STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") made this date by and
between UNIVIEW TECHNOLOGIES CORPORATION, a Texas corporation
("Purchaser"), and ALSCOMM, INC., a Nevada corporation ("Seller").
INTRODUCTION
Seller desires to sell and Purchaser desires to purchase all of the
issued and outstanding capital stock of Seller's wholly owned subsidiary,
VIDEO MANAGEMENT, INC., a Texas corporation, which owns 100 percent of
the issued and outstanding common stock of NETWORK AMERICA, INC., an
Oklahoma corporation, and COMPUNET SUPPORT SYSTEMS, INC., a Texas
corporation (collectively, the "Company" or "VMI") 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:
ARTICLE 1
SALE
1.01 Sale of Stock. Seller agrees to sell, convey, transfer, assign, and
deliver to Purchaser all of the issued and outstanding capital stock of
VMI, and Purchaser agrees to purchase such stock (the "Stock").
1.02 Consideration for Sale. In consideration of the sale and transfer
of 100 percent of the shares of capital stock of VMI and the
representations, warranties, and covenants of Seller set forth in this
Agreement, Purchaser shall cause to be issued and delivered to Seller
Eight Hundred Thousand (800,000) shares of its par value $.10 common
stock (the "Common Stock") within ten (10) business days of the date of
this Agreement.
1.03 Closing. The date of execution of this Agreement shall be deemed
the "Closing Date" of this transaction.
1.04 Registration Rights. (a) Piggyback Registration. If, at any time
during the ninety-day period following the Closing Date, Purchaser shall
file a registration statement (other than a registration statement on
Form X-0, Xxxx X-0, or on any other form which does not include
substantially the same information as would be required to be included in
a registration statement covering the sale of the Common Stock) with the
Securities and Exchange Commission (the "Commission"), Purchaser shall
give Seller prior written notice of the filing of such registration
statement. If requested by Seller in writing within five (5) business
days after receipt of any such notice, Purchaser shall, at Purchaser's
sole expense (other than the fees and disbursements of counsel for
Seller, and the underwriting discounts, if any, payable in respect of the
Common Stock sold by Seller), register all or, at Seller's option, any
portion of the Common Stock concurrently with the registration of such
other securities, all to the extent requisite to permit the public
offering and sale of the Common Stock through the facilities of the
Nasdaq Stock Market, and will use its best efforts through its officers,
directors, auditors, and counsel to cause such registration statement to
become effective as promptly as practicable. Notwithstanding the
foregoing, if Purchaser believes in good faith that the distribution of
all or a portion of the Common Stock requested to be included in the
registration concurrently with the securities being registered by
Purchaser would materially adversely affect the distribution of such
securities by Purchaser for its own account or pursuant to previous
commitments made to other investors, then Purchaser shall delay the
offering and sale of the Common Stock (or the portions thereof so
designated) for such period. As used herein, "Common Stock" shall mean
the shares of Common Stock acquired by Seller pursuant to this Agreement
which have not been previously sold pursuant to a registration statement
or Rule 144 promulgated under the Securities Act.
(b) Demand Registration. If, at any time after the ninety-day
period following the Closing Date, Purchaser shall receive a written
request from Seller to register the sale of all or part of such Common
Stock, Purchaser shall, as promptly as practicable, at Purchaser's sole
cost and expense (other than the fees and disbursements of counsel for
Seller, and the underwriting discounts, if any, payable in respect of the
Common Stock sold by Seller), prepare and file with the Commission a
registration statement sufficient to permit the public offering and sale
of the Common Stock through the facilities of the Nasdaq Stock Market,
and will use its best efforts through its officers, directors, auditors,
and counsel to cause such registration statement to become effective as
promptly as practicable; provided, however, that Purchaser shall only be
obligated to file one such registration statement. The registration
statement filed by Purchaser pursuant to this section may include
securities sold by Purchaser or on behalf of persons other than Seller.
ARTICLE 2
SELLER'S REPRESENTATIONS AND WARRANTIES
Seller hereby represents and warrants to Purchaser that the
following facts and circumstances are true and correct as of the date of
this Agreement:
2.01 Organization. Video Management, Inc. and CompuNet Support Systems,
Inc. are corporations duly organized, validly existing, and in good
standing under the laws of Texas. Network America, Inc. is a corporation
duly organized, validly existing, and in good standing under the laws of
Oklahoma. Company is qualified to do business in all jurisdictions in
which it does business and has all requisite power and authority
(corporate and, when applicable, government) to own, operate, and carry
on its business as now being conducted. Each of Company's respective
certificate(s) of incorporation, articles of incorporation, and bylaws as
currently in effect are contained in Exhibit 1, attached to this
Agreement.
2.02 Ownership of Company. Seller is the sole owner of VMI with full
right to sell or dispose of it as Seller may choose. No other person or
persons have any claim, right, title, interest, or lien in, to, or on VMI
or VMI's assets except as set forth in Exhibit 2, attached to this
Agreement.
2.03 Ownership in Other Companies. Company has no interest in any other
corporation, firm, business, or partnership, and the only wholly owned
subsidiaries of Video Management, Inc. are CompuNet Support Systems,
Inc., a Texas corporation, and Network America, Inc., an Oklahoma
corporation.
2.04 Officers and Directors. Exhibit 3, attached to this Agreement,
contains a true and correct list of all officers and directors of
Company, their rate of compensation, and the portion of compensation
attributable to salary and bonuses, respectively, of all officers,
directors, and of each employee of Company whose salary is $25,000 per
year or greater.
2.05 Financial Statements. No financial statements have been prepared or
exist for Video Management, Inc. as of the date of this Agreement.
Exhibit 4-A, attached to this Agreement, contains the financial
statements of CompuNet Support Systems, Inc., together with notes related
to the financial statements. The financial statements consist of audited
balance sheets and statements of income and retained earnings for two
years ended December 31, 1996 and 1995, and unaudited statements for the
month ended April 30, 1998 and the quarters ended March 31, 1998,
December 31, 1997, September 30, 1997, June 30, 1997 and March 31, 1997
("Financial Statements").
Exhibit 4-B, attached to this Agreement, contains the financial
statements of Network America, Inc., together with notes related to the
financial statements. The financial statements consist of unaudited
balance sheets and statements of income and retained earnings for the
month ended April 30, 1998 and for the quarters ended March 31, 1998,
December 31, 1997, September 30, 1997, June 30, 1997 and March 31, 1997
("Financial Statements").
Except as disclosed on Exhibits 4-A and 4-B, the Financial
Statements present fairly and accurately the financial position, results
of operations, and changes in financial position of Company 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 Company, accrued, absolute, contingent,
inchoate, or otherwise that arose out of or relate to any matter, act, or
omission occurring from the end of the period of the unaudited financial
statements, to the date of this Agreement, other than liabilities or
obligations incurred in the normal course of business.
Since the end of the period of the unaudited financial statements,
there have not been: (a) Any material adverse change in financial
condition, operations, sales, or net income of Company; (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 Company'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 Sellers that materially adversely affects the business or future
prospects of Company; (f) Any claim, litigation, event, or condition of
any character, that materially adversely affects the business or future
prospects of Company; (g) Any issuance, purchase of, or agreement to
issue or purchase Stock or other securities of Company; (h) Any mortgage,
pledge, lien, or encumbrance made or agreed to be made on any of
Company's assets or properties, tangible or intangible; (i) Any sale,
transfer, other disposition of, or agreement to sell, transfer, or
dispose of Company'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 Company; (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 Company's books; (l) Any
transaction entered into by the Company outside the ordinary course of
business; (m) Any dividends or distributions paid or declared, or any
repayment of loans or other obligations to the Sellers; (n) Any capital
expenditure made by Company in excess of $10,000; or (o) Any agreement by
Sellers or Company 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 Company or by Sellers
on behalf of Company 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 Company or require payment by
Company, except for current Taxes not yet due and payable. All current
Taxes not yet due and payable by Company have been properly accrued on
the balance sheets of Company. Company has not incurred any liability
for penalties, assessments, or interest under the Internal Revenue Code.
No unexpired waiver executed by or on behalf of Company with respect to
any Taxes is in effect.
2.07 Real Property. Exhibit 5, attached to this Agreement, contains a
complete and accurate legal description of each parcel of real property
owned by, leased to, or leased by Company 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. Exhibit 5 also contains a description of all buildings,
fixtures, and other improvements located on the real property and a list
of the policies of title insurance issued to Company or Seller for the
properties. 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. All the buildings, fixtures, and leasehold improvements used
by Company in it's business are located on the real property. The zoning
of each parcel of property described in Exhibit 5 permits the presently
existing improvements and the continuation of Company's business
presently being conducted on such parcel. Seller is not aware of any
enacted or proposed changes to such zoning.
2.08 Inventories. All inventories owned by Company ("Inventories")
consist of items of a quality and quantity usable and saleable in the
ordinary course of business by Company and are of the stated value on the
ending date of the last unaudited financial statement of Company,
provided by Company and Sellers to Purchaser in Exhibit 4, attached to
this Agreement. All items included in the Inventories are the property
of Company, except for sales made in the ordinary course of business, and
for each of such sales, either the purchaser of the Inventories has made
full payment for it or the purchaser's liability to make such payment is
reflected in the financial books of the Company. Except as otherwise
stated in this Agreement or an exhibit attached hereto, no items included
in the Inventories have been pledged as collateral or are held by Company
on consignment from others. All of the Inventories are substantially
free of defects and to the extent that they consist of finished or semi-
finished goods, also comply with the specifications submitted by the
purchasers of the items of Inventories in all material respects. The
processes used by Company in the production of finished goods in the
Inventories will result in substantially defect-free products.
2.09 Other Tangible Personal Property. The equipment, furniture,
fixtures, and other personal property described in Exhibit 6, attached to
this Agreement, constitute all the items of tangible personal property
owned by, in the possession of, or used by Company in connection with
Company's business except Inventories. Except as otherwise stated in
this Agreement or an exhibit attached hereto, no personal property used
by Company in connection with its business is held under any lease,
security agreement, conditional sales contract, or other title retention
or security agreement or is located any place other than in the
possession of Company.
2.10 Other Intangible Property. Exhibit 7 has been intentionally
deleted, as there are no intangible properties of Company other than
those specifically referred to elsewhere in this Agreement.
2.11 Title to Assets and Properties. Company has good and marketable
title to all of its assets and properties, tangible and intangible, that
are material to Company's business and future prospects. These assets
and properties constitute all of the assets and interests in assets that
are used in Company'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 Company's latest balance sheets
provided to Purchaser, 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 Company are in
good operating condition and repair, ordinary wear and tear excepted.
Company is in possession of all premises leased to Company from others.
Except as set forth in the appropriate Exhibit listing such assets, no
officer, director, or employee of Company, 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 Company or in any copyrights, patents, trademarks, trade names, or
trade secrets licensed by Company. Company does not occupy any real
property in violation of any law, regulation, or decree that would
materially adversely affect its business or future prospects.
2.12 Customers and Sales. Exhibit 8, attached to this Agreement, is a
correct and current list of all customers of Company together with
summaries of the sales made to each customer during the most recent
fiscal year. Except as indicated in Exhibit 8, neither Company nor
Seller has information or is aware of any facts indicating that any of
these customers intend to cease doing business with Company or to
materially alter the amount of the business that they are presently doing
with Company.
2.13 Insurance Policies. Exhibit 9, attached to this Agreement, is a
list and description of all insurance policies concerning the assets and
properties and all officers, directors, and employees of Company. All of
these policies are in the respective principal amounts set forth in
Exhibit 9. Company 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.
2.14 Contracts; Consents. Exhibit 10, attached to this Agreement,
contains true and correct lists, with copies when available, of all
material oral and written contracts or arrangements obligating Company,
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. For
purposes of this Paragraph 2.14, the term "material contract" means: (a)
one that, if in the ordinary course of business, obligates Company in an
amount in excess of $1,000, or if the aggregate total of all contracts
from like transactions exceeds such amount; and (b) one that, if not in
the ordinary course of business, obligates Company in an amount in excess
of $1,000, or if the aggregate total of all such contracts for like
transactions exceeds such amount. Exhibit 10 also includes the aggregate
dollar value of all contracts that do not exceed such limits. Purchaser
shall have the right to review any nonmaterial contract upon request.
Except as set forth in Exhibit 10, Company is not a party to, nor are
Company'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 listed in Exhibit 10. Company has
not received any notice that any party to any of the contracts listed in
Exhibit 10 intends to cancel or terminate any of the contracts or to
exercise or not exercise any options under any of the contracts. Neither
Seller nor Company is a party to, nor are Company's assets or properties
bound by, any contract that is materially adverse to the business,
property, or financial condition of Company.
Exhibit 10 also sets forth a list of all persons or entities whose
consents are required to be obtained under any contract with respect to
the consummation of this transaction by Seller. There are no other
consents or approvals required from any other third party with respect to
this transaction.
2.15 Laws and Regulations. Company 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.
2.16 Litigation. Except as disclosed in Exhibit 11, attached to this
Agreement, 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 Company or any
of the assets, properties, or business of Company or any of Company's
officers, directors, employees, or stockholders that will materially
adversely affect Company, its assets, properties, or business. To the
best of Seller's and Company's knowledge and belief, after conducting a
due diligence investigation, there is no basis for any of these
proceedings against any of Company's assets, properties, persons, or
entities. Seller has furnished or made available to Purchaser copies of
all relevant court papers and other documents relating to the matters set
forth in Exhibit 11. Except as set forth in Exhibit 11, neither Seller
nor Company is presently engaged in any legal action to recover moneys
due Company or for damages sustained by Company.
2.17 Fringe Benefit Plans; Employment Contracts. Exhibit 12, attached to
this Agreement, contains a complete description and copies of all
employment agreements in effect with Company and a complete description
of all fringe benefits and perquisites available to Company'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. There are no
unfunded pension or similar liabilities regarding any employee of
Company. 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 Company does not maintain any "pension plan"
as defined in ERISA that is unfunded, except as disclosed in Exhibit 12.
Exhibit 12 also includes all states in which Company has employees and
the status of unemployment insurance accounts in each state. Seller
agrees to use its best efforts to encourage all employees to continue
employment with Company after the date of this Agreement.
2.18 Receivables. Exhibit 13, attached to this Agreement, contains a
true and correct list of all accounts receivable and notes receivable of
Company. All listed accounts and notes receivable of Company, exclusive
of the receivables classified as bad debt reserves on the books of
Company, are bona fide receivables, arose in the ordinary course of
business by Company, and require no further performance by Company. 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 date of this
Agreement without resort to litigation or the retention of collection
services. Except as otherwise stated in this Agreement or an exhibit
attached hereto, none of the receivables have been pledged as collateral
under any pledge or security agreement.
2.19 Other Liabilities and Obligations. Exhibit 14, attached to this
Agreement, contains a true and correct list of all liabilities and
obligations of Company 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 Company, that exceed $5,000 to any one
creditor. In the case of liabilities that are not fixed, an estimate of
the maximum amount that may be payable is also included.
2.20 Reserves. Exhibit 15, attached to this Agreement, contains a true
and correct list of all reserves for contingent liabilities.
2.21 Trade Names, Trademarks, Copyrights, and Patents. Exhibit 16,
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 Company. These Intellectual Properties are the
only ones used and needed by Company in conducting its business. Company
has the right and authority to use all of these Intellectual Properties
as necessary to enable Company 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
Company now infringing on any right belonging to any person, firm, or
corporation. Company 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. Company has taken all necessary security
measures to protect the secrecy, confidentiality, and value of these
Intellectual Properties.
2.22 Bank Accounts. Exhibit 17, attached to this Agreement, contains a
true and correct list of the names and addresses of all banks or other
financial institutions in which Company 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.
2.23 Business Operations. The business operations of Company are 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 Company's business and future prospects, and have been
in material compliance since the date of formation of the Company or for
the past five years, whichever is less.
2.24 Authority. Seller 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 Seller or
Company to consummate the transaction contemplated by this Agreement.
2.25 Full Disclosure. No representation, warranty, or covenant made to
Purchaser in this Agreement nor any document, certificate, exhibit, or
other information given or delivered to Purchaser 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.
2.26 Broker. Neither Seller nor Company, nor any of Company's officers,
directors, employees, or stockholders, has retained, consented to, or
authorized any broker, investment banker, or third party to act on
Company's behalf, directly or indirectly, as a broker or finder in
connection with the transactions contemplated by this Agreement.
2.27 Confidentiality. From and after the Closing date, Seller shall not
(nor will Seller assist any other person to do so) directly or indirectly
reveal, report, publish or disclose Confidential Information to any
person, firm or corporation not expressly authorized by the Company to
receive such Confidential Information, or use (or assist any person to
use) such Confidential Information except for the benefit of the Company.
The term "Confidential Information," as used herein, means all
information or material not generally known by non-Company personnel
which (i) gives the Company some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could
be detrimental to the interests of the Company; (ii) which is owned by
the Company or in which the Company has an interest and (iii) which is
either (A) marked "Confidential Information," "Proprietary Information"
or other similar marking, (B) known by Seller to be considered
confidential and proprietary by the Company or (C) from all the relevant
circumstances should reasonably be assumed by Seller to be confidential
and proprietary to the Company. Confidential Information includes, but
is not limited to, the following types of information and other
information of a similar nature (whether or not reduced to writing):
trade secrets, inventions, drawings, file data, documentation, diagrams,
specifications, know how, processes, formulas, models, flow charts,
software in various stages of development, source codes, object codes,
research and development procedures, research or development and test
results, marketing techniques and materials, marketing and development
plans, price lists, pricing policies, business plans, information
relating to customers and/or suppliers' identities, characteristics and
agreements, financial information and projections, and employee files.
Confidential Information also includes any information described above
which the Company obtains from another party and which the Company treats
as proprietary or designates as Confidential Information, whether or not
owned or developed by the Company. NOTWITHSTANDING THE ABOVE, HOWEVER,
NO INFORMATION CONSTITUTES CONFIDENTIAL INFORMATION IF IT IS GENERIC
INFORMATION OR GENERAL KNOWLEDGE WHICH SELLER WOULD HAVE LEARNED IN THE
COURSE OF SIMILAR EMPLOYMENT ELSEWHERE IN THE TRADE OR IF IT IS OTHERWISE
PUBLICLY KNOWN AND IN THE PUBLIC DOMAIN.
2.28 Compliance with Securities Laws. (a) Seller acknowledges that
Purchaser is relying upon the accuracy and completeness of the statements
and representations contained in this section in complying with its
obligations under the federal and state securities laws. Seller
acknowledges and represents that:
(i) Seller is in a financial position to hold the Common Stock
for an indefinite period of time, is able to bear the economic risk
of an investment in the Common Stock and may withstand a complete
loss of Seller's investment in the Common Stock;
(ii) The Seller believes that it, either alone or together with
the assistance of its own professional advisor or advisors, has the
knowledge and experience in business and financial matters that make
it capable of reading and interpreting financial statements of and
concerning Purchaser, and of evaluating the merits and risks of an
investment in the Common Stock; and that Seller has the net worth to
undertake these risks;
(iii) Seller has obtained, to the extent it deems necessary,
its own personal professional advice with respect to the risks
inherent in an investment in the Common Stock and to the suitability
of an investment in the Common Stock in light of its financial
condition and investment needs;
(iv) Seller understands that an investment in the Common Stock
is highly speculative but that it believes that an investment in the
Common Stock is suitable based upon Seller's investment objectives
and financial needs, and that it has adequate means for providing
for its current financial needs and personal contingencies and has
no need for liquidity of investment with respect to the Common
Stock;
(v) Seller acknowledges access to full and complete public
information regarding Purchaser and has utilized that access to
Seller's satisfaction for the purpose of obtaining information
concerning Purchaser, an investment in the Common Stock and the
terms and conditions of this offering of the Common Stock, and has
either attended or been given reasonable opportunity to attend a
meeting with representatives of Purchaser for the purpose of asking
questions of, and receiving answers from, these representatives
concerning Purchaser, an investment in the Common Stock and the
terms and conditions of this offering of the Common Stock, and for
the purpose of obtaining any additional information to the extent
reasonable available that is necessary to verify the information
provided;
(vi) Seller recognizes that the Common Stock as an investment
involves a high degree of risk, including but not limited to the
risk of economic loss from the operations of Purchaser, due to the
limited operation history of Purchaser and its past limited
profitability;
(vii) Seller realizes that (A) the purchase of the Common Stock
is a long-term investment; (B) the purchaser of the Common Stock
must bear the economic risk of investment for an indefinite period
of time because the Common Stock has not been registered under the
Securities Act of 1933, an amended, or the securities laws of any
state, and, therefore, cannot be sold unless they are subsequently
registered under these laws or exemptions from registrations are
available; (C) there presently is no public market for the Common
Stock and Seller may not be able to liquidate Seller's investment in
the Common Stock in the event of an emergency or to pledge the
Common Stock as collateral for loans; and (D) the transferability of
the Common Stock is restricted, and (1) requires the written consent
of Purchaser, (2) requires conformity with the restrictions
contained hereinbelow, and (3) will be further restricted by legends
placed on the certificate or certificates representing the Common
Stock referring to the applicable restrictions on transferability,
and by stop transfer orders or notations on Purchaser's records
referring to the restrictions on transferability;
(viii) Seller certifies, under the penalties of perjury, that
Seller in NOT subject to the backup withholding provisions of
Section 3406(a)(1)(c) of the Internal Revenue Code of 1986. (NOTE:
you are subject to backup withholding if (A) you fail to furnish
your taxpayer identification number in this subscription; (B) the
Internal Revenue Service notifies Purchaser that you furnished an
incorrect taxpayer identification number; (C) you are notified that
you are subject to backup withholding; or (iv) you fail to certify
that you are not subject to backup withholding or you fail to
certify your taxpayer identification number.)
(b) Seller has been advised that the Common Stock has not been
registered under the Securities Act of 1933, as amended, or applicable
state securities laws, that the Common Stock are being offered and sold
pursuant to exemptions from the registration requirements of these laws,
and that the reliance of Purchaser on these exemptions is predicated in
part on Seller's representations to Purchaser contained in this section.
Seller represents and warrants that the Common Stock is being purchased
for Seller's own account and for investment and without the intention of
reselling or redistributing the Common Stock, that Seller has not made
any agreement with any other person or entity regarding any of the Common
Stock, and that Seller's financial condition is such that it is not
likely that it will be necessary for Seller to dispose of the Common
Stock in the foreseeable future. Seller is aware that, in the view of
the Securities and Exchange Commission, a purchase of the Common Stock
with an intent to resell the Common Stock by reason of any foreseeable
specific contingency or anticipated change in market values, or any
change in the condition of Purchaser or its business, or in connection
with a contemplated liquidation or settlement of any loan obtained for
the acquisition of the Common Stock and for which the Common Stock was
pledged as security, would represent an intent that is inconsistent with
the representations set forth above. Seller further represents and
agrees that, if, contrary to Seller's foregoing intentions, Seller later
should desire to dispose of or transfer any of the Common Stock in any
manner, Seller will not do so without first obtaining (A) an opinion of
independent counsel satisfactory to Purchaser to the effect that the
proposed disposition or transfer lawfully can be made without
registration of the Common Stock pursuant to the Securities Act of 1933
an then in effect and applicable state securities law, or (B) such
registration.
(c) Seller represents and warrants that the Common Stock is being
received by Seller in Seller's own name solely for Seller's own
beneficial interest, and not as nominee for, or on behalf of, or for the
beneficial interest of, or with the intention to transfer to, any other
person, trust or organization, except as specifically set forth
hereinbelow.
(d) Seller is informed of the significance to Purchaser of the
foregoing representations, agreements and consents, and they are made
with the intention that Purchaser may rely upon them and agrees to
indemnify Purchaser, and its officers, directors and agents (the
"Indemnified Parties") for any loss, claim or liability which any
Indemnified Party might incur as a result of reliance upon any fact
misrepresented by Seller in this section.
(e) Seller, if other than an individual, additionally represents
that Seller was not organized for the specific purpose of acquiring the
Common Stock, and that the representations contained in this section have
been duly authorized by all necessary action on the part of Seller, has
been duly executed by an authorized officer or representative of Seller,
and is a legal, valid and binding obligation of Seller enforceable
according to its terms.
(f) Seller further represents and warrants that it was not assisted
or advised by its own professional advisor in connection with its
investment in the Common Stock.
ARTICLE 3
PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants to Seller that:
3.01 Authority. Subject to approval by its Board of Directors, Purchaser
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 Purchaser with any government or regulatory agency with respect to
this transaction have been or will be properly filed prior to the date of
this Agreement. No provisions exist in any contract, document, or other
instrument to which Purchaser is a party or by which Purchaser is bound
that would be violated by consummation of the transactions contemplated
by this Agreement.
3.02 Organization and Standing of Purchaser. Purchaser 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
CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE
The obligation of Purchaser to Close under this Agreement is subject
to each of the following conditions (any one of which may, at the option
of Purchaser, be waived in writing by Purchaser) existing on the date of
this Agreement, or such earlier date as the context may require.
4.01 Representations and Warranties. Each of the representations and
warranties of Seller in this Agreement, the disclosures contained in the
exhibits to this Agreement, and all other information delivered under
this Agreement shall be true in all material respects as of the date of
this Agreement.
4.02 Compliance With Conditions. Seller shall have complied with and
performed all agreements, covenants, and conditions in this Agreement
required to be performed and complied with. All requisite action
(corporate and other) in order to consummate this Agreement shall have
been properly taken by Seller. Seller shall deliver to Purchaser a
compliance certificate verifying and warranting Seller's compliance.
4.03 Suit or Proceeding. No suit or proceeding, legal or administrative,
relating to any of the transactions contemplated by this Agreement shall
have been overtly threatened or commenced that, in the sole discretion of
Purchaser and its counsel, would make it inadvisable for Purchaser to
Close this transaction.
4.04 Government Approvals and Filings. All necessary government
approvals and filings regarding this transaction, if any, shall have been
received or made prior to the date of this Agreement in substantially the
form applied for to the reasonable satisfaction of Purchaser and its
counsel. Any applicable waiting period for the approvals and filings
shall have expired.
4.05 Corporate and Stockholder Action. All corporate and stockholder
action necessary to consummate the transactions contemplated in this
Agreement shall have been properly taken by Seller. Purchaser shall
receive copies of all appropriate resolutions of Seller's board of
directors and shareholders relating to this Agreement. The resolutions
shall be certified by the corporate secretary.
4.06 Employment Agreements. Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx, shall
have executed and delivered to Purchaser an employment agreement in a
form acceptable to Purchaser.
4.07 Confidentiality and Noncompete Agreements. All key employees of
Company, as identified by Purchaser and Seller, shall have executed and
delivered to Purchaser a confidentiality and noncompetition agreement in
a form acceptable to Purchaser.
4.08 Consents of Others. Purchaser shall have received written consents
from all persons listed in Exhibit 10, attached to this Agreement.
4.09 Inventories Verification. Purchaser shall have received a report
from a certified public accountant satisfactory to Purchaser who shall
have conducted a verification of all inventories of Company, and who
shall have determined that the stated amounts of the inventories set
forth on Company's Financial Statements, are reflected accurately.
4.10 Board of Directors Resignations. Seller and Company shall have
secured the resignations of all directors currently serving on the board
of directors of Company.
ARTICLE 5
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
The obligation of Seller to Close under this Agreement is subject to
each of the following conditions (any one of which at the option of
Seller may be waived in writing by Seller) existing on the date of this
Agreement.
5.01 Corporate Action. Purchaser shall have taken appropriate corporate
action regarding this transaction, which shall be evidenced by
resolutions of its board of directors and certified by Purchaser's
corporate secretary, authorizing Purchaser to enter into and complete
this transaction.
5.02 Government Approvals. All necessary government approvals regarding
this transaction shall have been received, in substantially the form
applied for and to the reasonable satisfaction of Purchaser and its
counsel.
ARTICLE 6
PARTIES' OBLIGATIONS AT THE CLOSING
6.01 Seller's Obligations at the Closing. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser instruments of assignment
and transfer of all of the issued and outstanding capital stock of
Company, free and clear of all liens, claims, and encumbrances in form
and substance satisfactory to Purchaser's counsel. Simultaneously with
the consummation of the transfer, Seller shall put Purchaser in full
possession and enjoyment of all properties and assets of Company.
Company and Seller, at any time before or after the date of this
Agreement, shall execute, acknowledge, and deliver to Purchaser any
further deeds, assignments, conveyances, other assurances, documents, and
instruments of transfer reasonably requested by Purchaser. Seller shall
also take any other action consistent with the terms of this Agreement
that may be reasonably requested by Purchaser for the purpose of
assigning, transferring, granting, conveying, and confirming to Purchaser
or reducing to possession any or all property and assets to be conveyed
and transferred by this Agreement. If requested by Purchaser, Seller
further agrees to prosecute or otherwise enforce in its own name for the
benefit of Purchaser any claims, rights, or benefits of Company that are
transferred to Purchaser by this Agreement and that require prosecution
or enforcement in Seller's name. Any prosecution or enforcement of
claims, rights, or benefits under this paragraph shall be solely at
Purchaser's expense, unless the prosecution or enforcement is made
necessary by a breach of this Agreement by Seller.
6.02 Purchaser's Obligation at Closing. Promptly after the Closing,
Purchaser shall implement the necessary action to cause to be issued and
delivered to Seller, as each of their respective interests may appear,
Eight Hundred Thousand (800,000) shares of its par value $.10 Common
Stock, against delivery of the items specified in Paragraph 6.01, above.
ARTICLE 7
SELLER'S OBLIGATIONS AFTER THE CLOSING
7.01 Preservation of Goodwill. Following the date of this Agreement,
Seller will restrict its activities so that Purchaser'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.
7.02 Change of Name. Seller agrees that, after the date of this
Agreement, it will not use or employ in any manner, directly or
indirectly, the name of Company or any variation of the name. Seller
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 Company's name or any
variant of the name, that Seller has previously filed.
7.03 Access to Records. From and after the date of this Agreement,
Seller shall allow Purchaser and its counsel, accountants, and other
representatives access to records that are, after the date of this
Agreement, in the custody or control of Seller. Seller shall give access
as Purchaser reasonably requires in order to comply with its obligations
under law or when reasonably necessary for the business operations of
Company.
7.04 Nonsolicitation of Employees. Prior to the third anniversary of the
date of this Agreement, Seller shall not solicit any employee of
Purchaser or any employee of Company retained by Purchaser after the date
of this Agreement to leave employment with Company or Purchaser.
ARTICLE 8
INDEMNIFICATION
8.01 Seller's Covenant to Indemnify and Hold Harmless. Seller covenants
and agrees to indemnify, defend, and hold harmless Purchaser and Company
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 Purchaser or Company 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 Seller to Purchaser in this Agreement. This right to
indemnification is in addition to any other right available to Purchaser
and Company, including the right to xxx Seller for a misrepresentation,
breach of warranty, or breach of covenant under this Agreement.
8.02 Income Taxes. Without limiting the provisions of the foregoing
paragraph, Seller shall indemnify, defend, and hold harmless Purchaser
and Company from and against any Losses to which Company or Purchaser may
become subject insofar as such Losses arise out of or are based on any
tax on or measured by the net income of Company in any period on or
before the date of this Agreement. The indemnifications provided in this
paragraph and in the foregoing paragraph, are cumulative and neither
provision shall limit or in any other way affect the right of Purchaser
and Company under the other provision.
8.03 Notification and Defense of Claims or Actions. When Purchaser
proposes to assert the right to be indemnified under this Article with
respect to third-party claims, actions, suits, or proceedings, Purchaser
shall, within 30 days after the receipt of notice of the commencement of
the claim, action, suit, or proceeding, notify Seller in writing,
enclosing a copy of all papers served or received. On receipt of the
notice, Seller shall have the right to direct the defense of the matter,
but Purchaser shall be entitled to participate in the defense and, to the
extent that Purchaser desires, to jointly direct the defense with Seller
with counsel mutually satisfactory to Purchaser and Seller, at Seller's
expense. Purchaser shall also have the right to employ its own separate
counsel in any such action. The fees and expenses of Purchaser's counsel
shall be paid by Purchaser unless: (a) the employment of the counsel has
been authorized by Seller; (b) Purchaser has reasonably concluded that
there may be a conflict of interest between Seller and Purchaser in the
conduct of the defense of such action; or (c) Seller has not, in fact,
employed counsel satisfactory to Purchaser to assume the defense of the
action. In each of these cases, the fees and expenses of Purchaser's
counsel shall be paid by Seller. Neither Seller nor Purchaser shall be
liable for any settlement of any action or claim described in this
Article that is effected without their consent.
8.04 Interest. Any indemnification required of Seller under this Article
shall include interest on the amount of the indemnity from the time
incurred to the date of payment at ten (10) percent simple interest per
annum.
8.05 Purchaser's Covenant to Indemnify and Hold Harmless. Purchaser
covenants and agrees to indemnify, defend, and hold harmless Xxxxxxx X.
Xxxxxxxx and Xxxx X. Xxxxxxxx (collectively, "Xxxxxxxx"), guarantors of
that one certain Credit Agreement dated as of May 1997 between Network
America, Inc., as borrower, and Comerica Bank-Texas, as lender ("Credit
Agreement"), 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"), to which Xxxxxxxx may become subject after the Closing Date,
if such Losses arise out of or are based upon such Credit Agreement.
8.06 Notification and Defense of Claims or Actions. When Xxxxxxxx
proposes to assert the right to be indemnified under this Article,
Xxxxxxxx shall, within 30 days after the receipt of notice of the
commencement of the claim, action, suit, or proceeding, notify Purchaser
in writing, enclosing a copy of all papers served or received. On
receipt of the notice, Purchaser shall have the right to direct the
defense of the matter, but Xxxxxxxx shall be entitled to participate in
the defense. Xxxxxxxx shall also have the right to employ its own
separate counsel in any such action. The fees and expenses of Xxxxxxxx'x
counsel shall be paid by Xxxxxxxx. Neither Xxxxxxxx nor Purchaser shall
be liable for any settlement of any action or claim described in this
Article that is effected without their consent.
ARTICLE 9
GENERAL PROVISIONS
9.01 Survival of Representations, Warranties, and Covenants. 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 date of this Agreement for
the period of time set forth in this Agreement.
9.02 Notices. All notices or other communications hereunder must be
given in writing and either (i) delivered in person, (ii) transmitted by
facsimile telecommunication, provided that any notice so given is also
mailed as provided for herein, (iii) delivered by Federal Express or
similar commercial delivery service, or (iv) mailed by certified mail,
postage prepaid, return receipt requested, as follows:
If to Seller: Alscomm, Inc., c/o Xxxxxx X. Xxxxx, Xx., 00000 Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000; telephone number (972)
387-8514; facsimile number (000) 000-0000.
If to Purchaser: uniView Technologies Corporation, 00000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000; telephone number (000) 000-0000; facsimile
number (000) 000-0000;
or to such other address or facsimile number as the Seller or the
Purchaser shall have designated to the other by like notice. Each such
notice or other communication shall be effective (i) if given by
facsimile telecommunication, when transmitted, (ii) if given by mail,
five (5) business days after such communication is deposited in the mail
and addressed as aforesaid, (iii) if given by Federal Express or similar
commercial delivery service, one (1) business day after such
communication is deposited with such service and addressed as aforesaid,
and (iv) if given by any other means, when actually delivered at such
address.
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 on the subject
matter of 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, all prior
agreements or understandings between the parties on the subject matter of
this Agreement shall be null and void.
9.07 Reliance Upon Representations and Warranties. The parties mutually
agree that, notwithstanding any right of Purchaser to fully investigate
the affairs of Company and notwithstanding any knowledge of facts
determined or determinable by Purchaser pursuant to the investigation or
right to investigate, Purchaser may fully rely upon the representations,
warranties, and covenants made to Purchaser in this Agreement and on the
accuracy of any document, certificate, or exhibit given or delivered to
Purchaser pursuant to this Agreement. Knowledge by an agent of Purchaser
of any facts not otherwise disclosed in this Agreement or in a document,
certificate, or exhibit delivered to Purchaser pursuant to this Agreement
shall not constitute a defense by Seller for indemnification of Purchaser
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.
9.08 Arbitration. Any controversy between the parties to this Agreement
involving the construction or application of any of the terms, covenants,
or conditions of this Agreement shall, on the written request of one
party served on the other, be submitted to arbitration, and such
arbitration shall comply with and be governed by the provisions of the
Texas General Arbitration Act (Texas Civil Practice and Remedies Code
Section 171.001 et seq.).
Signed as of June 12, 1998.
Purchaser: uniView Technologies Company: Video Management, Inc.
Corporation
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxxx, President Xxxxxx X. Xxxxx, Xx., President
Seller: Alscomm, Inc.
By: /s/ Xxxxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxx, Xx., President
Taxpayer identification number: 00-0000000
CERTIFICATE OF SIGNATORY
I, Xxxxxx X. Xxxxx, Xx., am the President of Alscomm, Inc. (the
"Entity"). I certify that I am empowered and duly authorized by the
Entity to execute, deliver and carry out the terms and provisions of this
Agreement and hold the Securities. I further certify that this Agreement
has been duly and validly executed on behalf of the Entity and
constitutes a legal and binding obligation of the Entity.
IN WITNESS WHEREOF, I have executed this Certificate of Signatory as
of June 12, 1998.
By:/s/ Xxxxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxx, Xx.
[Attach exhibits]
