EXHIBIT 4.4
SECOND AMENDMENT TO
2000 SECURITIES PURCHASE AGREEMENT
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SECOND AMENDMENT TO 2000 SECURITIES PURCHASE AGREEMENT, dated as of
July 25, 2001, by and among uniView Technologies Corporation, a Texas
corporation (the "Company"), and the purchasers named on the signature pages
hereto (the "Purchasers").
PRELIMINARY STATEMENT
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The Company and the Purchasers heretofore entered into that one certain
2000 Securities Purchase Agreement, Note, Registration Rights Agreement,
Trademark Security Agreement and related documentation dated as of December
8, 2000 (the "Agreement"), as well as a First Amendment to the Agreement
dated as of March 16, 2001.
The Company desires to obtain funds by issuing to the Purchasers
additional promissory notes and warrants to purchase common stock, and the
Purchasers have indicated that each desires to purchase such securities,
subject to the terms and conditions set forth in the Agreement, as modified
by the First Amendment and as further modified by this amendment (the
"Second Amendment.")
ACCORDINGLY, in consideration of the preceding preliminary statement
and the mutual agreements, covenants, representations and warranties
contained in the Agreement, the First Amendment and this Second Amendment,
the parties hereto, intending to be legally bound, now agree as follows:
STATEMENT OF AGREEMENT
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The terms of the Agreement and the First Amendment shall control all
aspects of the transaction contemplated by this Second Amendment, except as
otherwise expressly modified by this Second Amendment.
2000 Securities Purchase Agreement:
ARTICLE 1. CERTAIN DEFINITIONS.
"Note" and "Notes" both mean, as the context requires, the promissory
notes to be made by the Company payable to the Purchasers, such Notes
being in the aggregate original principal amount of up to $2,000,000,
together with all amendments and supplements thereto, all substitutions
and replacements therefor, and all renewals, extensions, increases,
restatements, modifications, rearrangements and waivers thereof from time to
time.
"Documents" means the Agreement, the First Amendment, the Second
Amendment, the Registration Rights Agreement, any security agreement
securing the indebtedness, and the Securities, together with all amendments
and supplements thereto, all substitutions and replacements therefor,
and all renewals, extensions, increases, restatements, modifications,
rearrangements and waivers thereof from time to time.
The remaining definitions of this section remain unchanged.
ARTICLE 2. ISSUANCE OF SECURITIES.
Section 2.1 Closing. The closing contemplated by this Second
Amendment (the "Closing") shall take place at the offices of the Company on
July 25, 2001 or on such other date or at such other time as the issuance of
the Securities and the payment of the Purchase Price therefor shall actually
occur (the "Closing Date"). At the Closing, the Company will deliver to
each Purchaser the Note and the Warrant subscribed for by such Purchaser as
noted on the signature page hereof, each registered in the name of such
Purchaser, against payment of the Purchase Price therefor. At the Closing,
the Purchase Price shall be paid in good funds by wire transfer, less a one
percent (1%) commitment fee and a four percent (4%) loan origination fee
payable to Purchaser, and reasonable out of pocket expenses, if any.
Section 2.2 remains unchanged.
ARTICLE 3. PURCHASERS' REPRESENTATIONS AND WARRANTIES.
Each Purchaser hereby affirms all representations and warranties made
under this section in the Agreement to be current and applicable to the
transaction contemplated by this Second Amendment as of the date hereof and
as of the Closing Date.
Each Purchaser agrees that its aggregate sales of the Company's common
stock during any seven (7) day period will not exceed the average daily
sales volume of all the shares of the Company's common stock during the
immediately preceding thirty (30) day period.
ARTICLE 4. COMPANY'S REPRESENTATIONS AND WARRANTIES.
The Company hereby affirms all representations and warranties made
under this section in the Agreement to be current and applicable to the
transaction contemplated by this Second Amendment as of the date hereof and
as of the Closing Date.
The Company further undertakes to pay by wire transfer all interest
payments due Purchaser each month under the Note;
ARTICLE 5. PURCHASERS' CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for Securities at the
Closing is subject to the fulfillment to such Purchaser's satisfaction, on
or before the Closing Date, of each of the following conditions:
Section 5.1 Expiration Date. The Closing Date shall have
occurred on or before July 25, 2001.
Section 5.2 remains unchanged.
Section 5.3 Registration Rights Agreement. Section 4 of the
Registration Rights Agreement between the parties, dated as of December 8,
2000, shall remain unchanged for the Registrable Securities of the 2000
Securities Purchase Agreement dated as of December 8, 2000. Section 4 of
the Registration Rights Agreement between the parties, dated as of December
8, 2000, shall be adopted herein for purposes of this Second Amendment to
read as follows:
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 of the
Registration Rights Agreement, the following shall apply:
(1) The Company shall prepare and file a registration statement
under the Securities Act relating to the Registrable Securities of this
Second Amendment to be offered as soon as practicable, but in no event later
than thirty (30) days after the date of this Second Amendment to 2000
Securities Purchase Agreement, and use its best efforts to cause the same to
become effective as promptly as practicable.
(2) The Company shall 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) The Company shall 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) The Company shall immediately notify the Selling Purchasers in
writing (i) at any time when a prospectus relating to a registration
pursuant to Section 2 of the Registration Rights Agreement 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 of the Registration Rights
Agreement) 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;
(5) The Company shall 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 of the Registration Rights Agreement; and
(6) The Company shall 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 of the
Registration Rights Agreement.
Sections 5.4 through 5.8 remain unchanged.
ARTICLES 6, 7, 8 and 9 remain unchanged.
Trademark Security Agreement:
The title and first paragraph of the Trademark Security Agreement
executed on December 8, 2000 as part of the 2000 Securities Purchase
transaction shall be amended to read as follows:
"TRADEMARK AND ROYALTY SECURITY AGREEMENT
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The undersigned, uniView Technologies Corporation, a Texas corporation
("Company"), having its offices at 00000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000 for value received, hereby grants unto Sagemark Capital,
L.P. ("Creditor") a security interest in all Xxxxxx Xxxxxx trademarks and
service marks owned by the Company (including, without limitation,
Registration No. 1,328,184 dated April 2, 1985; Registration No. 2,189,394
dated September 15, 1998; Registration No. 2,199,717 dated October 27, 1998;
and Registration No. 2,199,717 dated October 27, 1998), along with the
goodwill of Company's business connected with and symbolized by the above-
mentioned trademarks, service marks, trade names and packages or trade
dress; and the Company further assigns to the Creditor, as collateral
security for the payment of the Company's Obligations hereunder, all
royalties accruing under any license agreement for use of the Xxxxxx Xxxxxx
trademarks, service marks, trade names and packages or trade dress and
specifically a direct assignment of the royalty payments from Avmark, Inc.
The Company shall sign and deliver to Creditor such further documents as may
be necessary to perfect Creditors security interest hereunder."
Paragraph 1 of the Trademark Security Agreement shall be amended to
read as follows
"1. INDEBTEDNESS SECURED: This Agreement (and other similar
agreements) secures the Company's obligations ("Obligations"), up to an
aggregate amount of Two Million Dollars ($2,000,000), under certain 14%
Promissory Notes dated as of December 8, 2000, as the same may be amended,
modified or supplemented from time to time, executed by the Company, and
delivered to certain Purchasers of the Company's securities pursuant to a
2000 Securities Purchase Agreement dated as of December 8, 2000, of which
Creditor herein is one. All rights of the Creditor granted in this
Agreement are pari passu with the rights of the holders of all other 14%
Promissory Notes issued by the Company pursuant to that certain 2000
Securities Purchase Agreement, dated as of December 8, 2000, by and among
the Company and the Purchasers named therein (as amended, supplemented,
restated or otherwise modified from time to time, the "Purchase Agreement").
This Agreement shall continue in full force and effect until terminated in
accordance with the provisions of paragraph 9 hereof."
Said Trademark Security Agreement shall in all other respects remain
unchanged.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year specified at the beginning hereof.
UNIVIEW TECHNOLOGIES CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Vice President
ACKNOWLEDGMENTS
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In order to induce uniView Technologies Corporation (the "Company") to
accept the foregoing Second Amendment of the Agreement between the parties,
the Purchaser expressly acknowledges that all of its acknowledgments
previously made in the Agreement to be current and applicable to the
transaction contemplated by this Second Amendment as of the date hereof and
as of the Closing Date.
PURCHASER: Sagemark Capital, L.P.
/s/ Xxxxx XxXxxx
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(Signature)
Sagemark Capital, L.P.
By: Sagemark Management, LLC, General Partner
Print Name: Xxxxx XxXxxx
Title: Authorized Member
Principal Amount of Notes Purchased by this Second Amendment: $500,000
Corresponding Warrant exercisable for 250,000 underlying shares, exercisable
for five (5) years at $4.00 per share.
Principal Place of Business: 000 Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Federal Tax ID Number:
