuant to the registration, only in a manner consistent with the
representations and warranties made by Investor to the Company
hereunder. Investor understands that the SEC may in its discretion
comment on certain aspects of the Registration Statement and the
transaction and that such comments may cause delay in the
Registration Statement becoming effective. Except as otherwise set
forth herein, the Company shall have no liability to Investor on
account of any such delay initiated by the SEC.
(d) Investment Information. The investor has received and reviewed
pertinent information regarding the Company, including the most
recent SEC Forms 10-K and 10-Q prior to the execution of this
Agreement and is capable of understanding and evaluating the
information contained therein. Specifically, the Investor is fully
aware of the risks relating to the business of the Company and
purchase of the Common Shares. The Investor will rely solely upon
its independent investigation and analysis in making the decision to
purchase the Common Shares. In particular, and without limiting the
generality of the foregoing, the Investor has not relied on, and the
Investor's decision to subscribe for Common Shares has not been
influenced by: (i) newspaper, magazine or other media articles or
reports related to the Company or its business; (ii) promotional
literature or other materials used by the Company for sales or
marketing purposes, or (iii) any other written or oral statement of
the Company or persons purporting to represent the Company. The
Investor has had the opportunity to discuss all aspects of this
transaction with management of the Company, has made or has had the
opportunity to make such inspection of the books and records of the
Company as the Investor has deemed necessary in connection with this
investment, and any questions asked have been answered to the
satisfaction of the Investor.
(e) Confidentiality. The Investor understands that the Offering
is confidential. The Investor has not distributed information on
the Offering to anyone other than such legal or financial advisors
as the Investor has deemed necessary for purposes of evaluating an
investment in the Common Shares.
(f) Authorization and Formation of Investor. The Investor,
if a corporation, partnership, trust or other form of business
entity, is authorized and otherwise duly qualified to purchase and
hold the Common Shares and such entity has not been formed for the
specific purposes of acquiring Common Shares in the Offering. If
the Investor is one of the aforementioned entities, it hereby agrees
that upon request of the Company it will supply the Company with any
additional written information that may be requested by the Company.
(g) Accredited Investor Status. The Investor is an "accredited
investor" as such term is defined in Rule 501(a) of Regulation D
under the Act and within the meaning of similar regulations under
state securities laws for the reasons indicated in the "Investor
Acknowledgments" accompanying this Agreement. If the Investor is an
individual, he or she is of majority age and his or her marital
status is as indicated in the "Investor Acknowledgments." If the
Investor is an entity, the person executing this Securities Purchase
Agreement on behalf of the Investor is of majority age.
<PAGE>
7. Reliance on Representations and Warranties. The Investor
understands that the Company will rely on the representations and
warranties of the Investor herein in determining whether a sale of
the Common Shares to the Investor is in compliance with federal and
applicable state securities laws.
8. Updating Information. All of the information set forth herein
with respect to the Investor, including, without limitation, all of
the representations and warranties set forth in Paragraph 6 of this
agreement, is correct and complete as of the date hereof and, if
there should be any material change in such information prior to the
acceptance of this subscription by the Company, the Investor will
immediately furnish the revised or corrected information to the
Company.
9. Notices. Any notice or other communications required or permitted
hereunder shall be sufficiently given if in writing and sent by
registered or certified mail, postage prepaid, return receipt
requested, if to the Company at the address set forth on the first
page of this Subscription Agreement, and to Investor, at the address
set forth in Paragraph 12 of this Subscription Agreement, or, to
such other address as either the Company or the Investor shall
designate to the other by notice in writing in accordance with this
Paragraph 9.
10. Governing Law. This Subscription Agreement shall be governed by and
construed in accordance with the laws of Texas.
11. Representations and Warranties of the Company. The Company
represents and warrants to Investor as follows:
(a) The Company has legal capacity, power and authority to enter
into and perform this Agreement and to consummate the transaction
contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with
its terms.
(c) The execution and delivery of this agreement and the
performance of the obligations imposed hereunder will not result in
a violation of any order, decree or judgment of any court or
governmental agency having jurisdiction over Company or Company's
properties, will not conflict with, constitute a default under, or
result in the breach of, any contract agreement or other instrument
to which the Company is a party or is otherwise bound and no
consent, authorization or order of, or filing or registration with,
any court or governmental agency is required for the execution,
delivery and performance of this agreement.
(d) There is no litigation or proceeding or, to the best of the
Company's knowledge, threatened, against the Company which would
affect the validity or performance of this agreement.
<PAGE>
(e) Upon consummation of the transaction contemplated hereby, the
Investor will own the Common Shares free and clear of all liens,
claims, charges and other encumbrances and the delivery of the
Common Shares to Investor pursuant to this agreement will transfer
legal and valid title thereto, free and clear of all liens, claims,
charges and other encumbrances.
(f) The Company will pay all transfer fees and expenses.
(g) The Common Shares when issued and delivered will be duly and
validly authorized and issued fully-paid and nonassessable and will
not subject the holders thereof to personal liability by reason of
being such holders. There are no preemptive rights of any
shareholder of the Company.
(h) The Company hereby agrees to indemnity and hold harmless the
Investor from and against any liability, damage, cost or expense
incurred as a result of breach by the Company of any representation,
warranty or covenant of the Company hereunder.
12. Signatures. The Investor declares under penalty of perjury that
the statements, representations and warranties contained herein and
in the following Investor Acknowledgments are true, correct and
complete and that this Securities Purchase Agreement was executed as
of ________________, 1999.
INVESTOR:
BONANZA PARTNERS, LTD. Tax I.D. #
By: Bonanza Capital, Ltd.,
a Texas limited partnership
By: Bernay Box & Co., Inc.,
A Texas corporation,
By: ___/s/ Bernay Box_____________
Bernay Box, President
AGREED AND ACCEPTED:
UNIVIEW TECHNOLOGIES CORPORATION
By:___/s/ Patrick A. Custer___________________
Patrick A. Custer, President and CEO
APPENDIX "A"
<PAGE>
INVESTOR ACKNOWLEDGMENTS
In order to induce uniView Technologies Corporation (the "Company")
to accept the foregoing Securities Purchase Agreement between the parties
dated as of an even date herewith, the Investor expressly acknowledges
the following by placing his or her initials (or, if the Investor is a
person other than an individual, the initials of an individual duly
empowered to act for the Investor) in each of the spaces provided below:
THE INVESTOR HAS RECEIVED, HAS CAREFULLY REVIEWED INFORMATION ON THE
COMPANY AND HAS MADE AN INDEPENDENT INVESTIGATION AND ANALYSIS OF THE
INVESTMENT.
THE INVESTOR HAS CAREFULLY READ THE FOREGOING SECURITIES PURCHASE
AGREEMENT AND IN PARTICULAR, HAS CAREFULLY READ AND UNDERSTANDS THE
INVESTOR'S REPRESENTATIONS AND WARRANTIES MADE THEREIN AND CONFIRMS THAT
ALL SUCH REPRESENTATIONS AND WARRANTIES ARE TRUE AND CORRECT.
THE INVESTOR QUALIFIES UNDER THE FOLLOWING CATEGORY OR CATEGORIES OF
DEFINITIONS OF "ACCREDITED INVESTOR" (INDICATE EACH APPLICABLE CATEGORY):
Category I. _____ The undersigned is an individual (not a
partnership, corporation, trust, etc.) whose net worth with the
undersigned's spouse presently exceeds $1 million. In calculating
net worth the undersigned may include equity in personal property
and real estate, estate, including the undersigned's principal
residence, cash, short-term investments, stocks, bonds, and
securities. Equity in personal property and real estate should be
based upon the fair market value of the property less any debt
secured by the property.
Category II. _____ The undersigned is an individual (not a
partnership, corporation, trust, etc.) who reasonably expects an
individual income in excess of $200,000 (or $300,000 with the
undersigned's spouse) in the current year and had an individual
income in excess of $200,000 (or $300,000 with the undersigned's
spouse) in each of the last two years. Income includes foreign
income, tax exempt income, and the full amount of any capital gains
and losses. Individual income does not include any income of the
undersigned's spouse or other family members; it also does not
include any unrealized capital appreciation.
Category III. _____ The undersigned is a bank, insurance
company, registered investment company, registered business
development company, license small business investment company, or
employee benefit plan within the meaning of Title I of ERISA whose
plan fiduciary is either a bank, insurance company or registered
investment advisor, or whose total assets exceed $5 million.
_________________
(Describe entity)
Category IV. _____ The undersigned is a private business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940, as amended.
_________________
(Describe entity)
<PAGE>
Category V. _____ The undersigned is a non-profit organization
within the meaning of Section 501(c)(3) of the Internal Revenue Code
of 1986, as amended, with total assets in excess of $5 million.
_________________
(Describe entity)
Category VI. _____ The undersigned is a trustee of a trust that
is revocable by the grantor at any time (including an individual
retirement account) and the grantor qualifies under either Category
I or Category II above. A copy of the trust agreement or
declaration of trust and a representation as to the net worth and
income of the grantor is enclosed with this Investor Acknowledgment.
Category VII. _____ The undersigned is an entity of which all
of the equity owners are "accredited investors" within one or more
of the categories. If this category is the only category checked,
each of the equity owners of the entity must complete a separate
copy of this Investor Acknowledgment.
_________________
(Describe entity)
IN WITNESS WHEREOF, the Investor has executed and delivered this
Investor Acknowledgment as of __________________, 1999.
Official Signatory of Investor:
BONANZA PARTNERS, LTD.
By: Bonanza Capital, Ltd.,
a Texas limited partnership
By: Bernay Box & Co., Inc.,
A Texas corporation,
By: __/s/ Bernay Box_________________
Bernay Box, President
<PAGE>
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE
HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAWS. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT
OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Date: _______________, 1999 Warrant No. _____________
UNIVIEW TECHNOLOGIES CORPORATION
STOCK PURCHASE WARRANT
This Warrant is issued for good and valuable consideration, receipt
of which is hereby acknowledged, to Bonanza Partners, Ltd. (the "Holder")
by uniView Technologies Corporation, a Texas corporation (the "Company").
1. Purchase of Shares. Subject to the terms and conditions
hereinafter set forth, the Holder is entitled, upon surrender of this
Warrant at the principal office of the Company (or at such other place as
the Company shall notify the Holder hereof in writing), to purchase from
the Company __________________ shares of par value $.10 Common Stock of
the Company (the "Shares"), as adjusted pursuant to the provisions of
this Warrant.
2. Exercise Price. The exercise price for the Shares shall be
_____________ per share. Such price shall be subject to adjustment
pursuant to Section 8 hereof (such price, as adjusted from time to time,
is herein referred to as the "Exercise Price").
3. Exercise Period. This Warrant is exercisable at any time and
from time to time and, except as provided below, shall remain so
exercisable for five (5) years from the date hereof. This Warrant shall
immediately terminate upon (a) the sale of all or substantially all the
assets of the Company or (b) the merger of the Company into or
consolidation with any other entity in which at least 50% of the voting
power of the Company is transferred. In the event of a transaction of
the kind described above, the Company shall notify the Holder at least
twenty (20) days prior to the consummation of such event or transaction.
4. Restricted Stock; Registration. The shares of Common Stock of
the Company purchased upon exercise of this Warrant ("Restricted Stock")
or purchasable upon exercise of this Warrant ("Underlying Stock") shall
not be transferable except upon the conditions stated below, which are
intended to insure compliance with federal and state securities laws.
The certificates representing these shares of stock, unless the same are
registered prior to exercise of this Warrant, shall be stamped or
otherwise imprinted with a legend in substantially the following form:
<PAGE>
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state. The securities have been
acquired for investment and may not be sold, offered for sale
or transferred in the absence of an effective registration
under the Securities Act of 1933, as amended, and any
applicable state securities laws or an opinion of counsel
satisfactory in form and substance to counsel for the Company
that the transaction shall not result in a violation of state
or federal securities laws."
5. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise,
in whole or in part, the purchase rights evidenced hereby. Such exercise
shall be effected by: (i) the surrender of the Warrant, together with a
duly executed copy of the form of exercise attached hereto, to the
Secretary of the Company at its principal offices; and (ii) the payment
to the Company of an amount equal to the aggregate Exercise Price for the
number of Shares being purchased.
6. Certificates for Shares. Upon the exercise of the purchase
rights evidenced by this Warrant, one or more certificates for the number
of Shares so purchased shall be issued as soon as practicable thereafter,
and in any event within 30 days of the delivery of the subscription
notice.
7. Reservation of Shares. The Company covenants that it will at
all times, keep available such number of authorized shares of its Common
Stock, free from all preemptive rights with respect thereto, which will
be sufficient to permit the exercise of this Warrant for the full number
of Shares specified herein, upon exercise of this Warrant. The Company
further covenants that such Shares, when issued pursuant to the exercise
of this Warrant, will be duly and validly issued, fully paid and non-
assessable and free from all taxes, liens and charges with respect to the
issuance thereof.
8. Adjustment of Exercise Price and Number of Shares. The number
of and kind of securities purchasable upon exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time as
follows:
(a) Subdivisions and Combinations. If the Company shall at
any time prior to the expiration of this Warrant subdivide its Common
Stock by split-up or otherwise, or combine its Common Stock, the number
of Shares issuable on the exercise of this Warrant shall forthwith be
proportionately increased in the case of a subdivision, or
proportionately decreased in the case of a combination. Appropriate
adjustments shall also be made to the purchase price payable per share,
but the aggregate purchase price payable for the total number of Shares
purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 7(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(b) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of the
Warrant, or in the Warrant Price, the Company shall promptly notify the
Holder of such event and of the number of shares of Common Stock or other
securities or property thereafter purchasable upon exercise of the
Warrant.
<PAGE>
9. No Fractional Shares. No fractional shares shall be issued
upon the exercise of this Warrant, and the number of shares of stock
issued upon exercise of this Warrant shall be rounded to the nearest
whole share.
10. No Stockholder Rights. Prior to the exercise of this Warrant,
the Holder shall not be entitled to any rights of a shareholder with
respect to the Shares, including (without limitation) the right to vote
such Shares, receive dividends or other distributions thereon, exercise
preemptive rights or be notified of shareholder meetings, and such Holder
shall not be entitled to any notice or other communication concerning the
business or affairs of the Company.
11. Exchange of Warrant. Subject to any restriction upon transfer
set forth in this Warrant, each Warrant may be exchanged for another
Warrant or Warrants of like tenor and representing in the aggregate a
like number of Warrants. Any Holder desiring to exchange a Warrant or
Warrants shall make such request in writing delivered to the Company, and
shall surrender, properly endorsed, the Warrant or Warrants to be so
exchanged.
12. Mutilated or Missing Warrants. In case any Warrant shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver
in exchange and substitution for and upon cancellation of the mutilated
Warrant, or in lieu of and substitution for the Warrant lost, stolen or
destroyed, a new Warrant of like tenor and representing an equivalent
right or interest, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction of such
Warrant and indemnity or bond, if requested, also reasonably satisfactory
to the Company. An applicant for such substitute Warrant shall also
comply with such other reasonable regulations and pay such other
reasonable charges as the Company may prescribe.
13. Payment of Taxes. The Company will pay all taxes (other than
any income taxes or other similar taxes), if any, attributable to the
initial issuance of the Warrant and the issuance of the Shares upon the
exercise of the Warrant, provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of the
issuance or delivery of any Warrant, or the transfer thereof, and no such
issuance, delivery or transfer shall be made unless and until the person
requesting such issuance or transfer has paid to the Company the amount
of any such tax, or has established, to the satisfaction of the Company,
that no such tax is payable or such tax has been paid.
14. Warrant Register. The Warrants shall be numbered and shall be
registered on the books of the Company (the "Warrant Register") as they
are issued. The Company shall be entitled to treat the registered holder
of any Warrant on the Warrant Register as the owner in fact thereof for
all purposes and shall not be bound to recognize any equitable or other
claim to or interest in such Warrant on the part of any other person, and
shall not be liable for any registration or transfer of Warrants which
are registered or to be registered in the name of a fiduciary or the
nominee of a fiduciary unless made with the actual knowledge that a
fiduciary or nominee is committing a breach of trust in requesting such
registration of transfer, or with knowledge of such facts that its
participation therein amounts to bad faith.
<PAGE>
15. Transfer of Warrants. The Warrants shall be transferable on
the Warrant Register only upon delivery thereof duly endorsed by the
Holder or by his duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment or authority to
transfer. In all cases of transfer by an attorney, the original power of
attorney, duly approved, or an official copy thereof, duly certified
shall be deposited with the Company. In case of transfer by executors,
administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced, and may be
required to be deposited with the Company in its discretion. Upon any
registration of transfer, the Company shall deliver a new Warrant or
Warrants to the Person entitled thereto. Notwithstanding the foregoing,
the Company shall have no obligation to cause Warrants to be transferred
on its books to any Person, unless the Holder of such Warrants shall
furnish to the Company evidence of compliance with the Securities Act of
1933, as amended, and applicable state blue sky laws.
16. Successors and Assigns. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company
and the holders hereof and their respective successors and assigns.
17. Amendments and Waivers. This Warrant may be amended, modified,
superseded or cancelled, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, only by a
written instrument signed by the parties to be bound thereby. Any waiver
or amendment effected in accordance with this Section shall be binding
upon each holder of any Shares purchased under this Warrant at the time
outstanding (including securities into which such Shares have been
converted), each future holder of all such Shares, and the Company.
18. Governing Law. This Warrant and the validity and
enforceability hereof shall be governed by and construed and interpreted
in accordance with the laws of the State of Texas without giving effect
to conflict of laws rules or choice of laws rules thereof.
IN WITNESS WHEREOF, the undersigned hereby executes this Stock
Purchase Warrant as of the date first written above.
UNIVIEW TECHNOLOGIES CORPORATION
By:
Patrick A. Custer, President
NOTICE OF EXERCISE
To: uniView Technologies Corporation (the "Company")
(1) The undersigned ("Holder") hereby elects to exercise its rights
to purchase __________________________ shares of the Common Stock of the
Company (the "Securities") pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price in full, together with
all applicable transfer taxes, if any.
<PAGE>
(2) Please issue a certificate or certificates representing the
Securities in the name of the undersigned Holder:
_______________________________
(Name)
_______________________________
(Address)
(3) With respect to the Securities being purchased hereunder, the
Holder makes, as of the date hereof, all of the representations and
warranties set forth below:
(a) Holder is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the
Securities. Holder is purchasing these Securities for its own account
for investment purposes only and not with a view to, or for the resale in
connection with, any "distribution" thereof for purposes of the
Securities Act of 1933, as amended ("Securities Act").
(b) Holder understands that the Securities have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona
fide nature of its investment intent as expressed herein. In this
connection, Holder understands that, in the view of the Securities and
Exchange Commission ("SEC"), the statutory basis for such exemption may
be unavailable if its representation was predicated solely upon a present
intention to hold these Securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a
period of one year or any other fixed period in the future.
(c) Holder further understands that the Securities must be
held indefinitely unless subsequently registered under the Securities Act
or unless an exemption from registration is otherwise available. In
addition, Holder understands that the instruments or certificates
evidencing the Securities will be imprinted with a legend which prohibits
the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel for the Company.
(d) Holder is aware of the provisions of Rule 144, promulgated
under the Securities Act, which in substance, permits limited public
resale of "restricted securities" acquired, directly or indirectly, from
the issuer thereof (or from an affiliate of such issuer), in a non-public
offering subject to the satisfaction of certain conditions, including,
among other things: the availability of certain public information about
the Company; the resale occurring not less than one year after the party
has purchased and paid for the securities to be sold; the sale being made
through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under
the Securities Exchange Act of 1934, as amended) and the amount of
securities being sold during any three month period not exceeding the
specified limitations stated therein.
<PAGE>
(e) Holder further understands that at the time Holder wishes
to sell the Securities there may be no public market upon which to make
such a sale, and that, even if such a public market then exists the
Company may not be satisfying the current public information requirements
of Rule 144, and that, in such event, Holder could be precluded from
selling the Securities under Rule 144 even if the one-year minimum
holding period had been satisfied.
(f) Holder further understands that in the event all of the
requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule
144 is not exclusive, the Staff of the SEC has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons
and their respective brokers who participate in such transactions do so
at their own risk.
__________________________ ______________________________
(Date) (Signature and Title)
______________________________
(Name printed)
<PAGE>
-- FORM ONLY --
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE
HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAWS. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT
OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Date: October 29, 1999 Warrant No. ______________
UNIVIEW TECHNOLOGIES CORPORATION
STOCK PURCHASE WARRANT
This Warrant is issued for good and valuable consideration, receipt
of which is hereby acknowledged, to ________________ (the "Holder") by
uniView Technologies Corporation, a Texas corporation (the "Company").
1. Purchase of Shares. Subject to the terms and conditions
hereinafter set forth, the Holder is entitled, upon surrender of this
Warrant at the principal office of the Company (or at such other place as
the Company shall notify the Holder hereof in writing), to purchase from
the Company _____________ Thousand (_______,000) shares of par value $.10
Common Stock of the Company (the "Shares"), as adjusted pursuant to the
provisions of this Warrant.
2. Exercise Price. The exercise price for the Shares shall be
Three and NO/100 Dollars ($3.00) per share. Such price shall be subject
to adjustment pursuant to Section 8 hereof (such price, as adjusted from
time to time, is herein referred to as the "Exercise Price").
3. Exercise Period. This Warrant is exercisable at any time and
from time to time and, except as provided below, shall remain so
exercisable for three (3) years from the date hereof. This Warrant shall
immediately terminate upon (a) the sale of all or substantially all the
assets of the Company or (b) the merger of the Company into or
consolidation with any other entity in which at least 50% of the voting
power of the Company is transferred. In the event of a transaction of
the kind described above, the Company shall notify the Holder at least
twenty (20) days prior to the consummation of such event or transaction.
4. Restricted Stock; Registration. The shares of Common Stock of
the Company purchased upon exercise of this Warrant ("Restricted Stock")
or purchasable upon exercise of this Warrant ("Underlying Stock") shall
not be transferable except upon the conditions stated below, which are
intended to insure compliance with federal and state securities laws.
The certificates representing these shares of stock, unless the same are
registered prior to exercise of this Warrant, shall be stamped or
otherwise imprinted with a legend in substantially the following form:
<PAGE>
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state. The securities have been
acquired for investment and may not be sold, offered for sale
or transferred in the absence of an effective registration
under the Securities Act of 1933, as amended, and any
applicable state securities laws or an opinion of counsel
satisfactory in form and substance to counsel for the Company
that the transaction shall not result in a violation of state
or federal securities laws."
5. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise,
in whole or in part, the purchase rights evidenced hereby. Such exercise
shall be effected by: (i) the surrender of the Warrant, together with a
duly executed copy of the form of exercise attached hereto, to the
Secretary of the Company at its principal offices; and (ii) the payment
to the Company of an amount equal to the aggregate Exercise Price for the
number of Shares being purchased.
6. Certificates for Shares. Upon the exercise of the purchase
rights evidenced by this Warrant, one or more certificates for the number
of Shares so purchased shall be issued as soon as practicable thereafter,
and in any event within 30 days of the delivery of the subscription
notice.
7. Reservation of Shares. The Company covenants that it will at
all times, keep available such number of authorized shares of its Common
Stock, free from all preemptive rights with respect thereto, which will
be sufficient to permit the exercise of this Warrant for the full number
of Shares specified herein, upon exercise of this Warrant. The Company
further covenants that such Shares, when issued pursuant to the exercise
of this Warrant, will be duly and validly issued, fully paid and non-
assessable and free from all taxes, liens and charges with respect to the
issuance thereof.
8. Adjustment of Exercise Price and Number of Shares. The number
of and kind of securities purchasable upon exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time as
follows:
(a) Subdivisions and Combinations. If the Company shall at
any time prior to the expiration of this Warrant subdivide its Common
Stock by split-up or otherwise, or combine its Common Stock, the number
of Shares issuable on the exercise of this Warrant shall forthwith be
proportionately increased in the case of a subdivision, or
proportionately decreased in the case of a combination. Appropriate
adjustments shall also be made to the purchase price payable per share,
but the aggregate purchase price payable for the total number of Shares
purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 7(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(b) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of the
Warrant, or in the Warrant Price, the Company shall promptly notify the
Holder of such event and of the number of shares of Common Stock or other
securities or property thereafter purchasable upon exercise of the
Warrant.
<PAGE>
9. No Fractional Shares. No fractional shares shall be issued
upon the exercise of this Warrant, and the number of shares of stock
issued upon exercise of this Warrant shall be rounded to the nearest
whole share.
10. No Stockholder Rights. Prior to the exercise of this Warrant,
the Holder shall not be entitled to any rights of a shareholder with
respect to the Shares, including (without limitation) the right to vote
such Shares, receive dividends or other distributions thereon, exercise
preemptive rights or be notified of shareholder meetings, and such Holder
shall not be entitled to any notice or other communication concerning the
business or affairs of the Company.
11. Exchange of Warrant. Subject to any restriction upon transfer
set forth in this Warrant, each Warrant may be exchanged for another
Warrant or Warrants of like tenor and representing in the aggregate a
like number of Warrants. Any Holder desiring to exchange a Warrant or
Warrants shall make such request in writing delivered to the Company, and
shall surrender, properly endorsed, the Warrant or Warrants to be so
exchanged.
12. Mutilated or Missing Warrants. In case any Warrant shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver
in exchange and substitution for and upon cancellation of the mutilated
Warrant, or in lieu of and substitution for the Warrant lost, stolen or
destroyed, a new Warrant of like tenor and representing an equivalent
right or interest, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction of such
Warrant and indemnity or bond, if requested, also reasonably satisfactory
to the Company. An applicant for such substitute Warrant shall also
comply with such other reasonable regulations and pay such other
reasonable charges as the Company may prescribe.
13. Payment of Taxes. The Company will pay all taxes (other than
any income taxes or other similar taxes), if any, attributable to the
initial issuance of the Warrant and the issuance of the Shares upon the
exercise of the Warrant, provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of the
issuance or delivery of any Warrant, or the transfer thereof, and no such
issuance, delivery or transfer shall be made unless and until the person
requesting such issuance or transfer has paid to the Company the amount
of any such tax, or has established, to the satisfaction of the Company,
that no such tax is payable or such tax has been paid.
14. Warrant Register. The Warrants shall be numbered and shall be
registered on the books of the Company (the "Warrant Register") as they
are issued. The Company shall be entitled to treat the registered holder
of any Warrant on the Warrant Register as the owner in fact thereof for
all purposes and shall not be bound to recognize any equitable or other
claim to or interest in such Warrant on the part of any other person, and
shall not be liable for any registration or transfer of Warrants which
are registered or to be registered in the name of a fiduciary or the
nominee of a fiduciary unless made with the actual knowledge that a
fiduciary or nominee is committing a breach of trust in requesting such
registration of transfer, or with knowledge of such facts that its
participation therein amounts to bad faith.
<PAGE>
15. Transfer of Warrants. The Warrants shall be transferable on
the Warrant Register only upon delivery thereof duly endorsed by the
Holder or by his duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment or authority to
transfer. In all cases of transfer by an attorney, the original power of
attorney, duly approved, or an official copy thereof, duly certified
shall be deposited with the Company. In case of transfer by executors,
administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced, and may be
required to be deposited with the Company in its discretion. Upon any
registration of transfer, the Company shall deliver a new Warrant or
Warrants to the Person entitled thereto. Notwithstanding the foregoing,
the Company shall have no obligation to cause Warrants to be transferred
on its books to any Person, unless the Holder of such Warrants shall
furnish to the Company evidence of compliance with the Securities Act of
1933, as amended, and applicable state blue sky laws.
16. Successors and Assigns. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company
and the holders hereof and their respective successors and assigns.
17. Amendments and Waivers. This Warrant may be amended, modified,
superseded or cancelled, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, only by a
written instrument signed by the parties to be bound thereby. Any waiver
or amendment effected in accordance with this Section shall be binding
upon each holder of any Shares purchased under this Warrant at the time
outstanding (including securities into which such Shares have been
converted), each future holder of all such Shares, and the Company.
18. Governing Law. This Warrant and the validity and
enforceability hereof shall be governed by and construed and interpreted
in accordance with the laws of the State of Texas without giving effect
to conflict of laws rules or choice of laws rules thereof.
IN WITNESS WHEREOF, the undersigned hereby executes this Stock
Purchase Warrant as of the date first written above.
UNIVIEW TECHNOLOGIES CORPORATION
By:
Patrick A. Custer, President
NOTICE OF EXERCISE
To: uniView Technologies Corporation (the "Company")
(1) The undersigned ("Holder") hereby elects to exercise its rights
to purchase __________________________ shares of the Common Stock of the
Company (the "Securities") pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price in full, together with
all applicable transfer taxes, if any.
<PAGE>
(2) Please issue a certificate or certificates representing the
Securities in the name of the undersigned Holder:
_______________________________
(Name)
_______________________________
(Address)
(3) With respect to the Securities being purchased hereunder, the
Holder makes, as of the date hereof, all of the representations and
warranties set forth below:
(a) Holder is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the
Securities. Holder is purchasing these Securities for its own account
for investment purposes only and not with a view to, or for the resale in
connection with, any "distribution" thereof for purposes of the
Securities Act of 1933, as amended ("Securities Act").
(b) Holder understands that the Securities have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona
fide nature of its investment intent as expressed herein. In this
connection, Holder understands that, in the view of the Securities and
Exchange Commission ("SEC"), the statutory basis for such exemption may
be unavailable if its representation was predicated solely upon a present
intention to hold these Securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a
period of one year or any other fixed period in the future.
(c) Holder further understands that the Securities must be
held indefinitely unless subsequently registered under the Securities Act
or unless an exemption from registration is otherwise available. In
addition, Holder understands that the instruments or certificates
evidencing the Securities will be imprinted with a legend which prohibits
the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel for the Company.
(d) Holder is aware of the provisions of Rule 144, promulgated
under the Securities Act, which in substance, permits limited public
resale of "restricted securities" acquired, directly or indirectly, from
the issuer thereof (or from an affiliate of such issuer), in a non-public
offering subject to the satisfaction of certain conditions, including,
among other things: the availability of certain public information about
the Company; the resale occurring not less than one year after the party
has purchased and paid for the securities to be sold; the sale being made
through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under
the Securities Exchange Act of 1934, as amended) and the amount of
securities being sold during any three month period not exceeding the
specified limitations stated therein.
<PAGE>
(e) Holder further understands that at the time Holder wishes
to sell the Securities there may be no public market upon which to make
such a sale, and that, even if such a public market then exists the
Company may not be satisfying the current public information requirements
of Rule 144, and that, in such event, Holder could be precluded from
selling the Securities under Rule 144 even if the one-year minimum
holding period had been satisfied.
(f) Holder further understands that in the event all of the
requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule
144 is not exclusive, the Staff of the SEC has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons
and their respective brokers who participate in such transactions do so
at their own risk.
__________________________ ______________________________
(Date) (Signature and Title)
______________________________
(Name printed)
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
October 29, 1999, by and between uniView Technologies Corporation, a
Texas corporation ("uniView"), and Softgen International, Inc., a British
Virgin Islands corporation, its shareholders, and designees
(collectively, the "Softgen Group").
WHEREAS, Softgen Group and uniView are parties to that certain Sale
and Purchase Agreement (the "Acquisition Agreement"), of even date
herewith;
WHEREAS, pursuant to the Acquisition Agreement, Softgen Group will
be issued 1,175,000 shares and warrants to purchase an additional
1,175,000 shares of uniView's Common Stock, par value $.10 per share (the
"Common Stock") as consideration for the purchase of the assets of
Softgen International, Inc.;
WHEREAS, to induce Softgen Group to enter into the Acquisition
Agreement, uniView has agreed to grant the registration and other rights
contained in this Registration Rights Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the capitalized
terms set forth below shall have the following meanings:
(1) "Affiliate" means, with respect to any person, any other
person who, directly or indirectly, is in control of, is controlled by or
is under common control with such person.
(2) "Holder(s)" means the holders of Registrable Securities.
(3) "Registrable Securities" means the shares of Common Stock
issuable to Softgen Group pursuant to the Acquisition Agreement, any
stock or other securities into which or for which such shares of Common
Stock may hereafter be changed, converted or exchanged, and any other
securities issued to the Holders of such shares of Common Stock (or such
shares into which or for which such shares are so changed, converted or
exchanged) upon any reclassification, share combination, share subdivision,
share dividend, merger, consolidation or similar transactions or events;
provided that any such securities shall cease to be Registrable
Securities if (i) a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act (as
defined below) and such securities shall have been disposed of in
accordance with the plan of distribution set forth in such registration
statement, or (ii) such securities shall have been transferred pursuant
to Rule 144 (as defined below).
<PAGE>
(4) "Registration Expenses" means all expenses incurred by
uniView in connection with any registration of Registrable Securities
pursuant to this Agreement including, without limitation, the following:
(i) SEC filing fees; (ii) the fees, disbursements and expenses of
uniView's counsel(s) and accountants in connection with the registration
of the Registrable Securities to be disposed of under the Securities Act,
(iii) all expenses of uniView and its agents and representatives in
connection with the preparation, printing and filing of the registration
statement, any preliminary prospectus or final prospectus and amendments
and supplements thereto and the mailing and delivering of a reasonable
number of copies thereof to any Holders, underwriters and dealers and all
actual expenses incidental to delivery of the Registrable Securities; (iv)
the cost of producing blue sky memoranda; (v) all expenses in connection
with the qualification of the Registrable Securities to be disposed of
for offering and sale under state securities laws; (vi) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Registrable
Securities to be disposed of; (vii) the expenses of uniView's transfer
agent and registrar appointed in connection with such offering, (viii)
all engraving and printing expenses for the uniView securities being
offered; and (ix) all fees and expenses payable in connection with the
listing of the Registrable Securities on each securities exchange or
inter-dealer quotation system on which a class of common equity
securities of uniView is then listed.
(5) "Rule 144" means Rule 144 promulgated under the Securities
Act (as defined below), or any successor rule to similar effect.
(6) "Rule 144 Resale Eligible" means that for the period after
the holding period restrictions under Rule 144(d) have elapsed, all shares
of Registrable Securities are eligible for resale under Rule 144 without
restriction under Rule 144(e) upon the amount of Registrable Securities
which may be sold.
(7) "SEC" means the United States Securities and Exchange
Commission.
(8) "Securities Act" means the Securities Act of 1933, as amended,
or any successor statute.
2. Piggy-back Registration. At any time from the date of this
Agreement until the time when all the Registrable Securities are Rule 144
Resale Eligible (and if such Registrable Securities ever cease to be Rule
144 Resale Eligible, then until such time as they again become Rule 144
Resale Eligible), if uniView proposes to register any of its Common Stock
or any other of its common equity securities (but not including debt
instruments or preferred stock convertible into its common equity
securities) (collectively, "Other Securities") under the Securities Act
(other than a registration on Form S-4 or S-8 or any successor form
thereto), whether or not for sale for its own account, in a manner which
would permit registration of Registrable Securities for sale for cash to
the public under the Securities Act, it will each such time give prompt
written notice to each Holder of its intention to do so at least ten (10)
days prior to the anticipated filing date of the registration statement
relating to such registration. Such notice shall offer each such Holder
the opportunity to include in such registration statement such number of
Registrable Securities as each such Holder may request. Upon the written
<PAGE>
request of any such Holder made no later than the tenth (10th) day after
the receipt of uniView's notice (which request shall specify the number
of Registrable Securities intended to be disposed of and the intended
method of disposition thereof), uniView shall use its best efforts to
effect, in the manner set forth in Section 5, in connection with the
registration of the Other Securities, the registration under the
Securities Act of all Registrable Securities which uniView has been so
requested to register, to the extent required to permit the disposition
(in accordance with such intended methods thereof) of the Registrable
Securities so requested to be registered; provided that:
(1) (i) if the registration referred to in the first sentence
of this Section 2 is to be an underwritten registration, and the managing
underwriter advises uniView in writing that, in such firm's opinion, such
offering would be materially and adversely affected by the inclusion
therein of the Registrable Securities requested to be included therein,
uniView shall include in such registration: (1) first, all securities
uniView proposes to sell for its own account ("uniView Securities") if
uniView Securities are proposed to be included in such registration, (2)
second, if the registration is pursuant to the demand registration right
of holders of securities to be included in such registration pursuant to
agreements with uniView ("Other Holders"), securities of such Other
Holders, (3) third, up to the full number of Registrable Securities in
excess of the number or dollar amount of uniView Securities and
securities of Other Holders, which, in the good faith opinion of such
managing underwriter, can be so sold without materially and adversely
affecting such offering and, if less than the full number of such
Registrable Securities, allocated among the Holders of such Registrable
Securities pro rata on the basis of the number of Registrable Securities
requested to be registered by each Holder, and (4) fourth, all other
securities proposed to be registered.
(2) uniView shall not be required to effect any registration of
Registrable Securities under this Section 2 incidental to the
registration of any of its securities in connection with mergers,
acquisitions, dividend reinvestment plans or stock option or award or
other executive or employee benefit or compensation plans.
3. Demand Registration.
(1) If, on the six month anniversary of the date of this
Agreement, uniView has not effected a registration of Registrable
Securities pursuant to Section 2 hereof pursuant to which all of the
Registrable Securities were sold, then (i) at any time from the six month
anniversary of the date of this Agreement until all of the Registrable
Securities have been sold pursuant to a registration effected under the
terms of this Agreement or have become Rule 144 Resale Eligible (and
if such Registrable Securities ever cease to be Rule 144 Resale Eligible,
then until such time as they again become Rule 144 Resale Eligible), and
(ii) upon written notice from a Holder or Holders of more than 50% of
the Registrable Securities (the "Initiating Holders") in the manner set
forth in Section 11(h) hereof requesting that uniView effect the
registration under the Securities Act of any or all of the Registrable
Securities held by such Holders (which notice shall specify the intended
method or methods of disposition of such Registrable Securities), uniView
shall use its best efforts to effect, in the manner set forth in Section
5, the registration under the Securities Act of such Registrable Securities
<PAGE>
for disposition in accordance with the intended method or methods
of disposition stated in such request; provided that uniView shall not be
obligated to file more than one (1) registration statement under the
Securities Act relating to a registration request pursuant to this
Section 3(a).
(2) Notwithstanding any other provision of this Agreement to the
contrary, a registration requested by a Holder pursuant to this Section 3
shall not be deemed to have been effected (and, therefore, not requested
for purposes of Section 3(a)): (A) if it is withdrawn based upon material
adverse information relating to uniView that is different from the
information (x) known to the Holders requesting registration at the time
of their request for registration, or (y) promptly disclosed by uniView
to the Holder at the time of their request for registration; (B) if, when
effective, it includes fewer than ninety (90%) percent of the number of
shares of Registrable Securities which were the subject matter of the
request; (C) if after it has become effective such registration is
interfered with by uniView invoking its rights under subsection 6(e) or
any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder and, as a result thereof,
less than ninety (90%) percent of the Registrable Securities requested to
be registered can be completely distributed in accordance with the plan
of distribution set forth in the related registration statement.
(3) In the event that any registration pursuant to this Section
3 shall involve, in whole or in part, an underwritten offering, uniView
shall have the right to designate the underwriter or underwriters, including
the lead managing underwriter of such underwritten offering.
(4) Upon receipt of written notice from the Initiating Holders
under Section 3(a) hereto, uniView shall, within five (5) days, give
prompt written notice to all other Holders of Registrable Securities of
such notice and of its intent to effect the registration of Registrable
Securities pursuant to this Agreement. Such notice shall offer each such
Holder the opportunity to include in such registration statement such
number of Registrable Securities as each such Holder may request.
(5) Holders other than the Initiating Holders and holders of
other registrable securities with the right to participate in a uniView
registration statement shall have the right to include their shares of
Registrable Securities or other registrable securities, as the case may
be, in any registration pursuant to Section 3(a). In connection with
those registrations in which multiple Holders or holders of other
registrable securities with the right to participate in such registration
("piggy-back rights holders") participate, in the event the facilitating
broker/dealer or, in an underwritten offering, the lead managing
underwriter advises that marketing factors require a limitation on the
number of shares to be sold, the number of shares to be included in the
sale or underwriting and registration shall be allocated (i) first, to
the Holders, and, if less than the full number of Registrable Securities
of such Holders, then pro rata on the basis of the number of Registrable
Securities requested to be registered by each Holder, and (ii) second, to
the holders seeking registration pursuant to piggy-back registration
rights otherwise granted by uniView pro rata on the basis of the number
of securities requested to be registered by each such holder in such
registration.
<PAGE>
4. Expenses. uniView agrees to pay all Registration Expenses with
respect to an offering pursuant to Section 2 and Section 3 hereof, but
not commissions or underwriting discounts in connection with an offering,
which shall be the expense of the Holder(s).
5. Registration and Qualification. If and whenever uniView is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2
or 3 hereof, uniView shall:
(1) prepare and file a registration statement under the
Securities Act relating to the Registrable Securities to be offered
as soon as practicable, but in no event later than thirty (30) days after
the date notice is given, and use its best efforts to cause the same to
become effective as promptly as practicable;
(2) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for sixty (60) days (or, in the case of an underwritten
offering, such shorter time period as the underwriters may require);
(3) furnish to the Holders and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, and such other documents, as the Holders or such
underwriter may reasonably request in order to facilitate the public sale
of the Registrable Securities, and a copy of any and all transmittal
letters or other correspondence to, or received from, the SEC or any
other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange)
relating to such offering;
(4) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or
blue sky laws of such United States jurisdictions as the Holders or any
underwriter of such Registrable Securities shall request, and use its
best efforts to obtain all appropriate registrations, permits and
consents required in connection therewith, and do any and all other acts
and things which may be necessary or advisable to enable the Holders or
any such underwriter to consummate the disposition in such jurisdictions
of its Registrable Securities covered by such registration statement;
provided that uniView shall not for any such purpose be required to
register or qualify generally to do business as a foreign corporation in
any jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
(5) (i) use its best efforts to furnish an opinion of counsel
for uniView in customary form required to register the securities with
the Securities Exchange Commission, and (ii) use its best efforts to
furnish a "cold comfort" letter addressed to each Selling Holder, if
permissible under applicable accounting practices, and signed by the
independent public accountants who have audited uniView's financial
statements included in such registration statement, in each such case
<PAGE>
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of securities
and such other matters as the Selling Holders may reasonably request and,
in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements;
(6) immediately notify the Selling Holders in writing (i) at
any time when a prospectus relating to a registration pursuant to Section
2 or 3 hereof is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and (ii) of any request by the SEC or any other regulatory body or other
body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and
in either such case (i) or (ii) above and at the request of the Selling
Holders (subject to Section 4 hereof) promptly prepare and furnish to the
Selling Holders a number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(7) list all such Registrable Securities covered by such
registration on each national securities exchange and United States
inter-dealer quotation system on which a class of common equity securities
of uniView is then listed, with expenses in connection therewith to be
paid in accordance with Section 4 hereof; and
(8) furnish unlegended certificates representing ownership of
the Registrable Securities being sold in such denominations as shall
be requested by the Selling Holders or the underwriters with expenses
therewith to be paid in accordance with Section 4 hereof.
6. Underwriting, Due Diligence.
(1) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested
under this Agreement, uniView shall enter into an underwriting agreement
with such underwriters for such offering, such agreement to contain
such representations and warranties by uniView and such other terms
and provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, without limitation,
indemnities and contribution substantially to the effect and to the
extent provided in Section 7 hereof and the provision of opinions of
counsel and accountants' letters to the effect and to the extent provided
in Section 5(e) hereof. The Selling Holders on whose behalf the
Registrable Securities are to be distributed by such underwriters shall
be parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, uniView to and
for the benefit of such underwriters, shall also be made to and for the
benefit of such Selling Holders. Such underwriting agreement shall also
contain such representations and warranties by the Selling Holders on
<PAGE>
whose behalf the Registrable Securities are to be distributed as are
customarily contained in underwriting agreements with respect to
secondary distributions. Selling Holders may require that any additional
securities included in an offering proposed by a Holder be included on
the same terms and conditions as the Registrable Securities that are
included therein.
(2) In the event that any registration pursuant to Section 2
shall involve, in whole or in part, an underwritten offering, uniView may
require the Registrable Securities requested to be registered pursuant to
Section 2 to be included in such underwriting on the same terms and
conditions as shall be applicable to the other securities being sold
through underwriters under such registration. If requested by the
underwriters for such underwritten offering, the Selling Holders on whose
behalf the Registrable Securities are to be distributed shall enter into
an underwriting agreement with such underwriters, such agreement to
contain such representations and warranties by the Selling Holders and
such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities and contribution substantially
to the effect and to the extent provided in Section 7 hereof. Such
underwriting agreement shall also contain such representations and
warranties by uniView and such other person or entity for whose account
securities are being sold in such offering as are customarily contained
in underwriting agreements with respect to secondary distributions.
(3) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the
Securities Act, uniView shall give, subject to all parties executing
confidentiality agreements with uniView on terms reasonably acceptable to
uniView, the Holders of such Registrable Securities and the underwriters,
if any, and their respective counsel and accountants, such reasonable and
customary access to its books and records and such opportunities to
discuss the business of uniView with its officers and the independent
public accountants who have certified uniView's financial statements as
shall be necessary, in the opinion of such Holder and such underwriters
or their respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
(4) uniView may require each Selling Holder of Registrable
Securities as to which any Registration is being effected to furnish
uniView with a properly completed and executed selling shareholder
questionnaire in customary form and substance as may be reasonably
requested by uniView and such information regarding the proposed
disposition of such securities as uniView may from time to time reasonably
request in writing. In addition, with respect to any underwritten offering,
each Selling Holder of Registrable Securities shall furnish such customary
and reasonable documents as the lead underwriter may request, including
custodial agreements and powers of attorney.
(5) Each Holder of Registrable Securities agrees by acquisition
of such Registrable Securities that, upon receipt of written notice from
uniView of the occurrence of any event of the kind described in subsection
5(f) which written notice specifically references such subsection and
this subsection 6(e), such Holder will as promptly as possible discontinue
disposition of the Registrable Securities pursuant to the Registration
Statement until such Holder's receipt of copies of the supplemented or
amended Prospectus as contemplated by subsection 5(f) or until it is
advised in writing by uniView that the use of the Prospectus may be
<PAGE>
resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (which in
each case shall be provided as promptly as practicable but in any event
within 60 days in the event of a registration pursuant to Section 3(a)),
and, if so directed by uniView, such Holder will deliver to uniView all
copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Registrable Securities current
at the time of receipt of such notice.
7. Indemnification and Contribution.
(1) In the case of each offering of Registrable Securities made
pursuant to this Agreement, uniView agrees to indemnify and hold harmless
each Holder, its officers, directors, agents and Affiliates, each
underwriter of Registrable Securities so offered and each person, if any,
who controls any of the foregoing persons within the meaning of the
Securities Act, from and against any and all claims, liabilities, losses,
damages, expenses and judgments, joint or several, to which they or any
of them may become subject, under the Securities Act or otherwise,
including any amount paid in settlement of any litigation commenced or
threatened, and shall promptly reimburse them, as and when incurred, for
any legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as such
losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any untrue statement or alleged untrue statement of
a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or any amendment
thereof or supplement thereto, or in any document incorporated by
reference therein, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that uniView shall
not be liable to a particular Holder in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement, or any
omission, if such statement or omission shall have been made in reliance
upon and in conformity with information relating to such Holder furnished
to uniView in writing by or on behalf of such Holder specifically for use
in the preparation of the registration statement (or in any preliminary
or final prospectus included therein) or any amendment thereof or
supplement thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of a Holder and
shall survive the transfer of such securities. The foregoing indemnity
agreement is in addition to any liability which uniView may otherwise
have to each Holder, its officers and directors, members and managers, as
the case may be, underwriters of the Registrable Securities or any
controlling person of the foregoing; provided, further, that, as to any
underwriter or any person controlling any underwriter or Selling Holder,
this indemnity does not apply to any loss, liability, claim, damage or
expense arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary
prospectus if a copy of a prospectus was not sent or given by or on
behalf of an underwriter or Selling Holder to such person asserting such
loss, claim, damage, liability or action at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission had been corrected
in such prospectus.
<PAGE>
(2) In the case of each offering made pursuant to this Agreement,
each Holder of Registrable Securities included in such offering, by
exercising its registration rights hereunder, agrees to indemnify and hold
harmless uniView, its officers, directors, agents and Affiliates and each
person, if any, who controls any of the foregoing within the meaning of
the Securities Act (and if requested by the underwriters, each underwriter
who participates in the offering and each person, if any, who controls
any such underwriter within the meaning of the Securities Act), from and
against any and all claims, liabilities, losses, damages, expenses and
judgments, joint or several, to which they or any of them may become
subject under the Securities Act or otherwise, including any amount paid
in settlement of any litigation commenced or threatened, and shall
promptly reimburse them, as and when incurred, for any reasonable legal
or other expenses incurred by them in connection with investigating any
claims and defending any actions, insofar as any such losses, claims,
damages, liabilities or actions shall arise out of, or shall be based
upon, any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement
thereto, or any omission or alleged omission to state therein a material
fact relating to the Holder required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the
extent that such untrue statement of a material fact is contained in, or
such material fact relating to the Holder is omitted from, information
relating to such Holder furnished in writing to uniView by or on behalf
of such Holder specifically for use in the preparation of such
registration statement (or in any preliminary or final prospectus
included therein). The foregoing indemnity is in addition to any
liability which such Holder may otherwise have to uniView, or any of its
directors, officers or controlling persons; provided, however, that, as
to any underwriter or any person controlling any underwriter, this
indemnity does not apply to any loss, liability, claim, damage or expense
arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission in any preliminary prospectus
if a copy of a prospectus was not sent to or given by or on behalf of an
underwriter to such person asserting such loss, claim, damage, liability
or action at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such prospectus.
(3) Procedure for Indemnification. Each party indemnified under
paragraph (a) or (b) of this Section 7 shall, promptly after receipt of
notice of any claim or the commencement of any action against such
indemnified party in respect of which indemnity may be sought, notify the
indemnifying party in writing of the claim or the commencement thereof;
provided that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party
on account of the indemnity agreement contained in paragraph (a) or (b)
of this Section 7, except to the extent (and only to the extent) that the
indemnifying party was prejudiced by such failure, and in no event shall
relieve the indemnifying party from any other liability which it may have
to such indemnified party. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein,
and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party, but only upon written
acknowledgment from the indemnified party that the matter for which the
<PAGE>
defense is assumed is an indemnifiable obligation of the indemnifying
party under this Agreement. After notice from the indemnifying party to
the indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided that each
indemnified party, its officers and directors, if any, and each person,
if any, who controls such indemnified party within the meaning of the
Securities Act, shall have the right to employ separate counsel
reasonably approved by the indemnifying party to represent them if the
named parties to any action (including any impleaded parties) include
both such indemnified party and an indemnifying party or an affiliate of
an indemnifying party, and such indemnified party shall have been advised
by counsel that a conflict may exist between such indemnified party and
such indemnifying party or such affiliate, and in that event the fees and
expenses of one such separate counsel for all such indemnified parties
shall be paid by the indemnifying party. An indemnified party will not
enter into any settlement agreement which is not approved by the
indemnifying party, such approval not to be unreasonably withheld. The
indemnifying party may not agree to any settlement of any such claim or
action which provides for any remedy or relief other than monetary
damages for which the indemnifying party shall be responsible hereunder,
without the prior written consent of the indemnified party, which consent
shall not be unreasonably withheld. In any action hereunder as to which
the indemnifying party has assumed the defense thereof with counsel
reasonably satisfactory to the indemnified party, the indemnified party
shall continue to be entitled to participate in the defense thereof, with
counsel of its own choice, but, except as set forth above, the
indemnifying party shall not be obligated hereunder to reimburse the
indemnified party for the costs thereof. In all instances, the
indemnified party shall cooperate fully with the indemnifying party or
its counsel in the defense of each claim or action.
If the indemnification provided for in this Section 7 shall for any
reason be unavailable to an indemnified party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
herein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability,
or action in respect thereof, in such proportion as shall be appropriate
to reflect the relative fault of the indemnifying party on the one hand
and the indemnified party on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party on the one hand or the
indemnified party on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission, but not by reference to any
indemnified party's stock ownership in uniView. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this
paragraph shall be deemed to include, for purposes of this paragraph, any
legal or other expenses reasonably incurred by such indemnified party in
<PAGE>
connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
8. Rule 144. uniView shall take such measures and timely file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 and to remain in compliance
with the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
9. Transfer of Registration Rights. The rights of the holders under
this Agreement with respect to any Registrable Securities may be
transferred to any transferee of such Registrable Securities; provided,
however, that uniView is given written notice by the holder at or prior
to the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which the
rights under this Agreement are being assigned.
10. Rights Which May Be Granted to Other Persons. uniView shall not
grant any person registration rights which shall in any way whatsoever
impair the priority of the registration rights granted in this Agreement.
11. Limitation on Sales. Holders shall sell no more than an
aggregate of 10,000 shares of Common Stock during any seven-day period.
12. Miscellaneous.
(1) Injunctions. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions
of this Agreement was not performed in accordance with its specific terms
or was otherwise breached. Therefore, each party shall be entitled to
an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in
any court having jurisdiction, such remedy being in addition to any other
remedy to which such party may be entitled at law or in equity.
(2) Severability. If any term or provision of this Agreement
shall be held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms and provisions set forth
herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and each of the parties shall use its
best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term or
provision.
(3) Further Assurances. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge
and deliver such other instruments and documents, and take all such other
actions, as may be reasonably required in order to effectuate the
purposes of this Agreement and to consummate the transactions
contemplated hereby.
<PAGE>
(4) Waivers, etc. No failure or delay on the part of either
party (or the intended third-party beneficiaries referred to herein) in
exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or
power preclude any other or further exercise thereof or the exercise of
any other right or power. No modification or waiver of any provision of
this Agreement nor consent to any departure therefrom shall in any event be
effective unless the same shall be in writing and signed by an authorized
officer of each of the parties, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given.
(5) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties, whether written or oral, with respect to the subject matter hereof.
The paragraph headings contained in this Agreement are for reference
purposes only, and shall not affect in any manner the meaning or
interpretation of this Agreement.
(6) Counterparts. For the convenience of the parties, this
Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original but all of which together shall be one
and the same instrument.
(7) Amendment. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of uniView and
the Holders of at least 51% of the Registrable Securities.
(8) Notices. Unless expressly provided herein, all notices,
claims, certificates, requests, demands and other communications hereunder
shall be in writing and shall be deemed to be duly given (i) when
personally delivered, (ii) if mailed registered or certified mail, postage
prepaid, return receipt requested, on the date the return receipt is
executed or the letter refused by the addressee or its agent, (iii) if
given by telex or telecopier, once such notice or other communication is
transmitted to the telex or telecopier number specified below and the
appropriate answer back or telephonic confirmation is received; provided
that such notice or other communication is mailed in accordance with
clause (ii) hereof or (iv) if sent by overnight courier which delivers
only upon the signed receipt of the addressee, on the date the receipt
acknowledgment is executed or refused by the addressee or its agent:
if to Softgen Group:
Softgen International, Inc.
8150 N. Central Expressway, Suite 1201
Dallas, Texas 75206
Attention: Leslie Leland, President
Telecopy: (214) 346-0688
if to uniView:
uniView Technologies Corporation
10911 Petal Street
Dallas, Texas 75201
Attn: Billy J. Robinson, General Counsel
Telecopy: (214) 503-8523
<PAGE>
(9) Governing Law. This Agreement is executed by uniView in,
and shall be construed in accordance with and governed by the laws of the
State of Texas without giving effect to the principles of conflicts of
laws thereof.
(10) Assignment. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement
which are for the benefit of the Holders of Registrable Securities as
such shall be for the benefit of and enforceable by any subsequent holder
of any Registrable Securities, subject to the provisions respecting the
minimum numbers or percentages of shares of Registrable Securities
required in order to be entitled to certain rights, or take certain
actions contained herein.
(11) Best Efforts. As used herein, the term "best efforts"
shall not obligate a party to expend material funds or incur material
liabilities not otherwise contemplated under this Agreement to achieve an
end.
IN WITNESS WHEREOF, uniView and Softgen Group have caused this
Agreement to be duly executed by their authorized representative as of
the date first above written.
UNIVIEW:
UNIVIEW TECHNOLOGIES CORPORATION
By: /s/ Patrick A. Custer
Name: Patrick A. Custer
Title: President
SOFTGEN GROUP:
SOFTGEN INTERNATIONAL, INC.
By: /s/ Leslie Leland
Name: Leslie Leland
Title: President
Softgen Shareholders:
_/S/ Cameron E. Hurst _/s/ Leslie Leland_____
Cameron E. Hurst Leslie Leland
Nations Corp. Ltd.
By: __/s/ D. Ronald Allen___
D. Ronald Allen
Attorney in Fact
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Registration Rights
Agreement"), dated September 22, 1999, by and between uniView
Technologies Corporation, a Texas corporation (the "Company"), and Zirca
Corporation, a Texas corporation ("Zirca").
WHEREAS, Zirca and the Company are parties to that certain
Acquisition Agreement (the "Acquisition Agreement"), of even date
herewith;
WHEREAS, pursuant to the Acquisition Agreement, Zirca will be issued
360,000 shares of the Company's Common Stock, par value $.10 per share
(the "Company's Common Stock") in addition to cash as consideration for
the purchase of the assets of Zirca;
WHEREAS, to induce Zirca to enter into the Acquisition Agreement,
the Company has agreed to grant the registration and other rights
contained in this Registration Rights Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto hereby agree as follows:
1. Definitions. As used in this Registration Rights Agreement,
the following terms have the meanings indicated. Capitalized terms used
but not defined herein shall have the respective meanings assigned to
such terms in the Acquisition Agreement.
(a) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of
1933, as amended (the "Act"), and the declaration or ordering of
effectiveness of such registration statement or document.
(b) The term "Registrable Securities" means the shares of the
Company's Common Stock issued to Zirca pursuant to the Acquisition
Agreement, any stock or other securities into which or for which such
shares may hereafter be changed, converted or exchanged, and any other
securities issued to the Holders of such shares of Company's Common Stock
(or such shares into which or for which such shares are so changed,
converted or exchanged) upon any reclassification, share combination,
share subdivision, share dividend, merger consolidation or similar
transactions or events; provided that any such securities shall cease to
be Registrable Securities to the extent that (i) a registration statement
with respect to the sale of such securities shall have become effective
under the Act, and such securities shall have been disposed of in
accordance with the plan of distribution set forth in such registration
statement, or (ii) such securities shall have been transferred pursuant
to Rule 144 promulgated under the Act.
(c) The "Registrable Securities then outstanding" will be
determined by the number of shares outstanding which are Registrable
Securities.
(d) The term "Capital Stock" means any and all shares,
interests, participations, or other equivalents (however designated) of
capital stock, or any and all equivalent ownership interests.
<PAGE>
(e) The term "Holder" means Zirca, or any assignee thereof in
accordance with Section 10.
(f) "Market Value" as of any date with respect to any security
means the average of the Quoted Prices of such security for the twenty
(20) consecutive trading days immediately preceding such date; provided,
however, that, if any stock split, stock dividend, subdivision or
combination of Common Stock or issuance of Common Stock occurs with
respect to such security during the period from the first of such
consecutive trading days through the last of such consecutive trading
days, the computation of Market Value shall be appropriately adjusted to
take account of such event. If at any time such security is not listed or
traded on any national securities exchange or quoted on Nasdaq or in the
over-the-counter market, the Market Value shall be deemed an amount
mutually agreed upon between the Company and Zirca, and if no agreement
can be reached, then the Market Value of such security as of any date
shall be the fair market value thereof as determined by an independent
nationally recognized investment banking firm selected by investment
banking firms chosen by each of the Company and Zirca. The Company and
Zirca shall share equally all costs of all determinations of fair market
value by such nationally recognized investment banking firm.
(g) "Nasdaq" means the Nasdaq Stock Market.
(h) "Quoted Price" of any security for any date shall be the
last reported sales price (or, in case no such sale takes place on such
date, the average of the reported closing bid and ask prices) of such
security as reported by the principal national securities exchange on
which such security is listed or traded, or as reported by Nasdaq or if
such security is neither so reported nor so listed or so traded, the
average of the last reported bid and ask prices of such security in the
over-the-counter market on such date.
2. Request for Registration.
(a) If the Company receives at any time after the date which
is six (6) months after the date hereof, a written request from a
Holder(s) that the Company file a registration statement under the Act
covering the registration of such Holder's or Holders' Registrable
Securities (the "Initiating Holders"), then the Company will, within ten
(10) days of the receipt thereof, give written notice of such request to
all Holders and will, subject to the limitations set forth below and of
subsection 2(b), effect as soon as practicable, and in any event shall
use its best efforts to file within thirty (30) days after the expiration
of the thirty (30) day period described below in this sentence, and to
cause to become effective within sixty (60) days after the initial
filing, a registration statement under the Act of all Registrable
Securities then outstanding which the Holders request to be registered
within thirty (30) days of the mailing of such notice by the Company.
(b) In the event that any registration pursuant to this
Registrations Rights Agreement shall involve, in whole or in part, an
underwritten offering, the Company shall have the right to designate the
underwriter or underwriters (the "Underwriter"), including the lead
managing underwriter of such underwritten offering; provided such
Underwriters are nationally recognized. In such event, the right of any
Holder to include such Holder's Registrable Securities in such
registration will be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in
<PAGE>
the underwriting (unless otherwise mutually agreed by 66.7 % in interest
of the Selling Holders and such Holder) to the extent provided in this
Registration Rights Agreement. All Holders proposing to distribute their
securities through such underwriting will (together with the Company as
provided in subsection 4(g)) enter into an underwriting agreement in
customary form with the Underwriter. Notwithstanding any other provision
of this Section 2, if the Underwriter advises the Selling Holders and the
Company in writing that marketing factors require a limitation of the
number of shares to be underwritten, then the Company will so advise all
Selling Holders of Registrable Securities which would otherwise be
underwritten pursuant to this Registration Rights Agreement, and the
number of shares of Registrable Securities that may be included in the
underwriting will be allocated among all Selling Holders thereof,
including the Initiating Holders, in proportion (as nearly as
practicable) to the amount of Registrable Securities then outstanding
owned by each Selling Holder; provided, however, that the number of
shares of Registrable Securities to be included in such underwriting will
not be reduced unless all other securities are first entirely excluded
from the underwriting.
(c) Notwithstanding the foregoing, the Company is obligated to
effect only one (1) such registration pursuant to this Registration
Rights Agreement; provided, however, that the Company shall be deemed to
fulfill such obligation only (i) if the number of shares of Registrable
Securities included in the registration statement has not been reduced
pursuant to subsection 2(b) and (ii) when such registration has become
effective and remained effective in compliance with the provisions of the
Act with respect to the disposition of all Registrable Securities covered
by such registration statement and all of such Registrable Securities
have been disposed of by the Holder; and, provided further, that the
Company will pay all registration expenses in connection with any
registration initiated at the request of a Holder to the extent provided
below in Section 6.
(d) Notwithstanding the foregoing, if the Company furnishes to
Holders requesting a registration statement pursuant to this Section 2, a
certificate signed by the Chief Executive Officer of the Company stating
that in the good faith judgment of the Company, it would be materially
detrimental to the Company and its stockholders for a registration
statement to be filed or for sales to occur under an effective
registration statement and it is therefore essential to defer the filing
of or sales under such registration statement, the Company will have the
right to (i) defer taking action with respect to such filing, for a
period of not more than ninety (90) days after receipt of the request of
the Initiating Holders; or (ii) if the registration statement is
effective, request each Holder of securities thereunder not to (and upon
receipt of such request each such Holder agrees not to) make any sales
pursuant thereto for a period not to exceed five (5) days following such
request; provided, however, that during either such period, the Company
shall not be entitled to file any other registration statement relating
to the Company's securities pursuant to any other outstanding
registration rights agreement or for any other secondary offering; and
provided further, that the Company shall not have the right to so defer
such action more than once in each case in any twenty-four (24) month
period.
<PAGE>
3. Company Registration.
(a) The Company shall file a registration statement no later
than the date which is five (5) months after the date of this
Registration Rights Agreement, which registration statement shall include
the 360,000 shares of the Company's Common Stock.
(b) If at any time after the date hereof (but without any
obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for stockholders other
than the Holders and including the registration statement required to be
filed within five (5) months after the date hereof pursuant to Section
3(a) above) any of its Common Stock under the Act in connection with the
public offering of such securities solely for cash (other than a
registration of securities solely in connection with mergers,
acquisitions, dividend reinvestment plans or stock option or award or
other executive or employee benefit or compensation plans), or a
registration on any form which does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company
will, at such time, promptly give each Holder written notice of such
registration no less than ten (10) days prior to the proposed filing date
of such registration. Upon the written request of each Holder given
within a ten (10) day period after receipt by such Holder of such notice
by the Company, the Company will, subject to the provisions of Section 7,
cause to be included in such registration under the Act all of the
Registrable Securities that each such Holder has requested to be
registered. The registration expenses of the Holders of the Registrable
Securities incurred pursuant to this Section 3 shall be paid by the
Company to the extent provided in Section 6 below. Notwithstanding the
foregoing, the Company is obligated to accept a request from a Holder to
include the Registrable Securities that each such Holder has requested to
be registered pursuant to this Section 3 no more than five (5) times;
provided, however, that the Company shall be deemed to fulfill such
obligation only (i) if the number of shares of Registrable Securities
included in the registration statement has not been reduced, and (ii)
when such registration has become effective and remained effective in
compliance with the provisions of the Act with respect to the disposition
of all Registrable Securities covered by such registration statement and
all of such Registrable Securities have been disposed of by the Holder.
4. Obligations of the Company. Whenever required under this
Registration Rights Agreement to effect the registration of any
Registrable Securities then outstanding, the Company will, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to
cause such registration statement to become effective within 60 days
after such filing, and to keep such registration statement effective to
the extent permitted by and subject to applicable law as necessary for
all Selling Holders in such registration to have disposed of their
Registrable Securities.
<PAGE>
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of the
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement, including a
preliminary prospectus, in conformity with the requirements of the Act,
and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify by no later
than the effective date of the registration statement the securities
covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as will be reasonably requested in
writing by the Holders, and take all other actions which may be
reasonably necessary or advisable to enable the disposition of the
Registrable Securities of the Holder in such jurisdictions covered by
such registration statement; provided that the Company will not be
required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any
such states or jurisdictions.
(e) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing.
(f) Use its efforts to obtain all other approvals, covenants,
exemptions or authorizations from such governmental agencies or
authorities as may be necessary to enable the Holder to consummate the
disposition of such Registrable Securities.
(g) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such offering.
Each Holder participating in such underwriting will also enter into and
perform its obligations under such an agreement.
(h) Use its best efforts to furnish, at the request of 66.7%
in interest of the Selling Holders requesting registration of Registrable
Securities pursuant to this Registration Rights Agreement, on the date
that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Registration
Rights Agreement, if such securities are being sold through underwriters,
or, in the case of (ii) below, if such securities are not being sold
through underwriters, on the date that the registration statement with
respect to such securities becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to
underwriters in such an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities, and (ii) a letter dated such date, from the
<PAGE>
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in such an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
(i) Cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed not later than the effective date of such registration
statement, or, if similar securities are reported on Nasdaq or quoted in
the over-the-counter market, cause all such Registrable Securities to be
reported on Nasdaq or quoted in the over-the-counter market. If such
Registrable Securities are not then listed on a national securities
exchange or reported on Nasdaq or quoted in the over-the-counter market,
use reasonable efforts to facilitate the listing, reporting or quoting of
such Registrable Securities on a national securities exchange, Nasdaq or
in the over-the-counter market, as the case may be.
(j) Provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement.
(k) Make available for reasonable inspection by any Holder
participating in such registration, any underwriter participating in any
disposition pursuant to such registration statement, any accountant or
other agent retained by Zirca on behalf of such Holders or any one
counsel selected by Zirca on behalf of such Holders as a group, all
financial and other records, pertinent corporate documents and properties
of the Company reasonably requested, and cause the Company's officers,
directors, employees and independent accountants to supply information
reasonably requested by any Holder or any such underwriter, attorney,
accountant or agent in connection with such registration statement;
provided that the Company shall be under no obligation to disclose
proprietary or privileged non-public information that the Company, in the
opinion of the Company's counsel, is not required to be disclosed in such
registration statement or in any prospectus in connection therewith.
(l) Advise the Holders participating in such registration
after the Company shall receive notice or obtain knowledge thereof, of
the issuance of any stop order by the SEC suspending the effectiveness of
such registration statement or the initiation or threatening of any
proceeding for such purpose and promptly use all reasonable efforts to
prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued.
(m) Within a reasonable period prior to the filing of any
registration statement or prospectus, or any amendment or supplement to
such registration statement or prospectus, furnish a copy thereof to the
Holders participating in such registration and, except with respect to
any registration pursuant to Section 3, refrain from filing any such
registration statement, prospectus, amendment or supplement to which one
counsel, selected by Zirca on behalf of such Holders as a group, shall
have reasonably objected to on the grounds that such document does not
comply in all material respects with the requirements of the Act or the
rules and regulations thereunder, unless, in the case of an amendment or
supplement, in the opinion of counsel for the Company the filing of such
amendment or supplement is reasonably necessary to protect the Company
from any liabilities under the applicable federal or state law and such
filing will not violate applicable laws.
<PAGE>
(n) Otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months beginning
with the first day of the Company's first full fiscal quarter after the
effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Act and Rule 158
thereunder.
5. Furnishing of Information. It will be a condition precedent to
the obligations of the Company to take any action pursuant to this
Registration Rights Agreement with respect to the Registrable Securities
of any Selling Holder that such Selling Holder will furnish to the
Company such information regarding itself, the Registrable Securities
held by it, and the intended method of disposition of such securities as
will be required to effect the registration of such Holder's Registrable
Securities.
6. Expenses of Registration. The Company shall bear all expenses
other than Selling Holder Expenses (as defined below) incurred in any
Registration, including, without limitation, all registration and filing
fees (including all expenses incident to filing with the NASD), messenger
and delivery expenses, fees and expenses of complying with federal and
state securities and Blue Sky laws, printing expenses and fees and
disbursements of the independent certified public accountants (including
for any special audits) and fees for the Company's counsel. Each Selling
Holder shall bear his or her equitable share of any Selling Holder
Expenses. "Selling Holder Expenses" shall consist of (i) Selling
Holder's legal, accounting, consulting and advisory fees and costs and
(ii) any proportionate share of brokerage or underwriting fees, expenses
or commissions.
7. Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the
Company will not be required under Section 3 to include any of the
Holders' securities in such underwriting unless they accept the terms of
the underwriting (which shall in all cases be reasonable) as agreed upon
between the Company and the underwriters selected by the Company (or by
other persons entitled to select the underwriters). If the underwriter
delivers a written opinion to the Selling Holders and the Company that
the total amount of securities, including Registrable Securities,
requested by such Selling Holders to be included in such offering exceeds
the amount of securities to be sold other than by the Company that the
underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company will be required to include in
the offering only that number of such securities, including Registrable
Securities, which the underwriters determine in their sole discretion
will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among all selling stockholders
according to the total amount of registrable securities then outstanding
entitled or, in the alternative, requested to be included therein owned
by each selling stockholder or in such other proportions as will mutually
be agreed to by such selling stockholders) but, in no event will any
shares being sold by a stockholder exercising a demand registration right
similar to that granted in Section 2 be required to be excluded from such
offering.
<PAGE>
8. Indemnification. If any Registrable Securities are included in
a registration statement under this Registration Rights Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder and their respective partners, officers,
employees, directors and agents, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Act, or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any
other violation or alleged violation of the Act, the Exchange Act, state
securities laws or any rule or regulation promulgated under the Act, or
the Exchange Act or state securities laws; and the Company will pay to
each such Holder, any legal or other expenses reasonably incurred by them
(as incurred) in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 8(a) will not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company
(which consent will not be unreasonably withheld or delayed), nor will
the Company be liable in any such case to any Holder for any such loss,
claim, damage, liability, or action to the extent that it arises out of
or is based upon a Violation (other than alleged violations) as
ultimately determined by a final judgment of a court of competent
jurisdiction which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such
registration by such Holder.
(b) To the extent permitted by law, each Selling Holder will
indemnify and hold harmless the Company and each of its officers,
employees, directors and agents, against any losses, claims, damages or
liabilities (joint or several) to which any of the foregoing persons may
become subject under the Act, or the Exchange Act, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any Violation (other than alleged
violations), in each case to the extent (and only to the extent) that
such Violation consists of any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, or (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading, or
(iii) any other violation or alleged violation of the Act, the Exchange
Act, state securities laws or any rule or regulation promulgated under
the Act, or the Exchange Act or state securities laws , made in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in such registration statement as ultimately determined
by a final judgment of a court of competent jurisdiction; and each such
Holder will pay any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 8(b) (as
incurred), in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the
<PAGE>
indemnity agreement contained in this subsection 8(b) will not apply to
amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Holder,
which consent will not be unreasonably withheld or delayed; and, provided
further, that in no event will any indemnity under this subsection 8(b)
exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this
Section 8, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party will have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one
counsel) will have the right to retain one separate counsel, with the
reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party is inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented
by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend
such action, will relieve such indemnifying party of any liability to the
indemnified party under this Section 8, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under
this Section 8. The payments required by this Section 8 will be made
periodically throughout the course of investigation or defense, as and
when bills are received or expenses incurred, provided that the
indemnified party seeking reimbursement of expenses hereunder undertakes
in a writing reasonably satisfactory to the indemnifying party, to repay
all amounts previously paid over to the indemnified party if it is
ultimately determined (by a final judgment of a court of competent
jurisdiction) that such party is not entitled to indemnification
hereunder.
(d) If the indemnification provided for in this Section 8 is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party to this Registration Rights
Agreement, will contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions that
resulted in such loss, liability, claim, damage, or expense as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party will be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission.
<PAGE>
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement will control.
(f) The obligations of the Company and Holders under this
Section 8 will survive the completion of any offering of Registrable
Securities in a registration statement under this Registration Rights
Agreement, and otherwise.
9. Reports Under the Exchange Act. With a view to making available
to the Holders the benefits of Rule 144 or other comparable provision of
the Act ("Rule 144") promulgated under the Act and any other rule or
regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration or pursuant
to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after the date
hereof;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Exchange Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon written request (i) a written
statement by the Company that it has complied in all material respects
with the reporting requirements of Rule 144, the Act and the Exchange Act
(at any time after it has become subject to such reporting requirements),
or that it qualifies as a registrant whose securities may be resold
pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company with the SEC, and (iii)
such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC which permits the selling of
any such securities without registration or pursuant to such form.
10. Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Registration
Rights Agreement may be assigned (but only with all related obligations)
by a Holder to transferee(s) or assignee(s) of such securities who, after
such assignment or transfer, holds Registrable Securities; provided the
Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee(s) or
assignee(s) and the securities with respect to which such registration
rights are being assigned. Notwithstanding any assignment by a Holder of
its registration and other rights hereunder in connection with its
transfer of Registrable Securities, such Holder shall retain all such
registration and other rights under this Registration Rights Agreement in
respect of those Registrable Securities that it continues to hold.
11. No Inconsistent Agreements; Limitations on Subsequent
Registration Rights.
(a) The Company represents and warranties to Zirca that it is
not a party to any agreement with respect to its securities which would
prohibit it from fully performing its obligations hereunder.
<PAGE>
(b) From and after the date of this Registration Rights
Agreement, the Company will not, without the prior written consent of the
Holders of the then outstanding Registrable Securities, enter into any
agreement with any holder or prospective holder of any securities of the
Company which would allow such holder or prospective holder to include
such securities in any registration filed under Section 2, unless under
the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that
the inclusion of his securities will not reduce the amount of the
Registrable Securities of the Holders which is included therein.
12. Limitation on Sales. Holders shall sell no more than an
aggregate of 90,000 shares of Common Stock in any six-month period.
13. Termination of Registration Rights. No Holder will be entitled
to exercise any right provided for in this Registration Rights Agreement
after five (5) years following the date hereof.
14. Adjustments Affecting Registrable Securities. The Company will
not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the Holders to
include Registrable Securities in a registration undertaken pursuant
hereto. However, nothing in this Registration Rights Agreement shall
limit the Company's ability to register, offer and sell securities.
15. Amendments and Waivers. The provisions of this Registration
Rights Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Company has
obtained the written consent of the Holders.
16. Notices. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Registration Rights Agreement shall be
sufficiently given or made if in writing and either delivered in person
with receipt acknowledged or sent by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
(a) in the case of the Company, to:
uniView Technologies Corporation
10911 Petal Street
Dallas, Texas 75238
Attention: Patrick Custer, CEO
(b) in the case of the Holder, to:
Zirca Corporation
13800 Senlac Drive
Farmers Branch, Texas 75234
Attention: Steve Kovac
or at such other address as may be substituted by notice given as
herein provided. The giving of any notice required hereunder may be
waived in writing by the party entitled to receive such notice. Every
notice, demand, request, consent, approval, delivery or other
communication hereunder shall be deemed to have been duly given or served
on the date on which personally delivered, with receipt acknowledged, or
three business days after the same shall have been deposited in the
<PAGE>
United States mail. Failure or delay in delivering copies of any notice,
demand, request, approval, declaration, delivery or other communication
to the person designated above to receive a copy shall in no way
adversely affect the effectiveness of such notice, demand, request,
approval, declaration, delivery or other communication.
17. Remedies. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by
it of the provisions of this Registration Rights Agreement and hereby
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate. Accordingly, it is agreed that the
Holder shall be entitled to an injunction, restraining order or other
equitable relief to prevent breaches of this Registration Rights
Agreement and to enforce specifically the terms and provisions hereof in
any court of competent jurisdiction in the United States or any state
thereof. Such remedies shall be cumulative and nonexclusive and shall be
in addition to any other rights and remedies the parties may have under
this Registration Rights Agreement.
18. Headings. The headings of this Registration Rights Agreement
have been inserted as a matter of convenience and shall not affect the
construction hereof.
19. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
20. Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Registration Rights Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any shares of
Registrable Securities). Nothing in this Registration Rights Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this
Registration Rights Agreement, except as expressly provided in this
Registration Rights Agreement.
21. Governing Law. This Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of
Texas, except for its rules with regard to the conflict of laws .
22. Counterparts. To facilitate execution, this Registration
Rights Agreement may be executed in counterparts; and it shall not be
necessary that the signatures of, or on behalf of, each party, or the
signatures of all persons required to bind a party, appear on each
counterpart; but it shall be sufficient that the signature of, or on
behalf of, each party, or the signatures of the persons required to bind
any party, appear on the counterparts. All counterparts shall
collectively constitute a single agreement.
[Signatures on following page]
<PAGE>
IN WITNESS WHEREOF, the Company and Zirca have caused this
Registration Rights Agreement to be signed in its name by its duly
authorized representative as of the date first written above.
ZIRCA CORPORATION
By: /s/ Steven Kovac
Name: Steven Kovac
Title: CFO
UNIVIEW TECHNOLOGIES CORPORATION
By: /s/ Patrick A. Custer
Name: Patrick A. Custer
Title: President
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
July 25, 1999, is by and between TVData Technologies, L.P., a Georgia
limited partnership ("TVData") and uniView Technologies Corporation, a
Texas corporation ("Uniview").
WHEREAS, pursuant to the Mutual Release and Settlement Agreement,
dated July 25, 1999 (the "Settlement Agreement"), between TVData and
Uniview, TVData and Uniview have agreed to settle that certain
arbitration proceeding and federal court action described in the
Settlement Agreement (the "Settlement");
WHEREAS, the Settlement Agreement provides that a portion of the
consideration to be paid by Uniview to TVData in the Settlement shall be
shares of Uniview common stock, $.10 par value per share ("Uniview
Stock"); and
WHEREAS, Uniview has agreed to grant to TVData certain rights with
respect to the sale of the Uniview Stock received by TVData in the
Settlement in accordance with the terms of this Agreement;
NOW THEREFORE, for and in consideration of the premises, the mutual
promises herein contained, and for other good and valuable consideration,
the receipt and adequacy of which are acknowledged, the parties agree as
follows:
1. Certain Definitions. As used in this Agreement, the capitalized
terms set forth below shall have the following meanings:
(1) "Affiliate" means, with respect to any person, any other
person who, directly or indirectly, is in control of, is controlled by or
is under common control with such person.
(2) "Holder(s)" means the holders of Registrable Securities.
(3) "Registrable Securities" means the shares of Uniview Stock
issued to TVData pursuant to the Settlement Agreement, any stock or
other securities into which or for which such shares of Uniview Stock may
hereafter be changed, converted or exchanged, and any other securities
issued to the Holders of such shares of Uniview Stock (or such shares
into which or for which such shares are so changed, converted or
exchanged) upon any reclassification, share combination, share
subdivision, share dividend, merger, consolidation or similar
transactions or events; provided that any such securities shall cease to
be Registrable Securities if (i) a registration statement with respect to
the sale of such securities shall have become effective under the
Securities Act (as defined below) and such securities shall have been
disposed of in accordance with the plan of distribution set forth in such
registration statement, or (ii) such securities shall have been
transferred pursuant to Rule 144 (as defined below).
<PAGE>
(4) "Registration Expenses" means all expenses incurred by
Uniview in connection with any registration of Registrable Securities
pursuant to this Agreement including, without limitation, the following:
(i) SEC filing fees; (ii) the fees, disbursements and expenses of
Uniview's counsel(s) and accountants in connection with the registration
of the Registrable Securities to be disposed of under the Securities Act,
(iii) all expenses of Uniview and its agents and representatives in
connection with the preparation, printing and filing of the registration
statement, any preliminary prospectus or final prospectus and amendments
and supplements thereto and the mailing and delivering of a reasonable
number of copies thereof to any Holders, underwriters and dealers and all
actual expenses incidental to delivery of the Registrable Securities;
(iv) the cost of producing blue sky memoranda; (v) all expenses in
connection with the qualification of the Registrable Securities to be
disposed of for offering and sale under state securities laws; (vi) the
filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Registrable Securities to be disposed of; (vii) the expenses of Uniview's
transfer agent and registrar appointed in connection with such offering,
(viii) all engraving and printing expenses for the Uniview securities
being offered; and (ix) all fees and expenses payable in connection with
the listing of the Registrable Securities on each securities exchange
or inter-dealer quotation system on which a class of common equity
securities of Uniview is then listed.
(5) "Rule 144" means Rule 144 promulgated under the Securities
Act (as defined below), or any successor rule to similar effect.
(6) "Rule 144 Resale Eligible" means that for the period after
the holding period restrictions under Rule 144(d) have elapsed, all
shares of Registrable Securities are eligible for resale under Rule 144
without restriction under Rule 144(e) upon the amount of Registrable
Securities which may be sold.
(7) "SEC" means the United States Securities and Exchange
Commission.
(8) "Securities Act" means the Securities Act of 1933, as
amended, or any successor statute.
2. Piggy-back Registration. At any time from the date of this
Agreement until the time when all the Registrable Securities are Rule 144
Resale Eligible (and if such Registrable Securities ever cease to be Rule
144 Resale Eligible, then until such time as they again become Rule 144
Resale Eligible), if Uniview proposes to register any of its Uniview
Stock or any other of its common equity securities (but not including
debt instruments or preferred stock convertible into its common equity
securities) (collectively, "Other Securities") under the Securities Act
(other than a registration on Form S-4 or S-8 or any successor form
thereto), whether or not for sale for its own account, in a manner which
would permit registration of Registrable Securities for sale for cash to
the public under the Securities Act, it will each such time give prompt
written notice to each Holder of its intention to do so at least twenty
(20) days prior to the anticipated filing date of the registration
statement relating to such registration. Such notice shall offer each
such Holder the opportunity to include in such registration statement
such number of Registrable Securities as each such Holder may request.
Upon the written request of any such Holder made no later than 5:00 p.m.
Atlanta, Georgia time on the tenth (10th) day after the receipt of
<PAGE>
Uniview's notice (which request shall specify the number of Registrable
Securities intended to be disposed of and the intended method of
disposition thereof), Uniview shall use its best efforts to effect, in
the manner set forth in Section 5, in connection with the registration of
the Other Securities, the registration under the Securities Act of all
Registrable Securities which Uniview has been so requested to register,
to the extent required to permit the disposition (in accordance with such
intended methods thereof) of the Registrable Securities so requested to
be registered; provided that:
(1) (i) if the registration referred to in the first sentence
of this Section 2 is to be an underwritten registration, and the managing
underwriter advises Uniview in writing that, in such firm's opinion, such
offering would be materially and adversely affected by the inclusion
therein of the Registrable Securities requested to be included therein,
Uniview shall include in such registration: (1) first, all securities
Uniview proposes to sell for its own account ("Uniview Securities") if
Uniview Securities are proposed to be included in such registration, (2)
second, if the registration is pursuant to the demand registration right
of holders of securities to be included in such registration pursuant to
agreements with Uniview ("Other Holders"), securities of such Other
Holders, (3) third, up to the full number of Registrable Securities in
excess of the number or dollar amount of Uniview Securities and
securities of Other Holders, which, in the good faith opinion of such
managing underwriter, can be so sold without materially and adversely
affecting such offering and, if less than the full number of such
Registrable Securities, allocated among the Holders of such Registrable
Securities pro rata on the basis of the number of Registrable Securities
requested to be registered by each Holder, and (4) fourth, all other
securities proposed to be registered.
(2) Uniview shall not be required to effect any registration
of Registrable Securities under this Section 2 incidental to the
registration of any of its securities in connection with mergers,
acquisitions, dividend reinvestment plans or stock option or award or
other executive or employee benefit or compensation plans.
3. Demand Registration.
(1) If, on the six month anniversary of the date of this
Agreement, Uniview has not effected a registration of Registrable
Securities pursuant to Section 2 hereof pursuant to which all of the
Registrable Securities were sold, then (i) at any time from the six month
anniversary of the date of this Agreement until all of the Registrable
Securities have been sold pursuant to a registration effected under the
terms of this Agreement or have become Rule 144 Resale Eligible (and
if such Registrable Securities ever cease to be Rule 144 Resale Eligible,
then until such time as they again become Rule 144 Resale Eligible), and
(ii) upon written notice from a Holder or Holders of more than 50% of
the Registrable Securities (the "Initiating Holders") in the manner set
forth in Section 11(h) hereof requesting that Uniview effect the
registration under the Securities Act of any or all of the Registrable
Securities held by such Holders (which notice shall specify the intended
method or methods of disposition of such Registrable Securities), Uniview
shall use its best efforts to effect, in the manner set forth in Section
5, the registration under the Securities Act of such Registrable
<PAGE>
Securities for disposition in accordance with the intended method or
methods of disposition stated in such request; provided that Uniview
shall not be obligated to file more than one (1) registration statement
under the Securities Act relating to a registration request pursuant
to this Section 3(a).
(2) Notwithstanding any other provision of this Agreement to
the contrary, a registration requested by a Holder pursuant to this
Section 3 shall not be deemed to have been effected (and, therefore, not
requested for purposes of Section 3(a)):(A) if it is withdrawn based upon
material adverse information relating to Uniview that is different from
the information (x) known to the Holders requesting registration at the
time of their request for registration, or (y) promptly disclosed by
Uniview to the Holder at the time of their request for registration; (B)
if, when effective, it includes fewer than ninety (90%) percent of the
number of shares of Registrable Securities which were the subject matter
of the request; (C) if after it has become effective such registration
is interfered with by Uniview invoking its rights under subsection 6(e)
or any stop order, injunction or other order or requirement of the SEC
or other governmental agency or court for any reason other than
a misrepresentation or an omission by such Holder and, as a result
thereof, less than ninety (90%) percent of the Registrable Securities
requested to be registered can be completely distributed in accordance
with the plan of distribution set forth in the related registration
statement.
(3) In the event that any registration pursuant to this Section
3 shall involve, in whole or in part, an underwritten offering, Uniview
shall have the right to designate the underwriter or underwriters,
including the lead managing underwriter of such underwritten offering.
(4) Upon receipt of written notice from the Initiating Holders
under Section 3(a) hereto, Uniview shall, within five (5) days, give
prompt written notice to all other Holders of Registrable Securities of
such notice and of its intent to effect the registration of Registrable
Securities pursuant to this Agreement. Such notice shall offer each such
Holder the opportunity to include in such registration statement such
number of Registrable Securities as each such Holder may request.
(5) Holders other than the Initiating Holders and holders of
other registrable securities with the right to participate in a
Uniview registration statement shall have the right to include their
shares of Registrable Securities or other registrable securities, as the
case may be, in any registration pursuant to Section 3(a). In connection
with those registrations in which multiple Holders or holders of other
registrable securities with the right to participate in such registration
("piggy-back rights holders") participate, in the event the facilitating
broker/dealer or, in an underwritten offering, the lead managing
underwriter advises that marketing factors require a limitation on the
number of shares to be sold, the number of shares to be included in the
sale or underwriting and registration shall be allocated (i) first, to
the Holders, and, if less than the full number of Registrable Securities
of such Holders, then pro rata on the basis of the number of Registrable
Securities requested to be registered by each Holder, and (ii) second, to
the holders seeking registration pursuant to piggy-back registration
rights otherwise granted by Uniview pro rata on the basis of the number
of securities requested to be registered by each such holder in such
registration.
<PAGE>
4. Expenses. Uniview agrees to pay all Registration Expenses with
respect to an offering pursuant to Section 2 and Section 3 hereof, but
not commissions or underwriting discounts in connection with an offering,
which shall be the expense of the Holder(s).
5. Registration and Qualification. If and whenever Uniview is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2
or 3 hereof, Uniview shall:
(1) prepare and file a registration statement under the
Securities Act relating to the Registrable Securities to be offered
as soon as practicable, but in no event later than thirty (30) days after
the date notice is given, and use its best efforts to cause the same to
become effective as promptly as practicable;
(2) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for sixty(60)days (or, in the case of an underwritten
offering, such shorter time period as the underwriters may require);
(3) furnish to the Holders and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, and such other documents, as the Holders or such
underwriter may reasonably request in order to facilitate the public sale
of the Registrable Securities, and a copy of any and all transmittal
letters or other correspondence to, or received from, the SEC or any
other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange)
relating to such offering;
(4) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or
blue sky laws of such United States jurisdictions as the Holders or any
underwriter of such Registrable Securities shall request, and use its
best efforts to obtain all appropriate registrations, permits and
consents required in connection therewith, and do any and all other acts
and things which may be necessary or advisable to enable the Holders or
any such underwriter to consummate the disposition in such jurisdictions
of its Registrable Securities covered by such registration statement;
provided that Uniview shall not for any such purpose be required to
register or qualify generally to do business as a foreign corporation in
any jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
<PAGE>
(5) (i) use its best efforts to furnish an opinion of counsel
for Uniview in customary form required to register the securities with the
Securities Exchange Commission, and (ii) use its best efforts to furnish
a "cold comfort" letter addressed to each Selling Holder, if permissible
under applicable accounting practices, and signed by the independent
public accountants who have audited Uniview's financial statements
included in such registration statement, in each such case covering
substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of securities
and such other matters as the Selling Holders may reasonably request and,
in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements;
(6) immediately notify the Selling Holders in writing (i) at
any time when a prospectus relating to a registration pursuant to Section
2 or 3 hereof is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and (ii) of any request by the SEC or any other regulatory body or other
body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and
in either such case (i) or (ii) above and at the request of the Selling
Holders (subject to Section 4 hereof) promptly prepare and furnish to the
Selling Holders a number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(7) list all such Registrable Securities covered by such
registration on each national securities exchange and United States
inter-dealer quotation system on which a class of common equity securities
of Uniview is then listed, with expenses in connection therewith to be
paid in accordance with Section 4 hereof; and
(8) furnish unlegended certificates representing ownership of
the Registrable Securities being sold in such denominations as shall
be requested by the Selling Holders or the underwriters with expenses
therewith to be paid in accordance with Section 4 hereof.
6. Underwriting, Due Diligence.
(1) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested
under this Agreement, Uniview shall enter into an underwriting agreement
with such underwriters for such offering, such agreement to contain
such representations and warranties by Uniview and such other terms
and provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, without limitation,
indemnities and contribution substantially to the effect and to the
extent provided in Section 7 hereof and the provision of opinions of
counsel and accountants' letters to the effect and to the extent provided
<PAGE>
in Section 5(e) hereof. The Selling Holders on whose behalf the
Registrable Securities are to be distributed by such underwriters shall
be parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, Uniview to and
for the benefit of such underwriters, shall also be made to and for the
benefit of such Selling Holders. Such underwriting agreement shall also
contain such representations and warranties by the Selling Holders on
whose behalf the Registrable Securities are to be distributed as are
customarily contained in underwriting agreements with respect to
secondary distributions. Selling Holders may require that any additional
securities included in an offering proposed by a Holder be included on
the same terms and conditions as the Registrable Securities that are
included therein.
(2) In the event that any registration pursuant to Section 2
shall involve, in whole or in part, an underwritten offering, Uniview may
require the Registrable Securities requested to be registered pursuant to
Section 2 to be included in such underwriting on the same terms and
conditions as shall be applicable to the other securities being sold
through underwriters under such registration. If requested by the
underwriters for such underwritten offering, the Selling Holders on whose
behalf the Registrable Securities are to be distributed shall enter into
an underwriting agreement with such underwriters, such agreement to
contain such representations and warranties by the Selling Holders and
such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities and contribution substantially
to the effect and to the extent provided in Section 7 hereof. Such
underwriting agreement shall also contain such representations and
warranties by Uniview and such other person or entity for whose account
securities are being sold in such offering as are customarily contained
in underwriting agreements with respect to secondary distributions.
(3) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the
Securities Act, Uniview shall give, subject to all parties executing
confidentiality agreements with Uniview on terms reasonably acceptable to
Uniview, the Holders of such Registrable Securities and the underwriters,
if any, and their respective counsel and accountants, such reasonable and
customary access to its books and records and such opportunities to
discuss the business of Uniview with its officers and the independent
public accountants who have certified Uniview's financial statements as
shall be necessary, in the opinion of such Holder and such underwriters
or their respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
(4) Uniview may require each Selling Holder of Registrable
Securities as to which any Registration is being effected to furnish
Uniview with a properly completed and executed selling shareholder
questionnaire in customary form and substance as may be reasonably requested
by Uniview and such information regarding the proposed disposition of
such securities as Uniview may from time to time reasonably request
in writing. In addition, with respect to any underwritten offering, each
Selling Holder of Registrable Securities shall furnish such customary and
reasonable documents as the lead underwriter may request, including
custodial agreements and powers of attorney.
<PAGE>
(5) Each Holder of Registrable Securities agrees by acquisition
of such Registrable Securities that, upon receipt of written notice from
Uniview of the occurrence of any event of the kind described in subsection
5(f) which written notice specifically references such subsection and
this subsection 6(e), such Holder will as promptly as possible discontinue
disposition of the Registrable Securities pursuant to the Registration
Statement until such Holder's receipt of copies of the supplemented or
amended Prospectus as contemplated by subsection 5(f) or until it is
advised in writing by Uniview that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (which in
each case shall be provided as promptly as practicable but in any event
within 60 days in the event of a registration pursuant to Section 3(a)),
and, if so directed by Uniview, such Holder will deliver to Uniview all
copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Registrable Securities current
at the time of receipt of such notice.
7. Indemnification and Contribution.
(1) In the case of each offering of Registrable Securities made
pursuant to this Agreement, Uniview agrees to indemnify and hold harmless
each Holder, its officers, directors, agents and Affiliates, each
underwriter of Registrable Securities so offered and each person, if
any, who controls any of the foregoing persons within the meaning
of the Securities Act, from and against any and all claims, liabilities,
losses, damages, expenses and judgments, joint or several, to which they
or any of them may become subject, under the Securities Act or otherwise,
including any amount paid in settlement of any litigation commenced or
threatened, and shall promptly reimburse them, as and when incurred, for
any legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as such
losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any untrue statement or alleged untrue statement of
a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or any amendment
thereof or supplement thereto, or in any document incorporated by
reference therein, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that Uniview shall
not be liable to a particular Holder in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement, or any
omission, if such statement or omission shall have been made in reliance
upon and in conformity with information relating to such Holder furnished
to Uniview in writing by or on behalf of such Holder specifically for use
in the preparation of the registration statement (or in any preliminary
or final prospectus included therein) or any amendment thereof or
supplement thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of a Holder and
shall survive the transfer of such securities. The foregoing indemnity
agreement is in addition to any liability which Uniview may otherwise
have to each Holder, its officers and directors, members and managers, as
the case may be, underwriters of the Registrable Securities or any
controlling person of the foregoing; provided, further, that, as to any
underwriter or any person controlling any underwriter or Selling Holder,
this indemnity does not apply to any loss, liability, claim, damage or
<PAGE>
expense arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary
prospectus if a copy of a prospectus was not sent or given by or on
behalf of an underwriter or Selling Holder to such person asserting such
loss, claim, damage, liability or action at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission had been corrected
in such prospectus.
(2) In the case of each offering made pursuant to this Agreement,
each Holder of Registrable Securities included in such offering, by
exercising its registration rights hereunder, agrees to indemnify and hold
harmless Uniview, its officers, directors, agents and Affiliates and each
person, if any, who controls any of the foregoing within the meaning of
the Securities Act (and if requested by the underwriters, each underwriter
who participates in the offering and each person, if any, who controls
any such underwriter within the meaning of the Securities Act), from and
against any and all claims, liabilities, losses, damages, expenses and
judgments, joint or several, to which they or any of them may become
subject under the Securities Act or otherwise, including any amount paid
in settlement of any litigation commenced or threatened, and shall
promptly reimburse them, as and when incurred, for any reasonable legal
or other expenses incurred by them in connection with investigating any
claims and defending any actions, insofar as any such losses, claims,
damages, liabilities or actions shall arise out of, or shall be based
upon, any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement
thereto, or any omission or alleged omission to state therein a material
fact relating to the Holder required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the
extent that such untrue statement of a material fact is contained in, or
such material fact relating to the Holder is omitted from, information
relating to such Holder furnished in writing to Uniview by or on behalf
of such Holder specifically for use in the preparation of such
registration statement (or in any preliminary or final prospectus
included therein). The foregoing indemnity is in addition to any
liability which such Holder may otherwise have to Uniview, or any of its
directors, officers or controlling persons; provided, however, that, as
to any underwriter or any person controlling any underwriter, this
indemnity does not apply to any loss, liability, claim, damage or expense
arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission in any preliminary prospectus
if a copy of a prospectus was not sent to or given by or on behalf of an
underwriter to such person asserting such loss, claim, damage, liability
or action at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such prospectus.
(3) Procedure for Indemnification. Each party indemnified under
paragraph (a) or (b) of this Section 7 shall, promptly after receipt of
notice of any claim or the commencement of any action against such
indemnified party in respect of which indemnity may be sought, notify the
indemnifying party in writing of the claim or the commencement thereof;
provided that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party
on account of the indemnity agreement contained in paragraph (a) or (b)
of this Section 7, except to the extent (and only to the extent) that the
<PAGE>
indemnifying party was prejudiced by such failure, and in no event shall
relieve the indemnifying party from any other liability which it may have
to such indemnified party. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein,
and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party, but only upon written
acknowledgment from the indemnified party that the matter for which the
defense is assumed is an indemnifiable obligation of the indemnifying
party under this Agreement. After notice from the indemnifying party to
the indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided that each
indemnified party, its officers and directors, if any, and each person,
if any, who controls such indemnified party within the meaning of the
Securities Act, shall have the right to employ separate counsel
reasonably approved by the indemnifying party to represent them if the
named parties to any action (including any impleaded parties) include
both such indemnified party and an indemnifying party or an affiliate of
an indemnifying party, and such indemnified party shall have been advised
by counsel that a conflict may exist between such indemnified party and
such indemnifying party or such affiliate, and in that event the fees and
expenses of one such separate counsel for all such indemnified parties
shall be paid by the indemnifying party. An indemnified party will not
enter into any settlement agreement which is not approved by the
indemnifying party, such approval not to be unreasonably withheld. The
indemnifying party may not agree to any settlement of any such claim or
action which provides for any remedy or relief other than monetary
damages for which the indemnifying party shall be responsible hereunder,
without the prior written consent of the indemnified party, which consent
shall not be unreasonably withheld. In any action hereunder as to which
the indemnifying party has assumed the defense thereof with counsel
reasonably satisfactory to the indemnified party, the indemnified party
shall continue to be entitled to participate in the defense thereof, with
counsel of its own choice, but, except as set forth above, the
indemnifying party shall not be obligated hereunder to reimburse the
indemnified party for the costs thereof. In all instances, the
indemnified party shall cooperate fully with the indemnifying party or
its counsel in the defense of each claim or action.
If the indemnification provided for in this Section 7 shall for any
reason be unavailable to an indemnified party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
herein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability,
or action in respect thereof, in such proportion as shall be appropriate
to reflect the relative fault of the indemnifying party on the one hand
and the indemnified party on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party on the one hand or the
<PAGE>
indemnified party on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission, but not by reference to any
indemnified party's stock ownership in Uniview. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this
paragraph shall be deemed to include, for purposes of this paragraph, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
8. Rule 144. Uniview shall take such measures and timely file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 and to remain in compliance
with the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
9. Transfer of Registration Rights. The rights of the holders under
this Agreement with respect to any Registrable Securities may be
transferred to any transferee of such Registrable Securities; provided,
however, that Uniview is given written notice by the holder at or prior
to the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which the
rights under this Agreement are being assigned.
10. Rights Which May Be Granted to Other Persons. Uniview shall not
grant any person registration rights which shall in any way whatsoever
impair the priority of the registration rights granted in this Agreement.
11. Miscellaneous.
(1) Injunctions. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions
of this Agreement was not performed in accordance with its specific terms
or was otherwise breached. Therefore, each party shall be entitled to
an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in
any court having jurisdiction, such remedy being in addition to any other
remedy to which such party may be entitled at law or in equity.
(2) Severability. If any term or provision of this Agreement
shall be held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms and provisions set forth
herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and each of the parties shall use
its best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such
term or provision.
(3) Further Assurances. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge
and deliver such other instruments and documents, and take all such other
actions, as may be reasonably required in order to effectuate the
purposes of this Agreement and to consummate the transactions
contemplated hereby.
<PAGE>
(4) Waivers, etc. No failure or delay on the part of either
party (or the intended third-party beneficiaries referred to herein) in
exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or
power preclude any other or further exercise thereof or the exercise of
any other right or power. No modification or waiver of any provision of
this Agreement nor consent to any departure therefrom shall in any event
be effective unless the same shall be in writing and signed by an authorized
officer of each of the parties, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given.
(5) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties, whether written or oral, with respect to the subject matter hereof.
The paragraph headings contained in this Agreement are for reference purposes
only, and shall not affect in any manner the meaning or interpretation of
this Agreement.
(6) Counterparts. For the convenience of the parties, this
Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original but all of which together shall be one
and the same instrument.
(7) Amendment. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of Uniview and
the Holders of at least 51% of the Registrable Securities.
(8) Notices. Unless expressly provided herein, all notices,
claims, certificates, requests, demands and other communications hereunder
shall be in writing and shall be deemed to be duly given (i) when
personally delivered, (ii) if mailed registered or certified mail, postage
prepaid, return receipt requested, on the date the return receipt is
executed or the letter refused by the addressee or its agent, (iii) if
given by telex or telecopier, once such notice or other communication is
transmitted to the telex or telecopier number specified below and the
appropriate answer back or telephonic confirmation is received; provided
that such notice or other communication is mailed in accordance with clause
(ii) hereof or (iv) if sent by overnight courier which delivers only upon
the signed receipt of the addressee, on the date the receipt acknowledgment
is executed or refused by the addressee or its agent:
if to TVData:
TVData Technologies, L.P.
333 Glen Street
Glens Falls, New York 12801
Attention: Mr. Kenneth Carter, Chief Financial Officer
Telecopy: (518) 792-4671
<PAGE>
with a copy to:
Long Aldridge & Norman LLP
303 Peachtree Street, N.E.
Suite 5300
Atlanta, Georgia 30308
Attention: Johnathan H. Short
Telecopy: 404-527-4198
if to Uniview:
Uniview Technologies Corporation
10911 Petal Street
Dallas, Texas 75201
Attn: Mr. Billy Robinson, General Counsel
Telecopy: (214) 503-8523
with a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
700 Pacific Avenue
Suite 4100
Dallas, Texas 75201-4675
Attn: Terry M. Schpok, P.C.
Telecopy: (214) 969-4343
(9) Governing Law. This Agreement is executed by Uniview in,
and shall be construed in accordance with and governed by the laws of the
State of Texas without giving effect to the principles of conflicts of
laws thereof.
(10) Assignment. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement
which are for the benefit of the Holders of Registrable Securities as
such shall be for the benefit of and enforceable by any subsequent holder
of any Registrable Securities, subject to the provisions respecting the
minimum numbers or percentages of shares of Registrable Securities
required in order to be entitled to certain rights, or take certain
actions contained herein.
(11) Best Efforts. As used herein, the term "best efforts" shall
not obligate a party to expend material funds or incur material liabilities
not otherwise contemplated under this Agreement to achieve an end.
<PAGE>
IN WITNESS WHEREOF, Uniview and TVData have caused this
Agreement to be duly executed by their authorized representative as of
the date first above written.
UNIVIEW:
UNIVIEW TECHNOLOGIES CORPORATION
By: /s/ Patrick A. Custer
Name: Patrick A. Custer
Title: President
TVDATA:
TVData Technologies, L.P.
By: /s/ Kenneth Carter
Name: Kenneth Carter
Title: CFO
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is by and
between the undersigned purchasers ("Purchasers") and uniView
Technologies Corporation, a Texas corporation (the "Company").
Pursuant to a Securities Purchase Agreement dated as of an even date
herewith, the Purchasers have agreed to purchase certain securities (as
defined in the Purchase Agreement) on the condition, among others, that
the Company grant the registration rights set forth in this Agreement.
ACCORDINGLY, to induce the Purchasers to purchase the securities and
in consideration of the mutual representations and agreements set forth
in this Agreement, the Company and the Purchasers, intending to be
legally bound, now agree as follows:
1. Certain Definitions. As used in this Agreement, the capitalized
terms set forth below shall have the following meanings:
(1) "Affiliate" means, with respect to any person, any other
person who, directly or indirectly, is in control of, is controlled by
or is under common control with such person.
(2) "Holder(s)" means the holders of Registrable Securities.
(3) "Registrable Securities" means the shares of common stock,
par value $.10 per share, of the Company ("Common Stock") issued to
Purchasers pursuant to the Purchase Agreement (the "Common Shares");
shares of Common Stock underlying warrants issued to Purchasers pursuant
to a Warrant dated as of an even date herewith (the "Warrant Shares" and
together with the Common Shares, the "Shares") ; any stock or other
securities into which or for which such Shares may hereafter be changed,
converted or exchanged, and any other securities issued to the Purchasers
of such Shares (or such Shares into which or for which such Shares are so
changed, converted or exchanged) upon any reclassification, share
combination, share subdivision, share dividend, merger, consolidation or
similar transactions or events; provided that any such securities shall
cease to be Registrable Securities if (i) a registration statement with
respect to the sale of such securities shall have become effective under
the Securities Act (as defined below) and such securities shall have been
disposed of in accordance with the plan of distribution set forth in such
registration statement, or (ii) such securities shall have been
transferred pursuant to Rule 144 (as defined below).
(4) "Registration Expenses" means all expenses incurred by the
Company in connection with any registration of Registrable Securities
pursuant to this Agreement including, without limitation, the following:
(i) SEC filing fees; (ii) the fees, disbursements and expenses of the
Company's counsel(s) and accountants in connection with the registration
of the Registrable Securities to be disposed of under the Securities Act,
(iii) all expenses of the Company and its agents and representatives in
connection with the preparation, printing and filing of the registration
statement, any preliminary prospectus or final prospectus and amendments
and supplements thereto and the mailing and delivering of a reasonable
number of copies thereof to any Purchasers, underwriters and dealers and
<PAGE>
all actual expenses incidental to delivery of the Registrable Securities;
(iv) the cost of producing blue sky memoranda; (v) all expenses in
connection with the qualification of the Registrable Securities to be
disposed of for offering and sale under state securities laws; (vi) the
filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Registrable Securities to be disposed of; (vii) the expenses of the
Company's transfer agent and registrar appointed in connection with such
offering, (viii) all engraving and printing expenses for the Company
securities being offered; and (ix) all fees and expenses payable in
connection with the listing of the Registrable Securities on each
securities exchange or inter-dealer quotation system on which a class of
common equity securities of the Company is then listed.
(5) "Rule 144" means Rule 144 promulgated under the Securities
Act (as defined below), or any successor rule to similar effect.
(6) "Rule 144 Resale Eligible" means that for the period after
the holding period restrictions under Rule 144(d) have elapsed, all shares
of Registrable Securities are eligible for resale under Rule 144 without
restriction under Rule 144(e) upon the amount of Registrable Securities
which may be sold.
(7) "SEC" means the United States Securities and Exchange
Commission.
(8) "Securities Act" means the Securities Act of 1933, as
amended, or any successor statute.
2. Registration.
(1) The Company shall prepare and file with the SEC a registration
statement sufficient to permit the public offering and sale of the
Registrable Securities through the facilities of the Nasdaq Stock Market.
(2) The registration statement filed by the Company pursuant to
this section may include securities sold by the Company or on behalf of
persons other than Purchasers. In connection with those registrations in
which multiple holders of other registrable securities with the right to
participate in such registration ("piggy-back rights holders")
participate, in the event the facilitating broker/dealer or, in an
underwritten offering, the lead managing underwriter advises that
marketing factors require a limitation on the number of shares to be
sold, the number of shares to be included in the sale or underwriting and
registration shall be allocated (i) first, to the Purchasers, and (ii)
second, to the holders seeking registration pursuant to piggy-back
registration rights otherwise granted by the Company pro rata on the
basis of the number of securities requested to be registered by each such
holder in such registration.
3. Expenses. the Company agrees to pay all Registration Expenses
with respect to an offering pursuant to Section 2 hereof, but not commissions
or underwriting discounts in connection with an offering, which shall be
the expense of the Holder(s).
4. Registration and Qualification. If and whenever the Company is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2
hereof, the Company shall:
<PAGE>
(1) prepare and file a registration statement under the Securities
Act relating to the Registrable Securities to be offered as soon as
practicable, but in no event later than sixty (60) days after the date of
this Agreement, and use its best efforts to cause the same to become
effective as promptly as practicable;
(2) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective until Purchasers have completed the sales or distribution
described in such registration statement relating thereto or, if earlier,
until such Registrable Securities may be sold under Rule 144;
(3) furnish to the Purchasers and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, and such other documents, as the Purchasers or such
underwriter may reasonably request in order to facilitate the public sale
of the Registrable Securities, and a copy of any and all transmittal
letters or other correspondence to, or received from, the SEC or any
other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange)
relating to such offering;
(4) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or
blue sky laws of such United States jurisdictions as the Purchasers or
any underwriter of such Registrable Securities shall request, and use its
best efforts to obtain all appropriate registrations, permits and
consents required in connection therewith, and do any and all other acts
and things which may be necessary or advisable to enable the Purchasers
or any such underwriter to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such registration
statement; provided that the Company shall not for any such purpose be
required to register or qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, or to
subject itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
(5) (i) use its best efforts to furnish an opinion of counsel
for the Company in customary form required to register the securities with
the Securities Exchange Commission, and (ii) use its best efforts to furnish
a "cold comfort" letter addressed to each Selling Holder, if permissible
under applicable accounting practices, and signed by the independent
public accountants who have audited the Company's financial statements
included in such registration statement, in each such case covering
substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of securities
and such other matters as the Selling Purchasers may reasonably request
and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements;
<PAGE>
(6) immediately notify the Selling Purchasers in writing (i) at
any time when a prospectus relating to a registration pursuant to Section 2
hereof is required to be delivered under the Securities Act of the happening
of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (ii) of
any request by the SEC or any other regulatory body or other body having
jurisdiction for any amendment of or supplement to any registration
statement or other document relating to such offering, and in either such
case (i) or (ii) above and at the request of the Selling Purchasers
(subject to Section 3 hereof) promptly prepare and furnish to the Selling
Purchasers a number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(7) list all such Registrable Securities covered by such
registration on each national securities exchange and United States
inter-dealer quotation system on which a class of common equity securities
of the Company is then listed, with expenses in connection therewith to be
paid in accordance with Section 3 hereof; and
(8) furnish unlegended certificates representing ownership of
the Registrable Securities being sold in such denominations as shall be
requested by the Selling Purchasers or the underwriters with expenses
therewith to be paid in accordance with Section 3 hereof.
5. Underwriting, Due Diligence.
(1) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration under this
Agreement, the Company shall enter into an underwriting agreement with
such underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
indemnities and contribution substantially to the effect and to the
extent provided in Section 6 hereof and the provision of opinions of
counsel and accountants' letters to the effect and to the extent provided
in Section 4(5) hereof. The Selling Purchasers on whose behalf the
Registrable Securities are to be distributed by such underwriters shall
be parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, the Company to
and for the benefit of such underwriters, shall also be made to and for
the benefit of such Selling Purchasers. Such underwriting agreement
shall also contain such representations and warranties by the Selling
Purchasers on whose behalf the Registrable Securities are to be
distributed as are customarily contained in underwriting agreements with
respect to secondary distributions. Selling Purchasers may require that
any additional securities included in an offering proposed by a Holder be
included on the same terms and conditions as the Registrable Securities
that are included therein.
<PAGE>
(2) In the event that any registration pursuant to Section 2
shall involve, in whole or in part, an underwritten offering, the Company
may require the Registrable Securities to be registered pursuant to
Section 2 to be included in such underwriting on the same terms and
conditions as shall be applicable to the other securities being sold through
underwriters under such registration. If requested by the underwriters
for such underwritten offering, the Selling Purchasers on whose behalf
the Registrable Securities are to be distributed shall enter into an
underwriting agreement with such underwriters, such agreement to contain
such representations and warranties by the Selling Purchasers and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution substantially to the effect and
to the extent provided in Section 6 hereof. Such underwriting agreement
shall also contain such representations and warranties by the Company and
such other person or entity for whose account securities are being sold
in such offering as are customarily contained in underwriting agreements
with respect to secondary distributions.
(3) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the
Securities Act, the Company shall give, subject to all parties executing
confidentiality agreements with the Company on terms reasonably acceptable
to the Company, the Purchasers of such Registrable Securities and the
underwriters, if any, and their respective counsel and accountants, such
reasonable and customary access to its books and records and such
opportunities to discuss the business of the Company with its officers
and the independent public accountants who have certified the Company's
financial statements as shall be necessary, in the opinion of such Holder
and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
(4) the Company may require each Selling Holder of Registrable
Securities as to which any Registration is being effected to furnish the
Company with a properly completed and executed selling shareholder
questionnaire in customary form and substance as may be reasonably
requested by the Company and such information regarding the proposed
disposition of such securities as the Company may from time to time
reasonably request in writing. In addition, with respect to any
underwritten offering, each Selling Holder of Registrable Securities
shall furnish such customary and reasonable documents as the lead
underwriter may request, including custodial agreements and powers of
attorney.
(5) Each Holder of Registrable Securities agrees by acquisition
of such Registrable Securities that, upon receipt of written notice from the
Company of the occurrence of any event of the kind described in
subsection 4(6) which written notice specifically references such
subsection and this subsection 5(5), such Holder will as promptly as
possible discontinue disposition of the Registrable Securities pursuant
to the Registration Statement until such Holder's receipt of copies of
the supplemented or amended Prospectus as contemplated by subsection 4(6)
or until it is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the
Prospectus, and, if so directed by the Company, such Holder will deliver
to the Company all copies, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
<PAGE>
6. Indemnification and Contribution.
(1) In the case of each offering of Registrable Securities made
pursuant to this Agreement, the Company agrees to indemnify and hold
harmless each Holder, its officers, directors, agents and Affiliates, each
underwriter of Registrable Securities so offered and each person, if any,
who controls any of the foregoing persons within the meaning of the
Securities Act, from and against any and all claims, liabilities, losses,
damages, expenses and judgments, joint or several, to which they or any
of them may become subject, under the Securities Act or otherwise,
including any amount paid in settlement of any litigation commenced or
threatened, and shall promptly reimburse them, as and when incurred, for
any legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as such
losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any untrue statement or alleged untrue statement of
a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or any amendment
thereof or supplement thereto, or in any document incorporated by
reference therein, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company
shall not be liable to a particular Holder in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement, or any
omission, if such statement or omission shall have been made in reliance
upon and in conformity with information relating to such Holder furnished
to the Company in writing by or on behalf of such Holder specifically for
use in the preparation of the registration statement (or in any
preliminary or final prospectus included therein) or any amendment
thereof or supplement thereto. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of a
Holder and shall survive the transfer of such securities. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to each Holder, its officers and directors, members and
managers, as the case may be, underwriters of the Registrable Securities
or any controlling person of the foregoing; provided, further, that, as
to any underwriter or any person controlling any underwriter or Selling
Holder, this indemnity does not apply to any loss, liability, claim,
damage or expense arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission in any
preliminary prospectus if a copy of a prospectus was not sent or given by
or on behalf of an underwriter or Selling Holder to such person asserting
such loss, claim, damage, liability or action at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission had been corrected
in such prospectus.
(2) In the case of each offering made pursuant to this Agreement,
each Holder of Registrable Securities included in such offering, by
exercising its registration rights hereunder, agrees to indemnify and hold
harmless the Company, its officers, directors, agents and Affiliates and each
person, if any, who controls any of the foregoing within the meaning of
the Securities Act (and if requested by the underwriters, each
underwriter who participates in the offering and each person, if any, who
controls any such underwriter within the meaning of the Securities Act),
from and against any and all claims, liabilities, losses, damages,
expenses and judgments, joint or several, to which they or any of them
<PAGE>
may become subject under the Securities Act or otherwise, including any
amount paid in settlement of any litigation commenced or threatened, and
shall promptly reimburse them, as and when incurred, for any reasonable
legal or other expenses incurred by them in connection with investigating
any claims and defending any actions, insofar as any such losses, claims,
damages, liabilities or actions shall arise out of, or shall be based
upon, any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement
thereto, or any omission or alleged omission to state therein a material
fact relating to the Holder required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the
extent that such untrue statement of a material fact is contained in, or
such material fact relating to the Holder is omitted from, information
relating to such Holder furnished in writing to the Company by or on
behalf of such Holder specifically for use in the preparation of such
registration statement (or in any preliminary or final prospectus
included therein). The foregoing indemnity is in addition to any
liability which such Holder may otherwise have to the Company, or any of
its directors, officers or controlling persons; provided, however, that,
as to any underwriter or any person controlling any underwriter, this
indemnity does not apply to any loss, liability, claim, damage or expense
arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission in any preliminary prospectus
if a copy of a prospectus was not sent to or given by or on behalf of an
underwriter to such person asserting such loss, claim, damage, liability
or action at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such prospectus.
(3) Procedure for Indemnification. Each party indemnified under
paragraph (a) or (b) of this Section 6 shall, promptly after receipt of
notice of any claim or the commencement of any action against such
indemnified party in respect of which indemnity may be sought, notify the
indemnifying party in writing of the claim or the commencement thereof;
provided that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party
on account of the indemnity agreement contained in paragraph (a) or (b)
of this Section 6, except to the extent (and only to the extent) that the
indemnifying party was prejudiced by such failure, and in no event shall
relieve the indemnifying party from any other liability which it may have
to such indemnified party. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein,
and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party, but only upon written
acknowledgment from the indemnified party that the matter for which the
defense is assumed is an indemnifiable obligation of the indemnifying
party under this Agreement. After notice from the indemnifying party to
the indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the indemnified
party under this Section 6 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided that each
indemnified party, its officers and directors, if any, and each person,
if any, who controls such indemnified party within the meaning of the
<PAGE>
Securities Act, shall have the right to employ separate counsel
reasonably approved by the indemnifying party to represent them if the
named parties to any action (including any impleaded parties) include
both such indemnified party and an indemnifying party or an affiliate of
an indemnifying party, and such indemnified party shall have been advised
by counsel that a conflict may exist between such indemnified party and
such indemnifying party or such affiliate, and in that event the fees and
expenses of one such separate counsel for all such indemnified parties
shall be paid by the indemnifying party. An indemnified party will not
enter into any settlement agreement which is not approved by the
indemnifying party, such approval not to be unreasonably withheld. The
indemnifying party may not agree to any settlement of any such claim or
action which provides for any remedy or relief other than monetary
damages for which the indemnifying party shall be responsible hereunder,
without the prior written consent of the indemnified party, which consent
shall not be unreasonably withheld. In any action hereunder as to which
the indemnifying party has assumed the defense thereof with counsel
reasonably satisfactory to the indemnified party, the indemnified party
shall continue to be entitled to participate in the defense thereof, with
counsel of its own choice, but, except as set forth above, the
indemnifying party shall not be obligated hereunder to reimburse the
indemnified party for the costs thereof. In all instances, the
indemnified party shall cooperate fully with the indemnifying party or
its counsel in the defense of each claim or action.
If the indemnification provided for in this Section 6 shall for any
reason be unavailable to an indemnified party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
herein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability,
or action in respect thereof, in such proportion as shall be appropriate
to reflect the relative fault of the indemnifying party on the one hand
and the indemnified party on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party on the one hand or the
indemnified party on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission, but not by reference to any
indemnified party's stock ownership in the Company. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this
paragraph shall be deemed to include, for purposes of this paragraph, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
7. Rule 144. The Company shall take such measures and timely file
such information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 and to remain in compliance
with the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
<PAGE>
8. Transfer of Registration Rights. The rights of the holders under
this Agreement with respect to any Registrable Securities may be
transferred to any transferee of such Registrable Securities; provided,
however, that the Company is given written notice by the holder at or
prior to the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which the
rights under this Agreement are being assigned.
9. Rights Which May Be Granted to Other Persons. The Company shall
not grant any person registration rights which shall in any way whatsoever
impair the priority of the registration rights granted in this Agreement.
10. Miscellaneous.
(1) Injunctions. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions of
this Agreement was not performed in accordance with its specific terms or
was otherwise breached. Therefore, each party shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in
any court having jurisdiction, such remedy being in addition to any other
remedy to which such party may be entitled at law or in equity.
(2) Severability. If any term or provision of this Agreement
shall be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms and provisions set forth herein
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and each of the parties shall use its best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term or
provision.
(3) Further Assurances. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge
and deliver such other instruments and documents, and take all such other
actions, as may be reasonably required in order to effectuate the
purposes of this Agreement and to consummate the transactions
contemplated hereby.
(4) Waivers, etc. No failure or delay on the part of either
party (or the intended third-party beneficiaries referred to herein) in
exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power
preclude any other or further exercise thereof or the exercise of any
other right or power. No modification or waiver of any provision of this
Agreement nor consent to any departure therefrom shall in any event be
effective unless the same shall be in writing and signed by an authorized
officer of each of the parties, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given.
(5) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties, whether written or oral, with respect to the subject matter hereof.
The paragraph headings contained in this Agreement are for reference purposes
only, and shall not affect in any manner the meaning or interpretation of
this Agreement.
<PAGE>
(6) Counterparts. For the convenience of the parties, this
Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original but all of which together shall be one
and the same instrument.
(7) Amendment. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of the Company
and the Purchasers of at least 51% of the Registrable Securities.
(8) Notices. Unless expressly provided herein, all notices,
claims, certificates, requests, demands and other communications hereunder
shall be in writing and shall be deemed to be duly given (i) when personally
delivered, (ii) if mailed registered or certified mail, postage prepaid,
return receipt requested, on the date the return receipt is executed or
the letter refused by the addressee or its agent, (iii) if given by telex
or telecopier, once such notice or other communication is transmitted to
the telex or telecopier number specified below and the appropriate answer
back or telephonic confirmation is received; provided that such notice or
other communication is mailed in accordance with clause (ii) hereof or
(iv) if sent by overnight courier which delivers only upon the signed
receipt of the addressee, on the date the receipt acknowledgment is
executed or refused by the addressee or its agent:
if to Purchasers: Bonanza Partners, Ltd.
8235 Douglas Avenue, Suite 423
Dallas, Texas 75225
Attention: Bernay Box
Telecopy: (972) 987-4342
if to the Company: uniView Technologies Corporation
17300 North Dallas Parkway, Suite 2050
Dallas, Texas 75248
Attn: Mr. Billy Robinson, General Counsel
Telecopy: (972) 248-3525
(9) Governing Law. This Agreement is executed by the Company in,
and shall be construed in accordance with and governed by the laws of the
State of Texas without giving effect to the principles of conflicts of
laws thereof.
(10) Assignment. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement
which are for the benefit of the Purchasers of Registrable Securities as such
shall be for the benefit of and enforceable by any subsequent holder of
any Registrable Securities, subject to the provisions respecting the
minimum numbers or percentages of shares of Registrable Securities
required in order to be entitled to certain rights, or take certain
actions contained herein.
(11) Best Efforts. As used herein, the term "best efforts" shall
not obligate a party to expend material funds or incur material liabilities
not otherwise contemplated under this Agreement to achieve an end.
<PAGE>
IN WITNESS WHEREOF, the Company and Purchasers have caused this
Registration Rights Agreement to be duly executed by their authorized
representative as of December 30, 1999.
UNIVIEW TECHNOLOGIES CORPORATION
By: /s/ Patrick A. Custer
Name: Patrick A. Custer
Title: President
Purchasers:
BONANZA PARTNERS, LTD.
By: Bonanza Capital, Ltd.,
a Texas limited partnership
By: Bernay Box & Co., Inc.,
A Texas corporation,
By: __/s/ Bernay Box_________
Bernay Box, President
<PAGE>
March 8, 2000
uniView Technologies Corporation
17300 North Dallas Parkway, Suite 2050
Dallas, Texas 75248
Gentlemen:
I have acted as counsel to uniView Technologies Corporation, a Texas
corporation (the "Company") in connection with the proposed public
offering of up to 4,245,434 shares of the Company's Common Stock, $.10
par value (the "Common Stock"), as described in the Registration
Statement on Form S-3 filed with the Securities and Exchange Commission
on the date hereof (the "Registration Statement").
I have, as counsel, as I have deemed necessary examined such
corporate records, certificates and other documents and reviewed such
questions of law as I have deemed necessary, relevant or appropriate to
enable me to render the opinions expressed below. In rendering such
opinions, I have assumed the genuineness of all signatures and the
authenticity of all documents examined by me. As to various questions of
fact material to such opinions, I have relied upon representations of the
Company.
Based upon such examination and representations, I advise you that,
in my opinion, the shares of Common Stock which are to be sold and
delivered by the Company and certain selling stockholders of the Company
(the "Selling Stockholders") as contemplated by the Plan of Distribution
specified in the Registration Statement, have been duly and validly
authorized by the Company and, in the case of the shares of Common Stock
to be sold by the Selling Stockholders, have been validly issued and are
fully paid and non-assessable.
I consent to the filing of this opinion as Exhibit "5" to the
Registration Statement and to the reference to myself under the caption
"Legal Matters" in the prospectus contained therein.
Sincerely,
/s/ Billy J. Robinson
Billy J. Robinson, General Counsel
uniView Technologies Corporation
<PAGE>
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-3 pertaining to the registration of 2,910,434 shares
of common stock and 1,335,000 shares of common stock issuable upon
exercise of certain warrants of our report dated September 14, 1998 with
respect to the consolidated financial statements appearing in the Annual
Report on Form 10-K of uniView Technologies Corporation as of June 30,
1998 and for each of the years in the two-year period ended June 30, 1998
and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ King Griffin & Adamson P.C.
KING GRIFFIN & ADAMSON P.C.
Dallas, Texas
March 6, 2000
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated September 10, 1999 accompanying the
consolidated financial statements and schedule of uniView Technologies
Corporation and Subsidiaries appearing in the Annual Report on Form 10-
K, year ended June 30, 1999 which is incorporated by reference in this
Registration Statement. We consent to the incorporation by reference in
the Registration Statement of the aforementioned report and to the use of
our name as it appears under the caption "Experts."
GRANT THORNTON LLP (manually)
Dallas, Texas
March 7, 2000
