EXHIBIT 2.4
E-Automate Stock Purchase Agreement
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of
July 14, 2000 by and between ActiveViews, Inc., a Delaware corporation
(the "Company") and E-Automate Corporation, a Delaware Corporation
(the "Purchaser").
Recitals
WHEREAS, certain developers have developed and own certain
computer software programs useful for exchanging information with
decentralized, disparate databases;
WHEREAS, the developers and Purchaser desire to establish a
new business to further the development and marketing of the
software programs; and
WHEREAS, the Purchaser and the developers have mutually agreed
to jointly form and establish a new company in the State of Utah
Delaware to engage in said business in accordance with the
provisions of the Joint Formation Agreement of even date herewith
("JFA").
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the Parties hereby agree as follows:
1. Sale and Issuance of Common Stock. The Company has adopted and
filed with the Secretary of StateDivision of Corporations and
Commercial Code of the State of Utah Delaware (as defined below)
the ArticlesCertificate of Incorporation in the form attached the
JFA (the "ArticlesCertificate"). Subject to the terms and
conditions of this Agreement, the Purchaser agrees to purchase at
the Closing (as defined below) and the Company agrees to sell and
issue to the Purchaser at the Closing or upon call of the directors
of the Company 7,500,000 shares of the Company's par value $0.0001
Common Stock (the "Stock" or "Common") at a purchase price of $0.27
16 per share (the "Purchase Price").
2. Closing. The purchase and sale of the Stock shall take place
at the offices of E-Automate Corporation, 00 Xxxxx 000 Xxxx,
Xxxxxxxx Xxxx, XX 00000, at 10:00 a.m., on July 14, 2000, or at
such other time and place as the Company and the Purchaser mutually
agree upon, orally or in writing (which time and place are
designated as the "Closing"). At the Closing, the Company shall
deliver to the Purchaser, certificates representing the Stock being
purchased thereby against payment of the Purchase Price therefore,
by a promissory note, payable on the demand of the Company, as more
fully set forth in Exhibit B ("Demand Note") note.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Purchaser that:
3.1 Organization, Good Standing, and Qualification. The Company
is a corporation duly organized, validly existing and in good
standing under, and by virtue of, the laws of the State of
UtahDelaware. The Company has all requisite corporate power and
authority to own and operate its properties and assets and to carry
on its business as now conducted and as proposed to be conducted.
The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify
would have a material adverse effect on its business or properties.
3.2 Corporate Power. The Company has all requisite legal and
corporate power and authority to execute and deliver this
Agreement, to sell and issue the Stock hereunder and to carry out
and perform all of its obligations under the terms of this
Agreement and the transactions contemplated hereby.
3.3 Capitalization. The authorized capital of the Company
consists, or will consist, immediately prior to the Closing of the
following:
3.3.1 Preferred Stock. 25,000,000 shares of Preferred
Stock, par value $0.0001, 2,500,000 of which are designated as Series A
Preferred, none of which are issued and outstanding. The rights,
privileges and preferences of the Preferred Stock are as stated in
the ArticlesCertificate.
3.3.2 Common Stock. 75,000,000 shares of Common Stock,
par value $0.0001, no shares of which are issued and outstanding.
3.3.3 Except for the conversion privileges of the
Series A Preferred, there are no outstanding options, warrants, rights
(including conversion or preemptive rights) or agreements for the
purchase or acquisition from the Company of any shares of its
capital stock.
3.4 Subsidiaries. The Company does not currently own or control,
directly or indirectly, any interest in any other corporation,
partnership, business trust, association, or other business entity.
3.5 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of the Company hereunder and the
authorization, issuance and delivery of the Stock has been taken or
will be taken prior to the Closing. This Agreement constitutes
valid and legally binding obligations of the Company enforceable
against the Company in accordance with its terms.
3.6 Valid Issuance of Securities. The Stock being issued to the
Purchaser hereunder, when issued, sold, and delivered in accordance
with the terms hereof for the consideration expressed herein, will
be duly and validly issued, fully paid and nonassessable. Based in
part upon the representations of the Purchaser in this Agreement,
the Stock will be issued in compliance with all applicable federal
and state securities laws.
3.7 Business Condition. The Company has recently commenced
operations and, since inception, has not:
3.7.1 incurred any absolute or contingent material
obligation by way of guaranty, endorsement, indemnity or warranty;
3.7.2 suffered any damage, destruction or loss, whether
or not covered by insurance, to any of its material assets;
3.7.3 waived or compromised a material right or debt
owed to it;
3.7.4 made any loan to its employees, officers or
directors, other than travel advances made in the ordinary course of
business;
3.7.5 entered into any contract or other arrangement
relating to compensation of the Company's employees, officers or directors;
3.7.6 declared or paid any dividend or other distribution
of the assets of the Company;
3.7.7 redeemed, repurchased, canceled, granted or issued
or effected any other change to any of the capital stock of the Company or
options to purchase the same; or
3.7.8 entered into any agreement obligating the Company
to make payments exceeding $10,000 in any fiscal year.
3.8 Intangible Property. The Company has taken all appropriate
security measures to protect the secrecy, confidentiality and value
of all trade secrets, know-how, inventions, designs, masks,
processes and technical data required to conduct its business. The
Company has all right, title and interest in and to all intangible
property and technology or is able to obtain on reasonable terms
all permits, licenses and other authority necessary for its
business as currently conducted or proposed to be conducted. The
Company is not infringing, and no infringement has been claimed
regarding, any third party's patent, maskwork right, moral right,
trademark, trade secret, trade name or copyright, and the Company
has not received any notice of any claimed infringement. The
Company owns and possesses or is licensed under all patents, patent
applications, licenses, trademarks, service marks, trade names,
inventions, processes and copyrights necessary for the operation of
its business as currently conducted or proposed to be conducted.
To the Company's knowledge, none of the Company's officers or
employees has improperly used or is making improper use of any
confidential information or trade secrets of others, including
those of any former employer of such officer or employee. The
Company is not aware of any violation by a third party or any of
its patents, licenses, trademarks, trade names, service marks,
copyrights, trade secrets or other proprietary rights.
3.9 Governmental Consents. No consent, approval or authorization
of or designation, declaration or filing with any governmental
authority on the part of the Company is required in connection with
the valid execution and delivery of this Agreement or the offer,
sale or issuance of the Stock (and the Common Stock issuable upon
conversion of the Stock), or the consummation of any other
transaction contemplated hereby, except for applicable blue sky
laws of Utah and Regulation D under the Securities Act of 1933, as
amended (the "Securities Act") as promulgated by the Securities and
Exchange Commission, all of which filings shall have been made
prior to Closing or within the time period prescribed by the
applicable statutes.
3.10 Litigation. There is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently
threatened against the Company.
3.11 Compliance with Other Instruments. The Company is not in
violation or default of any provision of its ArticlesCertificate or
Bylaws or in any material respect of any material, instrument,
judgment, order, writ, decree or contract to which it is a party or
by which it is bound or, to its knowledge, of any provision of
federal or state statute, rule or regulation applicable to the
Company. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will
not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of
notice, either a default under any such provision, instrument,
judgment, order, writ, decree or contract or an event which results
in the creation of any lien, charge or encumbrance upon any of the
properties or assets of the Company which materially and adversely
affects the business of the Company or any of its properties or
assets.
3.12 Material Contracts and Commitments. Except for agreements
explicitly contemplated hereby, there are no material agreements,
obligations, instruments or contracts to which the Company is a
party or by which it is bound.
3.13 Title to Property and Assets. The Company does not own any
property or assets.
3.14 Outstanding Indebtedness; Material Liabilities. The Company
has no material Liabilities or obligations, absolute or contingent
(individually or in the aggregate).
3.15 Offering. Subject to the accuracy of the Purchaser's
representations in Section 4 hereof and in written responses to the
Company's inquiries, the offer, sale and issuance of the Stock and
the Common Stock to be issued upon conversion of the Stock
constitute transactions exempt from the registration requirements
of Section 5 of the Securities Act.
4. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Company that:
4.1 Authorization. This Agreement constitutes valid and legally
binding obligations enforceable against the Purchaser in accordance
with its terms.
4.2 Purchase Entirely for Own Account. This Agreement is made
with Purchaser in reliance upon such Purchaser's representation to
the Company, which by the Purchaser's execution of this Agreement
the Purchaser hereby confirms, that the Stock to be acquired by the
Purchaser will be acquired for investment for the Purchaser's own
account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof and that the Purchaser
has no present intention of selling, granting any participation in,
or otherwise distributing the same. By executing this Agreement,
the Purchaser further represent that the Purchaser do not presently
have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or
to any third person, with respect to any of the Stock. The
Purchaser represent that they have full power and authority to
enter into this Agreement.
4.3 Restricted Securities. The Purchaser understands that the
Stock has not been, and will not be, registered under the
Securities Act, by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon,
among other things, the bona fide nature of the investment intent
and the accuracy of the Purchaser's representations as expressed
herein. The Purchaser understands that as such the shares of Stock
are characterized as "restricted securities" under the Securities
Act and that under the Securities Act and applicable regulations
such Stock may be resold without registration under the Securities
Act only in certain limited circumstances. In this connection, the
Purchaser represents that such Purchaser is familiar with Rule 144
promulgated under the Securities Act, as presently in effect, and
understands the resale limitations imposed thereby and by the
Securities Act.
4.4 Legends. It is understood that the Stock, and any
securities issued upon conversion or in respect thereof or exchange
therefor, may bear one or all of the following legends:
4.4.1 "THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF THE ACT."
4.4.2 Any legend required by the Blue Sky laws of
any state to the extent such laws are applicable to the shares represented
by the certificate so legended.
5. Conditions of Purchaser's Obligations at Closing. The
obligations of the Purchaser to the Company under this Agreement
are subject to the fulfillment on or before each Closing, of each
of the following conditions:
5.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 3 above shall be
true and correct 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.
5.2 Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it
on or before the Closing.
5.3 Qualifications. The Company shall have obtained all necessary
blue-sky approvals for the issuance of the Common, including but
not limited to applicable Utah securities laws.
5.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at
such Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Purchaser, and they shall
have received all such counterpart original and certified or other
copies of such documents as it may reasonably request.
5.5 Stock Purchase Agreement. The Company and the developers,
Xxxx Xxxxxx and Xxxxx Xxxxxx shall have executed and delivered the
Series A Preferred Stock Purchase Agreement in the form of
Exhibit A attached hereto.
6. Conditions of the Company's Obligations at Closing. The
obligations of the Company to the Purchaser under this Agreement
are subject to the fulfillment, on or before each Closing, of each
of the following conditions:
6.1 Representations and Warranties. The representations and
warranties of the Purchaser contained in Section 4 above shall be
true and correct on and as of such Closing with the same effect as
though such representations and warranties had been made on and as
of such Closing.
6.2 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at
such Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Company, and they shall
have received all such counterpart original and certified or other
copies of such documents as it may reasonably request.
7. Redemption. In the event that the Purchaser defaults on the
Demand Note and does not purchase Stock in the Company at a
purchase price equal to at least $21,0200,000 during a period of
three (3) years from the Closing, the Company shall, upon the
election of the holders of the Series A Preferred Stock acting as a
class, redeem a percentage of the then issued and outstanding
shares of Common at a price per share of $0.01. The percentage of
Common subject to redemption will be equal to the quotient of (a)
the difference of $1.2 million less the actual amount of cash
invested in the Company by the Purchaser, and (b) $1.2 million. The
redemption will be effected ratably among all the holders of Common
of the Company. The Company and the Purchaser expressly acknowledge
that the holders of the Series A Preferred Stock are third party
beneficiaries under this Section 7.
8. Commitment to Raise Additional Capital. In the event that the
board of directors of the Company determines that the capital
commitment of the Purchaser, as identified in Section 7, is
insufficient to meet the capital needs of the Company and provides
Purchaser with notice thereof, the Purchaser agrees to either
provide a loan to the Company in the amount of $800,000 or exercise
commercially reasonable efforts to help the Company secure a loan
of that amount.
9. Miscellaneous.
9.1 Survival of Warranties. The warranties, representations
and covenants of the Company and the Purchaser contained in or made
pursuant to this Agreement shall survive the execution and delivery
of this Agreement and the Closing and shall in no way be affected
by any investigation of the subject matter thereof made by or on
behalf of the Purchaser or the Company.
9.2 Transfer, Successors and Assigns. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors
and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in
this Agreement.
9.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Utah in the United States
of America as applied to agreements among Utah residents entered
into and to be performed entirely within Utah.
9.4 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
9.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
9.6 Delays or Omissions. It is agreed that no delay or omission
to exercise any right, power or remedy accruing to any party upon
any breach or default of any other party under this Agreement shall
impair any such right, power or remedy, nor shall it be construed
to be a waiver of any such breach or default, or any acquiescence
therein, or of any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter
occurring. It is further agreed that any waiver, permit, consent
or approval of any kind or character of any breach or default under
this Agreement, or any waiver of any provisions or conditions of
this Agreement must be in writing and shall be effective only to
the extent specifically set forth in writing, and that all
remedies, either under this Agreement, by law or otherwise, shall
be cumulative and not alternative.
9.7 Notices. 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 Purchaser, at 0000 Xxxx 0000 Xxxxx,
Xxxxx, XX 00000, Attention: Xxxx Xxxxxx, or at such other address
as Purchaser 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.
9.8 Finder's Fee. Each party hereto represents that it neither is
nor will be obligated for any finder's fee or commission in
connection with this transaction. The Purchaser agrees to
indemnify and to hold harmless the Company from any liability for
any commission or compensation in the nature of a finder's fee (and
the costs and expenses of defending against such liability or
asserted liability) for which the Purchaser or any of its officers,
employees, or representatives is responsible. The Company agrees
to indemnify and hold harmless the Purchaser from any liability for
any commission or compensation in the nature of a finder's fee (and
the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers,
employees or representatives is responsible.
9.9 Expenses. Each party hereto shall bear its own fees and
expenses with respect to this Agreement and the transactions
contemplated hereby.
9.10 Amendments and Waivers. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of
the Company and the Purchaser. Any amendment or waiver effected in
accordance with this Section shall be binding upon each transferee
of any Stock, each future holder of all such Stock, and the
Company.
9.11 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall
be excluded from this Agreement and the balance of the Agreement
shall be interpreted as if such provision were so excluded and
shall be enforceable in accordance with its terms.
9.12 Entire Agreement. This Agreement constitutes the entire
Agreement between the parties hereto pertaining to the subject
matter hereof and any and all other written or oral agreements
existing between the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Common Stock Purchase Agreement as of the date first above written.
COMPANY: PURCHASER:
ACTIVEVIEWS, INC. E-AUTOMATE CORPORATION
a Delaware corporation a Delaware corporation
/s/ Xxx X. Xxxxx /s/ Xxx X. Xxxxx
By ------------------------- By --------------------------
Name: Xxx X. Xxxxx Xxx X. Xxxxx
Title: President President & CEO
Exhibit A - Form Of Series A Preferred Stock Purchase Agreement
Exhibit B - Form of Demand Promissory Note
Borrower: E-Automate Corporation Lender: ActiveViews, Inc.
00 Xxxxx 000 Xxxx 00 Xxxxx 000 Xxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Principal Amount: $21,0200,000 Interest Rate: 8% per annum
Date of Note: July 14, 2000
1. Promise To Pay. E-Automate Corporation ("Borrower"), promises
to pay to ActiveViews, Inc. ("Lender") in lawful money of the
United States of America, the principal amount of Two One Million
Two Hundred Thousand Dollars ($21,0200,000.00) together with
interest on the unpaid outstanding principal balance, according to
the terms of this Promissory Note.
2. Payment. Borrower will pay this Promissory Note, including
all outstanding principal plus accrued and unpaid interest, in one
or more payments on the demand of the board of directors of
ActiveViews, Inc., or on July 14, 2005, whichever first occurs.
Interest on this Note is computed on a 365/360 simple interest
basis; that is, by applying the ratio of the annual interest rate
over a year of 360 days, multiplied by the outstanding principal
balance, multiplied by the actual number of days the principal
balance is outstanding. Borrower will pay Lender at Lender's
address shown above or at such other place as Lender may designate
in writing. Unless otherwise agreed or required by applicable law,
payments will be applied first to any unpaid collection costs and
any late charges, then to any unpaid interest, and any remaining
amount to principal.
3. Interest Rate. The interest rate on this note is fixed at
eight percent (8%) per annum, simple interest.
4. Prepayment. Borrower may pay without penalty all or a portion
of the amount owed earlier than it is due. Early payments will
not, unless agreed to by Lender in writing, relieve Borrower of
Borrower's obligation to continue to make payments of accrued
unpaid interest. Rather, they will reduce the principal balance
due.
5. Default. Borrower will be in default if any of the following
happens: (a) Borrower fails to make any payment when due, (b) any
representation or statement made or furnished to Lender by Borrower
or on Borrower's behalf is false or misleading in any material
respect or (c) Borrower becomes insolvent, a receiver is appointed
for any part of Borrower's property, Borrower makes an assignment
for the benefit of creditors, or any proceeding is commenced either
by Borrower or against Borrower under any bankruptcy or insolvency
laws, or (d) any creditor tries to take any of Borrower's property
on or in which Lender has a lien or security interest.
6. Lender's Rights. Upon default, Lender may declare the entire
unpaid principal balance on this Promissory Note and all accrued
unpaid interest immediately due, without notice, and then Borrower
will pay that amount. Upon default, including failure to pay upon
final maturity, Lender may hire or pay someone else to help collect
this Promissory Note. Borrower also will pay Lender that amount.
This includes, subject to any limits under applicable law, Lender's
reasonable attorneys' fees and Lender's legal expenses whether or
not there is a lawsuit, including reasonable attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals, and
any anticipated post-judgment collection services. If not
prohibited by applicable law, Borrower also will pay any court
costs, in addition to all other sums provided by law. The
foregoing notwithstanding, Lender's sole and exclusive recourse
hereunder shall be payment, as required under this Promissory Note,
or redemption of Borrower's stock in Lender, as provided in the E-
Automate Stock Purchase Agreement dated August 3, 2000. If there
is a lawsuit, Borrower agrees upon Lender's request to submit to
the jurisdiction of the courts of Utah County, the State of Utah.
This Promissory Note shall be governed by and construed in accordance
with the laws of the State of Utah.
7. General Provisions. Lender may delay or forgo enforcing any
of its rights or remedies under this Promissory Note without losing
them. Borrower, to the extent allowed by law, waives presentment,
demand for payment, protest and notice of dishonor.
BORROWER:
/s/ Xxx X. Xxxxx
By:--------------------------
Xxx X. Xxxxx
Its: President and CEO
