UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
July 16, 2003
Date of Report (Date of earliest event reported)
Commission File Number: 000-49849
AMERICAN MARKET SUPPORT NETWORK, INC.
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(Exact name of registrant as specified in its charter)
Nevada 88-0483722
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
14090 Southwest Freeway, Suite 300
77478 Sugar Land, Texas
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(Address of principal offices, including Zip Code)
(281) 340-2085
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(Registrant's telephone number, including area code)
N/A
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(Former name, former address and former fiscal year,
if changed since last report)
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AMERICAN MARKET SUPPORT NETWORK, INC.
Item 1. Changes in Control of Registrant.
On July 16, 2003, the Registrant entered into a Share Exchange Agreement (the
"Agreement") dated July 16, 2003, with Vito Peppitoni, the sole shareholder
("AIRS Shareholder") of Arizona Aircraft Spares, Inc., an Arizona corporation
("AIRS") and AIRS, which provides for a tax-free share exchange between the
Registrant and AIRS Shareholder, a copy of the Agreement of which is attached
hereto as Exhibit 2.1.
Upon the closing of the Agreement and the transactions contemplated therein,
there will be a change in control of the Registrant. Such closing is presently
anticipated to occur on or about July 16, 2003.
Pursuant to the Agreement, at the Closing (as defined in the Agreement), AIRS
Shareholder will exchange all of its issued and outstanding common shares in the
capital of AIRS representing 1,000,000 common shares with no par value, for
19,658,397 common shares in the capital of the Registrant, par value of $0.001
per share. As a result, upon the completion of the Closing and consummation of
the transactions contemplated therein, AIRS Shareholder will own 19,658,397
common shares in the capital of the Registrant which represents 79% of the
Registrant's total issued and outstanding common shares of 24,884,047. No
preferred shares are to be issued or exchanged.
The shares of the Registrant's common stock that will be exchanged for the
shares of AIRS have not been registered under the Securities Act of 1933, as
amended, in reliance on an exemption from registration, pursuant to Section 4(2)
thereof, and, accordingly, the certificate or certificates representing such
shares shall bear an appropriate restrictive legend in accordance with the
requirements of Rule 144 promulgated thereunder.
Pursuant to the terms of the Agreement, the Registrant will change its name to
"Arizona Aircraft Spares, Inc." shortly after Closing and the Registrant will
file articles of amendment to its incorporation reflecting such name change.
Upon Closing, the existing board of directors of two are increased to four, and
the appointment of two new directors will be effective ten days following the
filing of a Schedule 14F-1 by the Registrant. The following persons are to be
appointed as new directors: Vito Peppitoni and Sylvia Quintero. Ten days
following filing of a Schedule 14F-1, the following persons shall resign from
the board of directors: Pertti Luhanto and Alvie Merrill. Concurrently at that
time, Pertti Luhanto and Alvie Merrill shall also resign as officers of the
Registrant and Vito Peppitoni shall be appointed Chief Executive Officer and
President of the Registrant.
Upon Closing, the business operations of AIRS shall constitute all of the
business operations of the Registrant.
Arizona Aircraft Spares, Inc. is a company that manufactures military aircraft
parts and ground support systems for the United States Government (Air Force;
Army; Navy; Marines and Coast Guard).
AIRS devotes its resources to manufacturing attrition parts for the C-130, F-4,
F-5, F-15, F-16, F-18, T-37, T-38, A-4, A-37 and P-3 aircrafts. AIRS specializes
in airframe structures and skins, sheet metal and machined parts, plastic formed
parts, windows, small and large assemblies, electronics and communication
products, and bonded assemblies.
AIRS's products extend to a number of categorical areas of production and
manufacturing. These include:
Machinery - CNC Capabilities; 5 Axis; Straight Line
Machinery Sheet Metal - Theoretical Loft; High Speed Hammering
Assembly - Small and Large Part Assemblies
Bonding - Metal on Metal and Honeycomb Bonding
Welding - Multi-type and Material Welding
Ceramics - Low and High Temperature Processing
Composites - Boron; Kevlar; Carbon Graphite's;
Polycarbonate Injection Details
Hydraulic Pneumatic Systems - Manufacturing and Maintenance of
Fluid Driven Systems.
Along with AIRS's history of spare parts manufacturing, and its approved
MI-I-45208A program with the US Government, AIRS continually improves its
manufacturing capabilities with the introduction of advanced technology and tool
design. AIRS's manufacturing facility and offices are housed in a 14,400 square
foot industrial building which is situated in Tucson International Business
Park, located approximately 1 mile from the Tucson International Airport and
approximately 3 miles from Davis-Monthan Air Force Base.
Vito Peppitoni, a director of the Registrant owns 19,658,397 common shares,
Pertti Luhanto, a director of the Registrant, Chairman, Secretary and Treasurer
owns 1,414,400 common shares, Alvie Merrill, a director and President of the
Registrant owns 100,000 common shares. Sylvia Quintero owns no shares in the
capital of the Registrant.
Item 2. Acquisition or Disposition of Assets.
As described in Item 1 above, as a result of the share exchange, AIRS becomes a
wholly owned subsidiary of the Registrant. The Registrant acquires One Hundred
Percent (100%) of the issued and outstanding capital stock of AIRS, thereby
acquiring all of the assets, liabilities and properties of AIRS, an Arizona
corporation that was incorporated on November 30, 1990.
The Registrant will file the required audited financial statements and pro forma
consolidated financial information as an amendment to this Form 8-K as soon as
practicable but no later than Sixty (60) days from the date of this Form.
Item 5. Other Event.
On July 8, 2003 the Registrant filed a Certificate of Amendment to its Articles
of incorporation with the Secretary of State of Nevada to increase its
authorized capital from 20,000,000 common shares to 40,000,000 common shares,
having a $0.001 par value per share, and to increase its authorized capital from
5,000,000 preferred shares to 10,000,000 preferred shares, having a $0.001 par
value per share.
Item 7. Financial Statements, Pro forma Financial Information and Exhibits.
(a) Financial statements of businesses acquired.
The Registrant intends to file the financial statements required by
this Item within Sixty (60) days from the date hereof.
(b) Pro forma financial information.
The Registrant intends to file the pro forma financial information
required by this Item within Sixty (60) days from the date hereof.
(c) Exhibits List:
Exhibit Item Description
2.1 Share Exchange Agreement by and among American Market
Support Network, Inc., Vito Peppitoni, sole shareholder of
Arizona Aircraft Spares, Inc. and Arizona Aircraft Spares,
Inc.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934, as
amended, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, hereunto duly authorized.
American Market Support Network, Inc.
By:
/s/ Alvie Merrill
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Alvie Merrill, President
Date: July 16, 2003
EXHIBIT INDEX
Exhibit No. Description
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2.1 Share Exchange Agreement by and among American Market
Support Network, Inc., Vito Peppitoni, sole shareholder of
Arizona Aicraft Spares, Inc. and Arizona Aircraft Spares,
Inc.
SHARE EXCHANGE AGREEMENT
THIS AGREEMENT (the "Agreement") is made and effective this 16th day of July,
2003, by and between American Market Support Network, Inc. a Nevada corporation
("AMSN"), Arizona Aircraft Spares, Inc. an Arizona corporation ("AIRS") and Vito
Peppitoni ("AIRS Shareholder") the sole shareholder holding all of the issued
and outstanding shares in AIRS.
RECITALS
WHEREAS, AMSN and AIRS Shareholder propose to exchange shares for a tax
free reorganization, pursuant to this Agreement which provides for the exchange
and conversion of all the issued and outstanding capital stock of 1,000,000
common shares of AIRS into shares of AMSN and the exchange of 19,658,397 common
shares of AMSN for such 1,000,000 common shares of AIRS, such that AIRS
Shareholder becomes AMSN shareholder, owning 79% of AMSN's issued and
outstanding common shares of 24,884,047.
NOW, THEREFORE, in consideration of the foregoing and in reliance on the
representations, warranties, agreements, premises and mutual covenants herein
contained, and for other good and value consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Share Exchange.
1.1 Agreement to exchange. AIRS Shareholder shall assign, transfer and
convey unto AMSN, and AMSN shall acquire all of the issued and outstanding
capital stock of AIRS in a tax free reorganization. The issued and outstanding
common shares of AMSN are quoted for trading on the NASD OTC: Bulletin Board
under symbol "AMSN". Pursuant to this share exchange agreement hereinafter
agreed upon between the parties, upon such share exchange, AIRS shall become a
subsidiary of AMSN, the surviving corporation, and both parties agree that upon
Closing (as that term is defined hereunder), there shall be a filing for a name
change application to "Arizona Aircraft Spares, Inc." and a filing for amendment
to the Company articles to reflect the name change. It is also agreed that
immediately after Closing, the number of directors of AMSN, the surviving
corporation, shall be increased from two to four, appointing along with the
existing two directors of AMSN, Mr. Pertti Luhanto and Mr. Alvie Merrill; Mr.
Vito Peppitoni and Ms. Sylvia Quintero.
1.2 Issuance of shares for exchange. Immediately prior to the Closing, there
shall be 1,000,000 shares of common stock, of no par value, of AIRS (the "AIRS
Shares") issued and outstanding owned by AIRS Shareholder. The aggregate
purchase price for the AIRS Shares shall be 19,658,397 shares of common stock,
par value $0.001 per share (the "AMSN Common Stock"), of AMSN (the "AMSN
Shares"). At the Closing, the AIRS Shares shall be converted into and exchanged
for the AMSN Shares so that each of the AIRS Shares shall be converted into
19.658397 shares of AMSN Common Stock. The AMSN Shares issued in exchanged for
the AIRS Shares shall be restricted shares within the meaning of the Rule 144,
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the certificate or certificates representing such shares shall
bear an appropriate restrictive legend in accordance with the requirements of
Rule 144 (the "Rule 144 Legend"), in substantially the following form (and a
stop-transfer order may be placed against transfer of such certificates):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
securities may not be sold, transferred or assigned in the absence of
an effective registration statement for the securities under said Act,
or an opinion of counsel, in form, substance and scope customary for
opinions of counsel in comparable transactions, that registration is
not required under said Act or unless sold pursuant to Rule 144 under
said Act."
1.3 Closing. The closing of the transaction contemplated in this Agreement
(the "Closing") shall take place at the offices of AMSN, on or around the date
first written above or at such other date, time or place as shall be mutually
acceptable to the parties (the "Closing Date").
1.4 Transactions and documents at and after Closing.
(a) At the Closing, AIRS Shareholder shall deliver to AMSN
certificate representing the AIRS Shares, duly endorsed for
transfer.
(b) At the Closing, AMSN shall deliver to AIRS Shareholder, a
certificate or certificates for the AMSN Shares, issued in the
name of AIRS shareholder, and bearing a Rule 144 Legend.
(c) From time to time, and at any time, at AMSN's request, whether on
or after the Closing Date, and without further consideration,
AIRS Shareholder shall, at his own expense, except as otherwise
provided in this Agreement, execute and deliver such further
documents and instruments of conveyance and transfer and shall
take such further actions as may be necessary or convenient, in
the reasonable opinion of AMSN, to transfer and convey to AMSN,
all right, title and interest in and to the AIRS Shares, free and
clear of any lien or adverse claim.
2. Additional Agreements.
2.1 AMSN's access and inspection. AIRS Shareholder and AIRS have allowed,
and shall allow, AMSN, and its authorized representatives, full access during
AIRS's normal business hours, from and after the date hereof, and prior to the
Closing Date, to all of AIRS's properties, books, contracts, commitments, and
records for the purpose of making an investigation as AMSN may desire, and AIRS
shall furnish AMSN the information concerning AIRS's affairs as AMSN may
request. AIRS has caused, and shall cause, AIRS's personnel to assist AMSN in
making an investigation and shall cause the counsel, accountants, and other
non-employee representatives of AIRS to be reasonably available to AMSN for such
purposes.
2.2 AIRS Shareholder's access and inspection. AMSN shall allow AIRS
Shareholder, and its authorized representatives, access during AMSN's normal
business hours, from and after the date hereof, and prior to the Closing Date,
to the of AMSN's properties, books, contracts, commitments, and records as AIRS
Shareholder may reasonably request for the purpose of determining the financial
condition of AMSN. AMSN shall cause AMSN's personnel to assist AIRS Shareholder
in making the investigation and shall cause the counsel, accountants, and other
non-employee representatives of AMSN to be reasonably available to AIRS
Shareholder for such purposes.
2.3 Cooperation. The parties shall cooperate fully with each other, and
with their representatives, counsel, and accountants, in connection with any
steps required to be taken as part of their respective obligations under this
Agreement, and will use their best efforts to consummate the transactions
contemplated hereby and fulfill their obligations hereunder.
2.4 Expenses. All of the expenses incurred by AMSN in connection with the
authorization, preparation, execution, and performance of this Agreement by
AMSN, including without limitation, all fees and expenses of agents,
representatives, counsel, and accountants for AMSN shall be paid by AMSN. All
expenses incurred by AIRS Shareholder and AIRS in connection with the
authorization, preparation, execution, and performance of this Agreement,
including without limitation all fees and expenses of agents, representatives,
counsel, and accountants, shall be paid by AIRS Shareholder and AIRS
respectively.
2.5 Brokers. Each party hereto jointly and severally represents and
warrants that no broker or finder has acted on its behalf in connection with
this Agreement or the transactions contemplated herein and each party shall
indemnify the other and save it harmless from any claim or demand for commission
or other compensation by any broker or finder claiming to have been employed by
or on behalf of the party.
3. Representations and Warranties of AIRS. AIRS represents, covenants
and warrants to AMSN as follows:
3.1 Corporate existence/standing/authority. AIRS is a corporation duly
organized, validly existing and in good standing under the laws of Arizona and
has the corporate power and authority to own, operate and lease its respective
properties, to carry on its business as now being conducted, and to enter into
this Agreement and to carry out the transactions contemplated hereby. AIRS is
duly qualified to do business and is in good standing in each jurisdiction where
the failure to qualify would have a material adverse affect on it. AIRS has
delivered to AMSN or its counsel true and correct copies of the articles or
certificate of incorporation and the bylaws of AIRS, together with any
amendments thereto.
3.2 Shares of stock. All issued and outstanding shares of capital stock of
AIRS have been duly authorized and validly issued and are fully paid and
nonassessable. AIRS has 1,000,000 shares of common stock authorized, with no par
value. There are presently 1,000,000 shares of common stock issued and
outstanding. There is no other class of capital stock, subscription, option,
warrant, call, right, contract, commitment, understanding or arrangement
relating to the issuance, sale or transfer by AIRS of any shares of its capital
stock, including any right of conversion or exchange under any outstanding
security or other instrument.
3.3 Authority. AIRS has the full right and authority to enter into and
fully perform this Agreement and all other agreements and documents to be
delivered to AMSN in connection herewith. All actions required to be taken by
AIRS to authorize the execution, delivery and performance of this Agreement and
all other agreements and documents to be delivered in connection herewith have
been or will by the Closing Date be properly taken. This Agreement constitutes
the valid and binding obligation of AIRS. Neither the execution and delivery of
this Agreement and all other agreements and documents executed in connection
herewith nor the consummation of the transactions contemplated hereby nor the
performance of this Agreement and all other agreements and documents executed in
connection herewith will (i) conflict with or result in a breach of any
provision of the certificate of incorporation or by-laws of AIRS, (ii) violate,
conflict with, or result in a breach of any provision of, 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 or in a right of
termination or cancellation of, or accelerate the performance or the payment of
money required by, or result in the creation of any lien, security interest,
charge or encumbrance upon any of AIRS' properties under any of the terms,
conditions or provisions of any loan agreement, note, bond, mortgage, indenture,
lease, agreement or other instrument or commitment to which AIRS is a party, or
by which AIRS or its properties may be bound or affected, or (iii) violate any
order, writ, injunction, decree, judgment, or ruling of any court or
governmental authority specifically applicable to AIRS or any of its properties.
3.4 No violation. To the best of its knowledge and belief, AIRS has
complied with all rules, regulations, codes, and laws affecting its business and
operations and is not in default under, or in violation of, any provision of any
federal, state or local rule, regulation, code or law, the failure to comply
with could reasonably be expected to affect materially and adversely the
business operations of AIRS. AIRS has not received any notice of any default or
violation.
3.5 Licenses and rights. AIRS possesses all permits, licences, approvals,
cage code and other authorizations from governmental or regulatory authorities
and from all other persons or entities that are necessary to permit it to engage
in its business as presently conducted in and at all locations and places where
it is presently operating. The licenses, permits, approvals, cage code and other
authorizations are set forth on Schedule 3.5.
3.6 Consents. Except as set forth on Schedule 3.6, no approval or consent
of any person, firm or other entity or body is required to be obtained by AIRS
for the authorization of this Agreement or the consummation by AIRS of the
transactions contemplated hereby.
3.7 No defaults. To the best knowledge of AIRS, no default (or event with
the passage of time or the giving of notice or both would become a default)
exists or is alleged to exist regarding the performance of any material
obligation of AIRS under the terms of any material indenture, license, mortgage,
deed of trust, lease, note, guaranty or other contract or instrument, including,
but not limited to, any contract referred to in Section 3.17, to which AIRS is a
party or to which its assets are subject, or by which it is otherwise bound, and
no such default or event exists or is alleged to exist concerning the
performance of any obligation of any other party thereto which could reasonably
be expected to affect, materially and adversely, the business operations of
AIRS.
3.8 Financial statements. AIRS has furnished AMSN with unaudited financial
statements of AIRS for the period ended March 31, 2003 (the " AIRS Financial
Statements"). The AIRS Financial Statements were prepared in accordance with
generally accepted accounting principles and present fairly and accurately the
information set forth therein. AIRS has furnished a comfort letter to AMSN from
its auditors in the preparation of its audited financial statements for the last
two fiscal years and preparation of its quarter ending June 30, 2003 that such
audited financial statements and unaudited financial statements ending the
quarter of June 30, 2003 shall be ready for consolidation and filing with SEC
within Forty Five (45) days of the execution of this Agreement.
3.9 Absence of certain changes. Except as set forth on Schedule 3.9, since
April 1, 2003:
(a) AIRS has actively conducted its business in the ordinary and regular
course;
(b) Since that date, there has not been any material adverse change in the
condition (financial or otherwise), results of operations, assets,
liabilities, properties, business or prospects of AIRS nor is any
event threatened that would cause an adverse change, nor has there
occurred any event or governmental regulation or order restricting the
business of AIRS;
(c) AIRS has not guaranteed, or agreed to guarantee, any material debt,
liability or other obligation of any person, firm, entity or
corporation;
(d) No payments of any kind have been made or authorized by or on behalf
of AIRS to or on behalf of officers, directors, shareholders or
employees of AIRS or under any management agreements with AIRS, other
than in the ordinary course of business;
(e) No shareholders, directors, officers, employees or consultants of AIRS
are now indebted or under obligation to AIRS on any account
whatsoever; and
(f) AIRS is not indebted to any of its shareholders, directors, officers,
employees or consultants, other than in the ordinary course of
business.
3.10 Facilities and equipment. The personal property owned or leased by
AIRS at its facility for the operation of, or used in, its business is in its
possession or under its control and is adequate for the operation of the
business as presently conducted.
3.11 Title to assets. AIRS has good, valid, and marketable title to all of
its real property and leasehold estates and good and valid title to all of its
other assets (tangible and intangible), including, but not limited to, all
leasehold improvements and equipment and all other properties and assets
reflected or required to be reflected in the AIRS Financial Statements and all
properties and assets purchased or leased by it since the dates of the AIRS
Financial Statements (except for properties and assets so reflected or required
to be reflected that have been sold or otherwise disposed of in the ordinary
course of business), subject to no liens, pledges, encumbrances, mortgages,
security interests, charges or other similar restrictions of any nature
whatsoever. AIRS enjoys peaceful and quiet possession of its properties and
assets pursuant to or by all of the deeds, bills of sale, leases, licenses, and
other agreements under which it is operating its business.
3.12 Absence of undisclosed liabilities. AIRS does not have any material
liabilities or obligations, either accrued or unaccrued, fixed or contingent,
which have not been reflected in the AIRS Financial Statements that could
reasonably be expected to affect, materially and adversely, the business
operations of AIRS.
3.13 Litigation. Schedule 3.13 hereof sets forth a list of all
administrative or judicial proceedings to which AIRS is a party. Except as set
forth on Schedule 3.13, there is no action, suit, claim, demand, arbitration or
other proceeding, administrative or judicial, pending or, to the best knowledge
of AIRS, threatened against or relating to AIRS which, if adversely determined
or resolved, would materially and adversely affect the financial condition,
results of operations, business or prospects of AIRS.
3.14 Patents and trademarks.
(a) Except as set forth on Schedule 3.14, AIRS does not own, or
operate under, any patent, trademark or service mark or any
applications therefor. All trade names (including those whose use is
limited to one or more states of the United States) owned or used by
AIRS are listed on Schedule 3.14 and, to the extent indicated therein,
have been duly registered with the states of the United States or the
corresponding offices of other countries. Except as set forth on
Schedule 3.14, AIRS is the sole and exclusive owner of, or has the
sole and exclusive power with respect to, or has the sole and
exclusive right to use, the trade names specified on Schedule 3.14.
(b) AIRS has not ever been charged with infringement or violation of
any adversely held trademark, trade name or copyright.
(c) There are no claims or demands of any other person, firm or
corporation pertaining to the trade names, copyright registrations or
pending copyright registration applications, as the case may be,
listed on the schedules, and no proceedings have been instituted that
challenge the right of AIRS in respect thereof.
3.15 Employee benefits. All of the employee benefit plans maintained by
AIRS (and each funding medium that may be attendant thereto) are in compliance
with applicable law and all reporting and disclosure requirements under
applicable laws and regulations, and have been administered and operated in
accordance with their respective provisions and applicable law. There are no
actions, suits or claims (other than routine claims for benefits) pending with
respect to the employee benefit plans.
3.16 Taxes and tax returns. As of the Closing, AIRS will have duly filed
all income, franchises and other tax returns, reports and extensions required to
be filed by it and has duly paid or made provisions for the payment of all taxes
(including any interest or penalties) that are due and payable pursuant to the
returns. AIRS has withheld proper and accurate amounts from their employees'
compensation in substantial compliance with all withholding and similar
provisions of applicable law. There are and will hereafter be no tax
deficiencies (including penalties and interest) of any kind assessed against
AIRS regarding any period ending on or before the Closing Date for which AIRS
has not made adequate provisions.
3.17 Contracts. AIRS has heretofore furnished to AMSN complete copies of
all contracts and agreements, and AIRS has complied with the obligations
contained in the contracts, is not in default thereunder and nor will the
consummation of the transactions contemplated by this Agreement result in a
default. All contracts, understandings, commitments, arrangements, and
agreements are in full force and effect.
3.18 Collective bargaining agreements. There are no collective bargaining
agreements with any labor organization to which AIRS is a party. The relations
of AIRS with its employees are good and there are no impending labor
difficulties.
3.19 Insurance. AIRS has maintained insurance policies for its business and
operation and a copy of the same is described in Schedule 3.19.
3.20 Real property. Schedule 3.20 hereof sets forth a true and complete
list of the real property lease and lease extension to which AIRS is a party.
AIRS has heretofore furnished to AMSN true and complete copies of the real
estate leases that are in good standing and in full force and effect for the
leased term thereof. Notwithstanding the foregoing, AIRS is currently
negotiating the purchase of property and building of its facility and the
property and building are presently held in escrow awaiting closing. A copy of
the escrow agreement with Fidelity National Title Agency, Inc. in this regard
dated June 10, 2003 has been provided to AMSN along with an independent real
estate appraisal report from Sinclair Appraisal Services LLC. dated May 14, 2003
concluding in their appraisal report that the "as is" market value of the
property and building of its facility is $1,020,000.
3.21 Rights or options to shares of AIRS. No person, firm, entity or
corporation has a right, agreement or option, whether oral or in writing, or a
right capable of becoming a right, agreement or option:
(a) for the purchase of the shares in the capital of AIRS;
(b) for the purchase, subscription or issuance of any of the unissued
shares in the capital of AIRS; and
(c) to require AIRS to purchase, redeem or otherwise acquire the shares in
the capital of AIRS.
3.22 Material misstatements or omissions. No representations or warranties
made by AIRS under this Agreement or in any certificate, schedule or other
document furnished to be furnished to AMSN pursuant hereto, or in connection
with the transactions contemplated by this Agreement, contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements of fact contained therein not
misleading.
3.23 AIRS Shareholder's representations and warranties. AIRS Shareholder
represents and warrants along with AIRS such representations and warranties
described in Section 3.3, 3.6, 3.7, 3.12, 3.13 and 3.22 herein to AMSN.
4. Representations and Warranties of AMSN. AMSN represents, covenants and
warrants to AIRS Shareholder and AIRS as follows:
4.1 Corporate existence/standing/authority. AMSN is a corporation duly
organized, validly existing and in good standing under the laws of Nevada and
has the corporate power and authority to own, operate and lease its respective
properties, to carry on its business as now being conducted, and to enter into
this Agreement and to carry out the transactions contemplated hereby. AMSN is a
reporting company under the Securities Exchange Act of 1934, as amended (the
"1934 Act") and is, duly qualified to do business and is in good standing in
each jurisdiction where the failure to qualify would have a material adverse
effect on it. AMSN has delivered to AIRS or its counsel true and correct copies
of the articles or certificates of incorporation and the bylaws of AMSN,
together with any amendments thereto.
4.2 Shares of stock. AMSN has authorized 40,000,000 shares of stock, of
which are designated as common stock, and 10,000,000 shares of stock, of which
are designated as preferred stock, all with a par value of $0.001 per share.
There are 5,225,650 issued and outstanding shares of AMSN Common Stock. After
the Closing, there will be 24,884,047 shares of AMSN Common Stock issued and
outstanding. All issued and outstanding shares of capital stock of AMSN have
been duly authorized and validly issued and are fully paid and non-assessable.
There is no subscription, option, warrant, call, right, contract commitment,
understanding or arrangement relating to the issuance, sale or transfer by AMSN
of any shares of its capital stock, including any right of conversion or
exchange under any outstanding security or other instrument. At the Closing, the
AMSN Shares to be issued to AIRS and its shareholder(s) on the consummation of
the transactions contemplated hereunder will be exempt from registration under
the Securities Act, pursuant to Section 4(2) thereof, and shall have been exempt
or registered or qualified under the applicable state securities or blue sky
laws for issuance. Such shares, when issued in accordance with the terms of this
Agreement, will be fully paid and non-assessable.
4.3 Authority. AMSN has the full right and authority to enter into and
fully perform this Agreement and all other agreements and documents to be
delivered to AIRS in connection herewith. All actions required to be taken by
AMSN to authorize the execution, delivery and performance of this Agreement and
all other agreements and documents to be delivered in connection herewith have
been or will by the Closing Date be properly taken. This Agreement constitutes
the valid and binding obligation of AMSN. Neither the execution and delivery of
this Agreement and all other agreements and documents executed in connection
herewith nor the consummation of the transactions contemplated hereby nor the
performance of this Agreement and all other agreements and documents executed in
connection herewith will (i) conflict with or result in a breach of any
provision of the certificate of incorporation or by-laws of AMSN, (ii) violate,
conflict with, or result in a breach of any provision of, 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 or in a right of
termination or cancellation of, or accelerate the performance or the payment of
money required by, or result in the creation of any lien, security interest,
charge or encumbrance upon any of AMSN's properties under any of the terms,
conditions or provisions of any loan agreement, note, bond, mortgage, indenture,
lease, agreement or other instrument or commitment to which AMSN is a party, or
by which AMSN or its properties may be bound or affected, or (iii) violate any
order, writ, injunction, decree, judgment, or ruling of any court or
governmental authority specifically applicable to AMSN or any of its properties.
4.4 No violation. To the best of its knowledge and belief, AMSN has
complied with all rules, regulations, codes, and laws affecting its business and
operations and is not in default under, or in violation of, any provision of any
federal state or local rule, regulation, code or law nor has AMSN been given
notice of any default or violation.
4.5 Licenses and rights. AMSN possesses all franchises, easements,
licenses, permits and other authorizations from governmental or regulatory
authorities and from all other persons or entities that are necessary to permit
it to engage in its business as presently conducted in and at all locations and
places where it is presently operating. The franchises, licenses, permits, and
other authorizations are set forth on Schedule 4.5.
4.6 Consents. Except as set forth on Schedule 4.6, no approval or consent
of any person, firm or other entity or body is required to be obtained by AMSN
for the authorization of this Agreement or the consummation by AMSN of the
transactions contemplated hereby
4.7 No defaults. Except as set forth on Schedule 4.7, to the best knowledge
of AMSN, no default (or event that with the passage of time or the giving of
notice or both would become a default) exists or is alleged to exist regarding
the performance of any obligation of AMSN under the terms of any indenture,
license, mortgage, deed of trust, lease, note, guaranty or other contract or
instrument, including, but not limited to, any contract set forth on Schedule
4.17, to which AMSN is a party or to which its assets are subject, or by which
it is otherwise bound, and no such default or event exists or is alleged to
exist concerning to the performance of any obligation of any other party
thereto.
4.8 Financial statements. AIRS has been furnished with audited financial
statements of AMSN for the year ended December 31, 2002 and unaudited financial
statements of AMSN for the quarter ended March 31, 2003 (the "AMSN Financial
Statements"). The AMSN Financial Statements were prepared in accordance with
generally accepted accounting principles applied on a basis consistent with
prior periods, and, as of their date of issuance were, or will be true, correct
and complete all material respects and present fairly and accurately the
information set forth therein.
4.9 Absence of certain changes. Since April 1, 2003:
(a) AMSN has conducted its business in the ordinary and regular course;
(b) There has not been any material adverse change in the condition
(financial or otherwise), results of operations, assets, liabilities,
properties, business or prospects of AMSN;
(c) Nor is any event threatened that would cause an adverse change, nor
has there occurred any event or governmental regulation or order
restricting the business of AMSN;
(d) AMSN has not guaranteed, or agreed to guarantee, any material debt,
liability or other obligation of any person, firm, entity or
corporation;
(e) No payments of any kind have been made or authorized by or on behalf
of AMSN to or on behalf of officers, directors, shareholders or
employees of AMSN or under any management agreements with AMSN, other
than in the ordinary course of business;
(f) No shareholders, directors, officers, employees or consultants of AMSN
are now indebted or under obligation to AMSN on any account
whatsoever; and
(g) AMSN is not indebted to any of its shareholders, directors, officers,
employees or consultants, other than in the ordinary course of
business.
4.10 Facilities and equipment. AMSN does not own any real or personal
property or lease any real property or facility for its operation.
4.11 Title to assets. AMSN does not own any tangible property.
4.12 Absence of undisclosed liabilities. AMSN does not have any material
liabilities or obligations, either accrued or unaccrued, fixed or contingent,
which have not been reflected in the AMSN Financial Statements or set forth on
Schedule 4.12 hereof, or which exceed in the aggregate $5,000.
4.13 Litigation. Schedule 4.13 hereof sets forth a list of all
administrative or judicial proceedings to which AMSN is a party. Except as set
forth on Schedule 4.13, there is no action, suit, claim, demand, arbitration or
other proceeding, administrative or judicial, pending or, to the best knowledge
of AMSN, threatened against or relating to AMSN which, if adversely determined
or resolved, would materially and adversely affect the financial condition,
results of operations, business or prospects of AMSN.
4.14 Patents and trademarks.
(a) AMSN does not own, or operate under, any patent, trademark or service
mark or any applications therefor. All trade names (including those
whose use is limited to one or more states of the United States) owned
or used by AMSN are listed on Schedule 4.14 and, to the extent
indicated therein, have been duly registered with the states of the
United States or the corresponding offices of other countries.
(b) Except as set forth on Schedule 4.14(b), AMSN has not ever been
charged with infringement or violation of any adversely held
trademark, trade name or copyright.
(b) Except as set forth on Schedules 4.14(a) and 4.14(b), there are no
claims or demands of any other person, firm or corporation pertaining
to the trade names, copyright registrations or pending copyright
registration applications, as the case may be, listed on the
schedules, and no proceedings have been instituted that challenge the
right of AMSN in respect thereof.
4.15 Employee benefits. All of the employee benefit plans maintained by
AMSN (and each funding medium that may be attendant thereto) are in compliance
with applicable law and all reporting and disclosure requirements under
applicable laws and regulations, and have been administered and operated in
accordance with their respective provisions and applicable law. There are no
actions, suits or claims (other than routine claims for benefits) pending with
respect to the employee benefit plans.
4.16 Taxes and tax returns. AMSN has duly filed all income, franchise and
other tax returns and reports required to be filed by it and has duly paid or
made provision for the payment of all taxes (including any interest or
penalties) that are due and payable pursuant to the returns. AMSN has withheld
proper and accurate amounts from their employees' compensation in substantial
compliance with all withholding and similar provisions of applicable law. There
are and will hereafter be no tax deficiencies (including penalties and interest)
of any kind assessed against AMSN regarding any period ending on or before the
Closing Date.
4.17 Contracts. AMSN has heretofore furnished to AIRS or its counsel true
and complete copies of all contracts and agreements and AMSN has complied with
the obligations pertaining to it contained in the contracts, is not in default
thereunder and nor will the consummation of the transactions contemplated by
this Agreement result in the default. All the contracts, understandings,
commitments, arrangements, and agreements are in full force and effect.
4.18 Collective bargaining agreements. There are no collective bargaining
agreements with any labor organization to which AMSN is a party. The relations
of AMSN with its employees are good and there are no impending labor
difficulties.
4.19 Insurance. AMSN has and maintains no insurance policies.
4.20 Real property. AMSN does not own nor lease any real property.
4.21 SEC filings. Since June 16, 2003, AMSN has filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the Securities and Exchange Commission ("SEC"), pursuant to the reporting
requirements of the Exchange Act of 1934, as amended (the "1934 Act") (all of
the foregoing filed prior to the date hereof and all exhibits included therein
and financial statements and schedules thereto and documents (other than
exhibits to such documents) incorporated by reference therein, being hereinafter
referred to herein as the "SEC Documents"). As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
1934 Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time they
were filed with the SEC, 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 light of the circumstances under which
they were made, not misleading. None of the statements made in any such SEC
Documents is, or has been, required to be amended or updated under applicable
law (except for such statements as have been amended or updated in subsequent
filings prior the date hereof). As of their respective dates, the financial
statements of AMSN included in the SEC Documents complied as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto. Such financial statements
have been prepared in accordance with United States generally accepted
accounting principles, consistently applied, during the periods involved (except
(i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent they
may not include footnotes or may be condensed or summary statements) and fairly
present in all material respects the consolidated financial position of AMSN as
of the dates thereof and the results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). Except as set forth in the financial statements of
AMSN included in the SEC Documents, AMSN has no liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to March 31, 2003 and (ii) obligations under contracts and
commitments incurred in the ordinary course of business and not required under
generally accepted accounting principles to be reflected in such financial
statements.
4.22 Rights or options to shares of AMSN. No person, firm, entity or
corporation has a right, agreement or option, whether oral or in writing, or a
right capable of becoming a right, agreement or option:
(a) for the purchase of the shares in the capital of AMSN;
(b) for the purchase, subscription or issuance of any of the unissued
shares in the capital of AMSN; and
(c) to require AMSN to purchase, redeem or otherwise acquire the shares in
the capital of AMSN.
4.23 Material misstatements or omissions. No representations or warranties
made by AMSN under this Agreement or in any certificate, schedule or other
document furnished or to be furnished to AIRS, or its counsel pursuant hereto,
or in connection with the transactions contemplated by this Agreement, contains
or will contain any untrue statement of a material fact, or omits or will omit
to state a material fact necessary to make the statements of fact contained
therein not misleading.
5. Covenants and Transactions Prior to Closing
5.1 Conduct and transactions of AIRS prior to the Closing. Between the date
of this Agreement and the Closing, the Chief Executive Officer and the sole
director of AIRS shall retain full control of the management and business
thereof. In order to assure protection and preservation of AIRS's business as
well as AIRS's performance of its obligations under and related to this
Agreement, AIRS and AIRS Shareholder agree that from the date of this Agreement,
up to and including, the Closing;
(a) AIRS shall give AMSN, its counsel, accountants, appraisers, and other
representatives or experts retained by AMSN full access on reasonable prior
notice to all the premises, books, records, and personnel of AIRS during
AIRS's normal business hours and cause AIRS to furnish to AMSN the
financial and operating data and other information with respect to the
business and properties of AIRS as AMSN may from time to time reasonably
request. In the event of termination of this Agreement for any reason, AMSN
will return all documents, work papers, and other materials obtained from
AIRS and will not further disclose to third parties any confidential
information obtained by it pursuant hereto.
(b) AIRS shall use all reasonable efforts to (i) preserve intact the
present business organization and personnel of AIRS, (ii) preserve the
present goodwill and advantageous relationships of AIRS with all persons
having business dealings with AIRS, and (iii) preserve and maintain in
force all licenses, certificates, leases, contracts, permits,
registrations, franchises, confidential trade names and copyrights, and
applications for any of same, bonds, and other similar rights of AIRS.
(c) AIRS shall operate its business in the usual, regular, and ordinary
course and manner, and refrain from encumbering or mortgaging any property
or assets or terminating or modifying any lease or incurring any obligation
(contingent or otherwise), except in the ordinary course of business.
(d) AIRS Shareholder and AIRS will exert best efforts to fulfill in a
timely manner all objectives and conditions to permit consummation of the
transactions as contemplated by this Agreement and execute and deliver to
AMSN any and all documents necessary, in the reasonable opinion of counsel,
to consummate the transactions contemplated by this Agreement.
(e) AIRS Shareholder and AIRS shall not declare or pay any dividend, or
make any distribution of its assets to its sole shareholder, or purchase or
retire any of its shares.
(f) AIRS Shareholder and AIRS shall not allot, issue, grant or enter into
any agreement for the allotment or issuance of any shares or securities,
other rights to acquire shares or securities, or securities convertible
into, exchangeable for, or which otherwise carry the right to acquire,
directly or indirectly, any shares or securities in its capital.
(g) AIRS Shareholder and AIRS shall not sell, or otherwise dispose of all
or any part of its assets or agree to do or perform any act or enter into
any transaction or negotiation which could reasonably be expected to
interfere with this Agreement, or which would render inaccurate any of the
representations and warranties set out in this Agreement.
(h) Except for Section 3.20 herein, AIRs shall not increase its
indebtedness for borrowed money other than trade obligations and payables
entered into in the ordinary course of business.
(i) AIRS Shareholder and AIRS shall not enter into any arrangements or
transactions with any director, former director, officer, former officer,
shareholder, former shareholder, employee or former employee of AIRS, or
any other person that is not dealing at "arm's length" with AIRS or AIRS
Shareholder.
5.2 Conduct by AMSN prior to Closing. Between the date of this Agreement
and the Closing Date, AMSN shall use its best efforts to fulfill in a timely
manner all objectives and conditions to permit consummation of the transactions
as contemplated by this Agreement and execute and deliver to AIRS Shareholder
and AIRS any and all documents necessary, in the reasonable opinion of its
counsel, to consummate the transactions contemplated by this Agreement.
6. Conditions Precedent To Obligations Of AMSN. The obligations of AMSN under
this Agreement are, at its option, subject to satisfaction of the following
conditions at the Closing:
6.1 Representations of AIRS Shareholder and AIRS. The representations and
warranties of AIRS Shareholder and AIRS set forth in this Agreement shall be
true and complete in all material respects on and as of the Closing to the same
extent and with the same force and effect as if made on such date, except as
expressly provided to the contrary in this Agreement or as affected by the
transactions contemplated by this Agreement.
6.2 Consents. All necessary approvals or consents shall have been obtained
from any and all federal departments and agencies and from all other
commissions, boards, agencies and from any other person, firm or entity whose
approval or consent is necessary to the consummation of the transactions
contemplated by this Agreement.
6.3 Performance by AIRS Shareholder and AIRS. AIRS Shareholder and AIRS
shall have duly performed all obligations, covenants, and agreements undertaken
by them and complied with all terms and conditions applicable to them to be
performed and complied with prior to the Closing.
6.4 Documents to be delivered to AMSN. AMSN shall have received:
(a) certificate dated as of the Closing, and executed by an officer of
AIRS, certifying as to the fulfillment of the matters contained in
Sections 6.1, 6.2, and 6.3 and confirming the representations and
warranties set forth in Sections 6.5 and 6.6 as of the Closing;
(b) a copy of the Bylaws of AMSN and any and all amendments thereto,
certified by the Secretary of AIRS;
(d) copies of Minutes or Consents of the sole Director and sole
Shareholder, certified by the Secretary of AIRS, approving the
Agreement and authorizing the officers and the Company to consummate
the transaction;
(e) Certificate representing 1,000,000 of the AIRS Shares, duly endorsed
for transfer from AIRS Shareholder, representing all of the issued and
outstanding Shares of AIRS;
(f) Certificate of Good Standing of AIRS; and
(g) Statement as to status of corporate taxes of AIRS.
6.5 Suits. No suit, action or other proceeding shall be threatened or
pending before any court or governmental agency in which it will be or it is
sought to restrain or prohibit or to obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated by this Agreement or which is likely to materially and adversely
affect the financial condition, results of operations, business or prospects of
AIRS or AIRS Shareholder.
6.6 Absence of default. No condition or event which constitutes an event of
default hereunder by AIRS or AIRS Shareholder or which, after notice and lapse
of time, or both, would constitute an event of default hereunder by AIRS or AIRS
Shareholder shall have occurred and be continuing.
7. Conditions Precedent to Obligations of AIRS. The obligations of AIRS
Shareholder and AIRS under this Agreement are, at its option, subject to
satisfaction of the following conditions at or prior to the Closing:
7.1 Representations and warranties. The representations and warranties of
AMSN set forth in this Agreement shall be true and complete in all material
respects on and as of the Closing to the same extent and with the same force and
effect as if made on such date, except as expressly provided to the contrary in
this Agreement or as affected by the transactions contemplated by this
Agreement.
7.2 Consents. All necessary approvals or consents shall have been obtained
from any and all federal departments and agencies and from all other
commissions, boards, agencies, and from any other person, firm or entity whose
approval or consent is necessary to the consummation of the transactions
contemplated by this Agreement.
7.3 Performance by AMSN. AMSN shall have duly performed all obligations,
covenants, and agreements undertaken by it herein and complied with all the
terms and conditions applicable to them hereunder to be performed or complied
with prior to the Closing.
7.4 Documents to be delivered to AIRS Shareholder and/or AIRS. AIRS
Shareholder and/or AIRS shall have received:
(a) certificate dated as of the Closing, and executed by an officer
of AMSN, certifying as to the fulfillment of the matters
contained in Sections 7.1, 7.2, and 7.3 and confirming the
representations and warranties set forth in Sections 7.5 and 7.6
as of the Closing;
(b) a copy of the certificate of incorporation, and any and all
amendments or Articles of Incorporation thereto, certified by the
Secretary of AMSN;
(c) a copy of the bylaws of AMSN and any and all amendments thereto,
certified by the Secretary of AMSN;
(d) copies of Minutes or Consents of the Board of Directors and
Shareholders, certified by the Secretary of AMSN, approving the
Agreement and authorizing the officers and the Company to
consummate the transaction;
(e) Certificate representing 19,658,397 Common Shares in the capital
of AMSN as provided for hereinabove with appropriate restrictive
legends in accordance with Rule 144 to be received from the
transfer agent delivering such on behalf of AMSN; and
(f) Certificate of Good Standing of AMSN.
7.5 Suits. No suit, action or other proceeding shall be threatened or
pending before any court or governmental agency in which it will be or it is
sought to restrain or prohibit or to obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated by this Agreement.
7.6 Absence of default. No condition or event which constitutes an event of
default hereunder by AMSN or which, after notice and lapse of time, or both,
would constitute an event of default hereunder by AMSN shall have occurred and
be continuing.
8. Survival of Representations and Warranties and Indemnification.
8.1 Survival of representations and warranties. Notwithstanding the closing
of the transactions contemplated by this Agreement, or any investigation made by
or on behalf of AIRS Shareholder, AIRS or AMSN, unless otherwise specifically
noted herein, the representations and warranties of AIRS Shareholder, AIRS or
AMSN contained in this Agreement or in any certificate, schedule, chart, list,
letter, compilation or other document delivered pursuant hereto, shall survive
the Closing for a period of one (1) year. Thereafter, neither party shall have
any liability to the other based upon any of the representations or warranties
or any certificate, schedule, chart, list, letter, compilation or other document
delivered pursuant hereto.
8.2 AIRS Shareholder and AIRS's indemnification. AIRS Shareholder and AIRS
covenant and agree to indemnify and save harmless AMSN and its directors,
officers, employees, representatives, consultants and agents from any and all
costs, expenses, losses, damages, and liabilities incurred or suffered directly
or indirectly by any of them (including reasonable legal fees and costs)
proximately resulting from or attributable to the breach of, or misstatement in,
any one or more of the representations or warranties of AIRS Shareholder and
AIRS made in or pursuant to this Agreement.
8.3 AMSN's indemnification. AMSN covenants and agrees to indemnify and save
harmless AIRS Shareholder, AIRS and its directors, officers, employees,
representatives, consultants and agents from any and all costs, expenses,
losses, damages, and liabilities incurred or suffered directly or indirectly by
any of them (including reasonable legal fees and costs) proximately resulting
from or attributable to the breach of, or misstatement in, any one or more of
the representations or warranties of AMSN made in or pursuant to this Agreement.
8.4 Defense against asserted claims. If any claim or assertion of liability
is made or asserted by a third party against a party indemnified pursuant to
this Article 8 ("Indemnified Party") based on any liability or absence of right
which, if established, would constitute a matter for which the Indemnified Party
would be entitled to indemnification by another party ("the Indemnifying
Party"), the Indemnified Party shall with reasonable promptness give to the
Indemnifying Party written notice of the claim or asserting of liability and
request the Indemnifying Party to defend the action. Failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that the Indemnifying Party might have to the Indemnified Party unless the
failure materially prejudices the Indemnifying Party's position. The
Indemnifying Party shall have the right to defend against the liability or
assertion, in which event the Indemnifying Party shall give written notice to
the Indemnified Party of the acceptance of defense of the claim and the identity
of counsel selected by the Indemnifying Party regarding the matters. The
Indemnified Party shall be entitled to participate with the Indemnifying Party
in the defense and also shall be entitled at its option to employ separate
counsel for the defense at the expense of the Indemnified Party. In the event
the Indemnifying Party does not accept the defense of the matter as provided
above or in the event that the Indemnifying Party or its counsel fails to use
reasonable care in maintaining the defense, the Indemnified Party shall have the
full right at its option to defend against the liability or assertion and to
employ counsel for the defense at the expense of the Indemnifying Party. All
parties will cooperate with each other in the defense of any action and the
relevant records of each shall be available to the others with respect to the
defense.
8.5 Limitations on indemnification. Indemnification shall only be due to
the extent of the loss or damage actually suffered (i.e., reduced by any
offsetting or related asset or service received and by any recovery from any
third party such as, an insurer), net after the amount equal to any reduction in
federal, state or local income, franchise or other taxes occasioned by the loss
or damage (even though the tax return by which the reduction would have been
realized is not yet due), but including an amount equal to any increase in
federal, state, and local income, franchise or other taxes occasioned in the
indemnification payment and then only to the extent of the excess over the
Agreed De Minimis Amount (hereinafter defined). The Indemnitor shall be
subrogated to all rights of the Indemnified Party for any individual
misrepresentation, breach of warranty or violation of covenant where the
otherwise indemnifiable amount does not exceed $10,000 and, as regards all the
indemnifiable misrepresentations or breaches of warranty that do not exceed
$10,000, the Indemnitor shall not be liable except to the extent that the
aggregate amount thereof exceeds $10,000 (the sum being referred to as the
"Agreed De Minimis Amount").
9. Assignment, Third Parties, Binding Effect. The rights under this Agreement
shall not be assignable nor the duties delegable by any party without the
written consent of all parties having been obtained thereto. Nothing contained
in this Agreement, express or implied, is intended to confer upon any person or
entity, other than the parties, and their successors in interest, any rights or
remedies under or by reason of this Agreement unless so stated expressly to the
contrary. All covenants, agreements, representations, and warranties of the
parties contained shall be binding upon and inure to the benefit of AMSN and
AIRS and their respective successors and permitted assigns.
10. Time and Abandonment. Time is of the essence of this Agreement. In the event
the transactions contemplated are terminated or abandoned by mutual agreement of
the parties, there shall be no liability on the part of any of the parties by
reason of the mutual termination or abandonment.
11. Notices. All notices, requests, demands, and other communications shall be
in writing and shall be deemed to have been duly given on the date when
personally delivered, transmitted by facsimile machine, or the next business day
if sent by overnight courier service, addressed to the parties at the following
addresses (or at the other address as shall be given in writing by any party to
the other) as follows:
To AMSN:
American Market Support Network, Inc.
14090 S.W. Freeway, #300
Sugar Land, Texas 77778
USA
Attn: Mr. Alvie Merrill, President
-----------------------------------
To AIRS Shareholder:
Mr. Vito Peppitoni
3431 E. Hemisphere Loop
Tucson, Arizona
85706
USA
To AIRS:
Arizona Aircraft Spares, Inc.
3431 E. Hemisphere Loop
Tucson, Arizona
85706
USA
Attn: Mr. Vito Peppitoni, Chief Executive Officer
--------------------------------------------------
Notice shall be deemed to be given as of the date of actual receipt of the
communication by the recipient.
12. Certain Breaches. Neither party shall have any liability to the other party
regarding a breach by a party that the other party has received written notice
at or prior to the Closing.
13. Invalidity. If any one or more of the provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect in any jurisdiction,
the validity, legality and enforceability of such provision or provisions will
not in any way be affected or impaired thereby in any other jurisdiction and the
validity, legality and enforceability of the remaining provisions contained
herein will not in any way be affected or impaired thereby, unless in either
case, as a result of such determination, this Agreement would fail in its
essential purpose.
14. Remedies Not Exclusive. No remedy conferred by any of the provisions of this
Agreement is intended to be exclusive of any other remedy, and each and every
remedy shall be cumulative and shall be in addition to every remedy given
hereunder or now or hereafter existing, at law or in equity by statute or
otherwise. The election of any one or more remedies by AMSN or AIRS shall not
constitute a waiver of the right to pursue other available remedies.
15. Counterparts. This Agreement may be executed in one or more counterparts,
and by facsimile, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument, as legally binding
and enforceable.
16. Captions And Section Headings. Captions and section headings are for
convenience only and are not a part of this Agreement and shall not be used in
construing it. Whenever the context so requires, words used in the singular
shall be construed to mean or include the plural and vice versa, and pronouns of
any gender shall be construed to mean or include any other gender or genders.
17. Waivers. Any failure by any of the parties to comply with all of the
obligations, agreements or conditions set forth may be waived by the other party
or parties; provided however, that any such waiver shall not be deemed a waiver
of any other obligation, agreement or condition contained herein.
18. Entire Agreement. This Agreement constitutes the entire agreement between
the parties. There are not and shall not be any verbal statements,
representations, warranties, undertakings or agreements between the parties, and
this Agreement may not be amended or modified in any respect except by a written
instrument signed by the parties.
19. Third Parties. Nothing in this Agreement, whether expressed or implied, is
intended to (i) confer any rights or remedies on any person other than the
parties and their respective successors and assigns, (ii) relieve or discharge
the obligation or liability of any third party or (iii) give any third party any
right of subrogation or action against any party.
20. Applicable Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
AMERICAN MARKET SUPPORT NETWORK, INC.
Per:
/s/Alvie Merrill
- ----------------
Alvie Merrill
President
ARIZONA AIRCRAFT SPARES, INC.
Per:
/s/ Vito Peppitoni
- ------------------
Vito Peppitoni
Chief Executive Officer
/s/Martha Greenlee /s/ Vito Peppitoni
- --------------------------- ------------------
Witness as to signature: VITO PEPPITONI