THE SECURITIES OFFERED HEREIN ARE SUBJECT TO
SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY
SECURITIES PURCHASE AGREEMENT
1. uniView Technologies Corporation, a Texas corporation (the
"Company"), has offered for sale and the undersigned purchaser (the
"Purchaser") hereby tenders this subscription and applies for the
purchase of shares of Series 1999-E, Class A Preference Shares (the
"Class A Preferred Stock") of the Company, (together with the shares of
the Company's Common Stock, par value $0.10, issuable upon conversion of
the Series 1999-E, Class A Preferred Stock (the "Shares")) at a face
value per Share of $25,000, and containing all the rights, obligations,
and conditions as more fully set out in the form of the Certificate of
Designation of Class A Preferred Stock attached hereto as Exhibit "A" and
incorporated herein for all purposes (the "Offering"). Together with
this Securities Purchase Agreement (the "Agreement"), the Purchaser is
delivering to the Company the full amount of the consideration,
consisting of an aggregate total of 32 shares of Series Q Class A
Preferred Stock, which shall be canceled, for the Shares for which it is
subscribing pursuant hereto, against delivery of the Class A Preferred
Stock certificates. Time is of the essence in connection with this
Agreement.
2. Representations and Warranties of Purchaser. In order to induce
the Company to accept this subscription, the Purchaser hereby represents
and warrants to, and covenants with, the Company as follows:
A. (i) The purchaser has received and carefully reviewed the
Company's most recent Annual Report on Form 10-K, its subsequent
Quarterly Reports on Form 10-Q, its most recent Registration
Statement on Form S-3, and its Current Reports on Form 8-K
(collectively, the "SEC Reports"), and a copy of the Certificate of
Designation for the Series 1999-E Class A Preferred Stock;
(ii) The Purchaser has had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the
Company and the Offering, and all such questions, if any, have been
answered to the full satisfaction of the Purchaser;
(iii) The Purchaser is an accredited investor and has
such knowledge and expertise in financial and business matters that
the Purchaser is capable of evaluating the merits and risks involved
in an investment in the Class A Preferred Stock and acknowledges
that an investment in the Class A Preferred Stock entails a number
of very significant risks and funds should only be invested by
persons able to withstand the total loss of their investment;
(iv) Except as set forth in this Agreement, no
representations or warranties have been made to the Purchaser by the
Company or any agent, employee or affiliate of the Company and in
entering into this transaction the Purchaser is not relying upon any
information, other than that contained in this Agreement, the SEC
Reports and the results of independent investigation by the
Purchaser;
(v) The Purchaser understands that the Class A Preferred
Stock is being offered and sold to it in reliance on specific
exemptions from the registration requirements of the United States
Federal and State securities laws and that the Company is relying
upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set
forth herein in order to determine the applicability of such
exemptions and the suitability of the Purchaser to acquire the Class
A Preferred Stock;
(vi) The Purchaser has full power and authority to execute
and deliver this Agreement and to perform its obligations hereunder;
and this Agreement is a legally binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms; and
3. Representations of the Company. The Company represents and
warrants:
A. The Company is a Reporting Issuer as defined by Regulation
D. The Company is in full compliance, to the extent applicable,
with all reporting obligations under either Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
B. The execution, delivery and performance of this Agreement
by the Company and the performance of its obligations hereunder do
not and will not constitute a breach or violation of any of the
terms and provisions of, or constitute a default under or conflict
with or violate any provision of (i) the Company's Certificate of
Incorporation or By-laws, (ii) any indenture, mortgage, deed of
trust, agreement or other instrument to which the Company is a party
or by which it or any of its property is bound, (iii) any applicable
statute of regulation, (iv) or any judgment, decree or order of any
court or governmental body having jurisdiction over the Company or
any of its property.
C. The Company is a corporation duly organized, validly
existing and in good standing under the law of its jurisdiction of
incorporation and is duly qualified as a foreign corporation in all
jurisdictions where the failure to be so qualified would have a
materially adverse effect on its business, taken as a whole.
D. The execution, delivery and performance of this Agreement
and the consummation of the issuance of the Class A Preferred Stock
and the transactions contemplated by this Agreement are within the
Company's corporate powers and have been duly authorized by all
necessary corporate and stockholder action on behalf of the Company.
E. There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Company, threatened, against or
affecting the Company, or any of its properties, which might result
in any material adverse change in the condition (financial or
otherwise) or in the earnings, business affairs or business
prospects of the Company, or which might materially and adversely
affect the properties or assets thereof.
F. The Company is not in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust or
other material instrument or agreement to which it is a party or by
which it or its property may be bound; and neither the execution,
nor the delivery by the Company, nor the performance by the Company
of its obligations under, this Agreement or, the Class A Preferred
Stock will conflict with or result in the breach or violation of any
of the terms or provisions of, or constitute a default or result in
the creation or imposition of any lien or charge on any assets or
properties of the Company under, any material indenture, mortgage,
deed of trust or other material agreement or instrument to which the
Company is a party or by which it is bound or any statute or the
Certificate of Incorporation or Bylaws of the Company, or any
decree, judgment, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
its properties.
G. None of the Company's filings with the Securities and
Exchange Commission contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statement therein in light of the
circumstances under which they were made, not misleading. The
Company has timely filed all requisite forms, reports and exhibits
thereto with the Securities and Exchange Commission.
H. There has been no material adverse change in the financial
condition, earnings, business affairs or business prospects of the
Company since the date of the Company's most recent SEC Report filed
with the Securities and Exchange Commission.
I. As of the date hereof, the conduct of the business
complies in all material respects with all statutes, laws,
regulations, ordinances, rules, judgments, orders or decrees
applicable thereto. The Company has not received notice of any
alleged violation of any statute, law, regulation ordinance, rule,
judgment, order or decree from any governmental authority which
would materially adversely affect the business of the Company.
J. There is no fact known to the Company (other than general
economic conditions known to the public generally) that has not been
disclosed in writing to the Purchaser that (i) could reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise) or in the earnings, business affairs,
business prospects, properties or assets of the Company or (ii)
could reasonably be expected to materially and adversely affect the
ability of the Company to perform its obligations pursuant to this
Agreement and the Class A Preferred Stock.
4. The Purchaser understands that this subscription is not binding
upon the Company until the Company accepts it, which acceptance is at the
sole discretion of the Company and is to be evidenced by the Company's
execution of this Agreement where indicated. This Agreement shall be
null and void if the Company does not accept it as aforesaid. Upon
acceptance by the Company, the Company will issue one or more
certificates for the full number of shares of Class A Preferred Stock
subscribed for.
5. Covenants of the Company. For so long as any Class A Preferred
Stock held by the Purchaser remain outstanding, the Company covenants and
agrees with the Purchaser that It will reserve from its authorized but
unissued shares of Common Stock a sufficient number of shares of Common
Stock to permit the conversion in full of the outstanding Class A
Preferred Stock.
6. Any holder of Series 1999-E Class A Preferred Stock (an
"Eligible Holder") may at any time, provided it has not theretofore
received a notice of redemption from the Company, convert any whole
number of shares of Series 1999-E Class A Preferred Stock in accordance
with this Part. For the purposes of conversion, the Series 1999-E Class
A Preferred Stock shall be valued at $25,000 per share ("Value"), and, if
converted, the Series 1999-E Class A Preferred Stock shall be converted
into such number of Common Shares of the Company $.10 par value (the
"Conversion Shares") as is obtained by dividing the aggregate Value of
the shares of Series 1999-E Class A Preferred Stock being so converted by
the "Conversion Price." For purposes of this Part, the "Conversion
Price" means $3.00 per share. The number of Conversion Shares so
determined shall be rounded to the nearest whole number of shares.
6.1 The conversion right provided by the above section may be
exercised only by an Eligible Holder of Series 1999-E Class A Preferred
Stock, in whole or in part, by the surrender of the share certificate or
share certificates representing the Series 1999-E Class A Preferred Stock
to be converted at the principal office of the Corporation (or at such
other place as the Corporation may designate in a written notice sent to
the holder by first-class mail, postage prepaid, at its address shown on
the books of the Corporation) against delivery of that number of whole
Common Shares as shall be computed by dividing (1) the aggregate Value of
the Series 1999-E Class A Preferred Stock so surrendered, if any, by (2)
the Conversion Price. Each Series 1999-E Class A Preferred Stock
certificate surrendered for conversion shall be endorsed by its holder.
In the event of any exercise of the conversion right of the Series 1999-E
Class A Preferred Stock granted herein (i) share certificates
representing the Common Stock purchased by virtue of such exercise shall
be delivered to such holder within 5 business days after receipt by the
Corporation of the original Notice of Conversion and the certificate
representing the Series 1999-E Class A Preferred Stock (the fifth business
day after receipt of such original documents, not counting the date of
receipt, being the "Delivery Date"), and (ii) unless the Series 1999-E
Class A Preferred Stock has been fully converted, a new share certificate
representing the Series 1999-E Class A Preferred Stock not so converted,
if any, shall also be delivered to such holder on or before such Delivery
Date, or carried on the Corporation's ledger, at holder's option. Any
Eligible Holder may exercise its right to convert the Series 1999-E Class
A Preferred Stock by telecopying an executed and completed Notice of
Conversion to the Corporation, and within 72 hours thereafter, delivering
the original Notice of Conversion and the certificate representing the
Series 1999-E Class A Preferred Stock to the Corporation by express
courier. Each date on which a telecopied Notice of Conversion is
received by the Corporation in accordance with the provisions hereof
shall be deemed a Conversion Date. The Corporation will cause delivery
of the Common Stock certificates issuable upon conversion of any Series
1999-E Class A Preferred Stock (together with the certificates
representing the Series 1999-E Class A Preferred Stock not so converted,
if requested) to the Eligible Holder via express courier on or before the
Delivery Date if the Corporation has received the original Notice of
Conversion and Series 1999-E Class A Preferred Stock certificate being so
converted in accordance with this paragraph.
6.2 All Common Shares which may be issued upon conversion of
Series 1999-E Class A Shares will, upon issuance, be duly issued, fully
paid and nonassessable and free from all taxes, liens, and charges with
respect to the issue thereof. At all times that any Series 1999-E Class
A Shares are outstanding, the Corporation shall have authorized, and
shall have reserved for the purpose of issuance upon such conversion, a
sufficient number of Common Shares to provide for the conversion into
Common Shares of all Series 1999-E Class A Shares then outstanding at the
then effective Conversion Price. Without limiting the generality of the
foregoing, if, at any time, the Conversion Price is decreased, the number
of Common Shares authorized and reserved for issuance upon the conversion
of the Series 1999-E Class A Shares shall be proportionately increased.
6.3 Notwithstanding the provisions hereof, in no event shall
the holder be entitled to convert any Series 1999-E Class A Preferred
Stock in excess of that number of shares upon conversion of which the sum
of (1) the number of shares of Common Stock beneficially owned by the
Purchaser and its affiliates (other than shares of Common Stock which may
be deemed beneficially owned through the ownership of the unconverted
portion of the Preferred Stock), and (2) the number of shares of Common
Stock issuable upon the conversion of the Preferred Stock with respect to
which the determination of this proviso is being made, would result in
beneficial ownership by the Purchaser and its affiliates of more than
4.9% of the outstanding shares of Common Stock. For purposes of the
proviso to the immediately preceding sentence, beneficial ownership shall
be determined in accordance with Section 13(d) of the Securities Exchange
Act of 1934, as amended, and Regulation 13 D-G thereunder, except as
otherwise provided in clause (1) of such proviso.
7. Registration. The Company shall be required, at the Company's
expense, to effect the registration of the number of the Underlying
Shares issuable on the "Closing Date" (June 23, 1999) upon conversion of
the Class A Preferred Stock under the Act and relevant Blue Sky laws.
The Company and the Purchaser shall cooperate in good faith in connection
with the furnishing of information required for such registration and the
taking of such other actions as may be legally or commercially necessary
in order to effect such registration. The Company shall file a
registration statement or amended registration statement and shall use
its best efforts to cause such registration statement or amended
registration statement to become effective as soon as practicable
thereafter. Such best efforts shall include, but not be limited to,
promptly responding to all comments received from the staff of the
Securities and Exchange Commission with respect to such registration
statement and promptly preparing and filing amendments to such
registration statement which are responsive to the comments received from
the staff of the Securities and Exchange Commission. Once declared
effective by the Securities and Exchange Commission the Company shall
cause such registration statement to remain effective until the earlier
of (i) the sale by the Purchaser of all Underlying Shares registered or
(ii) one year after the effective date of such registration statement.
8. Indemnification.
A. The Purchaser agrees to indemnify the Company and hold it
harmless from and against any and all losses, damages, liabilities,
costs and expenses which it may sustain or incur in connection with
the breach by the Purchaser of any representation, warranty or
covenant made by it herein.
B. The Company agrees to indemnify the Purchaser and hold it
harmless from and against any and all losses, damages, liabilities,
costs and expenses which it may sustain or incur in connection with
the breach by the Company of any representation, warranty or
covenant made by it herein.
9. Neither this Agreement nor any of the rights of the Purchaser
hereunder may be transferred or assigned by the Purchaser.
10. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware. Each of the parties
consents to the jurisdiction of the federal courts whose districts
encompass any part of the City of New York or the City of Dallas, or the
state courts of the State of New York sitting in the City of New York, or
the state courts of the State of Texas sitting in the City of Dallas in
connection with any dispute arising under this Agreement and hereby
waives, to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions. A facsimile transmission of this
signed Agreement shall be legal and binding on all parties hereto. This
Agreement may be signed in one or more counterparts, each of which shall
be deemed an original. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this
Agreement in any other jurisdiction. This Agreement may be amended only
by an instrument in writing signed by the party to be charged with
enforcement. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject
matter hereof.
11. The Company and Purchasers hereby release and forever discharge
the other of all claims and obligations of any nature whatsoever, known
or unknown, present or future, that they have or may have against the
other, arising out of or in any way connected with Series Q Class A
Preferred Stock or in any way connected with any business relationships
between the parties.
12. Unless the context otherwise requires, all personal pronouns
used in this Agreement, whether in the masculine, feminine or neuter
gender, shall include all other genders.
13. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered
personally or mailed by certified or registered mail, return receipt
requested, postage prepaid, as follows: If to Purchaser, to the address
set forth on the signature page of this Agreement and if to the Company,
to uniView Technologies Corporation, 00000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx
00000, or to such other address as the Company or the Purchaser shall
have designated to the other by like notice.
14. Restricted Legend. The Purchaser recognizes that the Class A
Preferred Stock, when issued, will not have been registered for public
sale under the Securities Act of 1933 (the "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."
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of June 23, 1999.
The Purchaser declares under penalty of perjury that the statements,
representations and warranties contained in the foregoing Securities
Purchase Agreement and in the following Purchaser Acknowledgments are
true, correct and complete.
PURCHASER: ______________________________
______________________________
(Signature) (Title)
______________________________
(Print Name)
Exact Name(s) in which ownership of Securities is to be registered:
______________________________________
Principal Place of Business: _________________________________________
_________________________________________
_________________________________________
Federal Tax ID Number: __________________________________________
Amount of Subscription: $____________________ (of an aggregate total
of $2,400,000).
AGREED AND ACCEPTED:
UNIVIEW TECHNOLOGIES CORPORATION
By:______________________________
Xxxxxxx X. Xxxxxx
President and CEO
