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).
(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
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
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.
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
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
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
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.
(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
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
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.
(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.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx, President
Telecopy: (000) 000-0000
if to uniView:
uniView Technologies Corporation
00000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, General Counsel
Telecopy: (000) 000-0000
(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/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
SOFTGEN GROUP:
SOFTGEN INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
Softgen Shareholders:
_/S/ Xxxxxxx X. Xxxxx _/s/ Xxxxxx Leland_____
Xxxxxxx X. Xxxxx Xxxxxx Xxxxxx
Nations Corp. Ltd.
By: __/s/ D. Xxxxxx Allen___
D. Xxxxxx Xxxxx
Attorney in Fact
