REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of June 10, 1999, among uniView Technologies
Corporation, a Texas corporation (the "Company"), and the parties who
have executed this Agreement and whose names appear on Schedule I hereto
(each party listed on Schedule I hereto is sometimes individually
referred to herein as a "Purchaser" and all such parties are sometimes
collectively referred to herein as the "Purchasers").
This Agreement is made pursuant to the Securities Purchase
Agreement, dated as of the date hereof among the Company and the
Purchasers (the "Purchase Agreement").
The Company and the Purchasers hereby agree as follows:
1. Definitions
Capitalized terms used and not otherwise defined herein shall
have the meanings given such terms in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
"Advice" has meaning set forth in Section 3(o) hereof.
"Affiliate" means, with respect to any Person, any other Person
that directly or indirectly controls or is controlled by or under common
control with such Person. For the purposes of this definition,
"control," when used with respect to any Person, means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise; and the terms "affiliated,"
controlling" and "controlled" have meanings correlative to the foregoing.
"Business Day" means any day except Saturday, Sunday and any
day which shall be a legal holiday or a day on which banking institutions
in the State of New York generally are authorized or required by law or
other government actions to close.
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, par value $.10
per share.
"Effectiveness Date" means the earlier of (i) the 120th day
following the Closing Date, or (ii) the (5th) fifth day after the Company
has received notice (written or oral) from the Commission that the
Commission Staff will not be reviewing the Registration Statement or has
no further comments on the Registration Statement.
"Effectiveness Period" has the meaning set forth in Section
2(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Event" has the meaning set forth in Section 2(d) hereof.
"Filing Date" means as soon as practicable but in no event
later than the 15th day following the Closing Date.
"Holder" or "Holders" means the holder or holders, as the case
may be, from time to time of Registrable Securities.
"Indemnified Party" has the meaning set forth in Section 5(c)
hereof.
"Indemnifying Party" has the meaning set forth in Section 5(c)
hereof.
"Initial Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Losses" has the meaning set forth in Section 5(a) hereof.
"Nasdaq" means the National Association of Securities Dealers
Automated Quotation System.
"Person" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of
the Registrable Securities covered by the Registration Statement, and all
other amendments and supplements to the Prospectus, including post-
effective amendments, and all material incorporated by reference in such
Prospectus.
"Registrable Securities" means the shares of Common Stock
issued or issuable upon (i) conversion of or with respect to the
Securities, (ii) payment of interest or any other payments in respect of
the Securities and (iii) any shares of the Company's capital stock issued
with respect to (i) or (ii) as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise.
"Registration Delay Payment" has the meaning set forth in
Section 2(d) hereof.
"Registration Statement" means the Initial Registration
Statement and any additional registration statements contemplated by
Sections 2(a), 2(b) and 7(d), including (in each case) the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and
all material incorporated by reference in such registration statement.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.
"Rule 158" means Rule 158 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.
"Securities" means the Company's Series 1999-D1 5% Convertible
Preferred Stock issuable pursuant to the Purchase Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Special Counsel" means one special counsel to the Holders.
"Trading Day" means a day on which the Nasdaq (or in the event
the Common Stock is not traded on Nasdaq, such other securities market on
which the Common Stock is listed) is open for trading.
"Underlying Shares" means the shares of Common Stock issuable
upon conversion of the Securities.
"Underwritten Registration or Underwritten Offering" means a
registration in connection with which securities of the Company are sold
to an underwriter for reoffering to the public pursuant to an effective
registration statement.
2. Registration Requirements
(a) On or prior to the Filing Date, the Company shall prepare
and file with the Commission a Registration Statement (the "Initial
Registration Statement") which shall cover all Registrable Securities for
an offering to be made on a continuous basis pursuant to a "Shelf"
registration statement under Rule 415. The Initial Registration
Statement shall be on Form S-3 or any successor form (except if the
Company is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case such registration shall be on
another appropriate form in accordance herewith, subject to the
reasonable consent of the original Holders of the Registrable
Securities). Except as shown on Schedule 2.1(r) to the Purchase
Agreement, Company shall (i) not permit any securities other than the
Registrable Securities to be included in the Initial Registration
Statement and (ii) use its best efforts to cause the Initial Registration
Statement to be declared effective under the Securities Act as promptly
as possible after the filing thereof, but in any event on or prior to the
Effectiveness Date, and to keep such Initial Registration Statement
continuously effective under the Securities Act until the date which is
four years after the date that such Initial Registration Statement is
declared effective by the Commission or such earlier date when all
Registrable Securities covered by such Initial Registration Statement
have been sold or may be sold without volume restrictions pursuant to
Rule 144 as determined by counsel to the Company pursuant to a written
opinion letter, addressed to the Holders and the Company's transfer agent
to such effect (the "Effectiveness Period"). The number of shares of
Common Stock initially included in the Initial Registration Statement
shall be no less than 100% the sum of the number of Securities that are
then issuable upon conversion of the Securities (based on the Conversion
Price (as defined in the Securities) as would then be in effect at such
time), without regard to any limitation on the Investor's ability to
convert the Securities.
(b) In addition to the Initial Registration Statement, if the
Holders of a majority of the Registrable Securities covered by a
Registration Statement so elect on or after December 15, 1999, and pay
all expenses therefor, an offering of Registrable Securities pursuant to
such Registration Statement may be effected on no more than two (2)
occasions in the form of an Underwritten Offering. In such event, and if
the managing underwriters advise the Company and such Holders in writing
that in their opinion the amount of Registrable Securities proposed to be
sold in such Underwritten Offering exceeds the amount of Registrable
Securities which can be sold in such Underwritten Offering, there shall
be included in such Underwritten Offering the amount of such Registrable
Securities which in the opinion of such managing underwriters can be
sold, and such amount shall be allocated pro rata among the Holders
proposing to sell Registrable Securities in such Underwritten Offering.
(c) If any of the Registrable Securities are to be sold in an
Underwritten Offering, the investment banker in interest that will
administer the offering will be selected by the Holders of a majority of
the Registrable Securities included in such offering. No Holder may
participate in any Underwritten Offering hereunder unless such Holder (i)
agrees to sell its Registrable Securities on the basis provided in any
underwriting agreements approved by the Persons entitled hereunder to
approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such arrangements.
(d) If (i) the Initial Registration Statement covering all the
applicable Registrable Securities and required to be filed by the Company
pursuant to this Agreement is not (A) filed with the Commission on or
before the Filing Date or (B) declared effective by the Commission on or
before the applicable Effectiveness Date, (ii) on any day after the
Registration Statement has been declared effective by the Commission (A)
sales of all the Registrable Securities required to be included on a
Registration Statement cannot be made pursuant to the Registration
Statement (including, without limitation, because of a failure to keep
the Registration Statement effective, to disclose such information as is
necessary for sales to be made pursuant to the Registration Statement, or
to register sufficient shares of Common Stock) or (B) the Common Stock is
not listed or included for quotation on the Nasdaq, the New York Stock
Exchange ("NYSE") or the American Stock Exchange (the "AMEX") after being
so listed or included for quotation or (iii) the Company shall otherwise
fail to file a Registration Statement required by Section 2(a) hereof,
(each such event specified in (i), (ii) and (iii) above, an "Event"),
then, as partial relief for the damages to any Holder by reason of any
such delay in or reduction of its ability to sell the Registrable
Securities (which remedy shall not be exclusive of any other remedies
available at law or in equity): (y) the Company shall pay to each Holder
an amount in cash (a "Registration Delay Payment") equal to two percent
(2%) of the product of (I) the number of Securities held by such Holder
and (II) $25,000, multiplied by the sum of: (i) the number of months
(prorated for partial months) after the end of the Effectiveness Date and
prior to the date the Registration Statement is declared effective by the
Commission, provided, however, that there shall be excluded from such
period any delays which are solely attributable to changes required by
the Purchasers in the Registration Statement with respect to information
relating to the Purchasers, or to the failure of the Purchasers to
conduct their review of the Registration Statement pursuant to Section
3(a), (ii) the number of months (prorated for partial months) that sales
cannot be made pursuant to the Registration Statement after the
Registration Statement has been declared effective (including, without
limitation, when sales cannot be made by reason of the Company's failure
to properly supplement or amend the Prospectus in accordance with the
terms of this Agreement, or otherwise, but excluding when such sales
cannot be made solely by reason of any act or omission solely
attributable to the Purchasers) and (iii) the number of months (prorated
for partial months) that the Common Stock is not listed or included for
quotation on the Nasdaq, NYSE or AMEX or that trading thereon is halted
after the Registration Statement has been declared effective; and (z) the
Conversion Price (as defined in the Certificate of Designation) of the
Securities shall be decreased 2% on the date of such Event and shall be
decreased an additional 2% as of each monthly anniversary of the date of
such Event. The Company shall pay any required Registration Delay
Payment to each Holder in cash on the last Business Day of each month
during which an Event has occurred and is continuing. In the event the
Company fails to make a Registration Delay Payment in a timely manner,
such Registration Delay Payment shall bear interest at the rate of 2.0%
per month (prorated for partial months) until paid in full.
(e) The Company represents and warrants that it meets the
registrant eligibility and transaction requirements for the use of Form S-
3 (for primary and secondary offerings) for the registration of the sale
of Registrable Securities by the Purchasers and any other Holders and the
Company shall file all reports required to be filed by the Company with
the Commission in a timely manner so as to maintain such eligibility for
the use of Form S-3.
3. Registration Procedures
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the
Filing Date a Registration Statement on Form S-3 or its successor form
(or if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3 such registration shall be on another
appropriate form in accordance herewith (which shall include a Plan of
Distribution substantially in the form of Exhibit A annexed hereto,
unless in connection with an Underwritten Offering) or in connection with
an Underwritten Offering hereunder, such other form agreed to by the
Company and by a majority-in-interest of Holders of Registrable
Securities to be covered by such Registration Statement) (except if
otherwise directed by the Holders), and cause the Registration Statement
to become effective and remain effective as provided herein; provided,
however, that not less than three (3) Business Days prior to the filing
of the Registration Statement or any related Prospectus or any amendment
or supplement thereto (including any document that would be incorporated
therein by reference), the Company shall, if reasonably practicable (i)
furnish to the Holders, their Special Counsel and any managing
underwriters, copies of all such documents proposed to be filed
(including documents incorporated by reference), which documents will be
subject to the review of such Holders, their Special Counsel and such
managing underwriters, and (ii) cause its officers and directors, counsel
and independent certified public accountants to respond to such inquiries
as shall be necessary, in the reasonable opinion of respective counsel to
such Holders and such underwriters, to conduct a reasonable investigation
within the meaning of the Securities Act. The Company shall not file the
Registration Statement or any such Prospectus or any amendments or
supplements thereto to which the Holders of a majority of the Registrable
Securities, their Special Counsel or any managing underwriters shall
reasonably object, and will not request acceleration of such Registration
Statement without prior notice to such counsel. The sections of such
Registration Statement covering information with respect to the Holders,
the Holder's beneficial ownership of securities of the Company or the
Holders intended method of disposition of Registrable Securities shall
conform to the information provided to the Company by each of the
Holders.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement as may
be necessary to keep the Registration Statement continuously effective
for the Effectiveness Period and prepare and file with the Commission
such additional Registration Statements in order to register for resale
under the Securities Act all of the Registrable Securities; (ii) cause
the related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed
pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; (iii) respond as promptly as
practicable, but in no event later than fifteen (15) Business Days, to
any comments received from the Commission with respect to the
Registration Statement or any amendment thereto and as promptly as
possible, but in no event later than three (3) Business Days, provide the
Holders true and complete copies of all correspondence from and to the
Commission relating to the Registration Statement; and (iv) comply in all
material respects with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all Registrable
Securities covered by the Registration Statement during the applicable
period in accordance with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so amended or
in such Prospectus as so supplemented. In the event the number of shares
available under a Registration Statement filed pursuant to this Agreement
is insufficient to cover 100% of the Registrable Securities issued or
issuable upon conversion of the Securities, the Company shall amend the
Registration Statement, or file a new Registration Statement (on the
short form available therefore, if applicable), or both, so as to cover
100% of the Registrable Securities, in each case, as soon as practicable,
but in any event within twenty (20) Business Days after the necessity
therefor arises (based on the Conversion Price of the Securities and
other relevant factors on which the Company reasonably elects to rely).
The Company shall use its best efforts to cause such amendment and/or new
Registration Statement to become effective as soon as practicable
following the filing thereof. The provisions of Section 2(d) above shall
be applicable with respect to such obligation, with the applicable period
running from the day after the date on which the Company reasonably first
determines (or reasonably should have determined) the need therefor.
(c) Notify the Holders of Registrable Securities to be sold,
their Special Counsel and any managing underwriters as promptly as
possible (and, in the case of (i)(A) below, not less than five (5) days
prior to such filing and, in the case of (i)(C) below, not later than the
first Business Day after effectiveness) and (if requested by any such
Person) confirm such notice in writing no later than one (1) Business Day
following the day (i)(A) when a Prospectus or any Prospectus supplement
or post-effective amendment to the Registration Statement is proposed to
be filed; (B) when the Commission notifies the Company whether there will
be a "review" of such Registration Statement and whenever the Commission
comments in writing on such Registration Statement and (C) with respect
to the Registration Statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the Commission or any
other Federal or state governmental authority for amendments or
supplements to the Registration Statement or Prospectus or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement covering any
or all of the Registrable Securities or the initiation of any Proceedings
for that purpose; (iv) if at any time any of the representations and
warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated hereby ceases to be true and correct
in all material respects; (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for
sale in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose; and (vi) of the occurrence of any event that
makes any statement made in the Registration Statement or Prospectus or
any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any revisions
to the Registration Statement, Prospectus or other documents so that, in
the case of the Registration Statement or the Prospectus, as the case may
be, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(d) Use its best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the
effectiveness of the Registration Statement or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable
moment.
(e) If requested by any managing underwriter or the Holders of
a majority in interest of the Registrable Securities to be sold in
connection with an Underwritten Offering, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment to the Registration
Statement such information as the Company reasonably agrees should be
included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after
the Company has received notification of the matters to be incorporated
in such Prospectus supplement or post-effective amendment; provided,
however, that the Company shall not be required to take any action
pursuant to this Section 3(e) that would, in the opinion of counsel for
the Company, violate applicable law.
(f) Furnish to each Holder, their Special Counsel, and any
managing underwriters, without charge, at least one conformed copy of
each Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed
to be incorporated therein by reference, and all exhibits to the extent
requested by such Person (including those previously furnished or
incorporated by reference) promptly after the filing of such documents
with the Commission.
(g) Promptly deliver to each Holder, their Special Counsel,
and any underwriters, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request; and the
Company hereby consents to the use of such Prospectus and each amendment
or supplement thereto by each of the selling Holders and any underwriters
in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
use its best efforts to register or qualify or cooperate with the selling
Holders, any underwriters and their Special Counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions within the United
States as any Holder or underwriter requests in writing, to keep each
such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by a Registration
Statement; provided, however, that the Company shall not be required to
qualify generally to do business in any jurisdiction where it is not then
so qualified or to take any action that would subject it to general
service of process in any such jurisdiction where it is not then so
subject or subject the Company to any material tax in any such
jurisdiction where it is not then so subject.
(i) Cooperate with the Holders and any managing underwriters
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to a Registration
Statement, which certificates shall be free, to the extent permitted by
applicable law and the Purchase Agreement, of all restrictive legends,
and to enable such Registrable Securities to be in such denominations and
registered in such names as any such managing underwriters or Holders may
request at least two (2) Business Days prior to any sale of Registrable
Securities.
(j) Upon the occurrence of any event contemplated by Section
3(c)(vi), as promptly as possible, prepare a supplement or amendment,
including a post-effective amendment, to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, and file any other
required document so that, as thereafter delivered, neither the
Registration Statement nor such Prospectus will contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such
Registration Statement to be listed on Nasdaq and any other securities
exchange, quotation system, market or over-the-counter bulletin board, if
any, on which similar securities issued by the Company are then listed as
and when required pursuant to the Purchase Agreement.
(l) Enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in Underwritten
Offerings) and take all such other actions in connection therewith
(including those reasonably requested by any managing underwriters and
the Holders of a majority of the Registrable Securities being sold) in
order to expedite or facilitate the disposition of such Registrable
Securities, and whether or not an underwriting agreement is entered into,
(i) make such representations and warranties to such Holders and such
underwriters as are customarily made by issuers to underwriters in
underwritten public offerings, and confirm the same if and when
requested; (ii) in the case of an Underwritten Offering obtain and
deliver copies thereof to the managing underwriters, if any, or in the
case of non-Underwritten Offerings, if reasonably requested by the
selling Holders (and at the expense of such selling Holders), obtain and
deliver copies thereof to such selling Holders, of opinions of counsel to
the Company and updates thereof addressed to each such underwriter, in
form, scope and substance reasonably satisfactory to any such managing
underwriters and Special Counsel to the selling Holders covering the
matters customarily covered in opinions requested in Underwritten
Offerings and such other matters as may be reasonably requested by such
Special Counsel and underwriters; (iii) immediately prior to the
effectiveness of the Registration Statement, and, in the case of an
Underwritten Offering, at the time of delivery of any Registrable
Securities sold pursuant thereto, and, in the case of non-Underwritten
Offerings, at such time as the selling Holders may reasonably request
(and at the expense of such selling Holders), obtain and deliver copies
to the Holders and the managing underwriters, if any, of "cold comfort"
letters and updates thereof from the independent certified public
accountants of the Company (and, if required, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed to each of the underwriters, if any, in form and
substance as are customary in connection with Underwritten Offerings;
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the
selling Holders and the underwriters, if any, than those set forth in
Section 5 (or such other provisions and procedures acceptable to the
managing underwriters, if any, and holders of a majority of Registrable
Securities participating in such Underwritten Offering; and (v) deliver
such documents and certificates as may be reasonably requested by the
Holders of a majority of the Registrable Securities being sold, their
Special Counsel and any managing underwriters to evidence the continued
validity of the representations and warranties made pursuant to clause
3(1)(i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company.
(m) Make available for inspection by the selling Holders, any
representative of such Holders, any underwriter participating in any
disposition of Registrable Securities, and any attorney or accountant
retained by such selling Holders or underwriters, at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the Company and
its subsidiaries, and cause the officers, directors, agents and employees
of the Company and its subsidiaries to supply all information in each
case reasonably requested by any such Holder, representative,
underwriter, attorney or accountant in connection with the Registration
Statement; provided, however, that if any information is determined in
good faith by the Company in writing to be of a confidential nature at
the time of delivery of such information, then prior to delivery of such
information, the Company and the Holders shall enter into a
confidentiality agreement reasonably acceptable to the Company and the
Holders providing that such information shall be kept confidential,
unless (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of
regulatory authorities (provided, however, that the Company shall be
given notice of any such pending disclosure so that the Company may seek
a protective order); (ii) disclosure of such information, in the opinion
of counsel to such Person, is required by law; (iii) such information
becomes generally available to the public other than as a result of a
disclosure or failure to safeguard by such Person; or (iv) such
information becomes available to such Person from a source other than the
Company and such source is not known by such Person to be bound by a
confidentiality agreement with the Company.
(n) Comply in all material respects with all applicable rules
and regulations of the Commission and make generally available to its
securityholders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 not later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters
in a firm commitment or best efforts Underwritten Offering and (ii) if
not sold to underwriters in such an offering, commencing on the first day
of the first fiscal quarter of the Company after the effective date of
the Registration Statement, which statement shall conform to the
requirements of Rule 158.
(o) The Company may require each selling Holder to furnish to
the Company information regarding such Holder and the distribution of
such Registrable Securities as is required by law to be disclosed in the
Registration Statement, and the Company may exclude from such
registration the Registrable Securities of any such Holder who
unreasonably fails to furnish such information within a reasonable time
after receiving such request.
The Company shall hold in confidence and not make any
disclosure of information concerning a Holder provided to the Company
unless (i) disclosure of such information is necessary to comply with
federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any
Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other order from a court or governmental body
of competent jurisdiction, or (iv) such information has been made
generally available to the public other than by disclosure in violation
of this or any other agreement. The Company agrees that it shall, upon
learning that disclosure of such information concerning a Holder is
sought in or by a court or governmental body of competent jurisdiction or
through other means, give prompt notice to such Holder prior to making
such disclosure, and allow the Holder, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.
If the Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (if such reference to such Holder
by name or otherwise is not required by the Securities Act or any similar
Federal statute then in force) the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed
or prepared subsequent to the time that such reference ceases to be
required.
Each Holder covenants and agrees that (i) it will not sell any
Registrable Securities under the Registration Statement until it has
received copies of the Prospectus as then amended or supplemented as
contemplated in Section 3(g) and notice from the Company that such
Registration Statement and any post-effective amendments thereto have
become effective as contemplated by Section 3(c) and (ii) it and its
officers, directors or Affiliates, if any, will comply with the
prospectus delivery requirements of the Securities Act as applicable to
them in connection with sales of Registrable Securities pursuant to the
Registration Statement.
Each Holder agrees by its acquisition of such Registrable
Securities that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(c)(ii),
3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi), such Holder will forthwith
discontinue disposition of such Registrable Securities under the
Registration Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement
contemplated by Section 3(j), or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated
by reference in such Prospectus or Registration Statement.
Notwithstanding anything to the contrary, the Company shall cause its
transfer agent to deliver unlegended shares of Common Stock to a
transferee of a Holder in accordance with the terms of the Securities
Purchase Agreement in connection with any sale of Registrable Securities
with respect to which an Holder has entered into a contract for sale
prior to the Holder's receipt of a notice from the Company of the
happening of any event of the kind described in Section 3(c)(ii),
3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi) and for which the Holder has not
yet settled.
(p) The Company agrees to respond fully and completely to any
and all comments on a Registration Statement received from the Commission
staff as promptly as possible but, for non-Underwritten Offerings, in no
event later than ten (10) Business Days of the receipt of such comments,
regardless of whether such comments are in oral or written form.
(q) Within two (2) Business Days after a Registration
Statement which covers applicable Registrable Securities is ordered
effective by the Commission, the Company shall deliver, and shall cause
legal counsel for the Company to deliver, to the transfer agent for such
Registrable Securities (with copies to the Holders whose Registrable
Securities are included in such Registration Statement) confirmation that
such Registration Statement has been declared effective by the Commission
in the form attached hereto as Exhibit B.
4. Registration Expenses
Except for fees and expenses associated with an Underwritten
Offering, which shall be borne by the Holders, all fees and expenses
incident to the performance of or compliance with this Agreement by the
Company shall be borne by the Company, whether or not the Registration
Statement is filed or becomes effective and whether or not any
Registrable Securities are sold pursuant to the Registration Statement.
The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to
filings required to be made with Nasdaq and each other securities
exchange or market on which Registrable Securities are required hereunder
to be listed and (B) in compliance with state securities or Blue Sky laws
(including, without limitation, fees and disbursements of counsel for the
Holders in connection with Blue Sky qualifications of the Registrable
Securities and determination of the eligibility of the Registrable
Securities for investment under the laws of such jurisdictions as the
managing underwriters, if any, or the Holders of a majority of
Registrable Securities may designate)), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriters, if any, or by the
holders of a majority of the Registrable Securities included in the
Registration Statement), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Company, (v)
Securities Act liability insurance, if the Company so desires such
insurance, and (vi) fees and expenses of all other Persons retained by
the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be
responsible for all of its internal expenses incurred in connection with
the consummation of the transactions contemplated by this Agreement
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any
annual audit, and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as
required hereunder.
5. Indemnification
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold
harmless each Holder, the officers, directors, agents (including any
underwriters retained by such Holder in connection with the offer and
sale of Registrable Securities), brokers (including brokers who offer and
sell Registrable Securities as principal as a result of a pledge or any
failure to perform under a margin call of Common Stock), investment
advisors and employees of each of them, each Person who controls any such
Holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, agents and employees
of each such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all joint or several losses,
claims, damages, liabilities, costs (including, without limitation, costs
of preparation and attorneys' fees) and expenses (collectively, together
with actions, proceedings or inquiries by any regulatory or self-
regulatory organization, whether commenced or threatened, "Losses"), as
incurred, arising out of or relating to (i) any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
Prospectus or any form of prospectus or in any amendment or supplement
thereto or in any preliminary Prospectus, or arising out of or relating
to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the case
of any Prospectus or form of prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading (in the
case of any Prospectus or form of prospectus or supplement thereto, in
light of the circumstances under which they were made), except to the
extent, but only to the extent, that such untrue statements or omissions
are based solely upon and in conformity with information regarding such
Holder furnished in writing to the Company by such Holder expressly for
use therein, which information was reasonably relied on by the Company
for use therein or to the extent that such information relates to such
Holder or such Holder's proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such
Holder expressly for use in the Registration Statement, such Prospectus
or such form of prospectus or in any amendment or supplement thereto
(provided that the Company amended any disclosure with respect to the
method of distribution upon written notice from the Holders that such
section of the Prospectus should be revised in any way) or (ii) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the
offer or sale of Registrable Securities. The Company shall not, however,
be liable for any Losses to any Holder with respect to any untrue or
alleged untrue statement of material fact or omission or alleged omission
of material fact if such statement or omission was made in a preliminary
Prospectus and such Holder did not receive a copy of the final Prospectus
(or any amendment or supplement thereto) at or prior to the confirmation
of the sale of the Registrable Securities in any case where such delivery
is required by the Securities Act and the untrue or alleged untrue
statement of material fact or omission or alleged omission of material
fact contained in such preliminary Prospectus was corrected in the final
Prospectus (or any amendment or supplement thereto), unless the failure
to deliver such final Prospectus (as amended or supplemented) was a
result of noncompliance by the Company with Section 3(g) of this
Agreement. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the Company
is aware in connection with the transactions contemplated by this
Agreement.
(b) Indemnification by Holders. Each Holder shall, severally
and not jointly, indemnify and hold harmless the Company, the directors,
officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees of
such controlling Persons, to the fullest extent permitted by applicable
law, from and against all Losses, as incurred, arising solely out of or
based solely upon any untrue statement of a material fact contained in
the Registration Statement, any Prospectus, or any form of prospectus, or
arising solely out of or based solely upon any omission of a material
fact required to be stated therein or necessary to make the statements
therein not misleading to the extent, but only to the extent, that such
untrue statement or omission is contained in any information so furnished
in writing by such Holder to the Company specifically for inclusion in
the Registration Statement or such Prospectus and that such information
was reasonably relied upon by the Company for use in the Registration
Statement, such Prospectus or such form of prospectus or to the extent
that such information relates to such Holder or such Holder's proposed
method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Holder expressly for use in the
Registration Statement, such Prospectus or such form of prospectus;
provided, however, that the indemnity agreement contained in this Section
5(b) shall not apply to amounts paid in settlement of any Losses if such
settlement is effected without the prior written consent of such Holder.
In no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the net proceeds received by
such Holder upon the sale of the Registrable Securities giving rise to
such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party promptly shall
notify the Person from whom indemnity is sought (the "Indemnifying
Party") in writing, and the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all fees and expenses incurred
in connection with defense thereof; provided, however, that the failure
of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations or liabilities pursuant to this
Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is
not subject to appeal or further review) that such failure shall have
proximately and materially adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has
agreed in writing to pay such fees and expenses; or (2) the Indemnifying
Party shall have failed promptly to assume the defense of such Proceeding
and to employ counsel reasonably satisfactory to such Indemnified Party
in any such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and
the Indemnifying Party, and such Indemnified Party shall have been
advised by counsel that a conflict of interest is likely to exist if the
same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel
at the expense of the Indemnifying Party, the Indemnifying Party shall
not have the right to assume the defense thereof and such counsel shall
be at the expense of the Indemnifying Party). The Indemnifying Party
shall not be liable for any settlement of any such Proceeding effected
without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent
of the Indemnified Party, effect any settlement of any pending Proceeding
in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such
Proceeding.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party,
as incurred, within ten (10) Business Days of written notice thereof to
the Indemnifying Party (regardless of whether it is ultimately determined
that an Indemnified Party is not entitled to indemnification hereunder;
provided, that the Indemnifying Party may require such Indemnified Party
to undertake to reimburse all such fees and expenses to the extent it is
finally judicially determined that such Indemnified Party is not entitled
to indemnification hereunder).
(d) Contribution. If a claim for indemnification under
Section 5(a) or 5(b) is unavailable to an Indemnified Party because of a
failure or refusal of a court of competent jurisdiction to enforce such
indemnification in accordance with its terms (by reason of public policy
or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions
that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or omission.
The amount paid or payable by a party as a result of any Losses shall be
deemed to include, subject to the limitations set forth in Section 5(c),
any reasonable attorneys' or other reasonable fees or expenses incurred
by such party in connection with any Proceeding to the extent such party
would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party
in accordance with its terms. In no event shall any selling Holder be
required to contribute an amount under this Section 5(d) in excess of the
net proceeds received by such Holder upon sale of the Registrable
Securities pursuant to the Registration Statement giving rise to such
contribution obligation.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were determined
by pro rata allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the
immediately preceding paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties
may have to the Indemnified Parties.
6. Rule 144
As long as any Holder owns Registrable Securities, the Company
covenants to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed
by the Company after the date hereof pursuant to Section 13(a) or l5(d)
of the Exchange Act and to promptly furnish the Holders with true and
complete copies of all such filings. As long as any Holder owns
Registrable Securities, if the Company is not required to file reports
pursuant to Section 13(a) or l5(d) of the Exchange Act, it will prepare
and furnish to the Holders and make publicly available in accordance with
Rule 144(c) promulgated under the Securities Act annual and quarterly
financial statements, together with a discussion and analysis of such
financial statements in form and substance substantially similar to those
that would otherwise be required to be included in reports required by
Section 13(a) or 15(d) of the Exchange Act, as well as any other
information required thereby, in the time period that such filings would
have been required to have been made under the Exchange Act. The Company
further covenants that it will take such further action as any Holder may
reasonably request, all to the extent required from time to time to
enable such Person to sell Underlying Shares without registration under
the Securities Act within the limitation of the exemptions provided by
Rule 144 promulgated under the Securities Act, including providing any
legal opinions referred to in the Purchase Agreement. Upon the request
of any Holder, the Company shall deliver to such Holder a written
certification of a duly authorized officer as to whether it has complied
with such requirements.
7. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by
a Holder of any of their obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to
exercise all rights granted by law and under this Agreement, including
recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company and each Holder agree that
monetary damages would not provide adequate compensation for any losses
incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any
of its subsidiaries has, as of the date hereof, nor shall the Company or
any of its subsidiaries, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. Except as disclosed in Schedule
2.1(r) of the Purchase Agreement, neither the Company nor any of its
subsidiaries has previously entered into any agreement granting any
registration rights with respect to any of its securities to any Person.
This Agreement, together with the Purchase Agreement, contain the entire
understanding of the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings, oral or written,
with respect to such matters.
(c) No Piggyback on Registrations. Except as disclosed on
Schedule 2.1(r) of the Purchase Agreement, neither the Company nor any of
its securityholders (other than the Holders in such capacity pursuant
hereto) may include securities of the Company in the Registration
Statements and the Company shall not after the date hereof enter into any
agreement providing such right to any of its securityholders, unless the
right so granted is subordinated in all respects to the rights in full of
the Holders set forth herein, and is not otherwise in conflict or
inconsistent with the provisions of this Agreement.
(d) Piggy-Back Registrations. Except as provided herein if,
at any time when there is not an effective Registration Statement
covering the Registrable Securities, the Company shall determine to
prepare and file with the Commission a registration statement relating to
an offering for its own account or the account of others under the
Securities Act of any of its equity securities, other than on Form S-4 or
Form S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in
connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee
benefit plans, the Company shall send to each Holder of Registrable
Securities written notice of such determination and, if within ten (10)
days after receipt of such notice, any such Holder shall so request in
writing, (which request shall specify the Registrable Securities intended
to be disposed of by the Purchasers), the Company will use reasonable
efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to
register by the Holder, to the extent requisite to permit the disposition
of the Registrable Securities so to be registered, provided that if at
any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine
for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to such Holder and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration
(but not from its obligation to pay expenses in accordance with Section 4
hereof), and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Securities being
registered pursuant to this Section 7(d) for the same period as the delay
in registering such other securities. The Company shall include in such
registration statement all or any part of such Registrable Securities
such Holder requests to be registered; provided, however, that the
Company shall not be required to register any Registrable Securities
pursuant to this Section 7(d) that are eligible for sale pursuant to Rule
144(k) of the Securities Act. In the case of an underwritten public
offering, if the managing underwriter(s) or underwriter(s) should
reasonably object to the inclusion of the Registrable Securities in such
registration statement, then if the Company after consultation with the
Underwriter's representative should reasonably determine that the
inclusion of such Registrable Securities would materially adversely
affect the offering contemplated in such registration statement, and
based on such determination recommends inclusion in such registration
statement of fewer Registrable Securities then proposed to be sold by the
Holders, then (x) the number of Registrable Securities of the Holders
included in such registration statement shall be reduced pro rata among
such Holders (based upon the number of Registrable Securities requested
to be included in the registration) or (y) none of the Registrable
Securities of the Holders shall be included in such registration
statement if the Company, after consultation with the underwriter(s),
recommends the inclusion of none of such Registrable Securities;
provided, however, that if securities are being offered for the account
of other persons or entities as well as the Company, such reduction shall
not represent a greater fraction of the number of Registrable Securities
intended to be offered by the Holders than the fraction of similar
reductions imposed on such other persons or entities (other than the
Company). Notwithstanding the foregoing, the Company shall not file any
registration statement under the Securities Act (other than on Form S-4
or Form S-8) relating to the offer and sale of any equity securities of
the Company, or offer or sell any equity securities of the Company in a
transaction exempt from registration pursuant to Regulation S under the
Securities Act, until such time as the Initial Registration Statement has
been effective for a period of sixty (60) Trading Days, which period
shall be tolled if the effectiveness of the Initial Registration
Statement is suspended for any reason whatsoever.
(e) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in writing
and signed by the Company and the Holders of at least two thirds of the
then outstanding Registrable Securities; provided, however, that for the
purposes of this sentence, Registrable Securities that are owned,
directly or indirectly, by the Company, or an Affiliate of the Company
are not deemed outstanding. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of at least a majority of the Registrable Securities to which
such waiver or consent relates; provided, however, that the provisions of
this sentence may not be amended, modified, or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(f) Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be deemed
to have been received (a) upon hand delivery (receipt acknowledged) or
delivery by telex (with correct answer back received), telecopy or
facsimile (with transmission confirmation report) at the address or
number designated below (if received by 8:00 p.m. EST where such notice
is to be received), or the first Business Day following such delivery (if
received after 8:00 p.m. EST where such notice is to be received) or (b)
on the second Business Day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for
such communications are (i) if to the Company to uniView Technologies
Corporation, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇ ▇▇▇▇▇▇,
fax no. (▇▇▇) ▇▇▇-▇▇▇▇, with copies to uniView Technologies Corporation,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General
Counsel, fax no. (▇▇▇) ▇▇▇-▇▇▇▇ and (ii) if to any Purchaser to the
address set forth on Schedule I hereto with copies to those specified on
the signature pages hereto and to Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇,
L.L.P., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇,
Esq., fax no. (▇▇▇) ▇▇▇-▇▇▇▇ or such other address as may be designated
in writing hereafter, in the same manner, by such Person.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each Holder. The
Company may not assign its rights or obligations hereunder without the
prior written consent of each Holder. Each Holder may assign its rights
hereunder in the manner and to the Persons as permitted under the
Purchase Agreement. In addition, the rights of each Holder hereunder,
including the right to have the Company register for resale Registrable
Securities in accordance with the terms of this Agreement, shall be
automatically assignable by each Holder if: (i) the Holder agrees in
writing with the transferee or assignee to assign such rights, and a copy
of such agreement is furnished to the Company within a reasonable time
after such assignment, (ii) the Company is, within a reasonable time
after such transfer or assignment, furnished with written notice of (a)
the name and address of such transferee or assignee, and (b) the
securities with respect to which such registration rights are being
transferred or assigned, (iii) following such transfer or assignment the
further disposition of such securities by the transferee or assignees is
restricted under the Securities Act and applicable state securities laws,
(iv) at or before the time the Company receives the written notice
contemplated by clause (ii) of this Section, the transferee or assignee
agrees in writing with the Company to be bound by all of the provisions
of this Agreement, and (v) such transfer shall have been made in
accordance with the applicable requirements of the Purchase Agreement.
The rights to assignment shall apply to the Holders (and to subsequent)
successors and assigns.
(h) Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and
the same Agreement. In the event that any signature is delivered by
facsimile transmission, 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 were the original thereof.
(i) Governing Law. The corporate laws of the State of Texas
shall govern all issues concerning the relative rights of the Company and
the Purchasers as its stockholders. All other questions concerning the
construction, validity, enforcement and interpretation of this Agreement
shall be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of law.
Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in the City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is
improper.
(j) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their
reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(l) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(m) Shares Held by The Company and its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held
by the Company or its Affiliates (other than any Holder or transferees or
successors or assigns thereof if such Holder is deemed to be an Affiliate
solely by reason of its holdings of such Registrable Securities) shall
not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
UNIVIEW TECHNOLOGIES CORPORATION
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇ ▇▇▇▇▇▇▇ STRATEGIC GROWTH FUND, LTD.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Management, LLC
By:
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇ STRATEGIC GROWTH FUND, L.P.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital, LLC
its general partner
By:
Name:
Title:
SCHEDULE I
Company
uniView Technologies Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Attn: ▇▇▇ ▇▇▇▇▇▇
Purchasers:
▇▇▇▇▇ ▇▇▇▇▇▇▇ Strategic Growth Fund, L.P.
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▇▇▇▇▇ ▇▇▇▇▇▇▇ Strategic Growth Fund, Ltd.
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EXHIBIT A
PLAN OF DISTRIBUTION
The Company is registering the Registrable Securities on behalf of
the Holder. As used herein, the term Holder means the holder of the
Registrable Securities and includes donees and pledgees selling
Registrable Securities received from a named Holder after the date of
this Prospectus. All costs, expenses and fees in connection with the
registration of the Registrable Securities offered hereby will be borne
by the Company. Brokerage commissions and similar selling expenses, if
any, attributable to the sale of Registrable Securities will be borne by
the Holders. Sales of Registrable Securities may be effected by Holders
from time to time in one or more types of transactions (which may include
block transactions) on Nasdaq, in the over-the-counter market, in
negotiated transactions, through put or call options transactions
relating to the Registrable Securities, through short sales of
Registrable Securities, or a combination of such methods of sale, at
market prices prevailing at the time of sale, or at negotiated prices.
Such transactions may or may not involve brokers or dealers. The Holders
have advised the Company that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers
regarding the sale of their securities, nor is there an underwriter or
coordinated broker acting in connection with the proposed sale of
Registrable Securities by the Holders.
The Holders may enter into hedging transactions with broker-dealers
or other financial institutions. In connection with such transactions,
broker-dealers or other financial institutions may engage in short sales
of the Registrable Securities or of securities convertible into or
exchangeable for the Registrable Securities in the course of hedging
positions they assume with Holders. The Holders may also enter into
options or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealers or other
financial institutions of Registrable Securities offered by this
Prospectus, which Registrable Securities such broker-dealer or other
financial institution may resell pursuant to this Prospectus (as amended
or supplemented to reflect such transaction).
The Holders may effect such transactions by selling Registrable
Securities directly to purchasers or to or through broker-dealers, which
may act as agents or principals. Such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from
Holders and/or the purchasers of Registrable Securities for whom such
broker-dealers may act as agents or to whom they sell as principal, or
both (which compensation as to a particular broker-dealer might be in
excess of customary commissions).
The Holders and any broker-dealers that act in connection with the
sale of Registrable Securities might be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any
commissions received by such broker-dealers and any profit on the resale
of the Registrable Securities sold by them while acting as principals
might be deemed to be underwriting discounts or commissions under the
Securities Act. The Company has agreed to indemnify each Holder against
certain liabilities, including liabilities arising under the Securities
Act. The Holders may agree to indemnify any agent, dealer or broker-
dealer that participates in transactions involving sales of the
Registrable Securities against certain liabilities, including liabilities
arising under the Securities Act.
The Holders may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act.
The Holders will be subject to the prospectus delivery requirements
of the Securities Act. The Company has informed the Holders that the
anti-manipulative provisions of Regulation M promulgated under the
Exchange Act may apply to their sales in the market.
Holders also may resell all or a portion of the Registrable
Securities in open market transactions in reliance upon Rule 144 under
the Securities Act, provided they meet the criteria and conform to the
requirements of such Rule.
Upon the Company being notified by a Holder that any material
arrangement has been entered into with a broker-dealer for the sale of
Registrable Securities through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or
dealer, a supplement to this Prospectus will be filed, if required,
pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name
of each such Holder and of the participating broker-dealer(s), (ii) the
number of Registrable Securities involved, (iii) the initial price at
which such Registrable Securities were sold, (iv) the commissions paid or
discounts or concessions allowed to such broker-dealer(s), where
applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by
reference in this Prospectus and (vi) other facts material to the
transactions. In addition, upon the Company being notified by a Holder
that a donee or pledgee intends to sell more than 500 Registrable
Securities, a supplement to this Prospectus will be filed.
EXHIBIT B
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[TRANSFER AGENT]
Attn.:
Re: uniView Technologies Corporation
Ladies and Gentlemen:
We are counsel to uniView Technologies Corporation, a Texas
corporation (the "Company"), and have represented the Company in
connection with that certain Securities Purchase Agreement (the "Purchase
Agreement") entered into by and among the Company and the buyers named
therein (collectively, the "Holders") pursuant to which the Company
issued to the Holders its Series 1999-D1 5% Convertible Preferred Stock
(the "Securities") convertible into shares of the Company's common stock,
par value $.10 per share (the "Common Stock"), the Company also has
entered into a Registration Rights Agreement with the Holders (the
"Registration Rights Agreement") pursuant to which the Company agreed,
among other things, to register the Registrable Securities (as defined in
the Registration Rights Agreement), including the shares of Common Stock
issuable upon conversion of the Securities, under the Securities Act of
1933, as amended (the "1933 Act"). In connection with the Company's
obligations under the Registration Rights Agreement, on _______________,
1999, the Company filed a Registration Statement on Form S-3 (File No.
333-_____________) (the "Registration Statement") with the Securities and
Exchange Commission (the "SEC") relating to the Registrable Securities
which names each of the Holders as a selling stockholder thereunder.
In connection with the foregoing, we advise you that a member of the
SEC's staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at
[ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we
have no knowledge, after telephonic inquiry of a member of the SEC's
staff, that any stop order suspending its effectiveness has been issued
or that any proceedings for that purpose are pending before, or
threatened by, the SEC and the Registrable Securities are available for
resale under the 1933 Act pursuant to the Registration Statement.
Very truly yours,
[ISSUER'S COUNSEL]
cc: [LIST NAMES OF HOLDERS]
