SALE AND PURCHASE AGREEMENT
This Sale and Purchase Agreement ("Agreement") dated as of October
29, 1999, by and between Softgen International, Inc., a British Virgin
Islands corporation, including its wholly owned subsidiaries, Softgen
Asia PTE Ltd. and Softgen, Inc. (collectively, the "Softgen Group"), and
uniView Softgen Corporation, a Texas corporation ("uniView Softgen").
uniView Technologies Corporation, a Texas corporation ("uniView
Technologies") and the undersigned "Softgen Shareholders", join in this
Agreement to the extent and for the purposes stated herein.
INTRODUCTION
Softgen Group desires to sell and uniView Softgen desires to
purchase all of the assets of Softgen Group on the terms and conditions
set forth in this Agreement.
In consideration of the mutual promises of the parties; in reliance
on the representations, warranties, covenants, and conditions contained
in this Agreement; and for other good and valuable consideration, the
parties agree as follows:
DEFINITIONS
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 an entity, any other entity
controlling, controlled by, or under common control with such first
entity. 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 an entity (in
the case of a corporation) or the person(s) exercising similar functions
(in the case of an unincorporated entity).
"Business" shall mean Softgen Group's computer telephony integration
(CTI) business.
"Copyrights" shall mean all of Softgen Group'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.
"Software" shall mean all of Softgen Group'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 object code, application code, and source code to developed
software related to the Business, commonly known as "CIMphony," and
related software.
ARTICLE 1: SALE
1.01 Sale of Assets. Softgen Group agrees to sell, convey, transfer,
assign, and deliver to uniView Softgen, and uniView Softgen agrees to
purchase or accept from Softgen Group, all of the following assets of
Softgen Group, free and clear of all Liens (other than the Assumed
Liabilities):
(a) All of Softgen Group's rights and interests in and to the
contracts, agreements, purchase orders, real estate leases, and personal
property leases, all of which are described on Schedule 1, attached to
and incorporated fully into this Agreement; and all of Softgen Group's
claims and rights under all notes, evidences of indebtedness, and
deposits; and all rights and claims to refunds and adjustments of any
kind owned by Softgen Group.
(b) All furniture, fixtures, equipment, supplies, and other items
described on Schedule 2, attached to and incorporated fully into this
Agreement, and all sundry items of a like character that, although not
described on Schedule 2, are owned by Softgen Group and are situated on
or about the premises of Softgen Group's customers or are in transit.
(c) All accounts receivable of Softgen Group as of October 15,
1999, less all accounts receivable collected in the ordinary course of
business during the period commencing October 16, 1999, and ending on the
Closing Date, plus all accounts receivable generated in the ordinary
course of business during the same period.
(d) All right, title, and interest in and to all of the following
owned by Softgen Group:
(i) The trademarks, service marks, copyrights, patents, patent
applications, and trade names listed on Schedule 3, attached to and
incorporated fully into this Agreement.
(ii) All trademarks, service marks, copyrights, and trade
names, whether or not listed on Schedule 3.
(iii) All applications for or registrations of any of these
items, promotional designs, concepts, literature, rights against
other persons in respect to these items, and other promotional
properties.
(iv) All formulae, know-how, pricing policies, patent rights,
patent applications, letters patents, trade secrets, inventions,
models, processes, market information, market analyses, marketing
plans, operating or management policies, procedures, and forms,
computer software, computer operating procedures, and all other
proprietary rights used or useful or developed for use in the
business of Softgen Group.
(e) All right, title, and interest of Softgen Group in and to the
name "Softgen", or any variant of the name.
(f) All papers and records (whether in written or other form) of
any kind presently in or in the future coming into the care, custody, or
control of Softgen Group relating to any of the assets sold to uniView
Softgen pursuant to this Agreement or the acquisition or past, present,
or future operation of Softgen Group, including but not limited to:
customer lists, supplier lists, distributor lists, purchase and sales
records, blueprints, specifications, personnel and labor relations
records, environmental control records, accounting and financial records,
maintenance records, operating and management manuals, computer systems
and software documentation, blank forms, blank checks, other blank
instruments, and plans and designs of products and equipment.
(g) All stocks, bonds, and other securities owned by Softgen Group
listed on Schedule 4, attached to and incorporated fully into this
Agreement.
(h) All amounts in Softgen Group's bank accounts reflected in the
September 30, 1999 Financial Statements of Softgen Group, less all
amounts paid from such accounts in the ordinary course of business of
Softgen Group for ordinary operating expenses from that date to Closing
Date, plus all amounts added to the operating account in the ordinary
course of business during the same period.
(i) All permits, licenses, franchises, consents, authorities,
special authorities, and other similar acts of any government body
(federal, state, local, or foreign) held by Softgen Group that may
lawfully be assigned or transferred, subject to any action by such body
that may be required in connection with such assignment or transfer.
1.02 Purchase Price. In consideration of the sale and transfer of the
assets of Softgen Group and the representations, warranties, and
covenants of Softgen Group, and others, set forth in this Agreement,
uniView Softgen shall pay the following:
1.02.1 Securities. uniView Softgen shall cause to be issued
and shall deliver to Softgen Group, or designee(s), within thirty
(30) days after the execution of all documentation required or
contemplated by this Agreement, (A) original stock certificate(s)
representing an aggregate of One Million One Hundred Seventy-five
Thousand (1,175,000) shares of $0.10 par value common stock of
uniView Technologies (the "Shares") and warrants to purchase One
Million One Hundred Seventy-five Thousand (1,175,000) shares of
$0.10 par value common stock of uniView Technologies, exercisable at
Three and NO/100 Dollars ($3.00) per share for three (3) years (the
"Warrants"); and (B) shares of common stock representing a 49%
ownership interest in uniView Softgen.
Each recipient ("Recipient") of common shares and warrants (the
"Securities") shall execute a separate letter ("Investment Letter")
containing substantially the following representations: that the
Recipient is acquiring the Securities for its own account for
investment purposes only and not with a view towards distribution;
that it understands and agrees that it must bear the economic risks
of the Securities for an indefinite period of time. Except as
expressly set forth in the Investment Letter, no representations or
warranties have been made to Recipient by uniView Technologies, the
officers or directors of uniView Technologies, or any agent,
employee or affiliate of any of them regarding uniView Technologies.
Recipient has conducted whatever investigations and due diligence
activities it deems appropriate in connection with its acquisition
of the Securities. Recipient understands that no federal or state
governmental authority has made any finding or determination
relating to the fairness of an investment in the Securities and that
no federal or state governmental authority has recommended or
endorsed, or will recommend or endorse, the Securities. Recipient,
in making the decision to acquire the Securities, has relied upon
independent investigation made by it and has not relied on any
information or representations made by third parties. Recipient
understands that the Securities have not been registered under the
Securities Act or under state securities laws and therefore it
cannot dispose of any or all of the Securities unless and until such
Securities are subsequently registered under the Securities Act and
applicable state securities laws or exemptions from such
registration are available. Recipient acknowledges that a legend
substantially as follows will be placed on the certificates
representing the Securities.
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.
1.02.2 Assumed Liabilities. uniView Softgen shall assume on
the Closing Date all duties and obligations of Softgen Group
pursuant to certain contracts, agreements, purchase orders, and
leases and shall assume the payment of trade payables for vendors
and suppliers which are directly related to the Business, as
described on Schedule 1.
1.02.3 "Xxxxx Note". Xxxxxx Xxxxxx and Xxxxxxx X. Xxxxx
agree to accept Two Hundred Ninety-three Thousand Five Hundred
(293,500) shares of uniView Technologies' par value $.10 common
stock, and Sixty-three Thousand and NO/100 Dollars ($63,000.00 USD)
in full payment of that one certain promissory note in the original
principal sum of Seven Hundred Fifty Thousand Dollars ($750,000
USD), payable by Softgen International, Inc. to Xxxxxx Xxxxxx and
Xxxxxxx X. Xxxxx.
1.03 Allocation of Purchase Price. The parties agree that the purchase
price shall be allocated as mutually agreed within thirty (30) days from
the Closing Date and set forth in Schedule 5 to this Agreement. The
allocation shall be used by the parties in reporting the transaction
contemplated by this Agreement for federal and state tax purposes.
1.04 Closing. Consummation of this transaction (the "Closing") shall
take place at the offices of uniView Softgen located at 00000 Xxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000 on October 29, 1999, or at such other time,
date, and place mutually agreed upon in writing by Softgen Group and
uniView Softgen ("Closing Date"). Within thirty (30) days after the
Closing, each party 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
contemplated by this Agreement. The documents shall include agreements
and instruments of transfer, conveyance, assignment and assumption
appropriate and customary for the purpose of consummating this
transaction.
1.05 Escrow. All Securities and cash payments making up the Purchase
Price shall be placed in escrow by uniView Softgen and shall be paid and
transferred to Softgen Group, or designee(s), within thirty (30) days
after the execution of all documentation required or contemplated by this
Agreement.
ARTICLE 2: SOFTGEN GROUP AND SOFTGEN SHAREHOLDERS' REPRESENTATIONS AND
WARRANTIES
Softgen Group and Softgen Shareholders hereby represent and warrant
to uniView Softgen that the following facts and circumstances are true
and correct:
2.01 Organization. Softgen International, Inc. and each of its
subsidiaries is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is organized
and has the requisite corporate power and authority to carry on its
business as now being conducted. Softgen International, Inc. and each of
its subsidiaries is duly qualified or licensed to do business and is in
good standing in each jurisdiction in which the nature of its business or
the ownership or leasing of its properties makes such qualification or
licensing necessary, other than in such jurisdictions where the failure
to be so qualified or licensed (individually or in the aggregate) would
not have a "material adverse effect" on Softgen Group. Softgen
International, Inc. has delivered to uniView Softgen complete and correct
copies of its articles of incorporation and bylaws and the articles of
incorporation and bylaws or other organizational documents of its
subsidiaries, each case as amended to the date of this Agreement.
2.02 Ownership. The Softgen Shareholders are the majority owners of
Softgen International, Inc., and Softgen International, Inc. is the sole
owner of Softgen, Inc. and Softgen Asia PTE Ltd. All of the named
companies have the full right to sell or dispose of their assets as they
may choose.
2.03 Ownership in Other Companies. Softgen, Inc. and Softgen Asia PTE
Ltd. have no interest in any other corporation, firm, business, or
partnership, nor any subsidiaries.
2.04 Officers and Directors. Softgen Group has delivered to uniView
Softgen a true and correct list of all officers and directors of Softgen
International, Inc., Softgen, Inc. and Softgen Asia PTE Ltd.
2.05 Financial Statements. Softgen Group has delivered to uniView
Softgen complete and correct copies of its financial statements. The
financial statements consist of balance sheets and statements of income
and retained earnings for the period ending December 31, 1998, and
unaudited statements for the nine-month period ending September 30, 1999
("Financial Statements"). The Financial Statements present fairly and
accurately the financial position, results of operations, and changes in
financial position of Softgen Group at the dates and for the periods
covered, in each case in conformity with generally accepted and
consistently applied accounting principles. There are no liabilities or
obligations of Softgen Group, accrued, absolute, contingent, inchoate, or
otherwise that arose out of or relate to any matter, act, or omission
occurring from September 30, 1999, to the date of this Agreement, other
than liabilities or obligations incurred in the normal course of
business. Since September 30, 1999, there have not been:
(a) Any material adverse change in financial condition, operations,
sales, or net income of Softgen Group.
(b) Any loss, damage, or destruction to properties or assets,
tangible or intangible (whether or not covered by insurance).
(c) Any change in policy regarding compensation payable to or to
become payable to any of Softgen Group's officers, directors, employees,
or agents.
(d) Any labor dispute, disturbance, or attempt to organize a union.
(e) Any proposed law or regulation or any actual event or condition
of any character that is known to Softgen Group that materially adversely
affects the business or future prospects of Softgen Group.
(f) Any claim, litigation, event, or condition of any character,
that materially adversely affects the business or future prospects of
Softgen Group.
(g) Any issuance, purchase of, or agreement to issue or purchase
shares of capital stock or other securities of Softgen Group.
(h) Any mortgage, pledge, lien, or encumbrance made or agreed to be
made on any of Softgen Group's assets or properties, tangible or
intangible.
(i) Any sale, transfer, other disposition of, or agreement to sell,
transfer, or dispose of Softgen Group's properties or assets, tangible or
intangible, except as contemplated in this Agreement and except in the
normal course of business and then only for full and fair value received.
(j) Any borrowings or agreements to borrow by or from Softgen Group.
(k) Any loans, advances, or agreements with respect to any loans or
advances, other than to customers in the normal course of business and
that have been properly reflected as "accounts receivable" on Softgen
Group's books.
(l) Any transaction outside the ordinary course of business.
(m) Any dividends or distributions paid or declared, or any
repayment of loans or other obligations to the shareholders of Softgen
Group, except for $63,000 paid collectively to Xxxxxx Xxxxxx and Xxxxxxx
X. Xxxxx.
(n) Any capital expenditure .made by Softgen Group in excess of
$25,000.
(o) Any agreement by Softgen Group to do any of the items described
in Subparagraphs (a) through (n), above.
2.06 Taxes. All federal, state, local, and foreign income, ad valorem,
excise, sales, use, payroll, unemployment, and other taxes and
assessments ("Taxes") that are due and payable by Softgen Group have been
properly computed, duly reported, fully paid, and discharged. There are
no unpaid Taxes that are or could become a lien on the property or assets
of Softgen Group or require payment by Softgen Group, except for current
Taxes not yet due and payable. All current Taxes not yet due and payable
by Softgen Group have been properly accrued on the balance sheets of
Softgen Group. Softgen Group has not incurred any liability for
penalties, assessments, or interest under the Internal Revenue Code. No
unexpired waiver executed by or on behalf of Softgen Group with respect
to any Taxes is in effect.
2.07 Real Property. Softgen Group has delivered to uniView Softgen a
complete and accurate legal description of each parcel of real property
owned by, leased to, or leased by Softgen Group together with either a
true and correct survey or a substantially true and correct plat of each
parcel, when available; and true, correct, and complete copies of all
real property leases. All of the material real property leases are valid
and in full force. There does not exist any default or event that with
notice, lapse of time, or both will constitute a default under any of
these lease agreements.
2.08 Other Tangible Personal Property. Softgen Group has delivered to
uniView Softgen complete and correct copies of its equipment, furniture,
fixtures, and other personal property, which constitutes all the items of
tangible personal property owned by, in the possession of, or used by
Softgen Group in connection with Softgen Group's business.
2.09 Other Intangible Property. Softgen Group has delivered to uniView
Softgen a true and complete list of all intangible assets, other than
those specifically referred to elsewhere in this Agreement, and the
location of evidences of title to such intangible assets.
2.10 Title to Assets and Properties. Softgen Group has good and
marketable title to all of its assets and properties, tangible and
intangible, that are material to Softgen Group's business and future
prospects. These assets and properties constitute all of the assets and
interests in assets that are used in Softgen Group's business. All of
these assets are free and clear of mortgages, liens, pledges, charges,
encumbrances, equities, claims, easements, rights of way, covenants,
conditions, and restrictions, except for the following:
(a) Those disclosed in Softgen Group's balance sheets as of
September 30, 1999, included in the Financial Statements, or in the
Exhibits to this Agreement.
(b) The lien of current Taxes not yet due and payable.
(c) Possible minor matters that, in the aggregate, are not
substantial in amount and do not materially detract from or interfere
with the present or intended use of any of the assets and properties nor
materially impair business operations.
All real property and tangible personal property of Softgen Group
are in good operating condition and repair, ordinary wear and tear
excepted. Softgen Group is in possession of all premises leased to
Softgen Group from others. No officer, director, or employee of Softgen
Group, nor any spouse, child, or other relative of any of these persons
owns or has any interest, directly or indirectly, in any of the real or
personal property owned by or leased by Softgen Group or in any
copyrights, patents, trademarks, trade names, or trade secrets licensed
by Softgen Group. Softgen Group does not occupy any real property in
violation of any law, regulation, or decree that would materially
adversely affect its business or future prospects.
2.11 Customers and Sales. Softgen Group has delivered to uniView Softgen
a correct and current list of all customers of Softgen Group together
with summaries of the sales made to each customer during the most recent
fiscal year. Softgen Group has no information or is not aware of any
facts indicating that any of these customers intend to cease doing
business with Softgen Group or to materially alter the amount of the
business that they are presently doing with Softgen Group.
2.12 Insurance Policies. Softgen Group has delivered to uniView Softgen
a list and description of all insurance policies concerning the assets
and properties. Softgen Group has maintained and now maintains insurance
on all of the assets and properties of a type customarily insured. The
insurance covers property damage by fire or other casualty, as well as
adequately protects against all normal liabilities, claims, and risks
against which it is customary to insure.
2.13 Contracts; Consents. Softgen Group has delivered to uniView Softgen
true and correct lists, with copies when available, of all material oral
and written contracts or arrangements obligating Softgen Group, including
without limitation, union contracts, guarantees, bids, commitments, joint
venture or partnership agreements, contracts with municipalities and
other governmental entities, pledges and other security agreements, and
copies of standard form customer contracts. uniView Softgen shall have
the right to review any nonmaterial contract upon request. There are no
consents or approvals required from any third party with respect to this
transaction. Softgen Group is not a party to, nor are Softgen Group's
assets and properties bound by, any distributor's or manufacturer's
representative, agency agreement, output or requirements agreement,
agreement not entered into in the ordinary course of business, indenture,
mortgage, deed of trust, lease, or any agreement that is unusual in
nature, duration, or amount. There is no default or event that with
notice, lapse of time, or both will constitute a default by any party to
any of the material contracts. Softgen Group has not received any notice
that any party to any of the contracts intends to cancel or terminate any
of the contracts or to exercise or not exercise any options under any of
the contracts. Neither Softgen Group nor Softgen Group is a party to,
nor are Softgen Group's assets or properties bound by, any contract that
is materially adverse to the business, property, or financial condition
of Softgen Group.
2.14 Laws and Regulations. Softgen Group is not in default or in
violation of any law; regulation; court order; or order of any federal,
state, municipal, foreign, or other government department, board, bureau,
agency, or instrumentality, wherever located, that would materially
adversely affect its business or future prospects.
2.15 Litigation. There are no pending, outstanding, or threatened
claims; legal, administrative, or other proceedings; or suits,
investigations, inquiries, complaints, notices of violation, judgments,
injunctions, orders, directives, or restrictions against or involving
Softgen Group or any of the assets, properties, or business of Softgen
Group or any of Softgen Group's officers, directors, employees, or
stockholders that will materially adversely affect Softgen Group, its
assets, properties, or business. To the best of Softgen Group's
knowledge and belief, after conducting a due diligence investigation,
there is no basis for any of these proceedings against any of Softgen
Group's assets, properties, persons, or entities. Softgen Group is not
presently engaged in any legal action to recover moneys due Softgen Group
or for damages sustained by Softgen Group.
2.16 Fringe Benefit Plans; Employment Contracts. Softgen Group has
delivered to uniView Softgen a complete description and copies of all
employment agreements in effect with Softgen Group and a complete
description of all fringe benefits and perquisites available to Softgen
Group's officers, directors, and employees (and, if any, furnished to
consultants, agents, and independent contractors), whether required by
law or otherwise, including but not limited to, pension, profit sharing,
life insurance, medical, bonus, incentive and similar plans, use of
automobiles, credit cards, expense accounts and allowances, club
memberships, sharing of costs or expenses, vacation, and similar
benefits, together with the approximate annual cost of each benefit and
perquisite. When available, copies of the plans, agreements, or
arrangements regarding each benefit are also attached. The provisions
and operations of all such programs and plans are in compliance in all
material respects with all applicable material laws and government rules
and regulations. Softgen Group acknowledges that uniView Softgem has the
right to accept or reject any such employment contract on a case by case
basis. There are no unfunded pension or similar liabilities regarding
any employee of Softgen Group. All pension plans have been properly
funded as to current and past service costs, have at all times been
administered in compliance in all material respects with all applicable
requirements of ERISA and any other applicable laws, and Softgen Group
does not maintain any "pension plan" as defined in ERISA that is
unfunded. Softgen Group has delivered to uniView Softgen a list of all
states in which Softgen Group has employees and the status of
unemployment insurance accounts in each state.
2.17 Receivables. Softgen Group has delivered to uniView Softgen a true
and correct list of all accounts receivable and notes receivable of
Softgen Group. All listed accounts and notes receivable of Softgen Group
are bona fide receivables, arose in the ordinary course of business by
Softgen Group, and require no further performance by Softgen Group. No
material objection, claim, or offset has been made regarding the
receivables and the receivables are current and collectible in the normal
course of business within ninety (90) days from the Closing Date without
resort to litigation or the retention of collection services.
2.18 Other Liabilities and Obligations. Softgen Group has delivered to
uniView Softgen a true and correct list of all liabilities and
obligations of Softgen Group to be assumed by uniView Softgen and not
disclosed elsewhere in this Agreement of any kind, character, and
description whether accrued, absolute, contingent, or otherwise, and
whether or not required to be disclosed or accrued in the financial
statements of Softgen Group.
2.19 Reserves. Softgen Group has delivered to uniView Softgen a true and
correct list of all reserves for contingent liabilities.
2.20 Trade Names, Trademarks, Copyrights, and Patents. Schedule 3
attached to this Agreement contains a true and correct list of all
trademarks, trademark registrations or applications, service marks, trade
names, copyrights, copyright registrations or applications, trade
secrets, patents, inventions, industrial models, processes, designs,
formulae, and applications for patents (collectively called "Intellectual
Properties") owned by Softgen Group. These Intellectual Properties are
the only ones used and needed by Softgen Group in conducting its
business. Softgen Group has the right and authority to use all of these
Intellectual Properties as necessary to enable Softgen Group to conduct
its business in the manner presently conducted. The use of these
Intellectual Properties does not and will not conflict with, infringe, or
violate any patent, copyright, or other proprietary right of any person,
firm, or corporation, nor is Softgen Group now infringing on any right
belonging to any person, firm, or corporation. Softgen Group is not a
party to any license, agreement, or arrangement, whether as a licensee,
licensor, or otherwise with respect to the Intellectual Properties. All
of the Intellectual Properties are free and clear of any liens,
encumbrances, restrictions, or legal or equitable claims of others.
Softgen Group has taken all necessary security measures to protect the
secrecy, confidentiality, and value of these Intellectual Properties.
2.21 Bank Accounts. Softgen Group has delivered to uniView Softgen a
true and correct list of the names and addresses of all banks or other
financial institutions in which Softgen Group has an account, deposit, or
safe deposit box. Also included are the names of all persons authorized
to draw on these accounts or deposits or who have access to them and the
account numbers of each account.
2.22 Business Operations. The business operations of Softgen Group are
and have been for the past five years, or if not in existence for five
years, for the term of its existence, in material compliance with all
laws, treaties, rulings, directives, and similar regulations of all
government authorities having jurisdiction over such business insofar as
failure to comply could materially adversely affect Softgen Group's
business and future prospects.
2.23 Authority. Softgen Group has full power and authority to execute,
deliver, and consummate this Agreement, subject to the conditions to
Closing set forth in this Agreement. All reports and returns required to
be filed by each with any government and regulatory agency with respect
to this transaction have been properly filed. Except as otherwise
disclosed in this Agreement, no notice to or approval by any other
person, firm, or entity, including governmental authorities, is required
of Softgen Group to consummate the transaction contemplated by this
Agreement.
2.24 Full Disclosure. No representation, warranty, or covenant made to
uniView Softgen in this Agreement nor any document, certificate, exhibit,
or other information given or delivered to uniView Softgen pursuant to
this Agreement contains or will contain any untrue statement of a
material fact, or omits or will omit a material fact necessary to make
the statements contained in this Agreement or the matters disclosed in
the related documents, certificates, information, or exhibits not
misleading.
2.25 Brokers. Neither Softgen Group nor any of Softgen Group's officers,
directors, employees, or stockholders, has retained, consented to, or
authorized any broker, investment banker, or third party to act on
Softgen Group's behalf, directly or indirectly, as a broker or finder in
connection with the transactions contemplated by this Agreement, except
for Nations Investment Corp., Ltd.
ARTICLE 3: UNIVIEW SOFTGEN'S REPRESENTATIONS AND WARRANTIES
uniView Softgen represents and warrants to Softgen Group that:
3.01 Authority. uniView Softgen has full power and authority to execute,
deliver, and consummate this Agreement subject to the conditions to
Closing set forth in this Agreement. All corporate acts, reports, and
returns required to be filed by uniView Softgen with any government or
regulatory agency with respect to this transaction have been or will be
properly filed prior to the Closing Date. No provisions exist in any
contract, document, or other instrument to which uniView Softgen is a
party or by which uniView Softgen is bound that would be violated by
consummation of the transactions contemplated by this Agreement.
3.02 Brokers. Neither uniView Softgen, nor any of uniView Softgen's
officers, directors, or employees, has retained, consented to, or
authorized any broker, investment banker, or third party to act on its
behalf, directly or indirectly, as a broker or finder in connection with
the transactions contemplated by this Agreement, except for Nations
Investment Corp., Ltd.
3.03 Organization and Standing of uniView Softgen. uniView Softgen is a
corporation duly organized, validly existing, and in good standing under
the laws of the state of Texas, with corporate power to own property and
carry on its business as it is now being conducted.
ARTICLE 4: COVENANTS
Softgen Group covenants with uniView Softgen that Softgen Group
will, from and after the date of this Agreement:
4.01 Preservation of Business. Cooperate with uniView Softgen to
preserve intact its personnel and to keep available the services of all
of its employees, agents, independent contractors, and consultants
commensurate with Softgen Group's business requirements.
4.02 Preservation of Customer Relations. Cooperate with uniView Softgen
to preserve intact the present customers of Softgen Group and the
goodwill of all customers and others with respect to the business.
4.03 Notification of Litigation. Promptly notify uniView Softgen in
writing of any threatened claims; legal, administrative, or other
proceedings, suits, investigations, inquiries, complaints, notices of
violation, or other process; or other judgments, orders, directives,
injunctions, or restrictions against or involving Softgen Group or its
personnel that could adversely affect uniView Softgen.
4.04 Cooperate in Publicity. Coordinate any written publicity regarding
this transaction with uniView Softgen.
4.05 Maintain Existing Agreements. Not modify, amend, cancel, or
terminate any of Softgen Group's existing contracts or agreements, or
agree to do so.
4.06 Nonsolicitation. Except as specifically provided below, the parties
shall not, for a period of two (2) years from the Closing Date, on their
own behalf or on behalf of any other entity, hire, solicit or seek to
hire, any employee of the other party or their Affiliates or in any other
manner attempt directly or indirectly to influence, induce or encourage
any employee of either of the parties or their Affiliates to leave the
employment of such other parties or their Affiliates.
4.07 Noncompete. The sale herein is exclusive in all respects and
Softgen Group agrees that after the Closing Date, it will not, and will
use its best efforts to cause its officers, employees, agents and
Affiliates to not, except as expressly requested by uniView Softgen or
otherwise required to carry out the provisions of this Agreement:
(a) Provide technical information or assistance relating to the
Software or Business to any person or organization other than uniView
Softgen or persons authorized by uniView Softgen 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 uniView Softgen.
4.08 Board of Directors Resignations. Upon uniView Softgen's request,
Softgen, Inc. and Softgen Asia PTE Ltd. shall secure the resignations of
directors currently serving on their board of directors.
4.09 Confidentiality and Noncompete Agreements. All key employees of
Softgen Group, as identified by uniView Softgen and Softgen Group, shall
execute and deliver to uniView Softgen a confidentiality and
noncompetition agreement in a form acceptable to uniView Softgen.
ARTICLE 5: CONDITIONS TO UNIVIEW SOFTGEN'S OBLIGATION TO CLOSE
The obligation of uniView Softgen to Close under this Agreement is
subject to each of the following conditions (any one of which may, at the
option of uniView Softgen, be waived in writing by uniView Softgen)
existing on the Closing Date, or such earlier date as the context may
require.
5.01 Representations and Warranties. Each of the representations and
warranties of Softgen Group in this Agreement, the disclosures contained
in the exhibits and schedules to this Agreement, and all other
information delivered under this Agreement shall be true in all material
respects.
5.02 Compliance With Conditions. Softgen Group shall each comply with
and perform all agreements, covenants, and conditions in this Agreement
required to be performed and complied with by each of them. All
requisite action (corporate and other) in order to consummate this
Agreement shall be properly taken by Softgen Group.
5.03 Suit or Proceeding. No suit or proceeding, legal or administrative,
relating to any of the transactions contemplated by this Agreement shall
be overtly threatened or commenced that, in the sole discretion of
uniView Softgen and its counsel, would make it inadvisable for uniView
Softgen to Close this transaction.
5.04 Government Approvals and Filings. All necessary government
approvals and filings regarding this transaction shall be received or
made prior to the Closing Date in substantially the form applied for to
the reasonable satisfaction of uniView Softgen and its counsel. Any
applicable waiting period for the approvals and filings shall be expired.
5.05 Corporate and Stockholder Action. All corporate and stockholder
action necessary to consummate the transactions contemplated in this
Agreement shall be properly taken by Softgen Group. uniView Softgen
shall receive copies of all appropriate resolutions of Softgen Group's
board of directors and shareholders relating to this Agreement. The
resolutions shall be certified by their respective corporate secretaries.
ARTICLE 6: CONDITIONS TO SOFTGEN INTERNATIONAL'S OBLIGATION TO CLOSE
The obligation of Softgen Group to Close under this Agreement is
subject to each of the following conditions (any one of which at the
option of Softgen Group may be waived in writing by Softgen Group)
existing on the Closing Date.
6.01 Corporate Action. uniView Softgen shall take appropriate corporate
action regarding this transaction authorizing uniView Softgen to enter
into and complete this transaction.
6.02 Government Approvals. All necessary government approvals regarding
this transaction, if any, shall be received prior to the Closing Date, in
substantially the form applied for and to the reasonable satisfaction of
uniView Softgen and its counsel.
ARTICLE 7: PARTIES' OBLIGATIONS AFTER THE CLOSING
7.01 Securities. uniView Softgen shall cause to be issued and shall
deliver to Softgen Group, or designee(s), within thirty (30) days after
the execution of all documentation required or contemplated by this
Agreement, (A) original stock certificate(s) representing an aggregate of
One Million One Hundred Seventy-five Thousand (1,175,000) shares of $0.10
par value common stock of uniView Technologies (the "Shares") and
warrants to purchase One Million One Hundred Seventy-five Thousand
(1,175,000) shares of $0.10 par value common stock of uniView
Technologies, exercisable at Three and NO/100 Dollars ($3.00) per share
for three (3) years (the "Warrants"); and (B) shares of common stock
representing a 49% ownership interest in uniView Softgen.
7.02 Employment Agreements. Within thirty (30) days following the
Closing Date, Xxxxxx Xxxxxx and Xxxxxxx X. Xxxxx agree to execute and
deliver to uniView Softgen employment agreements with uniView Softgen
upon such terms as may be mutually agreed.
7.03 Preservation of Goodwill. Following the Closing Date, Softgen Group
will restrict its activities so that uniView Softgen's reasonable
expectations with respect to the goodwill, business reputation, employee
relations, and prospects connected with the assets and properties
purchased under this Agreement will not be materially impaired.
7.04 Change of Name. Softgen International, Inc. agrees that, after the
Closing Date, it will change its name and will not use or employ in any
manner, directly or indirectly, the name of Softgen or any variation of
the name. Softgen Group also agrees that, in order to comply with this
covenant, it will take and cause to be taken all necessary action,
including filing a withdrawal notice for any assumed name certificate
bearing Softgen Group's name or any variant of the name, that Softgen
Group has previously filed.
7.05 Access to Records. From and after the Closing Date, Softgen Group
shall allow uniView Softgen and its counsel, accountants, and other
representatives access to records that are, after the Closing Date, in
the custody or control of Softgen Group. Softgen Group shall give access
as uniView Softgen reasonably requires in order to comply with its
obligations under law or when reasonably necessary for the business
operations of Softgen Group.
7.06 Nonsolicitation of Employees. Prior to the second anniversary of
the Closing Date, Softgen Group shall not solicit any employee of uniView
Softgen or any employee of Softgen Group retained by uniView Softgen
after the Closing Date to leave employment with uniView Softgen or its
Affiliates.
7.07 Documentation. Softgen Group shall execute, if appropriate, and
shall deliver to uniView Softgen:
(a) One or more bills of sale in a form acceptable to uniView
Softgen sufficient to convey to uniView Softgen all rights, title, and
interest in and to all of the fixtures, equipment, and items of
personalty being sold to uniView Softgen under the terms of this
Agreement.
(b) One or more instruments of assignment in a form acceptable to
uniView Softgen assigning to uniView Softgen the exclusive rights to: all
contract rights, leases, accounts receivable, copyrights, pending
copyright applications, patents, and pending patent or trademark
applications and all trade secrets of Softgen Group being sold to uniView
Softgen under the terms of this Agreement.
(c) All documentation in the possession of Softgen Group and Softgen
Group necessary to operate and to use all assets being sold to uniView
Softgen in this Agreement.
(d) Instruments of assignment and transfer of all of the issued and
outstanding capital stock of Softgen, Inc. and Softgen Asia PTE Ltd.,
free and clear of all liens, claims, and encumbrances in form and
substance satisfactory to uniView Softgen's counsel. Simultaneously with
the consummation of the transfer, Softgen Group shall put uniView Softgen
in full possession and enjoyment of all properties and assets of Softgen
Group.
Further Assurances. Softgen Group, at any time before or after the
Closing Date, shall execute, acknowledge, and deliver to uniView Softgen
any further deeds, assignments, conveyances, other assurances, documents,
and instruments of transfer reasonably requested by uniView Softgen.
Softgen Group shall also take any other action consistent with the terms
of this Agreement that may be reasonably requested by uniView Softgen for
the purpose of assigning, transferring, granting, conveying, and
confirming to uniView Softgen or reducing to possession any or all
property and assets to be conveyed and transferred by this Agreement. If
requested by uniView Softgen, Softgen Group further agrees to prosecute
or otherwise enforce in its own name for the benefit of uniView Softgen
any claims, rights, or benefits of Softgen Group that are transferred to
uniView Softgen by this Agreement and that require prosecution or
enforcement in Softgen Group's name. Any prosecution or enforcement of
claims, rights, or benefits under this paragraph shall be solely at
uniView Softgen's expense, unless the prosecution or enforcement is made
necessary by a breach of this Agreement by Softgen Group.
7.08 uniView Softgen's Obligation. uniView Softgen shall deliver to
Softgen Group against delivery of the items specified above, an
instrument of assumption sufficient to evidence the assumption of the
obligations and liabilities by uniView Softgen agreed to be assumed by
uniView Softgen in this Agreement.
ARTICLE 8: INDEMNIFICATION
8.01 Covenant to Indemnify and Hold Harmless. Softgen Group and the
Softgen Shareholders ("Indemnitors") covenant and agree to indemnify,
defend, and hold harmless uniView Softgen from and against any and all
claims, suits, losses, judgments, damages, and liabilities including any
investigation, legal, and other expenses incurred in connection with and
any amount paid in settlement of any claim, action, suit, or proceeding
(collectively called "Losses"), other than those Losses disclosed in this
Agreement or any Exhibit delivered pursuant to this Agreement, to which
uniView Softgen may become subject, if such Losses arise out of or are
based upon any facts and circumstances (or alleged facts and
circumstances) that could result in or give rise to a misrepresentation,
breach of warranty, or breach of covenant by Softgen Group to uniView
Softgen in this Agreement. This right to indemnification is in addition
to any other right available to uniView Softgen under this Agreement.
8.02 Income Taxes. Without limiting the provisions of Paragraph 8.01,
Indemnitors shall indemnify, defend, and hold harmless uniView Softgen
from and against any Losses to which uniView Softgen may become subject
insofar as such Losses arise out of or are based on any tax on or
measured by the net income of Softgen Group in any period on or before
the Closing Date. The indemnifications provided in this Paragraph 8.02
and in Paragraph 8.01, above, are cumulative and neither provision shall
limit or in any other way affect the right of uniView Softgen under the
other provision.
8.03 Notification and Defense of Claims or Actions. When uniView Softgen
proposes to assert the right to be indemnified under this Article 8 with
respect to third-party claims, actions, suits, or proceedings, uniView
Softgen shall, within 30 days after the receipt of notice of the
commencement of the claim, action, suit, or proceeding, notify
Indemnitors in writing, enclosing a copy of all papers served or
received. On receipt of the notice, Indemnitors shall have the right to
direct the defense of the matter, but uniView Softgen shall be entitled
to participate in the defense and, to the extent that uniView Softgen
desires, to jointly direct the defense with Indemnitors with counsel
mutually satisfactory to uniView Softgen and Indemnitors, at Indemnitors'
expense. uniView Softgen shall also have the right to employ its own
separate counsel in any such action. The fees and expenses of uniView
Softgen's counsel shall be paid by uniView Softgen unless: (a) the
employment of the counsel has been authorized by Indemnitors; (b) uniView
Softgen has reasonably concluded that there may be a conflict of interest
between Indemnitors and uniView Softgen in the conduct of the defense of
such action; or (c) Indemnitors have not, in fact, employed counsel
satisfactory to uniView Softgen to assume the defense of the action. In
each of these cases, the fees and expenses of uniView Softgen's counsel
shall be paid by Indemnitors. Neither Indemnitors nor uniView Softgen
shall be liable for any settlement of any action or claim described in
this Article 8 that is effected without their consent.
ARTICLE 9: GENERAL PROVISIONS
9.01 Survival of Representations, Warranties, and Covenants.
Notwithstanding any investigation heretofore or hereafter made by or on
behalf of any of the parties to this Agreement, the representations,
warranties, covenants, and agreements of the parties contained in this
Agreement or contained in any writing delivered pursuant to this
Agreement shall survive the Closing Date for a period of two (2) years.
9.02 Notices. All notices that are required or that may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered personally
or by registered or certified mail, return receipt requested, postage
prepaid as follows:
If to Softgen Group: 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000
ATTN: Xxxxxx Xxxxxx, President
If to uniView Softgen: 00000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000
ATTN: Xxxxxxx X. Xxxxxx, CEO
9.03 Assignment of Agreement. This Agreement shall be binding on and
inure to the benefit of the parties to this Agreement and their
respective successors and permitted assigns. This Agreement may not be
assigned by any other party without the written consent of all parties
and any attempt to make an assignment without consent is void.
9.04 Governing Law. This Agreement shall be construed and governed by
the laws of the state of Texas.
9.05 Amendments; Waiver. This Agreement may be amended only in writing
by the mutual consent of all of the parties, evidenced by all necessary
and proper corporate authority. No waiver of any provision of this
Agreement shall arise from any action or inaction of any party, except an
instrument in writing expressly waiving the provision executed by the
party entitled to the benefit of the provision.
9.06 Entire Agreement. This Agreement, together with any documents and
exhibits given or delivered pursuant to this Agreement, constitutes the
entire agreement between the parties to this Agreement. No party shall
be bound by any communications between them on the subject matter of this
Agreement unless the communication is (a) in writing, (b) bears a date
contemporaneous with or subsequent to the date of this Agreement, and (c)
is agreed to by all parties to this Agreement. On execution of this
Agreement, except for a Confidentiality and Nondisclosure Agreement
executed by the parties on or about October 19, 1999, all prior
agreements or understandings between the parties shall be null and void.
9.07 Reliance Upon Representations and Warranties. The parties mutually
agree that, notwithstanding any right of uniView Softgen to fully
investigate the affairs of Softgen Group and notwithstanding any
knowledge of facts determined or determinable by uniView Softgen pursuant
to the investigation or right to investigate, uniView Softgen may fully
rely upon the representations, warranties, and covenants made to uniView
Softgen in this Agreement and on the accuracy of any document,
certificate, or exhibit given or delivered to uniView Softgen pursuant to
this Agreement. Knowledge by an agent of uniView Softgen of any facts
not otherwise disclosed in this Agreement or in a document, certificate,
or exhibit delivered to uniView Softgen pursuant to this Agreement shall
not constitute a defense by Softgen Group for indemnification of uniView
Softgen under Article 8 or for any claim for misrepresentation or breach
of any warranty, agreement, or covenant under this Agreement or any
exhibit, certificate, or document delivered under this Agreement.
uniView Softgen Corporation Softgen International, Inc.
By:__/s/ Xxxxxxx X. Custer__________ By: __/s/ Xxxxxx Leland__________
Xxxxxxx X. Xxxxxx, President Xxxxxx Xxxxxx, President
By: ___/s/ Xxxxxx Ang_________
Xxxxxx Xxx, Chairman and CEO
Softgen Asia PTE Ltd. Softgen, Inc.
By:__/s/ Xxxxxx Leland_________ By:___/s/ Xxxxxx Leland_________
Xxxxxx Xxxxxx, President Xxxxxx Xxxxxx, President
Softgen Shareholders:
__/s/ Xxxxxxx X. Hurst__ __/s/ Xxxxxx Leland__ __/s/ Xxxxxx Ang__
Xxxxxxx X. Xxxxx Xxxxxx Xxxxxx Xxxxxx Xxx
Nations Corp. Ltd.
By: __/s/ D. Xxxxxx Allen_______
D. Xxxxxx Xxxxx, Agent
