EXHIBIT 2
AGREEMENT FOR PURCHASE AND ASSIGNMENT OF TRADEMARKS
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THIS AGREEMENT is made as of September 6, 2001 between uniView
Technologies Corporation, a Texas corporation ("uniView") and CM Royalties,
LLC, a Minnesota limited liability company ("CMR") with reference to the
following facts:
A. uniView is the owner of the trademarks described on Exhibit "A,"
attached hereto (the "Trademarks"); and
B. uniView wishes to sell and assign the Trademarks to CMR and CMR
wishes to purchase and accept assignment of such Trademarks.
THEREFORE, the parties agree as follows:
1. Purchase of Trademarks. CMR agrees to purchase the Trademarks for a
purchase price of $4.5 million, as follows, and as more particularly set out
in Exhibit "B," attached hereto:
(a) Assumption or payment by CMR of all principal and interest due
on uniView notes payable to Sagemark Capital, L.P. in the original
aggregate principal sum of $2.0 million, and CMR agrees to obtain
from Sagemark a release of uniView from all of said obligations;
(b) $402,258 paid to uniView in cash contemporaneously herewith;
(c) a $450,000 credit will be applied to the purchase price for a
previous advance made by Avmark, Inc. to uniView; CMR represents that
Avmark, Inc. is currently expected to be a participant with CMR in the
Trademarks to the extent of a 10% interest in CMR; and
(d) CMR will execute and deliver to uniView a promissory note in the
principal amount of $1,865,000 (which includes royalties of $215,000),
payable to uniView as more particularly set out in said note on or
before one (1) year from the date hereof, secured by a purchase money
security interest in the Trademarks.
2. Royalties. uniView shall be entitled to receive all royalties
accruing from license agreements for use of the Trademarks through June 30,
2001 (the unpaid balance estimated to be $167,258), plus a royalty amount of
$50,000 for the month of August 2001. CMR shall be entitled to all
royalties accruing from such license agreements after June 30, 2001, except
for the royalty amount of $50,000 for the month of August 2001.
3. Assignments. In consideration of the foregoing, uniView agrees to
execute and deliver to CMR assignments in a form reasonably prescribed to
effect assignments of the Trademarks and all goodwill annexed to the
Trademarks, and all of uniView's right, title and interest in and to that
certain Trademark License Agreement between uniView and Avmark, Inc.,
executed as of July 1, 2000.
4. Representations and Warranties of uniView. uniView represents and
warrants to CMR as follows:
(a) uniView is a corporation duly organized, validly existing, and in
good standing under the laws of Texas and has full power and authority to
execute, deliver, and consummate this Agreement;
(b) Exhibit "A" sets forth a true and accurate identification of
each registered and unregistered trademark, service xxxx, trade name and
slogan, and each registration and application for any of the foregoing
(collectively, the "Registrations");
(c) uniView is the owner of all right, title and interest in and
to each item of the Trademarks and Registrations and such Trademarks and
Registrations are subject to a lien granted in favor of Sagemark Capital,
LP.;
(d) uniView agrees to use reasonable efforts to obtain a dismissal,
with prejudice, of the Avmark lawsuit involving Avmark's right of first
refusal filed against uniView on or about July 12, 2001; to the best of
uniView's knowledge and belief, there are no other unresolved judicial
proceedings involving uniView concerning any of the Trademarks or
Registrations;
(e) The only currently outstanding licenses in favor of third parties
to use the Trademarks are licenses to Avmark, Inc. and Kmart Corporation,
with Kmart's actual and current usage of Trademark Registration No.
2,189,394 on consumer electronics products;
(f) All Registrations were properly issued by the relevant authorities
and to the best of uniView's knowledge and belief there is no pending claim,
action, suit, investigation or proceeding of any kind challenging, alleging
or asserting that any Registration was improperly or invalidly granted;
(g) Although "Xxxxxx Xxxxxx Centers" was not renewed as of a renewal
date of June 23, 2001, to the best of uniView's knowledge, no Registration
has lapsed, expired, been abandoned, been disclaimed, been withdrawn, been
the subject of a final judgment of invalidity by a court of competent
jurisdiction, been the subject of a final judgment of unenforceability
by a court of competent jurisdiction, been the subject of any holding or
declaration of unenforceability, invalidity, or refused to be reissued by
any domestic or foreign governmental agency, including, without limitation,
the United States Patent and Trademark Office, or been cancelled within the
past twelve (12) months; and
(h) ALL TRADEMARKS AND REGISTRATIONS ARE OTHERWISE DELIVERED "AS IS"
AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY ARE
HEREBY DISCLAIMED.
5. Representations and Warranties of CMR. CMR represents and warrants to
uniView as follows:
(a) CMR is a limited liability company duly organized, validly
existing, and in good standing under the laws of Minnesota and has full
power and authority to execute, deliver, and consummate this Agreement;
(b) Following the date hereof and until full payment of all
outstanding obligations to uniView, CMR will conduct its activities
with respect to the Trademarks so that the goodwill and prospects
connected with the Trademarks purchased under this Agreement will not
be materially impaired; and
(c) CMR acknowledges that the Trademarks and Registrations are
subject to a security interest granted to Sagemark Capital, LP and
purchases the Trademarks subject to the security interests. CMR agrees
to take all necessary actions to perfect Sagemark Capital, LP security
interest in the Trademarks and Registrations immediately after the
consummation of this transaction.
6. Indemnity. uniView will further, at its expense, defend and
indemnify CMR against, and hold it harmless from, any and all loss, damage
or liability assessed against CMR arising out of a breach of any
representation or warranty made by uniView in this Agreement or in
connection with any claim made by third parties based solely on the fact
that this Agreement has been consummated, provided that (a) uniView is given
prompt written notice of such claim, (b) CMR fully cooperates with uniView
and its counsel in the investigation, preparation, defense or settlement of
any claim, and (c) CMR has in all respects complied with the terms of this
Agreement.
7. Miscellaneous.
(a) This Agreement (including the exhibits hereto) and the agreements,
documents and instruments to be executed and delivered pursuant hereto are
intended to embody the final, complete and exclusive agreement among the
parties with respect to the Trademarks; are intended to supersede all prior
agreements, understandings and representations written or oral, with respect
thereto; and may not be contradicted by evidence of any such prior or
contemporaneous agreement, understanding or representation, whether written
or oral.
(b) CMR acknowledges that: (i) neither uniView nor any stockholder,
director, officer, agent, employee, or servant of uniView has made any
representations, inducements, promises, or agreements, express or implied,
except as specifically set forth in this Agreement; and (ii) neither uniView
nor any stockholder, director, officer, agent, employee, or servant of
uniView has made any representations, inducements, promises, or agreements,
express or implied, as to the potential volume, profits or success of the
Trademarks.
(c) This Agreement is to be governed by and construed in accordance
with the laws of the State of Texas applicable to contracts made and to be
performed wholly within such State, and without regard to the conflicts of
laws principles thereof. Any suit brought hereon, whether in contract,
tort, equity or otherwise, shall be brought in the state or federal courts
sitting in Dallas, Texas, the parties hereto hereby waiving any claim or
defense that such forum is not convenient or proper. Each party hereby
agrees that any such court shall have in personam jurisdiction over it,
and agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner specified by law.
(d) Each party shall execute and deliver all such further documents
and instruments and take all such further actions as may be reasonably
required or appropriate to carry out the intent and purposes of this
Agreement.
(e) This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need
not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or by facsimile signature, such signature shall
create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and effect
as if such facsimile signature page were an original thereof.
INTENDING TO BE LEGALLY BOUND, the parties hereto have duly executed
this Agreement as of September 6, 2001.
CM Royalties, LLC uniView Technologies Corporation
By: /s/ M. Xxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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M. Xxxxxx Xxxxx, President Xxxxxxx X. Xxxxxx, Chairman and CEO
EXHIBIT "A"
Trademarks
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This schedule will be furnished supplementally to the Commission upon request.
EXHIBIT "B"
Closing Statement
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This schedule will be furnished supplementally to the Commission upon request.
