Exhibit 10.8
SECURITIES PURCHASE AGREEMENT
e-automate Corporation
Series B Convertible Preferred Stock
THIS PRIVATE PLACEMENT AGREEMENT (the "Agreement") is made and
entered into effective as of June 19, 2000, by and between
E-automate CORPORATION, a Delaware corporation (the "Company"), and
XXXXX X. XXXXXXXX, a resident of Orem, Utah. (the "Investor"); and
WHEREAS, the Investor desires to receive certain preferred
shares to be issued by the Company (the "Securities") in
cancellation of indebtedness to the Investor from the Company; and
WHEREAS, the Company desires to issue such Securities to the
Investor pursuant to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and
the Investor mutually agree as follows:
1. DEFINITIONS. In addition to the terms defined
elsewhere in this Agreement, unless otherwise clearly required by
the context of this Agreement, the terms listed below shall have the
following meanings:
1.1 "Affiliate" shall mean any person that, directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the Person in question.
1.2 "Control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of any person, whether through the ownership
of voting securities, by contract or otherwise.
1.3 "Party/Parties" shall mean the Company, the Investor,
or both of them, as the case may be, and shall include their
respective successors in interest hereunder.
1.4 "Person" shall mean an individual, a corporation, a
limited liability company, a partnership, an association, a joint
venture, a trust or other entity of any kind, including a government
or political subdivision or agency or instrumentality thereof.
1.5 "Third Party" shall mean any person other than a
party or an affiliate of a party.
2. ISSUANCE OF SECURITIES. Subject to the terms and conditions
of this Agreement, the Investor agrees to and accepts from the
Company and the Company agrees to issue to the Investor the
following Securities of the Company: one (1) share of Series B
Convertible Preferred Stock in consideration for every one thousand
dollars ($1,000.00) of indebtedness cancelled by the Investor,
including principal and accrued interest. Such securities shall be
convertible into shares of Company Common Stock at five dollars
($5.00) per share.
Number of Shares Type of Security
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413 Series B Convertible
Preferred Stock
The Securities are governed by a Certificate of Designation
in the form attached hereto.
2.1 ISSUANCE OF SECURITIES. In consideration for the
execution of this Agreement, the Company will issue to the Investor
its duly executed certificate in the name of the Investor, as
provided herein.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as may
otherwise be set forth in this Agreement, the Company hereby
represents and warrants to the Investor as follows:
3.1 ORGANIZATION AND STANDING. The Company is a
corporation duly organized and validly existing under, and by virtue
of, the laws of the State of Delaware, and is in good standing under
the laws of Delaware.
3.2 CORPORATE POWER. The Company has all requisite legal
and corporate power and authority to execute this Agreement and
perform its obligations under the terms of this Agreement.
3.3 AUTHORIZATION. All corporate action on the part of
the Company necessary for the performance of all of the Company's
obligations hereunder has been or will be taken prior to the
Company's execution of this Agreement, or will be taken within a
reasonable time thereafter.
3.4 VALIDITY OF THE SECURITIES. The Securities, when
issued and transferred to the Investor in compliance with the
provisions of this Agreement, will be duly authorized, validly
issued and outstanding, and will constitute a binding obligation of
the Company which will be legally enforceable according to the terms
of the Company charter documents and documentation relating to the
Securities.
3.5 ACCESS TO BUSINESS INFORMATION. The Company agrees
to provide the Investor with access to all information to which a
shareholder of the company would be entitled under applicable law
and shall receive reports of business activities which are
distributed to all other shareholders of the Company.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. Except as
may otherwise be set forth in this Agreement, the Investor hereby
represents and warrants to the Company as follows:
4.1 EXPERIENCE. The Investor has sufficient experience
in evaluating and investing in private placement issuances of equity
securities issued by companies similar to the Company such that the
Investor is capable of evaluating the merits and risks of the
investment in the Securities, and has ample capacity to protect its
interests and to bear the economic risk of the Investor's holding
the Securities received pursuant hereto.
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4.2 INVESTMENT. The Investor is acquiring the Securities
for investment purposes for the Investor's own account, not as a
nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof.
4.3 ACCESS TO DATA. The Investor has discussed the
Company's business, management and financial affairs with the
officers, and/or employees of the Company as it deemed necessary or
appropriate, and has reviewed, if requested by the Investor, the
Company's books and records and otherwise has obtained such
information as the Investor has considered relevant and important in
making a decision to purchase and acquire the Shares as provided
herein.
4.4 AUTHORIZATION. All action on the part of the
Investor necessary for the performance of all of the Investor's
obligations hereunder has been or will be taken prior to the
Investor's execution of this Agreement.
5. RESTRICTIONS ON TRANSFERABILITY; COMPLIANCE WITH LAW;
REPURCHASE OF SECURITIES.
5.1 RESTRICTIONS ON TRANSFERABILITY. The Investor
understands and acknowledges that the Securities have not been
registered under the United States Securities Act of 1933 or under
any state law, rule or regulation, and that the transferability of
the Securities or any portion of or interest therein is restricted
by applicable federal and state securities laws, rules and
regulations. The certificate representing the Securities shall be
stamped or otherwise imprinted with an appropriate restrictive legend.
5.2 SUBSEQUENT TRANSFERS. The Investor represents and
agrees that it will not sell or transfer the Securities to any Third
Party without the prior written approval of the Company. The
Company agrees to make a decision approving or denying a request by
the Investor to transfer the Securities within 30 days after receipt
by the Company of a written request for transfer from the Investor,
although the Company retains the right to deny such request for any
or no reason.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Utah
applicable to contracts entered into and to be performed entirely
within such State, except where the laws of the United States of
America are applicable as provided in this Agreement, and except as
to non-substantive law with respect to the use of the Commercial
Arbitration Rules of the American Arbitration Association as
provided in Section 6.2 hereof.
6.2 ARBITRATION. Any disagreement between the Company
and the Investor relating to the execution or interpretation of this
Agreement that cannot be amicably settled will be decided by
submission to arbitration, pursuant to the Commercial Arbitration
Rules of the American Arbitration Association in the English
language, in Salt Lake City, Utah.
6.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
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6.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement
constitutes the full and entire understanding and agreement between
the parties hereto with respect to the subject matter hereof, and
supersedes all prior understandings and agreements with respect to
the subject matter hereof, whether written or oral. No party hereto
shall be liable or bound to any other person or entity in any manner
by any representations, warranties or covenants except as
specifically set forth herein. Neither this Agreement nor any term
hereof may be amended, modified, waived, discharged or terminated
other than by a written instrument signed by the party against whom
enforcement of any such amendment, modification, waiver, discharge
or termination is sought.
6.5 SURVIVAL. The representations, warranties and
covenants contained in or made herein shall survive the execution
and delivery of this Agreement.
6.6 COUNTERPARTS. This Agreement may be executed by
facsimile and in any number of counterparts, each of which shall be
deemed an original, enforceable against the parties actually
executing such counterparts, and all of such counterparts, when
taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the dates indicated below effective as of the date first-above
written.
THE INVESTOR: THE COMPANY:
e-automate Corporation
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxx Xxxxx
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XXXXX X. XXXXXXXX
Its: President/CEO
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