EXHIBIT 2.3
Joint Formation Agreement
THIS JOINT Formation AGREEMENT (this "Agreement") is made as
of July 14, 2000 between and among E-Automate Corporation, a corporation
organized and existing under the laws of the state of Delaware (hereinafter
referred to as "E-Automate"), Xxxx Xxxxxx, an individual residing in Provo,
Utah and Xxxxx Xxxxxx, an individual residing in Provo, Utah. Xxxx
Xxxxxx and Xxxxx Xxxxxx shall be referred to collectively herein
as "Developers."
Recitals
WHEREAS, Developers have developed and own certain computer
software programs useful for exchanging information with
decentralized, disparate databases ("ActiveViewsPrograms");
WHEREAS, E-Automate has represented that it has the skill,
ability and desire to further develop and market ActiveViewsthe
Programs;
WHEREAS, E-Automate and Developers desire to establish a new
business to further the development and marketing of
ActiveViewsthe Programs; and
WHEREAS, Developers and E-Automate (collectively, the
"Parties", and individually, the "Party") have mutually agreed to
jointly form and establish a new company under the laws of in the
State of UtahDelaware to engage in said business in accordance
with the provisions of this Agreement, such company being
hereinafter referred to as the "JFC."
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the Parties hereby agree as follows:
1 Definitions. In this Agreement, the following expressions
shall, unless the context otherwise requires, have the following
meanings:
1.1 "Closing" and "Closing Date" shall mean the place and the
date that the parties shall mutually agree to establish the JFC
pursuant to Section 2.
1.2 "Products" shall mean the ActiveViews computer software
programs.
1.3 "JFC" shall mean the company to be formed and incorporated
under the laws of the State of Utah pursuant to provisions of
this Agreement.
2 Establishment of JFC. Promptly upon the receipt of all
governmental authorizations, approvals, consents and/or
validations (the "Approvals") necessary, if any, to carry out
the activities contemplated by this Agreement in form and
substance satisfactory to both Parties, the Parties shall
establish the JFC under the laws of the State of UtahDelaware.
The establishment of the JFC shall incorporate or include the
following:
2.1 Name. The name of the JFC shall be ActiveViews, Inc.
or such other name to which the parties shall mutually agree.
2.2 Registered Office. The registered office of the JFC shall
be located in Utah. Branches and other business offices may be
established at such other places both within and without the
State of Utah as the board of directors of the JFC may from time
to time determine or the business of the JFC may require.
2.3 Advanced Formation. Notwithstanding the provisions of this
Agreement, in order to expedite the implementation of this
Agreement, E-Automate may establish the JFC with capital of no
more than $10,000 immediately before or after this Agreement
becomes effective.
3 Capital Structure and Subscription. The JFC shall have two
classes of stock, common stock and preferred stock. The rights,
privileges and preferences of the stock shall be set forth in the
Articles of Incorporation of the JFC ("Articles"), all in
accordance with the draft Articles attached hereto as Exhibit A.
The total amount of investment to be subscribed for by Developers
shall be $1,000,000, and shall be paid in full in kind to the JFC
in accordance with the Series A Stock Purchase Agreement attached
hereto as Exhibit B. The total amount of investment to be
subscribed for by E-Automate, when called for by the board of
directors of the JFC, shall be at least $21,0200,000 in cash over
a three-year period, all in accordance with the Stock Purchase
Agreement attached hereto as Exhibit C.
4 Conditions Precedent to Closing. Each party's obligation to
enter into the transactions contemplated hereby at the Closing is
subject to the fulfillment as of the Closing Date of the
following conditions:
4.1 All covenants, agreements and conditions contained in this
Agreement to be performed by E-Automate and Developers on or
prior to the Closing Date shall have been performed or complied
with in all respects, and all consents required to be obtained by
E-Automate and Developers shall have been obtained.
4.2 The JFC shall have been formed and the JFC shall be a
corporation duly organized, validly existing and in good standing
under the laws of the State of Utah and shall have all requisite
corporate power and authority to carry on its business as
proposed to be conducted.
4.3 All corporate action on the part of E-Automate and
Developers, their officers, directors and shareholders, as
applicable, and as necessary for the authorization and
establishment of the JFC shall have been taken or will be taken
prior to the Closing.
4.4 The representations and warranties of the Parties contained
in each agreement and document specified and required to be
delivered pursuant to this Agreement shall be true in all
material respects on and as of such Closing with the same effect
as though such representations and warranties had been made on
and as of the date of such Closing.
4.5 All Approvals shall have been obtained prior to Closing.
5 Term & Termination. This Agreement shall be effective upon
its execution by both Parties, and shall continue in full force
and effect until terminated in accordance with the terms hereof.
5.1 Either Party shall have the right to terminate this
Agreement immediately by giving written notice to the other
Party, if the Approvals that are necessary to implement this
Agreement have not been obtained in form and substance
satisfactory to both Parties within two (2) months after the
execution of this Agreement.
5.2 Either Party shall have the right to terminate this
Agreement by giving ten (10) days' written notice to the other
Party, if the other Party commits a material breach of any of its
obligations or covenants under this Agreement and fails to cure
such breach within such ten (10) day period.
5.3 Either Party shall have the right to terminate this
Agreement immediately by giving written notice to the other Party
if the other Party shall be adjudicated a bankrupt or make an
assignment for the benefit of creditors, or bankruptcy,
insolvency, reorganization, arrangement, debt adjustment,
receivership, liquidation or dissolution proceedings shall be
instituted by or against the other Party and, if instituted
adversely, the other Party consents to the same or admits in
writing the material allegations thereof or said proceedings
shall remain undismissed for ninety (90) days.
6 Consequences of Termination.
6.1 Upon expiration or termination of this Agreement, the
Parties shall have no further rights or obligations under this
Agreement, except that the rights and obligations of either Party
that have accrued at the date of termination shall not be
affected thereby.
6.2 The right of either Party to terminate this Agreement is not
an exclusive remedy, and upon breach of this Agreement, either
Party shall be entitled alternatively or cumulatively to any
available remedy against the other Party at law or in equity.
7 Miscellaneous.
7.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the state of Utah as those laws are
applied to agreements among Utah residents entered into and to be
performed entirely within Utah. Any action or proceeding brought
by any party against another arising out of or related to this
Agreement shall be brought in a state or federal court of
competent subject matter jurisdiction located within Utah County,
Utah, and each of the parties to this Agreement consents to the
personal jurisdiction of those courts.
7.2 Taxes. Each party hereto shall be responsible for all
excise, sales, value-added, use, registration, stamp, transfer
and other like taxes ("Transfer Taxes") imposed or levied on it
by reason of this Agreement and the transactions contemplated
hereby. The parties shall cooperate to the extent reasonably
requested and legally permitted to minimize any such taxes.
7.3 Survival. The representations, warranties and covenants
contained herein or made pursuant to this Agreement shall, unless
otherwise indicated, be true and correct as of the Closing, shall
survive the Closing, and shall in no way be affected by any
investigation made by or on behalf of Developers or E-Automate.
7.4 Successors and Assigns. Except as specifically 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.
7.5 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto and the agreements and
documents contemplated thereby constitute the full and entire
understanding and agreement among the parties with regard to the
subjects hereof and thereof, and no party shall be liable or
bound to any other party in any manner by any representations,
warranties or covenants except as specifically set forth herein
or therein. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged
or terminated other than by a written instrument signed by the
party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
7.6 Notices, etc. All notices and other communications required
or permitted under this Agreement shall be in writing and shall
be delivered personally (including by courier or overnight
express service) or mailed by first class mail, postage prepaid,
addressed (a) if to E-Automate, at 00 Xxxxx 000 Xxxx, Xxxxxxxx
Xxxx, XX 00000, Attention: Xxx X. Xxxxx, or at such other address
as E-Automate furnishes or (b) if to Developers, at 0000 Xxxx
0000 Xxxxx, Xxxxx, XX 00000, Attention: Xxxx Xxxxxx, or at such other
address as Developers furnish. Each such notice or other communication
shall for all purposes of this Agreement be treated as effective or
having been given when delivered at the address of the party to be
notified; provided, however, that such address shall have been furnished
to the person giving notice (as specified above) and the address shall
be at an entity that maintains regular business hours (except for
holidays) throughout the entire year. In the event that the
address furnished is not at an entity that maintains regular
business hours, notice shall be deemed given upon the earlier of
personal delivery or, if sent by mail, at the earlier of its
receipt or seventy-two (72) hours after deposit in a regularly
maintained receptacle for the deposit of the U.S. mail, addressed
and mailed as aforesaid.
7.7 Expenses. Each party shall bear its own expenses incurred
on its behalf with respect to this Agreement and the transactions
contemplated hereby.
7.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be enforceable against the
parties actually executing such counterparts and all of which
together shall constitute one instrument.
7.9 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision,
provided that no such severability shall be effective if it
materially changes the economic benefit of this Agreement to any
party.
7.10 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in
construing or interpreting this Agreement.
7.11 Mutual Drafting. This Agreement is the joint product of E-
Automate and Developers, and each provision thereof has been
subject to the mutual consultation, negotiation and agreement of
E-Automate and Developers, and shall not be construed for or
against any party hereto.
[THE REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, this Agreement is hereby executed as of
the date first above written.
E-Automate Corporation
/s/ Xxx X. Xxxxx
By: -----------------------
Xxx X. Xxxxx
Its: President & CEO
ActiveViews Acquisition
Corporation
/s/ Xxxx Xxxxxx
By:------------------------
Xxxx Xxxxxx
Its: President
/s/ Xxxx Xxxxxx
------------------------
Xxxx Xxxxxx
/s/ Xxxxx Xxxxxx
------------------------
Xxxxx Xxxxxx
Exhibit A - Draft Articles of Incorporation
Exhibit B - Series A Stock Purchase Agreement
Exhibit C - E-Automate Stock Purchase Agreement
