EXHIBIT 4.5
FIRST AMENDMENT TO
2000 SECURITIES PURCHASE AGREEMENT
FIRST AMENDMENT TO 2000 SECURITIES PURCHASE AGREEMENT, dated as of
March 16, 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
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").
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 this amendment (the "Amendment.")
ACCORDINGLY, in consideration of the preceding preliminary statement
and the mutual agreements, covenants, representations and warranties
contained in the Agreement and this Amendment, the parties hereto, intending
to be legally bound, now agree as follows:
STATEMENT OF AGREEMENT
The terms of the Agreement shall control all aspects of the transaction
contemplated by this Amendment, except as otherwise expressly modified by
this 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 $1,500,000,
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 this Agreement, 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 Amendment
(the "Closing") shall take place at the offices of the Company on March 16,
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 Amendment as of the date hereof and as of
the Closing Date.
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 Amendment as of the date hereof and as of
the Closing Date.
The Company further undertakes the following:
(1) To coordinate with Purchaser to set up, within thirty (30)
days after Closing, automatic drafting (ACH) of a Company corporate account
for the interest payment due Purchaser each month under the Note;
(2) To obtain, within thirty (30) days after Closing, a
subordination by Xxxxxx Company, Inc. of its lien on the Xxxxxx Xxxxxx
trademark; and
(3) To use its best efforts to obtain, within thirty (30) days
after Closing, a release of the lien on the Xxxxxx Xxxxxx trademark
currently shown of record as being held by Xxxxx X. Xxxxxx, Trustee.
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 March 16, 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 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
Amendment to be offered as soon as practicable, but in no event later than
ninety (90) days after the date of this First 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 and 7 remain unchanged.
ARTICLE 8. DEFAULT AND REMEDIES.
Section 8.1 Events of Default. An "Event of Default" occurs if:
(a) the Company defaults in the payment of principal of or
interest on the Notes when the same becomes due and payable and such default
continues for 10 days after due date of such payment;
(b), (c), (d), and (e) remain unchanged, as well as the last
sentence of this section.
Section 8.2 Remedies.
(a) and (b) remain unchanged.
(c) If any Event of Default shall have occurred and is
continuing, the Company shall pay to Holders additional Warrants to purchase
10,000 shares of Common Stock per day until the default is cured, up to a
maximum of 500,000 shares. Additionally, in such event, the Company agrees
to pay to the Holders interest at a rate per annum equal to the lesser of
the Default Rate and the Maximum Rate, as defined in the Notes.
ARTICLE 9 remains unchanged, except as follows:
New Section 9.13. Notwithstanding any provision to the contrary in the
Agreement documents, including Section 2.3(d) of the Promissory Note dated
December 8, 2000 in the original principal amount of $1 million, the Company
shall not make any payment under this Agreement in shares of Common Stock if
such stock payment would trigger any now existing anti-dilution provision of
any other agreement of the Company.
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: (Form only)
-----------------------------
ACKNOWLEDGMENTS
In order to induce uniView Technologies Corporation (the "Company") to
accept the foregoing 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 Amendment as of the date hereof and as of the Closing
Date.
PURCHASER: Sagemark Capital, L.P.
(Form only)
_______________________________
(Signature)
Sagemark Capital, L.P.
By: Sagemark Management, LLC, General Partner
Print Name:
Title: Authorized Member
Principal Amount of Notes Purchased by this Amendment:
Corresponding Warrant exercisable for ___________ underlying shares,
exercisable for five (5) years at $_______ per share.
Principal Place of Business:
Federal Tax ID Number:
