SHARE PURCHASE AND SALE AGREEMENT April 21, 2010
April
21, 2010
THIS
SHARE PURCHASE AND SALE AGREEMENT (the “Agreement”), dated the 21st day
of April, 2010, is entered into by and among Alchemical Capital Corp., a Florida
corporation (the “Company”), Advanced Water Technologies, Inc. (the
“Purchaser”), Willowhuasca Wellness, Inc., a Florida corporation, and Narayan
Capital Funding Corp., a Florida corporation (each a “Seller” and collectively,
the “Sellers”).
WHEREAS,
the Purchaser desire to purchase an aggregate of 2,970,000 shares (the “Shares”)
of common stock, no par value per share (the “Common Stock”), of the Company
from the Sellers, which constitutes 99% of the issued and outstanding shares of
Common Stock of the Company, and the Sellers severally desire to sell the Shares
to the Purchaser, in consideration for payment of the Purchase Price (as defined
below) by the Purchaser to Sellers;
WHEREAS,
the Sellers are the only shareholders of the Company;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants,
representations and warranties contained herein, the parties hereto do hereby
agree as follows:
1. TRANSFER
OF SHARES, CONSIDERATION AND OTHER MATTERS.
1.1 Transfer of Shares.
Subject to the terms and conditions of this Agreement, the Sellers hereby sell,
assign, transfer, convey and deliver to the Purchaser, and the Purchaser hereby
purchases and acquires from Sellers, good and marketable title to the Shares,
free and clear of all mortgages, liens, encumbrances, claims, equities and
obligations to other persons of every kind and character except that the Shares
are “restricted securities” as set forth in Section 4.4
hereof. Simultaneously herewith, Sellers are delivering to Purchaser
certificates duly endorsed for transfer or accompanied by duly executed stock
powers, together with such other documents or instruments, if any, as may be
necessary to convey the Shares to the Purchaser as provided herein.
1.2 Consideration. The
purchase price for the Shares purchased by the Purchaser is $30,000 (the
“Purchase Price”), payable to the Law Offices of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.A.
(“Escrow Agent”) on behalf of the Sellers. Narayan Capital Funding
Corp. is hereby selling to Purchaser 2,673,000 shares of Common
Stock. Willowhuasca Wellness, Inc. is hereby selling to Purchaser
297,000 shares of Common Stock.
1.3 Form of Payment. On
the Closing Date (as defined below), (i) each of the Sellers shall deliver to
the Purchaser stock certificates (the “Certificates”) representing the Shares
together with a stock power (the “Stock Powers”), which the Purchaser is then
purchasing, against delivery of the Purchase Price; and (ii) the Purchaser shall
pay the Purchase Price to the Escrow Agent.
1.4 Closing. The date on
which the closing (the “Closing”) of the purchase and sale of the Shares is
hereinafter referred to as the “Closing Date.” The Closing will be deemed to
occur when (A) this Agreement has been executed and delivered by the Sellers and
the Purchaser (which delivery may be effected by facsimile transmission or by
e-mail of a Portable Document Format (PDF) file), and (B) full payment of the
Purchaser’s Purchase Price has been made by wire transfer of immediately
available funds in accordance with Section 1.3, and (C)
the Certificates and Stock Powers have been delivered to the
Purchaser.
2. REPRESENTATIONS
AND WARRANTIES OF THE SELLERS.
The
Sellers severally represent, warrant and covenant to and with the Purchaser as
an inducement to the Purchaser to enter into this Agreement and to consummate
the transaction contemplated hereby as follows:
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2.1 Authorization of
Agreement. The Sellers are fully able, authorized and
empowered to execute and deliver this Agreement and any other agreement or
instrument contemplated by this Agreement and to perform their covenants and
agreements hereunder and thereunder. This Agreement and any such
other agreement or instrument, upon execution and delivery by the Sellers (and
assuming due execution and delivery hereof and thereof by the other parties
hereto and thereto), will constitute a valid and legally binding obligation of
the Sellers, in each case enforceable against them in accordance with their
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect which affect creditors’ rights generally and by legal and equitable
limitations on the availability of specific performance and other equitable
remedies against such Seller under or by virtue of this Agreement or such other
agreement or instrument.
2.2 Board Approval. Any
and all other actions taken by the Company since inception, have been duly
approved by resolutions passed by the Company’s Board of Directors, or a duly
authorized committee thereof.
2.3 Consents. All
requisite consents of third parties, including, but not limited to, governmental
or other regulatory agencies, federal, state or municipal, required to be
received by or on the part of the Company for the execution and delivery of this
Agreement and the performance of its respective obligations hereunder have been
obtained and are in full force and effect. The Company has fully complied with
all conditions of such consents.
2.4 No Shareholder Loans or
Other Company Debt to Sellers. Each of the Sellers, if
applicable, has cancelled any loans made by such Seller to the Company otherwise
unrepaid on the date of this Agreement. In addition, the Sellers
confirm hereby that nothing is owed to each Seller by the Company on the date of
this Agreement for loans made or otherwise.
2.5 SEC
Reports. The Company has filed all reports, schedules, forms,
statements and other documents required to be filed by the Company under the
Securities Act of 1933, as amended (the “Securities Act”), and the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), including pursuant to
Section 13(a) or 15(d) thereof, since inception (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “SEC Reports”) on a
timely basis or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports complied in
all material respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
2.6 Financial
Statements. The financial statements of the Company included
in the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Securities and Exchange
Commission (the “Commission”) with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis
during the periods involved (“GAAP”), except as may be otherwise specified in
such financial statements or the notes thereto and except that unaudited
financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of the Company and its
consolidated Subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit
adjustments.
2.7 Organization. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of Florida and has full power and authority to own, lease and
operate its properties and to carry on its business as now being and as
heretofore conducted. The Company is not qualified or licensed to do business as
a foreign corporation in any other jurisdiction and neither the location of its
assets nor the nature of its business requires it to be so
qualified.
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2.8 Capitalization. The
capitalization of the Company is as set forth in the SEC Reports. The
Company has not issued any capital stock since its most recently filed periodic
report under the Exchange Act. No person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in
the transactions contemplated by the transaction documents. Except as a result
of the purchase and sale of the Shares, there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or giving any Person any right to subscribe for
or acquire, any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company is or may become bound to
issue additional shares of Common Stock or Common Stock Equivalents. The
issuance and sale of the Shares will not obligate the Company to issue shares of
Common Stock or other securities to any person (other than the Purchaser) and
will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under any of such securities. All
of the outstanding shares of capital stock of the Company are validly issued,
fully paid and nonassessable, have been issued in compliance with all federal
and state securities laws, and none of such outstanding shares was issued in
violation of any preemptive rights or similar rights to subscribe for or
purchase securities. No further approval or authorization of any stockholder,
the Board of Directors or others is required for the issuance and sale of the
Shares. There are no stockholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company’s
shareholders.
2.9 Articles of Incorporation
and Bylaws. A true and complete copy of the Company’s Articles of
Incorporation and Bylaws as in effect on the date hereof are set forth in the
SEC Reports.
2.10 Officers and
Directors. ▇▇▇▇▇▇ ▇▇▇▇▇▇ is the sole officer and director of
the Company.
2.11 Liabilities,
etc.
(a) The
Company has filed all Federal, state and local tax returns which are required to
be filed by it and all taxes shown to be due thereon (together with any
applicable penalties and interest) have been paid. The Company has not incurred
any liability for taxes except in the ordinary course of business. The Company
has paid or provided adequate reserves for all taxes which have become due for
all periods prior to the date of this Agreement or pursuant to any assessments
received by it or which the Company is obligated to withhold from amounts owing
to any employee, creditor or other third party as at, or with respect to, any
period prior to the date of this Agreement. To the best knowledge of the
Sellers, the Federal income tax returns of the Company have never been audited
by the Internal Revenue Service. The Company has not waived any statute of
limitations in respect of taxes, nor agreed to any extension of time with
respect to a tax assessment or deficiency.
(b) On
the date of Closing, there are no liabilities, debts or obligations of the
Company, whether accrued, absolute, contingent or otherwise
(“Liabilities”).
2.12 Absence of Certain
Events. Other than as disclosed in its SEC Reports and in Current Reports
on Form 8-K, the Company has been conducted solely in the usual and ordinary
course. Without limiting the generality of the foregoing, the Company has
not:
(a) waived
any right or rights of substantial value or paid, directly or indirectly, any
Liability before such Liability became due in accordance with its terms;
or
(b) other
than in the ordinary and usual course of business, created any Liability
(whether absolute or contingent and whether or not currently due and payable),
or entered into or assumed any contract, agreement, arrangement, lease (as
lessor or lessee), license or other commitment otherwise than in the ordinary
and usual course of business; or
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(c) purchased,
sold or transferred any assets other than in the ordinary and usual course of
the operations of the Company; granted any security interest or other lien or
encumbrance affecting any of its assets or properties other than in the ordinary
and usual course of business and in amounts not material; or amended any
agreement or contract to which the Company is a party or by which its assets and
properties are bound.
2.13 Adverse Developments.
Except as disclosed in its SEC Reports, and particularly, in its Current Reports
on Form 8-K, there has been no material adverse change in the business,
operations or condition (financial or otherwise) of the Company; nor has there
been since such date, any damage, destruction or loss, whether covered by
insurance or not, materially or adversely affecting the business, properties or
operations of the Company.
2.14 Actions and
Proceedings. The Company is not subject to any outstanding orders, writs,
injunctions or decrees of any court or arbitration tribunal or any governmental
department, commission, board, agency or instrumentality, domestic or foreign,
against, involving or affecting the business, properties or employees of the
Company or Sellers’ right to enter into and execute this Agreement. There are no
actions, suits, claims or legal, administrative or arbitration proceedings or
investigations, including any warranty or product liability claims (whether or
not the defense thereof or liabilities in respect thereof are covered by
policies of insurance) relating to or arising out of the business, properties or
employees of the Company pending or, to the best knowledge of the Sellers,
threatened against or affecting the Company.
2.15 Compliance with Laws.
The Company has complied in all material respects with all laws, ordinances,
regulations and orders applicable to the conduct of its business, including all
laws relating to environmental matters, employees and working
conditions.
2.16 Bank Accounts and Credit
Cards. As of the date hereof, the Company no longer maintains any bank
account, safe deposit box, credit or charge cards and has closed any respective
accounts therewith.
2.17 Tax
Matters.
(a) The
Company has duly filed all material federal, state, local and foreign tax
returns required to be filed by or with respect to them with the Internal
Revenue Service or other applicable taxing authority;
(b) The
Company has paid all material taxes due, or claimed by any taxing authority to
be due, from or with respect to them;
(c) To
the best knowledge of the Company, there has been no material issue raised or
material adjustment proposed (and none is pending) by the Internal Revenue
Service or any other taxing authority in connection with the Company’s tax
returns;
(d) No
waiver or extension of any statute of limitations as to any material federal,
state, local or foreign tax matter has been given by or requested from the
Company; and
For the
purposes of this Section 2.17, a tax
is due (and must therefore either be paid or adequately reserved against in the
Company’s Financial Statements) only on the last date payment of such tax can be
made without interest or penalties, whether such payment is due in respect of
estimated taxes, withholding taxes, required tax credits or any other
tax.
2.18 Material Changes.
Since the date of the latest audited financial statements included within the
SEC Reports, except as specifically disclosed in a subsequent SEC Report filed
prior to the date hereof, (i) there has been no event, occurrence or development
that has had or that could reasonably be expected to result in a Material
Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or
otherwise) other than (A) trade payables and accrued expenses incurred in the
ordinary course of
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business
consistent with past practice and (B) liabilities not required to be reflected
in the Company’s financial statements pursuant to GAAP or disclosed in filings
made with the SEC, (iii) the Company has not altered its method of accounting,
(iv) the Company has not declared or made any dividend or distribution of cash
or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock and (v) the
Company has not issued any equity securities to any officer, director or
Affiliate, except pursuant to existing Company stock option plans. The Company
does not have pending before the SEC any request for confidential treatment of
information.
2.19 Transactions with Affiliates
and Employees. Except as set forth in the SEC Reports and in
this Agreement, none of the officers or directors of the Company and, to the
knowledge of the Company, none of the employees of the Company is presently a
party to any transaction with the Company or any Subsidiary (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner, in each case in excess of $60,000 other than for (i) payment of salary
or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) other employee benefits, including
stock option agreements under any stock option plan of the Company.
3.
REPRESENTATIONS AND WARRANTIES OF
SELLERS REGARDING THE SHARES.
Each of
the Sellers severally represents, warrants and covenants to and with the
Purchaser as an inducement to the Purchaser to enter into this Agreement and to
consummate the transaction contemplated hereby as follows:
3.1 Ownership of the
Shares. Narayan Capital Funding Corp., a Florida corporation,
is the sole record and beneficial owner of 2,700,000
shares. Willowhuasca Wellness, Inc., a Florida corporation, is the
sole record and beneficial owner of 300,000 shares. Each of the
Sellers holds his, her or its respective shares free and clear of any lien,
pledge, encumbrance, charge, security interest, claim or right of another and
has the absolute right to sell and transfer the Shares that are subject to this
Agreement to the Purchaser without the consent of any other person or entity.
Upon transfer of the Shares to the Purchaser hereunder, the Purchaser will
acquire good and marketable title to such Shares free and clear of any lien,
pledge, encumbrance, charge, security interest, claim or right of
another.
3.2 No Seller Defaults.
Neither the execution and delivery of this Agreement, nor the consummation of
the transaction contemplated hereby, violates any statute, ordinance,
regulation, order, judgment or decree of any court or governmental agency, or
conflicts with, or will result in any breach of, any of the terms of, or
constitute a default under or result in the termination of, or the creation of,
any lien upon the Shares to be sold by each Seller pursuant to the terms of any
contract or agreement to which such Seller is a party or by which such Seller or
any of his, her or its respective assets is bound.
3.3 Obligations;
Authorizations. Each of the Sellers is not (i) in violation of any
judgment, order, injunction, award or decree which is binding on him, her or it,
or any of his, her or its assets, properties, operations or business which
violation, by itself or in conjunction with any other such violation, would
materially and adversely affect the consummation of the transaction contemplated
hereby; or (ii) in violation of any law or regulation or any other requirement
of any governmental body, court or arbitrator relating to him, her or it, or to
his, her or its assets, operations or businesses which violation, by itself or
in conjunction with other violations of any other law, regulation or other
requirement, would materially adversely affect the consummation of the
transaction contemplated hereby.
3.4 Voluntary Nature of
Transaction. The sale by each of the Sellers to the Purchaser
of the Shares is made freely and voluntarily by such Seller. Each of
the Sellers, in selling the Shares to the Purchaser, is not acting under fraud,
duress, menace, or undue influence.
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4. REPRESENTATIONS
AND WARRANTIES OF PURCHASER.
The
Purchaser represents and warrants and covenants to and with the Sellers as an
inducement to the Sellers to enter into this Agreement and to consummate the
transaction contemplated hereby as follows:
4.1 Power and
Authority. The Purchaser is authorized to execute and deliver
this Agreement, and any other agreement or instrument contemplated by this
Agreement, and to consummate the transaction and to perform such obligations
contemplated hereby and thereby.
4.2 Legal and Authorized
Transaction; Authority: No Breach. The execution and delivery by the
Purchaser of this Agreement and any other agreement or instrument contemplated
by this Agreement, and the consummation of the transaction contemplated hereby
and thereby, requires no specific consent or authority conferred by any third
party. This Agreement, and any such other agreement or instrument, upon
execution and delivery by the Purchaser (and assuming due execution and delivery
hereof and thereof by the other parties hereto and thereto), will constitute the
legal, valid and binding obligation of the Purchaser, in each case enforceable
against the Purchaser in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect which affect
creditors’ rights generally and by legal and equitable limitations on the
availability of specific performance and other equitable remedies against the
Purchaser under or by virtue of this Agreement or such other agreement or
instrument. Neither the execution and delivery of this Agreement, or any such
other agreement or instrument by the Purchaser, nor the consummation of the
transaction contemplated hereby or thereby, will (i) violate, conflict with or
result in the breach or termination of, or otherwise give any other contracting
party the right to terminate, or constitute a default under the terms of, any
mortgage, bond, indenture or material agreement to which the Purchaser are a
party or by which the Purchaser or any of his, her or its property or assets may
be bound or materially affected, (ii) violate any judgment, order, injunction,
decree or award of any court, administrative agency or governmental body
against, or binding upon, the Purchaser or upon the securities, property or
business of the Purchaser, or (iii) constitute a violation by the Purchaser of
any applicable law or regulation of any jurisdiction as such law or regulation
relates to the Purchaser or to the property or business of the
Purchaser.
4.3 No Litigation, Etc.
There is no material suit, action, or legal, administrative, arbitration or
other proceeding or governmental investigation pending or, to the Purchaser’
best knowledge, threatened against, materially affecting, or which will
materially affect, the property of the Purchaser, or to the Purchaser’ best
knowledge does there exist any basis therefor.
4.4 Accredited Investors;
Investment Intent. The Purchaser is an “accredited investor” as that term
is defined in applicable rules and regulations and is acquiring the Shares for
his or her own account for investment purposes and not with a view to
distribution or resale, nor with the intention of selling, transferring or
otherwise disposing of all or any part of the Shares except in compliance with
all applicable provisions of the Securities Act, the rules and regulations
promulgated by the SEC thereunder, and applicable state securities
laws. The Shares acquired by the Purchaser from the Sellers are
“restricted securities” as that term is defined under Rule 144 of the Securities
Act, and any sales of the Shares made in reliance upon Rule 144 can be made,
among other things, only in limited amounts in accordance with the terms and
conditions of that Rule and will require an opinion of counsel satisfactory to
the Company and Company’s counsel that registration is not required under the
Securities Act or state securities laws. The Purchaser is familiar
with the business and operations of the Company, acknowledges that the Company
is in the developmental stage and is not profitable. The Purchaser has been
offered the opportunity to examine the books and records of the Company and to
discuss its business, operations and financial condition with officers of the
Company.
4.5 Restrictive Legend.
The Purchaser understands that any and all certificates representing the Shares
transferred by the Sellers to the Purchaser and any and all Shares issued in
replacement thereof or in exchange therefor shall bear the following legend, or
one substantially similar thereto:
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“The
shares represented by this certificate have not been registered under the
Securities Act of 1933 and are “restricted securities” as that term is defined
in Rule 144 under the Act. The shares may not be sold or offered for sale except
pursuant to an effective registration statement under the Securities Act of 1933
or an opinion of counsel for the corporation that registration is not required
under such Act.”
4.6 During
the past five years, the Purchaser has not been:
(1) Subject
of a petition under the Federal bankruptcy laws or any state insolvency law
filed by or against it, or by a receiver, fiscal agent or similar officer
appointed by a court for its business or property, or any partnership in which
it was a general partner at or within two years before the time of such filing
or any corporation or business association of which it was an executive officer
at or within two years before the time of such filing;
(2) Convicted
in a criminal proceeding or a named subject of a pending criminal proceeding
(excluding traffic violations and other minor offenses);
(3) The
subject of any order, judgment, or decree not subsequently reversed, suspended
or vacated, of any court of competent jurisdiction, permanently or temporarily
enjoining it for, or otherwise limiting, any of the following
activities:
(i) acting
as a futures commission merchant, introducing broker, commodity trading advisor,
commodity pool operator, floor broker, leverage transaction merchant, any other
person regulated by the Commodity Futures Trading Commission, or an associated
person of any of the foregoing, or as an investment adviser, underwriter, broker
or dealer in securities, or as an affiliated person, director or employee of any
investment company, bank, savings and loan association or insurance company, or
engaging in or continuing any conduct or practice in connection with any such
activity;
(ii) engaging
in any type of business practice; and
(iii) engaging
in any activity in connection with the purchase or sale of any security or
commodity or in connection with any violation of Federal or State securities law
or Federal Commodity laws.
(4) The
subject of any order, judgment or decree, not subsequently reversed, suspended
or vacated of any Federal or State authority barring, suspending or otherwise
limiting for more than sixty (60) days either of their right to engage in any
activity described in paragraph (3) (i) above, or be associated with persons
engaged in any such activity.
(5) Found
by any court of competent jurisdiction in a civil action or by the Commission to
have violated any Federal or state securities law, and the judgment in such
civil action or finding by the Commission has not been subsequently reversed,
suspended or vacated; or
(6) Found
by a court of competent jurisdiction in a civil action or by the Commodity
Futures Trading Commission to have violated any Federal Commodities Law, and the
judgment in such civil action or finding by the Commodity Futures Trading
Commission has not been subsequently reversed, suspended or
vacated.
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5. COVENANTS
AND AGREEMENTS OF THE PARTIES.
5.1 Lock-Up; Trading Price
Protection. Each of the Sellers severally agree to lock up,
leak-out provisions that will last with an agreed lock-up, leak-out of no more
than ten (10%) percent per day of the daily trading volume in a single day and
no more than a cumulative of ten (10%) percent per month of the monthly volume
and no more than ten (10%) percent per month of their total share ownership as
measured by their initial holding, of the each of the Sellers individual
ownership interest percentage of the shares of Common Stock, as measured on the
date that the shares of Common Stock become free trading shares AND are eligible
for trading on the OTCBB, AMEX, NASDAQ or NYSE Stock Market, whichever listing
or quotation occurs first. In addition, if the trading strike price
falls below Two Dollars ($2.00) during the first (1st)
year of trading, Purchaser agrees to provide both Sellers with an additional
Thirty Thousand (30,000) Shares of Common Stock, to be divided equally pursuant
to the Sellers individual ownership percentage.
5.2 Capital Restructuring
Post-Closing. Sellers and Purchaser specifically acknowledge
and agree that, during the six (6) month period following the Closing Date, the
Purchaser may effect a reverse split or a forward split event (each a
“Recapitalization Event”) so long as such Recapitalization Event effects all
shareholders immediately prior to the recapitalization on a pro rata
basis. Any rights provided to Sellers pursuant to this Section 5.2, if any,
shall automatically terminate after such six (6) month period following the
Closing Date.
5.3 No Brokers. Each of
the Sellers on the one hand and the Purchaser on the other hand represent and
warrant to the other that each there will be no liability upon the Purchaser for
any broker, finder or similar agent and no person or entity with which each has
had any dealings or communications of any kind is entitled to any brokerage,
finder’s or placement fee or any similar compensation in connection with this
Agreement or the transaction contemplated hereby from the
Purchaser.
5.4 Expenses. Each of the
parties hereto agrees to bear his, her or its own expenses in connection with
the negotiation, preparation, execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby.
5.5 SEC
Filings. Purchaser agrees (i) to exercise his or her best
efforts (a) to cause the Company to remain a reporting company under either
Section 12(g) or 15(d) of the Exchange Act and (b) to file all necessary reports
with the SEC and any other regulatory body as required to maintain the Company
as a current reporting Company under the Exchange Act and any other applicable
rules and regulations, (ii) to cause the Company to file with the SEC a Report
on Form 8-K relating to the consummation of the transaction contemplated
hereunder and (iii) to provide the Sellers with one copy of such Report on Form
8-K as filed pursuant to clause (ii) above.
5.6 Cooperation; Further
Assurances. Each of the parties hereto will cooperate with the
other and execute and deliver to the other parties hereto such other instruments
and documents, provide such other notices or communications and take such other
actions as may be reasonably requested from time to time by any other party
hereto as necessary to carry out the intended purposes of this
Agreement.
6. NATURE
AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
6.1 Nature of Statements.
All statements contained in any Schedule, certificate or other instruments
delivered by or on behalf of any party hereto pursuant to this Agreement, shall
be deemed representations and warranties by such party.
6.2 Survival of Representations
and Warranties. Regardless of any investigation at any time made by or on
behalf of any party hereto or of any information any party may have in respect
thereof, all covenants, agreements, representations and warranties made
hereunder or pursuant hereto or in connection with the transaction contemplated
hereby shall survive the execution and delivery of this Agreement and continue
in effect through the first anniversary of this Agreement except that the
representations and warranties set forth in Section 3.1 shall
continue in effect until the expiration of the applicable statute of
limitations, and the agreements of indemnity for claims set forth in Sections 7 and 8
shall survive the execution and delivery of this Agreement and continue in
effect for the period during which such claims are enforceable.
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7. INDEMNIFICATION
BY THE SELLERS.
7.1 Claims Against the
Company. For a period of one year after the Closing, the Sellers (the
“Indemnifying Party”) severally and not jointly agree to indemnify the Purchaser
(each an “Indemnified Party”), against any loss, liability, claim, damage or
expense (including, but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever) to which it or
they may become subject arising out of or based on either (i) any breach of or
inaccuracy in any of the representations and warranties or covenants or
conditions made by the Sellers herein in this Agreement; or (ii) any and all
liabilities arising out of or in connection with: (A) any of the assets of the
Company prior to the Closing; or (B) the operations of the Company prior to the
Closing.
7.2 Claims Against the
Company. The Indemnifying Party shall indemnify and hold the Purchaser
harmless from and against any loss, damage or expense (including reasonable
attorneys’ fees) caused by or arising out of any claim made against the
Company:
(i) for
any foreign, Federal, state or local tax of any kind arising out of or by reason
of the existence or operations of the Company prior to the date of this
Agreement;
(ii) in
respect of transactions occurring prior to the date of this Agreement arising
under the Securities Act, the Exchange Act, or any state blue sky or securities
law;
(iii) in
respect of any salary, bonus, wages or other compensation of any kind owed by
the Company to its employees for services rendered on or prior to the date of
this Agreement;
(iv) for
any damages to the environment caused by or arising out of any pollution
resulting from or otherwise attributable to the operation of the business of the
Company prior to the date of this Agreement;
(v) in
respect of any payable of the Company to the Sellers incurred prior to the date
of this Agreement; and
(vi) in
respect of any liability or indebtedness for borrowed money or otherwise
incurred on or before the date of this Agreement except as provided in Section 2.11
hereof.
7.3 Other Matters. The
Indemnifying Party shall indemnify and hold the Purchaser harmless from and
against any loss, damage or expense (including reasonable attorneys’ fees)
caused by or arising out of (i) any breach or default in the performance by
Sellers of any covenant or agreement of Sellers contained in this Agreement,
(ii) any breach of warranty or inaccurate or erroneous representation made by
Sellers herein or in any Schedule, certificate or other instrument delivered by
or on behalf of Sellers pursuant hereto, and (iii) any and all actions, suits,
proceedings, claims, demands, judgments, costs and expenses (including
reasonable legal and accounting fees) incident to any of the
foregoing.
8. INDEMNIFICATION
BY THE PURCHASER.
8.1 Claims Against
Sellers. For a period of one year after the Closing, Purchaser agrees to
indemnify and hold harmless Sellers from and against all loss, damage or expense
(including reasonable attorneys’ fees) caused by or arising out of (i) any
breach or default in the performance by the Purchaser of any covenant or
agreement of the Purchaser contained in this Agreement, (ii) any breach of
warranty or inaccurate or erroneous representation made by the Purchaser herein
or in any certificate or other instrument delivered by or on behalf of the
Purchaser pursuant hereto and (iii) any and all actions, suits, proceedings,
claims, demands, judgments, costs and expenses (including reasonable legal and
accounting fees) incident to the foregoing.
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9. NOTICE
AND OPPORTUNITY TO DEFEND.
9.1 Participation.
Promptly after the receipt by the Purchaser or the Sellers of notice of any
action, proceeding, claim or potential claim (any of which is hereinafter
individually referred to as a “Circumstance”) which could give rise to a right
to indemnification under this Agreement, the Indemnified Party shall give prompt
written notice to the party or parties who may become obligated to provide
indemnification hereunder; i.e., the Indemnifying Party.
Such notice shall specify in reasonable detail the basis and amount, if
ascertainable, of any claim that would be based upon the Circumstance. The
failure to give such notice promptly shall relieve the Indemnifying Party of its
indemnification obligations under this Agreement, unless the Indemnified Party
establishes that the Indemnifying Party either had knowledge of the Circumstance
or was not prejudiced by the failure to give notice of the Circumstance. The
Indemnifying Party shall have the right, at its option, to compromise or defend
the claim, at its own expense and by its own counsel, and otherwise control any
such matter involving the asserted liability of the Indemnified Party, provided
that any such compromise or control shall be subject to obtaining the prior
written consent of the Indemnified Party which consent shall not be unreasonably
withheld. An Indemnifying Party shall not be liable for any costs of settlement
incurred without the written consent of the Indemnifying Party. If any
Indemnifying Party undertakes to compromise or defend any asserted liability, it
shall promptly notify the Indemnified Party of its intention to do so, and the
Indemnified Party agrees to cooperate fully with the Indemnifying Party and its
counsel in the compromise of or defense against any such asserted liability. All
costs and expenses incurred in connection with such cooperation shall be borne
by the Indemnifying Party, provided such costs and expenses have been previously
approved by the Indemnifying Party. In any event, the Indemnified Party shall
have the right at its own expense to participate in the defense of an asserted
liability.
10. MISCELLANEOUS.
10.1. Successors and
Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns. No assignment of this Agreement or of any rights hereunder shall
relieve the assigning party of any of its obligations or liabilities
hereunder.
10.2 Resignation as Director of
the Company. The Sellers shall deliver or cause to be delivered to the
Purchaser a letter of resignation from ▇▇▇▇▇▇ ▇▇▇▇▇▇, whereby such person shall
resign as the sole officer and director of the Company.
10.3 Notices. All notices
or other communications required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand, sent
prepaid overnight by Federal Express or the like, in writing, or mailed first
class, postage prepaid, by certified mail, return receipt requested as
follows:
|
(a)
|
If
to Sellers, as follows:
|
Narayan
Capital Funding Corp.
Willowhuasca
Wellness, Inc.
c/o Law
Offices of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.A.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇)
▇▇▇-▇▇▇▇ – Telephone
(▇▇▇)
▇▇▇-▇▇▇▇ - Facsimile
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|
(b)
|
If
to Purchaser, as follows:
|
Advanced
Water Technologies, Inc.
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇)
▇▇▇-▇▇▇▇ - Telephone
(▇▇▇)
▇▇▇-▇▇▇▇ - Facsimile
Attn: ▇▇▇▇▇▇▇
▇▇▇▇, Chairman/CEO
or in any
case to such other address or addresses as hereafter shall be furnished as
provided in this Section 10.3 by any
of the parties hereto to any other party hereto.
10.4 Waiver; Remedies. No
delay on the part of the Sellers or the Purchaser in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any waiver
on the part of Sellers or the Purchaser of any right, power or privilege
hereunder operate as a waiver of any other right, power or privilege hereunder,
nor shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise of any other right, power or
privilege hereunder. The rights and remedies herein provided are cumulative and
are not exclusive of any rights or remedies which the parties hereto may
otherwise have at law or in equity.
10.5 Entire Agreement.
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior agreements or
understandings of the parties relating thereto.
10.6 Amendment. This
Agreement may be modified or amended only by written agreement of the parties
hereto.
10.7 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute a single
instrument. Any signature page to be given hereunder shall be in writing and
shall be effective upon hand delivery by electronic mail or
facsimile.
10.8 Governing Law; Venue.
This Agreement shall be governed and construed in accordance with the laws of
the State of Florida. Each party irrevocably and unconditionally: (a)
agrees that any legal proceeding relating to this Agreement must be brought in
the state courts in Miami-Dade County, Florida, or the United States District
Court located in Miami, Florida; (b) consents to the jurisdiction of each such
court in any suit, action or proceeding; (c) waives any objection which it may
have to the laying of venue of any proceeding in any such court; and (d) agrees
that service of any court paper may be effected on it by mail, or in such other
manner as may be provided under applicable laws or court rules in the State of
Florida.
10.9 Captions. All section
titles or captions contained in this Agreement, in any Schedule referred to
herein or in any Exhibit attached hereto are for convenience only, shall not be
deemed a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement.
[SIGNATURE
PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the
parties have caused this Agreement to be duly executed and delivered on the day
and year first above written.
SELLERS:
PURCHASER:
NARAYAN
CAPITAL FUNDING
CORP.
ADVANCED
WATER TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇ By: /s/
▇▇▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President Title: Chairman
and Chief Executive Officer
WILLOWHUASCA
WELLNESS, INC.
By: /s/
▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇,
President
COMPANY:
By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
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