EXHIBIT 2.5
ACQUISITION AGREEMENT
This Agreement dated December 23, 2002, is entered into by and
between AMERICAN WATER STAR, INC., a corporation organized under
the laws of the State of Nevada ("AMWS"), and AMERICAN
DISTRIBUTION & PACKAGING, INC., a corporation organized under the
laws of the State of Nevada ("AD&P"), and the owners of the
capital stock of AD&P listed on Exhibit A of this Agreement, who
execute and become a party to this Agreement.
WHEREAS, AMWS desires to acquire up to 100% of the issued and
outstanding stock, including, but not limited to, all the current
assets and equipment of AD&P listed on Exhibit B in consideration
for common stock in AMWS.
WHEREAS, the AD&P Shareholders wish to exchange their respective
stock ownership interest for the common stock of AMWS.
NOW, THEREFORE, in consideration on the foregoing and the mutual
representations, warrants, covenants and agreements hereinafter
set forth and the mutual benefits to the parties to be derived
herefrom, the parties agree as follows:
1. The Acquisition
1.1 Tender and Exchange.
a. Subject to the terms and conditions of this
Agreement, at the Closing to be held as provided
in Section 2, AMWS shall tender the AMWS Shares
(defined below) to AD&P on behalf of the AD&P
Shareholders.
b. AD&P shall receive the AMWS Shares from AMWS on
behalf of its respective Shareholders, free and
clear of all encumbrances other than restrictions
imposed by Federal and State securities laws.
1.2 Transaction. At the Closing, AMWS will tender
5,200,000 shares of its common stock (the "AMWS
Shares"), valued at $0.50 per share, in exchange for
all of the outstanding shares of capital stock of AD&P,
consisting of 1,000,000 shares of common stock (the
"AD&P Shares"). The AMWS Shares shall be issued and
delivered as set forth in Exhibit A hereto.
2. The Closing.
2.1 Place and Time. The closing of the instant transaction
(the "Closing") shall take place at the offices of
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Ltd. located at ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, no later than the
close of business (Pacific Time) on December 23, 2002,
or at such other place, date and time as the parties
may agree in writing.
2.2 Deliveries by AD&P. At the Closing, AD&P and the AD&P
Shareholders shall deliver the following to AMWS:
a. Certificates representing the AD&P Shares
registered in the name of AMWS (without any legend
or other reference to any Encumbrance) other than
those required by federal and or state securities
law.
b. The documents contemplated by Section 3.
c. All other documents, instruments and writings
required by this Agreement to be delivered by AD&P
at the Closing and any other documents or records
relating to AD&P's business reasonably requested
by AMWS in connection with this Agreement.
2.3 Deliveries by AMWS. At the Closing, AMWS shall deliver
the following to AD&P:
a. The AMWS Shares as contemplated by Section 1, in
the form specified in Exhibit A.
b. The documents contemplated by Section 4.
c. All other documents, instruments and writings
required by this Agreement to be delivered by AMWS
at the Closing and any other documents or records
relating to AMWS's business reasonably requested
by AD&P in connection with this Agreement.
3. Conditions to AMWS's Obligations.
The obligations of AMWS to effect the Closing shall be
subject to the satisfaction at or prior to the Closing of
the following conditions, any one or more of which may be
waived by AMWS:
3.1 No Injunction. There shall not be in effect any
injunction, order or decree of a court of competent
jurisdiction that prevents the consummation of the
transactions contemplated by this Agreement, that
prohibits AMWS's acquisition of the AD&P Shares or
AMWS's receipt of AD&P Shares or that will require any
divestiture as a result of AMWS's acquisition of the
AD&P Shares or that will require all or any part of the
business of AD&P to be held separate and no litigation
or proceedings seeking the issuance of such an
injunction, order or decree or seeking to impose
substantial penalties on AMWS or AD&P if this Agreement
is consummated shall be pending.
3.2 Representations, Warranties and Agreements. The
representations and warranties of AD&P set forth in
this Agreement shall be true and complete in all
material respects as of the Closing Date as though made
at such time, (b) AD&P shall have performed, and
complied in all material respects with the agreements
contained in this Agreement required to be performed
and complied with by it at or prior to the Closing and
(c) AD&P shall have received a certificate to that
effect signed by an authorized representative of AD&P.
3.3 Regulatory Approvals. All licenses, authorizations,
consents, orders and regulatory approvals of
Governmental Bodies necessary for the consummation of
AMWS's acquisition of the AD&P Shares shall have been
obtained and shall be in full force and effect.
3.4 Shareholder Approval. Shareholders holding a minimum of
ninety percent (90%) of the common stock of AD&P shall
have approved of and signed this Agreement.
4. Conditions to AD&P and the AD&P Shareholders' Obligations.
The obligations of AD&P and the AD&P Shareholders to effect
the Closing shall be subject to the satisfaction at or prior
to the Closing of the following conditions, any one or more
of which may be waived by AD&P:
4.1 No Injunction. There shall not be in effect any
injunction, order or decree of a court of competent
jurisdiction that prevents the consummation of the
transactions contemplated by this Agreement, that
prohibits AMWS's acquisition of the AD&P Shares or
AD&P's receipt of the AMWS Shares or that will require
any divestiture as a result of AMWS's acquisition of
the Shares or AD&P's acquisition of the AMWS Shares or
that will require all or any part of the business of
AMWS or AD&P to be held separate and no litigation or
proceedings seeking the issuance of such an injunction,
order or decree or seeking to impose substantial
penalties on AMWS or AD&P if this Agreement is
consummated shall be pending.
4.2 Representations, Warranties and Agreements. The
representations and warranties of AMWS set forth in
this Agreement shall be true and complete in all
material respects as of the Closing Date as though made
at such time, (b) AMWS shall have performed and
complied in all material respects with the agreements
contained in this Agreement required to be performed
and complied with by it at or prior to the Closing and
(c) AD&P shall have received a certificate to that
effect signed by an authorized representative of AMWS.
4.3 Regulatory Approvals. All licenses, authorizations,
consents, orders and regulatory approvals of
Governmental Bodies necessary for the consummation of
AMWS's acquisition of the AD&P Shares and AD&P's
acquisition of the AMWS Shares shall have been obtained
and shall be in full force and effect.
5. Representations and Warranties of AD&P
AD&P (and, with respect to Section 5.4, each of the AD&P
Shareholders with respect to that shareholder's shares only)
represents and warrants to AMWS that, to the knowledge of
AD&P (which limitation shall not apply to Section 5.3) and
except as otherwise disclosed by AD&P:
5.1 Organization of AD&P; Authorization. AD&P is a
corporation duly organized, validly existing and in
good standing under the laws of Nevada with full
corporate power and authority to execute and deliver
this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all
necessary corporate action of AD&P and this Agreement
constitutes a valid and binding obligation of AD&P;
enforceable against it in accordance with its terms.
5.2 Capitalization. The authorized capital stock of AD&P
consists of 50,000,000 shares of common stock, $0.0001
par value, and 5,000,000 shares of preferred stock. As
of the date hereof 1,000,000 of such common shares of
AD&P were issued and outstanding. No shares have been
registered under State or Federal securities laws. As
of the Closing Date, all of the issued and outstanding
shares of common stock of AD&P are validly issued,
fully paid and nonassessable.
5.3 No Conflict as to AD&P. Neither the execution and
delivery of this Agreement nor the consummation of the
sale of the AD&P Shares to AMWS will (a) violate any
provision of the certificate of incorporation or by-
laws of AD&P or (b) violate, be in conflict with, or
constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default)
under any agreement to which AD&P is a party or (c)
violate any statute or law or any judgment, decree,
order, regulation or rule of any court or other
Governmental Body applicable to AD&P.
5.4 Ownership of AD&P Shares. The delivery of certificates
to AMWS provided in Section 2.2 and the delivery of
certificates to AD&P as provided in Section 2.3 will
result in AMWS's immediate acquisition of record and
beneficial ownership of up to 1,000,000 AD&P Shares,
free and clear of all Encumbrances subject to
applicable State and Federal securities laws.
5.5 No Conflict as to AD&P. Neither the execution and
delivery of this Agreement nor the consummation of the
acquisition of the AD&P Shares to AMWS will (a) violate
any provision of the certificate of incorporation or by-
laws (or other governing instrument) of AD&P or (b)
violate, or be in conflict with, or constitute a
default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or
result in the termination, of, or accelerate the
performance required by, or excuse performance by any
Person of its obligations under, or cause the
acceleration of the maturity of any debt or obligation
pursuant to, or result in the creation or imposition of
any Encumbrance upon any property or assets of AD&P
under, any material agreement or commitment to which
AD&P is a party or by which any of its property or
assets is bound, or to which any of the property or
assets of AD&P is subject, or (c) violate any statute
or law or any judgment, decree, order, regulation or
rule of any court or other Governmental Body applicable
to AD&P except, in the case of violations, conflicts,
defaults, terminations, accelerations or Encumbrances
described in clause (b) of this Section 5.5, for such
matters which are not likely to have a material adverse
effect on the business or financial condition of AD&P.
5.6 Consent and Approvals of Governmental Authorities.
Except with respect to applicable State and Federal
securities laws, no consent, approval or authorization
of, or declaration, filing or registration with, any
Governmental Body is required to be made or obtained by
AD&P or AMWS in connection with the execution, delivery
and performance of this Agreement by AD&P or the
consummation of the acquisition of the AD&P Shares to
AMWS.
5.7 Other Consents. No consent of any Person is required to
be obtained by AD&P or AMWS prior to the execution,
delivery and performance of this Agreement or the
consummation of the acquisition of the AD&P Shares to
AMWS, including, but not limited to, consents from
parties to leases or other agreements or commitments,
except for any consent which the failure to obtain
would not be likely to have a material adverse effect
on the business and financial condition of AD&P or
AMWS.
5.8 Financial Statements. AD&P has delivered to AMWS
balance sheets of AD&P as at the recent and practicable
period ended, and statements of income and changes in
financial position for the period then ended. Such AD&P
Financial Statements and notes fairly present the
financial condition and results of operations of AD&P
as at the respective dates thereof and for the periods
therein.
5.9 Title to Properties. AD&P owns all the material
properties and assets that they purport to own (real,
personal and mixed, tangible and intangible),
including, without limitation, all the material
properties and assets reflected in the AD&P Financial
Statements (except for property sold since the date of
the AD&P Financial Statements in the ordinary course of
business or leased under capitalized leases), and all
the material properties and assets purchased or
otherwise acquired by AD&P since the date of the AD&P
Financial Statements. All properties and assets
reflected in the AD&P Financial Statements are free and
clear of all material Encumbrances and are not, in the
case of real property, subject to any material rights
of way, building use restrictions, exceptions,
variances, reservations or limitations of any nature
whatsoever except, with respect to all such properties
and assets, (a) mortgages or security interests shown
on the AD&P Financial Statements as securing specified
liabilities or obligations, with respect to which no
default (or event which, with notice or lapse of time
or both, would constitute a default) exists, (b)
mortgages or security interests incurred in connection
with the purchase of property or assets after the date
of the AD&P Financial Statements (such mortgages and
security interests being limited to the property or
assets so acquired), with respect to which no default
(or event which, with notice or lapse of time or both,
would constitute a default) exists, (c) as to real
property, (i) imperfections of title, if any, none of
which materially detracts from the value or impairs the
use of the property subject thereto, or impairs the
operations of AD&P and (ii) zoning laws that do not
impair the present or anticipated use of the property
subject thereto, and (d) liens for current taxes not
yet due. The properties and assets of AD&P include all
rights, properties and other assets necessary to permit
AD&P to conduct AD&P's business in all material
respects in the same manner as it is conducted on the
date of this Agreement.
5.10 Buildings, Plants and Equipment. The buildings, plants,
structures and material items of equipment and other
personal property owned or leased by AD&P are, in all
respects material to the business or financial
condition of AD&P, in good operating condition and
repair (ordinary wear and tear excepted) and are
adequate in all such respects for the purposes for
which they are being used. AD&P has not received
notification that it is in violation of any applicable
building, zoning, anti-pollution, health, safety or
other law, ordinance or regulation in respect of its
buildings, plants or structures or their operations,
which violation is likely to have a material adverse
effect on the business or financial condition of AD&P,
taken as a whole or which would require a payment by
AD&P or AMWS in excess of $2,000 in the aggregate, and
which has not been cured.
5.11 No Condemnation or Expropriation. Neither the whole nor
any portion of the property or leaseholds owned or held
by AD&P is subject to any governmental decree or order
to be sold or is being condemned, expropriated or
otherwise taken by any Governmental Body or other
Person with or without payment of compensation
therefore, which action is likely to have a material
adverse effect on the business or financial condition
of AMWS, taken as a whole.
5.12 Litigation. There is no action, suit, inquiry,
proceeding or investigation by or before any court or
Governmental Body pending or threatened in writing
against or involving AD&P which is likely to have a
material adverse effect on the business or financial
condition of AD&P and AMWS, or which would require a
payment by AD&P in excess of $2,000 in the aggregate or
which questions or challenges the validity of this
Agreement. AD&P is not subject to any judgment, order
or decree that is likely to have a material adverse
effect on the business or financial condition of AD&P
or AMWS, or which would require a payment by AD&P in
excess of $2,000 in the aggregate.
5.13 Absence of Certain Changes. Since the date of the AD&P
Financial Statements, AD&P has not;
a. suffered the damage or destruction of any of its
properties or assets (whether or not covered by
insurance) which is materially adverse to the
business or financial condition of AD&P, or made
any disposition of any of its material properties
or assets other than in the ordinary course of
business;
b. made any change or amendment in its certificate of
incorporation or by-laws, or other governing
instruments;
c. issued or sold any Equity Securities or other
securities, acquired, directly or indirectly, by
redemption or otherwise, any such Equity
Securities, reclassified, split-up or otherwise
changed any such Equity Security, or granted or
entered into any options, warrants, calls or
commitments of any kind with respect thereto;
d. organized any new Subsidiary or acquired any
Equity Securities of any Person, or any equity or
ownership interest in any business;
e. borrowed any funds or incurred, or assumed or
become subject to, whether directly or by way of
guarantee or otherwise, any obligation or
liability with respect to any such indebtedness
for borrowed money;
f. paid, discharged or satisfied any material claim,
liability or obligation (absolute, accrued,
contingent or otherwise), other than in the
ordinary course of business;
g. prepaid any material obligation having a maturity
of more than 90 days from the date such obligation
was issued or incurred;
h. canceled any material debts or waived any material
claims or rights, except in the ordinary course of
business;
i. disposed of or permitted to lapse any rights to
the use of any material patent or registered
trademark or copyright or other intellectual
property owned or used by it;
j. granted any general increase in the compensation
of officers or employees (including any such
increase pursuant to any employee benefit plan);
k. purchased or entered into any contract or
commitment to purchase any material quantity of
raw materials or supplies, or sold or entered into
any contract or commitment to sell any material
quantity of property or assets, except (i) normal
contracts or commitments for the purchase of, and
normal purchases of, raw materials or supplies,
made in the ordinary course business, (11) normal
contracts or commitments for the sale of, and
normal sales of, inventory in the ordinary course
of business, and (iii) other contracts,
commitments, purchases or sales in the ordinary
course of business;
l. made any capital expenditures or additions to
property, plant or equipment or acquired any other
property or assets (other than raw materials and
supplies) at a cost in excess of $25,000 in the
aggregate;
m. written off or been required to write off any
notes or accounts receivable in an aggregate
amount in excess of $2,000;
n. written down or been required to write down any
inventory in an aggregate amount in excess of
$2,000;
o. entered into any collective bargaining or union
contract or agreement; or
p. other than the ordinary course of business,
incurred any liability required by generally
accepted accounting principles to be reflected on
a balance sheet and material to the business or
financial condition of AD&P.
5.14 No Material Adverse Change. Since the date of the AD&P
Financial Statements, there has not been any material
adverse change in the business or financial condition
of AD&P.
5.15 Contracts and Commitments. AD&P is not a party to any:
a. Contract or agreement (other than purchase or
sales orders entered into in the ordinary course
of business) involving any liability on the part
of AD&P of more than $25,000 and not cancelable by
AD&P (without liability to AD&P) within 60 days;
b. Except with respect to the lease on its business
location, lease of personal property involving
annual rental payments in excess of $25,000 and
not cancelable by AD&P (without liability to AD&P)
within 90 days;
c. Except with respect to the options referenced
above, employee bonus, stock option or stock
purchase, performance unit, profit sharing,
pension, savings, retirement, health, deferred or
incentive compensation, insurance or other
material employee benefit plan (as defined in
Section 2(3) of ERISA) or program for any of the
employees, former employees or retired employees
of AD&P;
d. Commitment, contract or agreement that is
currently expected by the management of AD&P to
result in any material loss upon completion or
performance thereof;
e. Contract, agreement or commitment that is material
to the business of AD&P, with any officer,
employee, agent, consultant, advisor, salesman,
sales representative, value added reseller,
distributor or dealer; or
f. Employment agreement or other similar agreement
that contains any severance or termination pay,
liabilities or obligations.
All such contracts and agreements are in full force and
effect. Neither AD&P nor any of the AD&P Shareholders
is in breach of, in violation of, or in default under,
any agreement, instrument, indenture, deed of trust,
commitment, contract or other obligation of any type to
which AD&P is a party or is or may be bound that
relates to the business of AD&P or to which any of the
assets or properties of is subject, the effect of which
breach, violation or default is likely to materially
and adversely affect the business or financial
condition of AD&P. AMWS has not guaranteed or assumed
and specifically does not guarantee or assume any
obligations of AD&P.
5.16 Labor Relations. AD&P is not a party to any collective
bargaining agreement. Except for any matter which is
not likely to have a material adverse effect on the
business or financial condition of AD&P, (a) AD&P is in
compliance with all applicable laws respecting
employment and employment practices, terms and
conditions of employment and wages and hours, and is
not engaged in any unfair labor practice, (b) there is
no unfair labor practice complaint against AD&P pending
before the National Labor Relations Board, (c) there is
no labor strike, dispute, slowdown or stoppage actually
pending or threatened against AD&P, (d) no
representation question exists respecting the employees
of AD&P, (e) AD&P has not experienced any strike, work
stoppage or other labor difficulty, and (f) no
collective bargaining agreement relating to employees
of AD&P is currently being negotiated.
5.18 Compliance with Law. The operations of AD&P have been
conducted in accordance with all applicable laws and
regulations of all Governmental Bodies having
jurisdiction over it, except for violations thereof
which are not likely to have a material adverse effect
on the business or financial condition of AD&P, or
which would not require a payment by AD&P in excess of
$2,000 in the aggregate, or which have been cured. AD&P
has not received any notification of any asserted
present or past failure by it to comply with any such
applicable laws or regulations. AD&P has all material
licenses, permits, orders or approvals from the
Governmental Bodies required for the conduct of its
business, and is not in material violation of any such
licenses, permits, orders and approvals. All such
licenses, permits, orders and approvals are in full
force and effect, and no suspension or cancellation of
any thereof has been threatened.
5.19 Tax Matters.
a. AD&P (1) has filed, or prior to the Closing Date
will have filed, all non-consolidated and non-
combined Tax Returns and all consolidated or
combined Tax Returns required to be filed through
the date hereof and have paid any Tax due through
the date hereof with respect to the time periods
covered by such Tax Returns and shall timely pay
any such Taxes required to be paid by it after the
date hereof with respect to such Tax Returns; and
(2) shall prepare and timely file all such Tax
Returns required to be filed after the date hereof
and through the Closing Date and pay all Taxes
required to be paid by it with respect to the
periods covered by such Tax Returns. All such Tax
Returns filed pursuant to clause (2) after the
date hereof shall, in each case, be prepared and
filed in a manner consistent in all material
respects (including elections and accounting
methods and conventions) with such Tax Return most
recently filed in the relevant jurisdiction prior
to the date hereof, except as otherwise required
by law or regulation. Any such Tax Return filed
or required to be filed after the date hereof
shall not reflect any new elections or the
adoption of any new accounting methods or
conventions or other similar items, except to the
extent such particular reflection or adoption is
required to comply with any law or regulation.
b. All Tax Returns required to be filed by any person
through the date hereof that are required or
permitted to include the income, or reflect the
activities, operations and transactions, of AD&P
for any taxable period have been timely filed, and
the income, activities, operations and
transactions of AD&P have been properly included
and reflected thereon.
c. AD&P has not agreed, or is required, to make any
adjustment (x) under Section 481(a) of the Code by
reason of a change in accounting method or
otherwise, or (y) pursuant to any provision of the
Tax Reform Act of 1986, the Revenue Act of 1987 or
the Technical and Miscellaneous Revenue Act of
1988.
d. Neither AD&P or any predecessor or Affiliate of
AD&P has, at any time, filed a consent under
Section 341(f)(1) of the Code, or agreed under
Section 341(f)(3) of the Code, to have the
provisions of Section 341(f)(2) of the Code apply
to any sale of its stock.
e. There is no (nor has there been any request for
an) agreement, waiver or consent providing for an
extension of time with respect to the assessment
of any Taxes attributable to AD&P or its assets or
operations, and no power of attorney granted by
AD&P with respect to any Tax matter is currently
in force.
f. There is no action, suit, proceeding,
investigation, audit, claim, demand, deficiency or
additional assessment in AD&P, pending or
threatened against or with respect to any Tax
attributable to AD&P or its assets or operations.
g. All amounts required to be withheld as of the
Closing Date for Taxes or otherwise have been
withheld and paid when due to the appropriate
agency or authority.
h. No property of AD&P is "tax-exempt use property"
within the meaning of Section 168(h) of the Code,
nor property that AD&P will be required to treat
as being owned by another person pursuant to
Section 168(f)(8) of the Internal Revenue Code of
1954, as amended and in effect immediately prior
to the enactment of the Tax Reform Act of 1986.
i. There have been delivered or made available to
AMWS true and complete copies of all income Tax
Returns and any other Tax Returns requested by
AMWS as may be relevant to AD&P or its assets or
operations for any and all periods ending after
December 31, 2001, and for any Tax years which are
subject to audit or investigation by any taxing
authority or entity.
j. There is no contract, agreement, plan or arrangement,
including but not limited to the provisions of this Agreement,
covering any employee or former employee of AD&P that,
individually or collectively, could give rise to the payment of
any amount that would not be deductible pursuant to Section 280G
or 162 of the Code.
5.20 Environmental Matters.
a. At all times prior to the date hereof, AD&P has
complied in all material respects with applicable
environmental laws, orders, regulations, rules
and. ordinances relating to the Properties (as
hereinafter defined), the violation of which would
have a material adverse effect on the business or
financial condition of AD&P, or which would
require a payment by AD&P in excess of $2,000 in
the aggregate, and which have been duly adopted,
imposed or promulgated by any legislative,
executive, administrative or judicial body or
officer of any Governmental Body.
b. The environmental licenses, permits and
authorizations that are material to the operations
of AD&P are in full force and effect.
c. AD&P has not released or caused to be released on
or about the properties currently owned or leased
by AD&P (the "Properties") any (i) pollutants,
(ii) contaminants, (iii) "Hazardous Substances,"
as that term is defined in Section 101(14) of the
Comprehensive Environmental Response Act, as
amended or (iv) "Regulated Substances," as that
term in defined in Section 9001 of the Resource
Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq., as amended, which would be required
to be remediated by any governmental agency with
jurisdiction over the Properties under the
authority of laws, regulations and ordinances as
in effect and currently interpreted on the date
hereof, which remediation would have a material
adverse effect on the business or financial
condition of AD&P.
5.21 Absence of Certain Commercial Practices. AD&P has not,
directly or indirectly, paid or delivered any fee,
commission or other sum of money or item of property,
however characterized, to any finder, agent, government
official or other party, in the United States or any
other country, which is in any manner related to the
business or operations of AD&P, which AD&P knows or has
reason to believe to have been illegal under any
federal, state or local laws of the United States or
any other country having jurisdiction; and AD&P has not
participated, directly or indirectly, in any boycotts
or other similar practices affecting any of its actual
or potential shareholders in violation of any
applicable law or regulation.
5.22 Borrowing and Guarantees. Except as otherwise
disclosed, AD&P (a) does not have any indebtedness for
borrowed money, (b) is not lending or committed to lend
any money (except for advances to employees in the
ordinary course of business), and (c) is not guarantors
or sureties with respect to the obligations of any
Person.
5.23 Investment Purpose. The AD&P Shareholders represent and
warrant that they are receiving the AMWS Shares for
investment purposes and not with an intent to
distribute them.
6. Representations and Warranties of AMWS
AMWS represents and warrants to AD&P that, to the knowledge
of AMWS (which limitation shall not apply to Section 6.3),
and except as otherwise disclosed by AMWS:
6.1 Organization of AMWS; Authorization. AMWS is a
corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada
with full corporate power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all
necessary corporate action of AMWS arid this Agreement
constitutes a valid and binding obligation of AMWS,
enforceable against it in accordance with its terms.
6.2 Capitalization. The authorized capital stock of AMWS
consists of 150,000,000 shares of common stock, $0.0001
par value, and 20,000,000 shares of preferred stock,
$0.0001 par value. As of the date hereof, 6,915,259
shares of such common stock of AMWS are issued and
outstanding; and no shares of such preferred stock of
AMWS are issued and outstanding. No shares have been
registered under State or Federal securities laws. As
of the Closing Date, all of the issued and outstanding
shares of common stock of AMWS are validly issued,
fully paid and nonassessable.
6.3 No Conflict as to AMWS. Neither the execution and
delivery of this Agreement nor the consummation of the
sale of the AMWS Shares to AD&P will (a) violate any
provision of the certificate of incorporation or by-
laws of AMWS, or (b) violate, be in conflict with, or
constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default)
under any agreement to which AMWS is a party or (c)
violate any statute or law or any judgment, decree,
order, regulation or rule of any court or other
Governmental Body applicable to AMWS.
6.4 Ownership of AMWS Shares. The delivery of certificates
to AD&P provided in Section 2.3 will result in AD&P
Shareholders' immediate acquisition of record and
beneficial ownership of the AMWS Shares, free and clear
of all encumbrances other than as required by Federal
and State securities laws. There are no outstanding
options, rights, conversion rights, agreements or
commitments of any kind relating to the issuance, sale
or transfer of any Equity Securities or other
securities of AMWS. Nothing in this Agreement shall be
deemed to be a representation or warranty as to the
tradability of any of the AMWS Shares under Federal or
any State's security laws.
6.5 No Conflict as to AMWS. Neither the execution and
delivery of this Agreement nor the consummation of the
of the instant agreement will (a) violate any provision
of the certificate of incorporation or by-laws (or
other governing instrument) of AMWS or (b) violate, or
be in conflict with, or constitute a default (or an
event which, with notice or lapse of time or both,
would constitute a default) under, or result in the
termination of, or accelerate the performance required
by, or excuse performance by any Person of any of its
obligations under, or cause the acceleration of the
maturity of any debt or obligation pursuant to, or
result in the creation or imposition of any Encumbrance
upon any property or assets of AMWS under, any material
agreement or commitment to which AMWS is a party or by
which any of its property or assets is bound, or to
which any of the property or assets of AMWS is subject,
or (c) violate any statute or law or any judgment,
decree, order, regulation or rule of any court or other
Governmental Body applicable to AMWS except, in the
case of violations, conflicts, defaults, terminations,
accelerations or Encumbrances described in clause (b)
of this Section. 6.5, for such matters which are not
likely to have a material adverse effect on the
business or financial condition of AMWS.
6.6 Consents and Approvals of Governmental Authorities. No
consent, approval or authorization of, or declaration,
filing or registration with, any Governmental Body is
required to be made or obtained by AMWS or AD&P in
connection with the execution, delivery and performance
of this Agreement by AMWS or the consummation of the
contemplated transaction.
6.7 Other Consents. No consent of any Person is required to
be obtained by AD&P or AMWS to the execution, delivery
and performance of this Agreement or the consummation
of the contemplated transaction including, but not
limited to, consents from parties to leases or other
agreements or commitments, except for any consent which
the failure to obtain would not be likely to have a
material adverse effect on the business and financial
condition of AD&P or AMWS.
6.8 Financial Statements. AMWS has delivered to AD&P
balance sheets of AMWS as at September 30, 2002, and
statements of income and changes in financial position
for the period then ended. Such AMWS Financial
Statements and notes fairly present the financial
condition and results of operations of AMWS as at the
dates thereof and for the periods therein.
6.9 Title to Properties. AMWS owns all the material
properties and assets that they purport to own (real,
personal and mixed, tangible and intangible),
including, without limitation, all the material
properties and assets reflected in the AMWS Financial
Statements and all the material properties and assets
purchased or otherwise acquired by AMWS since the date
of the AMWS Financial Statements. All properties and
assets reflected in the AMWS Financial Statements are
free and clear of all material Encumbrances and are
not, in the case of real property, subject to any
material rights of way, building use restrictions,
exceptions, variances, reservations or limitations of
any nature whatsoever except, with respect to all such
properties and assets, (a) mortgages or security
interests shown on the AMWS Financial Statements as
securing specified liabilities or obligations, with
respect to which no default (or event which, with
notice or lapse of time or both, would constitute a
default) exists, (b) mortgages or security interests
incurred in connection with the purchase of property or
assets after the date of the AMWS Financial Statements
(such mortgages and security interests being limited to
the property or assets so acquired), with respect to
which no default (or event which, with notice or lapse
of time or both, would constitute a default) exists,
(c) as to real property, (i) imperfections of title, if
any, none of which materially detracts from the value
or impairs the use of the property subject thereto, or
impairs the operations of AMWS and (ii) zoning laws
that do not impair the present or anticipated use of
the property subject thereto, and (d) liens for current
taxes not yet due. The properties and assets of AMWS
include all rights, properties and other assets
necessary to permit AMWS to conduct AMWS's business in
all material respects in the same manner as it is
conducted on the date of this Agreement.
6.10 Buildings, Plants and Equipment. The buildings, plants,
structures and material items of equipment and other
personal property owned or leased by AMWS are, in all
respects material to the business or financial
condition of AMWS in good operating condition and
repair (ordinary wear and tear excepted) and are
adequate in all such respects for the purposes for
which they are being used. AMWS has not received
notification that it is in violation of any applicable
building, zoning, anti-pollution, health, safety or
other law, ordinance or regulation in respect of its
buildings, plants or structures or their operations,
which violation is likely to have a material adverse
effect on the business or financial condition of AMWS
or which would require a payment by AD&P or AMWS in
excess of $2,000 in the aggregate, and which has not
been cured.
6.11 No Condemnation or Expropriation. Neither the whole nor
any portion of the property or leaseholds owned or held
by AMWS is subject to any governmental decree or order
to be sold or is being condemned, expropriated or
otherwise taken by any Governmental Body or other
Person with or without payment of compensation
therefore, which action is likely to have a material
adverse effect on the business or financial condition
of AD&P.
6.12 Litigation. There is no action, suit, inquiry,
proceeding or investigation by or before any court or
Governmental Body pending or threatened in writing
against or involving AMWS which is likely to have a
material adverse effect on the business or financial
condition of AD&P and AMWS or which would require a
payment by AMWS in excess of $2,000 in the aggregate or
which questions or challenges the validity of this
Agreement. AMWS is not subject to any judgment, order
or decree that is likely to have a material adverse
effect on the business or financial condition of AD&P
or AMWS or which would require a payment by AMWS in
excess of $2,000 in the aggregate.
6.13 Absence of Certain Changes. Since the date of the AMWS
Financial Statements, AMWS has not:
a. suffered the damage or destruction of any of its
properties or assets (whether or not covered by
insurance) which is materially adverse to the
business or financial condition of AMWS or made
any disposition of any of its material properties
or assets other than in the ordinary course of
business;
b. made any change or amendment in its certificate of
incorporation or by-laws, or other governing
instruments;
c. organized any new Subsidiary or acquired any
Equity Securities of any Person, or any equity or
ownership interest in any business;
d. paid, discharged or satisfied any material claim,
liability or obligation (absolute, accrued,
contingent or otherwise), other than in the
ordinary course of business;
e. prepaid any material obligation having a maturity
of more than 90 days from the date such obligation
was issued or incurred;
f. canceled any material debts or waived any material
claims or rights, except in the ordinary course of
business;
g. disposed of or permitted to lapse any rights to
the use of any material patent or registered
trademark or copyright or other intellectual
property owned or used by it;
h. granted any general increase in the compensation
of officers or employees (including any such
increase pursuant to any employee benefit plan);
i. purchased or entered into any contract or
commitment to purchase any material quantity of
raw materials or supplies, or sold or entered into
any contract or commitment to sell any material
quantity of property or assets, except (i) normal
contracts or commitments for the purchase of, and
normal purchases of, raw materials or supplies,
made in the ordinary course business, (ii) normal
contracts or commitments for the sale of, and
normal sales of, inventory in the ordinary course
of business, and (iii) other contracts,
commitments, purchases or sales in the ordinary
course of business;
j. made any capital expenditures or additions to
property, plant or equipment or acquired any other
property or assets (other than raw materials and
supplies) at a cost in excess of $2,000 in the
aggregate;
k. written off or been required to write off any
notes or accounts receivable in an aggregate
amount in excess of $2,000;
l. written down or been required to write down any
inventory in an aggregate amount in excess of
$2,000;
m. entered into any collective bargaining or union
contract or agreement; or
n. other than the ordinary course of business,
incurred any liability required by generally
accepted accounting principles to be reflected on
a balance sheet and material to the business or
financial condition of AMWS.
6.14 No Material Adverse Change. Since the date of the AMWS
Financial Statements, there has not been any material
adverse change in the business or financial condition
of AMWS.
6.15 Contracts and Commitments. Except as otherwise
disclosed by AMWS, AMWS is not a party to any:
a. Contract or agreement (other than purchase on
sales orders entered into in the ordinary course
of business) involving any liability on the part
of AMWS of more than $2,000 and not cancelable by
AMWS (without liability to AMWS) within 60 days;
b. Lease of personal property involving annual rental
payments in excess of $2,000 and not cancelable by
AMWS (without liability to AMWS) within 90 days;
c. Employee bonus, stock option or stock purchase,
performance unit, profit-sharing, pension,
savings, retirement, health, deferred or incentive
compensation, insurance or other material employee
benefit plan as defined in Section 2(3) of ERISA)
or program for any of the employees, former
employees or retired employees of AMWS;
d. Commitment, contract or agreement that is
currently expected by the management of AMWS to
result in any material loss upon completion or
performance thereof;
e. Contract, agreement or commitment that is material
to the business of AMWS, with any officer,
employee, agent, consultant, advisor, salesman,
sales representative, value added reseller,
distributor or dealer; or
f. Employment agreement or other similar agreement
that contains any severance or termination pay,
liabilities or obligations.
All such contracts and agreements are in full force and
effect. AMWS is not in breach of, in violation of or in
default under, any agreement, instrument, indenture,
deed of trust, commitment, contract or other obligation
of any type to which AMWS is a party or is or may be
bound as it relates to the business of AMWS or to which
any of the assets or properties of AMWS is subject, the
effect of which breach, violation or default is likely
to materially and adversity affect the business or
financial condition of AMWS.
6.16 Labor Relations. AMWS is not a party to any collective
bargaining agreement. Except for any matter which is
not likely to have a material adverse effect on the
business or financial condition of AMWS, (a) AMWS is in
compliance with all applicable laws respecting
employment and employment practices, terms and
conditions of employment and wages and hours, and is
not engaged in any unfair labor practice, (b) there is
no unfair labor practice complaint against AMWS pending
before the National Labor Relations Board, (c) there is
no labor strike, dispute, slowdown or stoppage actually
pending or threatened against AMWS, (d) no
representation question exists respecting the employees
of AMWS or any of its Subsidiaries, (e) AMWS has not
experienced any strike, work stoppage or other labor
difficulty, and (f) no collective bargaining agreement
relating to employees of AMWS is currently being
negotiated.
6.17 Employee Benefit Plans. AMWS has no plan that is (1) a
multi-employer plan as defined in Section 3(37) of
ERISA, or (2) a defined benefit plan as defined in
Section 3(35) of ERISA, any listed individual account
pension plan is duly qualified as tax exempt under the
applicable sections of the Code, each listed benefit
plan and related funding arrangement, if any, has been
maintained in all material respects in compliance with
its terms and the provisions of ERISA and the Code, and
the there are no material management incentive plans
nor any material employment contracts or severance
arrangements pertaining to one or more specific
employees.
6.18 Compliance with Law. The operations of AMWS have been
conducted in accordance with all applicable laws and
regulations of all Governmental Bodies having
jurisdiction over them, except for violations thereof
which are not likely to have a material adverse effect
on the business or financial condition of AMWS, or
which would not require a payment by AMWS in excess of
$2,000 in the aggregate, or which have been cured. AMWS
has not received any notification of any asserted
present or past failure by it to comply with any such
applicable laws or regulations. AMWS has all material
licenses, permits, orders or approvals from the
Governmental Bodies required for the conduct of its
business, and is not in material violation of any such
licenses, permits, orders and approvals. All such
licenses, permits, orders and approvals are in full
force and effect, and no suspension or cancellation of
any thereof has been threatened.
6.19 Tax Matters.
a. AMWS (1) has filed, or prior to the Closing Date
will have filed, all non-consolidated and non-
combined Tax Returns and all consolidated or
combined Tax Returns required to be filed through
the date hereof and have paid any Tax due through
the date hereof with respect to the time periods
covered by such Tax Returns and shall timely pay
any such Taxes required to be paid by it after the
date hereof with respect to such Tax Returns; and
(2) shall prepare and timely file all such Tax
Returns required to be filed after the date hereof
and through the Closing Date and pay all Taxes
required to be paid by it with respect to the
periods covered by such Tax Returns. All such Tax
Returns filed pursuant to clause (2) after the
date hereof shall, in each case, be prepared and
filed in a manner consistent in all material
respects (including elections and accounting
methods and conventions) with such Tax Return most
recently filed in the relevant jurisdiction prior
to the date hereof, except as otherwise required
by law or regulation. Any such Tax Return filed
or required to be filed after the date hereof
shall not reflect any new elections or the
adoption of any new accounting methods or
conventions or other similar items, except to the
extent such particular reflection or adoption is
required to comply with any law or regulation.
b. All Tax Returns required to be filed by any person
through the date hereof that are required or
permitted to include the income, or reflect the
activities, operations and transactions, of AMWS
for any taxable period have been timely filed, and
the income, activities, operations and
transactions of AMWS have been properly included
and reflected thereon.
c. AMWS has not agreed, or is required, to make any
adjustment (x) under Section 481(a) of the Code by
reason of a change in accounting method or
otherwise, or (y) pursuant to any provision of the
Tax Reform Act of 1986, the Revenue Act of 1987 or
the Technical and Miscellaneous Revenue Act of
1988.
d. Neither AMWS or any predecessor or Affiliate of
AMWS has, at any time, filed a consent under
Section 341(f)(1) of the Code, or agreed under
Section 341(f)(3) of the Code, to have the
provisions of Section 341(f)(2) of the Code apply
to any sale of its stock.
e. There is no (nor has there been any request for
an) agreement, waiver or consent providing for an
extension of time with respect to the assessment
of any Taxes attributable to AMWS or its assets or
operations, and no power of attorney granted by
AMWS with respect to any Tax matter is currently
in force.
f. There is no action, suit, proceeding,
investigation, audit, claim, demand, deficiency or
additional assessment in AMWS, pending or
threatened against or with respect to any Tax
attributable to AMWS or its assets or operations.
g. All amounts required to be withheld as of the
Closing Date for Taxes or otherwise have been
withheld and paid when due to the appropriate
agency or authority.
h. No property of AMWS is "tax-exempt use property"
within the meaning of Section 168(h) of the Code,
nor property that AMWS will be required to treat
as being owned by another person pursuant to
Section 168(f)(8) of the Internal Revenue Code of
1954, as amended and in effect immediately prior
to the enactment of the Tax Reform Act of 1986.
i. There have been delivered or made available to
AD&P true and complete copies of all income Tax
Returns and any other Tax Returns requested by
AD&P as may be relevant to AMWS or its assets or
operations for any and all periods ending after
December 31, 2001, and for any Tax years which are
subject to audit or investigation by any taxing
authority or entity.
k. There is no contract, agreement, plan or arrangement,
including but not limited to the provisions of this Agreement,
covering any employee or former employee of AMWS that,
individually or collectively, could give rise to the payment of
any amount that would not be deductible pursuant to Section 280G
or 162 of the Code.
6.20 Environmental Matters.
a. At all times prior to the date hereof, AMWS has
complied in all material respects with applicable
environmental laws, orders, regulations, rules and
ordinances relating to the Properties (as
hereinafter defined), the violation of which would
have a material adverse effect on the business or
financial condition of AMWS or which would require
a payment by AMWS in excess of $2,000 in the
aggregate, and which have been duly adopted,
imposed or promulgated by any legislative,
executive, administrative or judicial body or
officer of any Governmental Body.
b. The environmental licenses, permits and
authorizations that are material to the operations
of AMWS are in full force and effect.
c. AMWS has not released or caused to be released on
or about the properties currently owned or leased
by AMWS (the "Properties") any (i) pollutants,
(ii) contaminants, (iii) "Hazardous Substances,"
as that term is defined in Section 101(14) of the
Comprehensive Environmental Response Act, as
amended or (iv) "Regulated Substances," as that
term in defined in Section 9001 of the Resource
Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq., as amended, which would be required
to be remediated by any governmental agency with
jurisdiction over the Properties under the
authority of laws, regulations and ordinances as
in effect and currently interpreted on the date
hereof, which remediation would have a material
adverse effect on the business or financial
condition of AMWS.
6.21 Absence of Certain Commercial Practices. AMWS has not,
directly or indirectly, paid or delivered any fee,
commission or other sum of money or item of property,
however characterized, to any finder, agent, government
official or other party, in the United States or any
other country, which is in any manner related to the
business or operations of AMWS, which AMWS knows or has
reason to believe to have been illegal under any
federal, state or local laws of the United States or
any other country having jurisdiction; and AMWS has not
participated, directly or indirectly, in any boycotts
or other similar practices affecting any of its actual
or potential shareholders in violation of any
applicable law or regulation.
6.22 Borrowing and Guarantees. Except as otherwise
disclosed by AMWS, AMWS (a) does not have any
indebtedness for borrowed money, (b) is not lending or
committed to lend any money (except for advances to
employees in the ordinary course of business), and (c)
is not a guarantor or Surety with respect to the
obligations of any Person.
6.24 Purchase for Investment. AMWS is obtaining the AD&P
Shares solely for its own account for the purpose of
investment and not with a view to, or for sale in
connection with, any distribution of any portion
thereof in violation of any applicable securities law.
6.25 Indemnification. AMWS hereby agrees to indemnify,
defend and hold harmless AD&P, its officers, directors,
shareholders, agents, and employees, and their
successors and assigns, against all liabilities,
damages, claims, costs, expenses and losses (including
reasonable attorneys' fees and costs) incurred as a
result of any breach of or failure of AMWS to fulfill
any representation, warranty, covenant or agreement
made by it under this Agreement.
7. Access and Reporting; Filings With Governmental Authorities;
Other Covenants.
7.1 Access between the date of this Agreement and the
Closing Date. Each of AD&P and AMWS shall (a) give to
the other and its authorized representatives reasonable
access to all plants, offices, warehouse and other
facilities and properties of AD&P or AMWS, as the case
may be, and to its books and records, (b) permit the
other to make inspections thereof, and (c) cause its
officers and its advisors to furnish the other with
such financial and operating data and other information
with respect to the business and properties of such
party and to discuss with such and its authorized
representatives its affairs, all as the other may from
time to time reasonably request.
7.2 Exclusivity. From the date hereof until the earlier of
the Closing or the termination of this Agreement, AMWS
shall not solicit or negotiate or enter into any
agreement with any other Person with respect to or in
furtherance of any proposal for a merger or business
combination involving, or acquisition of any interest
in, or (except in the ordinary course of business) sale
of assets by, AMWS, except for the exchange of the AMWS
Shares for the AD&P Shares from the AD&P Shareholders.
7.3 Regulatory Matters. AD&P and AMWS shall (a) file with
applicable regulatory authorities any applications and
related documents required to be filed by them in order
to consummate the contemplated transaction and (b)
cooperate with each other as they may reasonably
request in connection with the foregoing.
7.5 Confidentiality. Prior to the Closing Date (or at any
time if the Closing does not occur) each of AD&P and
AMWS shall keep confidential and not disclose to any
Person (other than its employees, attorneys,
accountants and advisors) or use (except in connection
with the transactions contemplated hereby) all non-
public information obtained pursuant to Section 7.1.
Following the Closing, each of AD&P and AMWS shall keep
confidential and not disclose to any Person (other than
its employees, attorneys, accountants and advisors) or
use (except in connection. with preparing Tax Returns
and conducting proceeds relating to Taxes) any
nonpublic information relating to the other. This
Section 7.5 shall not be violated by disclosure
pursuant to court order or as otherwise required by
law, on condition that notice of the requirement for
such disclosure is given the other party prior to
making any disclosure and the party subject to such
requirement cooperates as the other may reasonably
request in resisting it. If the Closing does not occur,
each of AD&P and AMWS shall return to the other, or
destroy, all information it shall have received from
the other in connection with this Agreement and the
transactions contemplated hereby, together with any
copies or summaries thereof or extracts therefrom. Each
of AD&P and AMWS shall use their best efforts to cause
their respective representatives, employees, attorneys,
accountants and advisors to whom information is
disclosed pursuant to Section 7.1 to comply with the
provisions of this Section 7.5.
8. Conduct of AMWS's Business Prior to the Closing.
8.1 Operation in Ordinary Course. Between the date of this
Agreement and the Closing Date, AMWS shall conduct its
business in all material respects in the ordinary
course.
8.2 Business Organization. Between the date of this
Agreement and the Closing Date, AMWS shall (a) preserve
substantially intact the business organization of AMWS;
and (b) preserve in all material respects the present
business relationships and good will of AMWS.
8.3 Corporate Organization. Between the date of this
Agreement and the Closing Date, AMWS shall not cause or
permit any amendment of its certificate of
incorporation or by-laws (or other governing
instrument) and shall not:
a. issue, sell or otherwise dispose of any of its
Equity Securities, or create, sell or otherwise
dispose of any options, rights, conversion rights
or other agreements or commitments of any kind
relating to the issuance, sale or disposition of
any of its Equity Securities;
b. create or suffer to be created any Encumbrance
thereon, or create, sell or otherwise dispose of
any options, rights, conversion rights or other
agreements or commitments of any kind relating to
the sale or disposition of any Equity Securities;
c. reclassify, split up or otherwise change any of
its Equity Securities;
d. be party to any merger, consolidation or other
business combination;
e. sell, lease, license or otherwise dispose of any
of its properties or assets (including, but not
limited to rights with respect to patents and
registered trademarks and copyrights or other
proprietary rights), in an amount which is
material to the business or financial condition of
AMWS and its Subsidiaries, taken as a whole,
except in the ordinary course of business; or
f. organize any new Subsidiary or acquire any Equity
Securities of any Person or any equity or
ownership interest in any business.
9. Definitions.
As used in this Agreement, the following terms have the
meanings specified or referred to in this Section 9.
9.1 "Business Day" - Any day that is not a Saturday or
Sunday or a day on which banks located in the City of
Las Vegas are authorized or required to be closed.
9.2 "Code" - The Internal Revenue Code of 1986, as amended.
9.3 "Encumbrances" - any security interest, mortgage, lien,
charge, adverse claim or restriction of any kind,
including, but not limited to, any restriction on the
use, voting, transfer, receipt of income or other
exercise of any attributes of ownership, other than a
restriction on transfer arising under Federal or state
securities laws.
9.4 "Equity Securities" See Rule 3a-11-l under the
Securities Exchange Act of 1934.
9.5 "ERISA"- The Employee Retirement Income Security Act of
1974, as amended.
9.6 "Governmental Body" - Any domestic or foreign national,
state or municipal or other local government or multi-
national body (including, but not limited to, the
European Economic Community), any subdivision, agency,
commissioner authority thereof.
9.7 "Knowledge" - Actual knowledge, after reasonable
investigation.
9.8 "Person" - Any individual, corporation, partnership,
joint venture, trust, association, unincorporated
organization, other entity, or Governmental Body.
10. Termination. This Agreement may be terminated before the
Closing occurs only as follows:
a. By written agreement of AD&P and AMWS at any time.
b. By AMWS, by notice to AD&P at any time, if one or
more of the conditions specified in Section 4 is
not satisfied at the time at which the Closing (as
it may be deferred pursuant to Section 2.1) would
otherwise occur or if satisfaction of such a
condition is or becomes impossible.
c. By AD&P, by notice to AMWS at any time, if one or
more of the conditions specified in Section 3 is
not satisfied at the time at which the Closing (as
it may be deferred pursuant to Section 2.1), would
otherwise occur or if satisfaction of such a
condition is or becomes impossible.
11. Previous Agreements. By entering into this Agreement, AMWS
and AD&P (and, where applicable, the AD&P Shareholders)
specifically acknowledge that any and all representations,
warranties, or provisions in prior agreements between the
parties, whether written or oral, are superceded by the
terms and conditions of this Agreement.
12. Dissenters' Rights. AD&P will promptly pay to any dissenting
shareholders of AD&P the amount, if any, to which they shall
be entitled under NRS 92A.380 with respect to the rights of
dissenting shareholders.
13. Notices. All notices, consents, assignments and other
communications under this Agreement shall be in writing and
shall be deemed to have been duly given when (a) delivered
by hand, (b) sent by telex or facsimile (with receipt
confirmed), provided that a copy is mailed by registered
mail, return receipt requested, or (c) received by the
delivery service (receipt requested), in each case to the
appropriate addresses, telex numbers and facsimile numbers
set forth below (or to such other addresses, telex numbers
and facsimile numbers as a party may designate as to itself
by notice to the other parties),
a. If to AMWS:
American Water Star, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, President
With a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Ltd.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
b. If to AD&P:
American Distribution & Packaging, Inc.
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Secretary/Treasurer
14. Miscellaneous.
14.2 Expenses. Each party shall bear its own expenses
incident to the preparation, negotiation, execution and
delivery of this Agreement and the performance of its
obligations hereunder.
14.3 Captions. The captions in this Agreement are for
convenience of reference only and shall not be given
any effect in the interpretation of this agreement,
14.4 No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion
shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any
waiver must be in writing.
14.5 Exclusive Agreement; Amendment. This Agreement
supersedes all prior agreements among the parties with
respect to its subject matter with respect thereto and
cannot be changed or terminated orally.
14.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be considered an
original, but all of which together shall constitute
the same instrument.
14.7 Governing Law. This Agreement and (unless otherwise
provided) all amendments hereof and waivers and
consents hereunder shall be governed by the internal
law of the State of Nevada, without regard to the
conflicts of law principles thereof
14.8 Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the parties hereto.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto
duly authorized, and entered into as of the date first above
written.
AMERICAN WATER STAR, INC. AMERICAN DISTRIBUTION &
PACKAGING, INC.
By:/s/ By:/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President