EXHIBIT 4.4
2000 SECURITIES PURCHASE AGREEMENT
2000 SECURITIES PURCHASE AGREEMENT, dated as of December 8, 2000, by
and among uniView Technologies Corporation, a Texas corporation (the
"Company"), and the purchasers named on the signature pages hereto (the
"Purchasers").
PRELIMINARY STATEMENT
The Company desires to obtain funds by issuing to the Purchasers
promissory notes and warrants to purchase common stock, and the Purchasers
have indicated that each desires to purchase such securities, subject to the
terms and conditions set forth in this Agreement.
ACCORDINGLY, in consideration of the preceding preliminary statement
and the mutual agreements, covenants, representations and warranties
contained in this Agreement, the parties hereto, intending to be legally
bound, now agree as follows:
STATEMENT OF AGREEMENT
ARTICLE 1. CERTAIN DEFINITIONS.
"Agreement" means this 2000 Securities Purchase Agreement, by and among
the Company and the Purchasers, as such may be amended, supplemented,
restated or otherwise modified from time to time.
"Broker" has the meaning given to such term in Section 2.2 of this
Agreement.
"Business Day" means any day that is not a Saturday or Sunday or, as
the context requires (i) a day on which the applicable stock exchange or
market is required or permitted to be closed, or (ii) a day on which banks
are required or permitted to be closed in Dallas, Texas.
"Change in Control" means the acquisition by a person or group, as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, of
beneficial ownership of more than fifty percent (50%) of the Company's
common stock (other than as a result of an issuance of securities initiated
by the Corporation in the ordinary course of business), or as a result of,
or in connection with any cash tender or exchange offer, merger, or other
business combination, sale of assets, or contested election, or any
combination of the foregoing transactions, and the persons who were
directors of the Company before such transactions shall cease to constitute
a majority of the Board of Directors of the Corporation or any successor to
the Company.
"Closing" and "Closing Date" have the meanings given to such terms in
Section 2.1 of this Agreement.
"Common Stock" means the common stock, par value $0.10 per share, of
the Company.
"Company" has the meaning given to such term in the preamble of this
Agreement.
"Debentures" means the Note(s) as hereinafter defined.
"Distribution Event" means any insolvency, bankruptcy, receivership,
liquidation, reorganization or similar proceeding (whether voluntary or
involuntary) relating to the Company or its property, or any proceeding for
voluntary liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy.
"Documents" means this Agreement, the Registration Rights Agreement,
and the Securities, together with all amendments and supplements thereto,
all substitutions and replacements therefor, and all renewals, extensions,
increases, restatements, modifications, rearrangements and waivers thereof
from time to time.
"Event of Default" has the meaning given to such term in Section 8.1 of
this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect from time to time.
"Holder" and "Holders" both mean, as the context requires, the holder
or holders of the Notes (or, if the Notes have been paid in full, the holder
or holders of the Warrants) from time to time under the terms of this
Agreement and the other Documents. As of the Closing Date, the Purchasers
are the only Holders.
"Indebtedness" means (i) all indebtedness of the Company for money
borrowed or evidenced by notes, bonds, debentures or similar evidences of
indebtedness of the Company, (ii) all indebtedness of the Company under
leases that are or should be capitalized under generally accepted accounting
principles, (iii) all guarantees by the Company of indebtedness of others,
and (iv) indebtedness of the Company representing the deferred and unpaid
purchase price of goods or services that is 120 or more days past due.
"Majority Holders" means the Holders of a two-thirds (2/3) majority in
aggregate principal amount of Notes then outstanding (exclusive of Notes
held by the Company or its subsidiaries), or, if the Notes have been paid in
full, the Holders of a two-thirds (2/3) majority in interest of the
Warrants, based upon the amounts of Common Stock into which such Warrants
may be exercised.
"Maturity Date" means the earlier of December 7, 2005 or a Change in
Control of the Company.
"NASD" means the National Association of Securities Dealers, Inc., or
any successor thereto.
"Note" and "Notes" both mean, as the context requires, the promissory
notes to be made by the Company payable to the Purchasers, such Notes being
in the aggregate original principal amount of up to $1,000,000, together
with all amendments and supplements thereto, all substitutions and
replacements therefor, and all renewals, extensions, increases,
restatements, modifications, rearrangements and waivers thereof from time to
time.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Purchase Price" means 100% of the original principal amount of such
Note.
"Purchasers" has the meaning given to such term in the preamble of this
Agreement.
"Registration Rights Agreement" means a registration rights agreement
by and among the Company and the Purchasers, as amended, supplemented,
restated or otherwise modified from time to time.
"SEC" means the Securities and Exchange Commission of the United States
of America or any successor to the rights and duties thereof.
"Securities" means the Notes and the Warrants.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor U.S. Federal statute, and all rules and regulations thereunder.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor U.S. Federal statute, and all rules and regulations thereunder.
"Warrant" and "Warrants" both mean, as the context requires, the stock
purchase warrants to be issued by the Company to the Purchasers, together
with all amendments and supplements thereto, all substitutions and
replacements therefor, and all renewals, extensions, increases,
restatements, modifications, rearrangements and waivers thereof from time to
time.
ARTICLE 2. ISSUANCE OF SECURITIES.
Section 2.1 Closing. The closing contemplated by this Agreement
(the "Closing") shall take place at the offices of the Company on December
8, 2000 or on such other date or at such other time as the issuance of the
Securities and the payment of the Purchase Price therefor shall actually
occur (the "Closing Date"). At the Closing, the Company will deliver to
each Purchaser the Note and the Warrant subscribed for by such Purchaser as
noted on the signature page hereof, each registered in the name of such
Purchaser, against payment of the Purchase Price therefor. At the Closing,
the Purchase Price shall be paid in good funds by wire transfer, less a one
percent (1%) commitment fee and a four percent (4%) loan origination fee
payable to Purchaser, and reasonable out of pocket expenses, if any.
Section 2.2 Expenses. The Company will reimburse the Purchasers
for any reasonable out of pocket expenses incurred in connection with the
closing or monitoring of the Note.
ARTICLE 3. PURCHASERS' REPRESENTATIONS AND WARRANTIES.
Each Purchaser hereby represents and warrants (with respect to itself
only) to the Company as follows as of the date hereof and as of the Closing
Date:
Section 3.1 Organization and Powers. Each Purchaser is, if a
partnership or corporation, (i) duly organized, validly existing and in good
standing under the laws of the State of its formation, and (ii) has the
power and authority to execute, deliver and perform the Documents to which
it is a party.
Section 3.2 Authorization. The execution, delivery and
performance by each Purchaser of the Documents to which it is a party have
been duly authorized by each Purchaser by all requisite action necessary to
be taken by it.
Section 3.3 Validity and Binding Nature. The Documents to which
each Purchaser is a party have been duly executed and delivered by such
Purchaser and each is a legal, valid and binding obligation of such
Purchaser, enforceable against such Purchaser in accordance with its terms
(except as enforcement thereof may be limited by bankruptcy, reorganization,
insolvency, moratorium or other laws or equitable principles affecting the
enforcement of creditors' rights generally).
Section 3.4 Acquisition for Investment. Each Purchaser is
acquiring the Securities (and all securities into which the Securities are
exercisable) solely for its own account for the purpose of investment and
not with a view to or for sale in connection with any distribution thereof,
and no Purchaser has a present intention or plan to effect any distribution
of the Securities (or such other securities). Notwithstanding anything in
this Section to the contrary, the disposition of each Purchaser's property
shall be at all times within the control of each Purchaser and subject to
the rights of each Purchaser to dispose of all or any of the Securities (or
such other securities) pursuant to an effective registration statement under
the Securities Act or an exception available under the Securities Act. Each
Purchaser acknowledges that the Securities (and such other securities) have
not been registered under the Securities Act and may be sold or disposed of
in the absence of such registration only pursuant to an exemption from such
registration.
Section 3.5 Accredited Investor; Sophistication. Either (i) each
Purchaser is an "accredited investor" within the meaning of Rule 501 under
the Securities Act or (ii) each Purchaser is able to bear the economic risk
of this investment, at the present time, and is able to afford a complete
loss of such investment. By reason of each Purchaser's business and
financial experience, and the business and financial experience of those
Persons retained to advise each Purchaser with respect to its investment in
the Securities, each Purchaser, together with such advisors, has such
knowledge, sophistication and experience in business and financial matters
that it is capable of evaluating the merits and risks of the prospective
investment.
Section 3.6 No General Solicitation. To each Purchaser's
knowledge, the Securities were not offered to such Purchaser by means of
general solicitations, publicly disseminated advertisements or sales
literature.
Section 3.7 Address. The true and correct address of each
Purchaser's principal place of business is as set forth in this Agreement.
Each Purchaser has supplied its federal tax identification number to the
Company. No Purchaser has a present intention of moving its principal place
of business to any other state or jurisdiction.
Section 3.8 No Brokers. No Purchaser has employed any broker,
agent, finder or investment banker in connection with any transaction
contemplated by the Documents.
ARTICLE 4. COMPANY'S REPRESENTATIONS AND WARRANTIES.
The Company hereby represents and warrants to the Purchasers as follows
as of the date hereof and as of the Closing Date:
Section 4.1 Organization and Powers. The Company (i) is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Texas, (ii) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted
and as proposed to be conducted, and (iii) has the power and authority to
execute, deliver and perform the Documents to which it is a party.
Section 4.2 Authorization. The execution, delivery and
performance by the Company of the Documents to which it is a party (i) have
been duly authorized by the Company by all requisite action necessary to be
taken by it, (ii) will not violate and has not violated in such a way as to
have a material adverse effect on the Company (A) any provision of law,
statute, rule or regulation, (B) any applicable judgment, writ, injunction,
decree or other order of any governmental authority, or (C) the articles of
incorporation or bylaws of the Company, or any material agreement to which
the Company is a party, and (iii) will not be or result in, and has not
caused, a conflict with, a breach of or (with notice or lapse of time or
both) a default under any material agreement to which the Company is a
party.
Section 4.3 Validity and Binding Nature. This Agreement has been
duly executed and delivered by the Company and is, and each of the other
Documents, when executed and delivered by the Company will be, a legal,
valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms (except as enforcement thereof may be limited
by bankruptcy, reorganization, insolvency, moratorium or other laws or
equitable principles affecting the enforcement of creditors' rights
generally).
Section 4.4 Consents, Licenses, Filings, Etc. Except as required
under the Securities Act and applicable state securities laws, no action,
consent or approval of, license or permit from, or registration or filing
with, or any other action by any governmental authority or any other Person
was or is required in connection with the execution, delivery and
performance by the Company of the Documents.
Section 4.5 No Brokers. The Company has not employed any broker,
agent, finder or investment banker in connection with any transaction
contemplated by the Documents.
Section 4.6 Capitalization. As of December 8, 2000, the
authorized capital stock of the Company consisted of 80,000,000 shares of
Common Stock, of which 27,191,816 shares were issued and outstanding. All
of such outstanding shares have been validly issued and are fully paid and
non-assessable. There is no preemptive or similar rights to purchase or
otherwise acquire shares of capital stock or other securities of the Company
pursuant to any provision of law, the Company's articles of incorporation or
bylaws, or any agreement to which the Company is a party. Except as
disclosed in the Company's SEC filings, there are no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company, or arrangements by which the
Company is or may become bound to issue additional shares of capital stock
of the Company or options, warrants, scrip, rights to subscribe to, or
commitments to purchase or acquire, any shares, or securities or rights
convertible into shares, of capital stock of the Company. The Purchasers
acknowledge that they have had ample opportunity to review true and correct
copies of the Company's articles of incorporation and bylaws, and the
Company's SEC filings including the Company's annual report on Form 10-K for
the 2000 fiscal year.
Section 4.7 Issuance of Shares. The Common Stock issuable upon
exercise of the Warrants has been duly authorized and when issued in
accordance with the terms of the Documents shall be validly issued, fully
paid and non-assessable.
Section 4.8 SEC Documents; Financial Statements. The Company has
filed all reports, schedules, forms, statements and other documents required
to be filed by it with the SEC pursuant to the reporting requirements of the
Exchange Act (all of the foregoing filed after such date prior to the date
hereof and all exhibits included therein and financial statements and
schedules thereto and documents (other than exhibits) incorporated by
reference therein, being hereinafter referred to herein as the "SEC
Documents"). As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the Exchange Act and the rules
and regulations of the SEC promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents, at the time they were filed with
the SEC, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading. As of their respective dates, the financial
statements of the Company included in the SEC Documents complied as to form
in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto. Such
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements to the extent they may not include footnotes or may be condensed
or summary statements) and fairly present in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal year-end audit adjustments).
ARTICLE 5. PURCHASERS' CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for Securities at the
Closing is subject to the fulfillment to such Purchaser's satisfaction, on
or before the Closing Date, of each of the following conditions:
Section 5.1 Expiration Date. The Closing Date shall have
occurred on or before December 8, 2000.
Section 5.2 Securities. Each Purchaser shall have received the
Securities required to be delivered by the Company to such Purchaser on the
Closing Date pursuant to Article 2 of this Agreement, each duly executed and
delivered by the Company.
Section 5.3 Registration Rights Agreement. Each Purchaser shall
have received the Registration Rights Agreement, duly executed and delivered
by the Company.
Section 5.4 Representations and Warranties; Covenants; Events of
Default. (i) The representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects on and as
of the Closing Date with the same effect as though such representations and
warranties had been made on the Closing Date, except to the extent of any
changes caused by the transactions herein contemplated, (ii) the Company
shall not be in material breach of any covenant contained in the Documents,
and (iii) no Event of Default shall have occurred and be continuing.
Section 5.5 Transactions Permitted by Applicable Laws. The
Closing and the other transactions contemplated by this Agreement shall not
violate any applicable law or governmental regulation or result in a
violation of any order of any court or governmental body applicable to the
Purchasers or the Company and shall not subject the Purchasers or the
Company to any tax, penalty or liability.
Section 5.6 No Adverse Action or Decision. There shall be no
action, suit, investigation or proceeding pending, or, to the best of the
Purchasers' knowledge, threatened against or affecting the Purchasers or the
Company or any of their respective properties that (i) seeks to restrain,
enjoin, prevent the consummation of or otherwise affect the Closing or the
other transactions contemplated by this Agreement, or (ii) questions the
validity or legality of any such transactions or seeks to recover damages or
to obtain other relief in connection with any such transactions.
Section 5.7 Approvals and Consents. The Company shall have duly
received all authorizations, consents, approvals, licenses, franchises,
permits and certificates by or of, and shall have made all filings and
effected all registrations and qualifications with, all federal, state and
local governmental authorities and other Persons necessary for the
consummation of the Closing and the other transactions contemplated by this
Agreement, and all such matters shall be in full force and effect as of the
Closing Date.
Section 5.8 Proceedings. All corporate and other proceedings to
be taken by the Company in connection with the transactions contemplated
hereby and all documents incident thereto shall be reasonably satisfactory
in substance and form to the Purchasers.
ARTICLE 6. COMPANY'S CONDITIONS TO CLOSING.
The obligation of the Company to issue and sell Securities to the
Purchasers is subject to the fulfillment to the satisfaction of the Company,
on or before the Closing Date, of each of the following conditions:
Section 6.1 Purchase Price. The Company shall have received
payment in full of the Purchase Price for the Securities.
Section 6.2 Representations and Warranties; Covenants. (i) The
representations and warranties of each Purchaser contained in this Agreement
shall be true and correct in all material respects on and as of the Closing
Date with the same effect as though such representations and warranties had
been made on the Closing Date, except to the extent of any changes caused by
the transactions herein contemplated, and (ii) the Purchasers shall not be
in material breach of any covenant contained in the Documents.
Section 6.3 No Adverse Action or Decision. There shall be no
action, suit, investigation or proceeding pending, or, to the best of the
Company's knowledge, threatened against or affecting the Purchasers or the
Company or any of their respective properties before any court, arbitrator
or administrative or governmental body that (i) seeks to restrain, enjoin,
prevent the consummation of or otherwise affect the Closing or the other
transactions contemplated by this Agreement, or (ii) questions the validity
or legality of any such transactions or seeks to recover damages or to
obtain other relief in connection with any such transactions.
Section 6.4 Approvals and Consents. The Company shall have duly
received all authorizations, consents, approvals, licenses, franchises,
permits and certificates by or of, and shall have made all filings and
effected all registrations and qualifications with, all federal, state and
local governmental authorities and other Persons necessary for the
consummation of the Closing and the other transactions contemplated by this
Agreement, and all such matters shall be in full force and effect as of the
Closing Date.
ARTICLE 7. COVENANTS.
The Company hereby covenants and agrees with the Holders that, so long
as the principal of or interest on any Note shall be unpaid:
Section 7.1 Compliance with Law; Maintenance of Properties. The
Company will do or cause to be done all things necessary (i) to preserve and
keep in full force and effect at all times the Company's existence, and all
rights, licenses and franchises that are material to its business, (ii) to
cause the Company to comply in all material respects with all applicable
laws, and all applicable rules, regulations and orders issued by any
governmental authority, noncompliance with which could have a material
adverse effect on the business, operations, prospects, assets and/or
financial or other condition of the Company (but the Company may contest in
good faith by appropriate action any alleged violation of any of the
foregoing), and (iii) to preserve all material property useful in the
conduct of the Company's business and keep the same in reasonably good
repair, working order and condition, normal wear and tear excepted, and from
time to time make, or cause to be made, all needful and proper repairs,
renewals and replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 7.2 Performance of Liabilities. The Company will
(i) duly pay and discharge all Indebtedness, and (ii) duly pay and discharge
all taxes before the same shall become in default, and all lawful claims for
labor, materials and supplies that have become due and payable which taxes
and other claims, if unpaid, might become a lien upon any of its properties
if the loss of such properties could have a material adverse effect on the
business, operations, prospects, assets and/or financial or other condition
of the Company.
ARTICLE 8. DEFAULT AND REMEDIES.
Section 8.1 Events of Default. An "Event of Default" occurs if:
(a) the Company defaults in the payment of principal of or
interest on the Notes when the same becomes due and payable and such default
continues for 30 days after the Company has received written notice thereof;
(b) the Company shall fail to observe or perform any other
covenant or agreement contained in any Document and such default continues
for 30 days after the Company has received written notice thereof;
(c) any material representation or warranty made by the Company
in any Document shall prove to have been false or misleading in any material
respect when made;
(d) the Company (i) shall commence a voluntary case concerning
itself under any bankruptcy law now or hereafter in effect, or any successor
thereof; or (ii) commences any Distribution Event;
(e) an Event of Default occurs under any obligations of the
Company under Notes held by other parties.
The Company agrees to notify the Holder promptly of any Event of
Default.
Section 8.2 Remedies.
(a) If an Event of Default (other than an Event of Default under
Section 8.1(d)) shall occur and be continuing, the Majority Holders may
declare by notice in writing given to the Company, the entire unpaid
principal amount of the Notes, together with accrued but unpaid interest
thereon, to be immediately due and payable, in which case the Notes shall
become immediately due and payable, both as to principal and interest,
without presentment, demand, default, notice of intent to accelerate and
notice of such acceleration, protest or notice of any kind, all of which are
hereby expressly waived, anything herein or elsewhere to the contrary
notwithstanding.
(b) If an Event of Default under Section 8.1(d) shall occur and
be continuing, the entire unpaid principal amount of the Notes, together
with accrued but unpaid interest thereon, shall automatically become
immediately due and payable, both as to principal and interest, without
presentment, demand, default, notice of intent to accelerate and notice of
such acceleration, protest or notice of any kind, all of which are hereby
expressly waived, anything herein or elsewhere to the contrary
notwithstanding.
(c) If any Event of Default shall have occurred and is
continuing, the Company shall pay to Holders additional Warrants to purchase
10,000 shares of Common Stock per day until the default is cured, up to a
maximum of 500,000 shares.
ARTICLE 9. MISCELLANEOUS.
Section 9.1 Payments. The Company agrees that, as long as the
Purchasers shall hold the Notes, all payments to be made on or in connection
with the Notes shall be made to the Purchasers by wire transfer, as the
Purchasers may designate in writing. All payments referred to under this
Agreement and the other Documents shall be in immediately available funds in
lawful money of the United States of America. The Holders agree that prior
to any delivery upon the sale or other disposition of all or any part of the
Notes, the Holders will promptly make or cause to be made a notation on the
Notes reflecting all payments thereon.
Section 9.2 Amendments. This Agreement and the other Documents
may be amended, modified, superseded or canceled, and any of the terms,
covenants, representations, warranties or conditions hereof and thereof may
be waived, only by a written instrument executed by the Company and the
Majority Holders at such time; except that each holder must consent in
writing to any amendment or waiver which adversely affects the interest
rate, maturity, prepayment or redemption provisions, or the percentage
required to amend the Debentures. If any such proposed amendment,
modification or other action would require the consent of holders of more
than a majority in aggregate principal amount of securities then outstanding
if such action were proposed with respect to securities issued pursuant to
an indenture qualified under the TIA (such percentage required under the TIA
for such action being referred to herein as the "Applicable Supermajority
Percentage"), then such proposed amendment, modification or other action
with respect to this Agreement and the other Documents shall require the
consent of the Holders of the Applicable Supermajority Percentage of the
Notes (or, if the Notes have been paid in full, the Warrants). If any such
proposed amendment, modification or other action would require the consent
of each affected holder if such action were proposed with respect to
securities issued pursuant to an indenture qualified under the TIA, then
such proposed amendment, modification or other action with respect to this
Agreement and the other Documents shall require the consent of each affected
Holder.
Section 9.3 No Waiver. The failure of any party at any time or
times to require performance of any provisions hereof shall in no manner
affect the right at a later time to enforce the same. No waiver by any
party of any condition, or of any breach of any term, covenant,
representation or warranty contained in this Agreement, in any one or more
instances, shall be deemed to be or construed as a further or continuing
waiver of any such condition or breach or a waiver of any other condition or
of any breach of any other term, covenant, representation or warranty.
Section 9.4 Survival of Representations and Warranties. All
representations, warranties, covenants, indemnities and agreements contained
herein or made in writing by the Company in connection herewith shall
survive the execution and delivery of this Agreement, the sale and purchase
of the Securities and any disposition thereof.
Section 9.5 Successors and Assigns. All covenants and agreements
in this Agreement made by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the Company, each Purchaser and each Holder
and their respective successors and permitted assigns. The terms and
provisions of this Agreement are intended solely for the benefit of each
party hereto and its respective successors and permitted assigns, and it is
not the intention of the parties to confer third-party beneficiary rights
upon any other Person. The Holders may not sell, assign (by operation of
law or otherwise), transfer, pledge, grant a security interest in, or
otherwise dispose of this Agreement or any other Document or any portion
hereof or thereof or any rights or obligations hereunder or thereunder
unless (i) the Company has granted its prior written consent (which consent
shall not be unreasonably withheld), and (ii) the Company shall have
received a written opinion of counsel reasonably acceptable to the Company,
addressed to the Company, to the effect that any such proposed transfer or
other disposition complies with all applicable Federal and state securities
laws, or other comfort reasonably acceptable to the Company to the same
effect.
Section 9.6 Notices. Unless expressly provided otherwise 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 telecopier, once such notice or other communication is
transmitted to the telecopier number of the party 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 and (i) if to a Purchaser, addressed to it at
the address shown on the signature pages hereof, or to such other address as
such Purchaser may have designated to the Company in writing, (ii) if to any
subsequent Holder, addressed to such Holder at the address of such Holder in
the record books of the Company, and (iii) if to the Company, addressed to
it at 00000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxxxx X. Xxxxxx, or to such other address as the Company may
have designated in writing to the Holder.
Section 9.7 Descriptive Headings. The descriptive headings of
the articles, sections, subsections and paragraphs of the Documents are
inserted for convenience only and do not constitute a part of the Documents.
Section 9.8 Governing Law. This Agreement and the validity and
enforceability hereof shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Texas.
Section 9.9 Pro Rata Sharing. All payments (including, but not
limited to, payments by offset) made under this Agreement or the Notes shall
be made to the Holders pro rata in accordance with the principal amount of
Notes that such Holder owns. If any Holder shall receive any payment in
violation of this Section, such Holder shall pay such excess funds over to
other Holders or purchase Notes or interests therein from other Holders in
order to cause such excess payment to be shared by the Holders on a pro rata
basis.
Section 9.10 Limitation on Interest. Notwithstanding any other
provision of this Agreement or any other Document, interest on the
indebtedness contemplated by the Documents is expressly limited so that in
no contingency or event whatsoever, whether by acceleration of the maturity
of such indebtedness or otherwise, shall the interest contracted for,
charged or received by any Purchaser or any Holder exceed the maximum amount
permissible under applicable law. If from any circumstances whatsoever
fulfillment of any provisions of this Agreement or of any other document
evidencing, securing or pertaining to the indebtedness contemplated hereby,
at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law, then, ipso facto, the
obligation to be fulfilled shall be reduced to the limit of such validity,
and if from any such circumstances any Purchaser or any Holder shall ever
receive anything of value as interest or deemed interest by applicable law
under this Agreement or any other document evidencing, securing or
pertaining to the indebtedness contemplated hereby or otherwise an amount
that would exceed the highest lawful rate, such amount that would be
excessive interest shall be applied to the reduction of the principal amount
owing under this Agreement or on account of any other indebtedness of the
Company to such Purchaser or such Holder, and not to the payment of
interest, or if such excessive interest exceeds the unpaid balance of
principal of the Notes and such other indebtedness, such excess shall be
refunded to the Company. In determining whether or not the interest paid or
payable with respect to any indebtedness of the Company to such Purchaser or
such Holder, under any specific contingency, exceeds the highest lawful
rate, the Company and such Purchaser or such Holder shall, to the maximum
extent permitted by applicable law, (a) characterize any non-principal
payment as an expense, fee or premium rather than as interest, (b) exclude
voluntary prepayments and the effects thereof, (c) amortize, prorate,
allocate and spread the total amount of interest throughout the term of such
indebtedness so that the actual rate of interest on account of such
indebtedness does not exceed the maximum amount permitted by applicable law,
and/or (d) allocate interest between portions of such indebtedness, to the
end that no such portion shall bear interest at a rate greater than that
permitted by applicable law. The terms and provisions of this paragraph
shall control and supersede every other conflicting provision of this
Agreement and the other Documents.
Section 9.11 Entire Agreement. This Agreement and the other
Documents embody the entire agreement of the parties relating to the subject
matter hereof and supersede all prior proposals, negotiations, agreements
and understandings relating to such subject matter.
Section 9.12 Counterparts. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall
constitute but one and the same agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year specified at the beginning hereof.
UNIVIEW TECHNOLOGIES CORPORATION
By: (Form only)
------------------------------
PURCHASER: Sagemark Capital, L.P.
(Form only)
______________________________
(Signature)
Sagemark Capital, L.P.
By: Sagemark Management, LLC, General Partner
Print Name:
Title: Authorized Member
Original Principal Amount of Notes Purchased:
Corresponding Warrant originally exercisable for __________ underlying
shares, exercisable for five (5) years at $____ per share.
Principal Place of Business:
Federal Tax ID Number:
APPENDIX "A"
INVESTOR ACKNOWLEDGMENTS
In order to induce uniView Technologies Corporation (the "Company") to
accept the foregoing Securities Purchase Agreement between the parties dated
as of December 8, 2000, the Investor expressly acknowledges the following by
placing his or her initials (or, if the Investor is a person other than an
individual, the initials of an individual duly empowered to act for the
Investor) in each of the spaces provided below:
THE INVESTOR HAS RECEIVED, HAS CAREFULLY REVIEWED INFORMATION ON THE
COMPANY AND HAS MADE AN INDEPENDENT INVESTIGATION AND ANALYSIS OF THE
INVESTMENT.
THE INVESTOR HAS CAREFULLY READ THE FOREGOING SECURITIES PURCHASE
AGREEMENT AND IN PARTICULAR, HAS CAREFULLY READ AND UNDERSTANDS THE
INVESTOR'S REPRESENTATIONS AND WARRANTIES MADE THEREIN AND CONFIRMS THAT ALL
SUCH REPRESENTATIONS AND WARRANTIES ARE TRUE AND CORRECT.
THE INVESTOR QUALIFIES UNDER THE FOLLOWING CATEGORY OR CATEGORIES OF
DEFINITIONS OF "ACCREDITED INVESTOR" (INDICATE EACH APPLICABLE CATEGORY):
Category I. _____ The undersigned is an individual (not a
partnership, corporation, trust, etc.) whose net worth with the
undersigned's spouse presently exceeds $1 million. In calculating net
worth the undersigned may include equity in personal property and real
estate, estate, including the undersigned's principal residence, cash,
short-term investments, stocks, bonds, and securities. Equity in
personal property and real estate should be based upon the fair market
value of the property less any debt secured by the property.
Category II. _____ The undersigned is an individual (not a
partnership, corporation, trust, etc.) who reasonably expects an
individual income in excess of $200,000 (or $300,000 with the
undersigned's spouse) in the current year and had an individual income
in excess of $200,000 (or $300,000 with the undersigned's spouse) in
each of the last two years. Income includes foreign income, tax exempt
income, and the full amount of any capital gains and losses.
Individual income does not include any income of the undersigned's
spouse or other family members; it also does not include any unrealized
capital appreciation.
Category III. _____ The undersigned is a bank, insurance company,
registered investment company, registered business development company,
license small business investment company, or employee benefit plan
within the meaning of Title I of ERISA whose plan fiduciary is either a
bank, insurance company or registered investment advisor, or whose
total assets exceed $5 million.
_________________
(Describe entity)
Category IV. _____ The undersigned is a private business
development company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940, as amended.
_________________
(Describe entity)
Category V. _____ The undersigned is a non-profit organization
within the meaning of Section 501(c)(3) of the Internal Revenue Code of
1986, as amended, with total assets in excess of $5 million.
_________________
(Describe entity)
Category VI. _____ The undersigned is a trustee of a trust that is
revocable by the grantor at any time (including an individual
retirement account) and the grantor qualifies under either Category I
or Category II above. A copy of the trust agreement or declaration of
trust and a representation as to the net worth and income of the
grantor is enclosed with this Investor Acknowledgment.
Category VII. _____ The undersigned is an entity of which all of
the equity owners are "accredited investors" within one or more of the
categories. If this category is the only category checked, each of the
equity owners of the entity must complete a separate copy of this
Investor Acknowledgment.
_________________
(Describe entity)
Category VIII. _____ The undersigned is a corporation or other
organization not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000.
IN WITNESS WHEREOF, the Investor has executed and delivered this
Investor Acknowledgment as of December 8, 2000.
Official Signatory of Investor:
Sagemark Capital, L.P.
(Form only)
_______________________________
(Signature)
Sagemark Capital, L.P.
By: Sagemark Management, LLC, General Partner
Print Name:
Title: Authorized Member
