SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 2 TO
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 6, 2000
ADVANCED WIRELESS SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
ALABAMA 0-26533 63-1205304
(State or other jurisdiction of (Commission (IRS Employer
incorporation or organization) File Number) Identification No.)
716 COLLEGE AVENUE, SUITE A-2
SANTA ROSA, CALIFORNIA 95404
(Address of principal executive office)
Issuer's telephone number: 707-576-1008
PURCHASE OF ALL OF THE ASSETS OF DAYBREAK AUTO RECOVERY, INC.
On September 8, 2000, Advanced Wireless Systems, Inc. (the "Company" or
"AWSS") purchased all of the stock of Daybreak Auto Recovery, Inc.
("Daybreak"), pursuant to the Plan and Agreement of Reorganization
("Agreement") between AWSS and Daybreak. Prior to the purchase, Daybreak
operated as Northern California's largest automobile repossession company.
Daybreak was founded November 1998 by Brent Doyle. We purchased the stock
of Daybreak for 2,667,000 shares of our common stock. This Amendment No. 2
to the Form 8-K dated August 6, 2000, incorporates as Exhibit 2.8 the Plan
and Agreement of Reorganization, by and between Daybreak Auto Recovery,
Inc., and Advanced Wireless Systems, Inc., September 8, 2000, which was
inadvertantly omitted from previous filings.
ITEM 7 FINANCIAL STATEMENTS AND EXHIBITS
The audited financial statements for Digital Wireless Systems, Inc., and
Daybreak Auto Recovery, Inc., and pro forma, unaudited statements
reflecting the combined entities, are incorporated by reference to the
Company's Form 8-K/A-1, filed with the SEC on April 27, 2001.
EXHIBITS
2.1* Plan of Reorganization, In Re: Digital Wireless Systems, Inc., Debtor,
Case No. 398-10899, U.S. Bankruptcy Court, Middle District of
Tennessee, dated March 7, 2000.
2.2* Debtor's Modification to Plan of Reorganization, In Re: Digital
Wireless Systems, Inc., Debtor, Case No. 398-10899, U.S. Bankruptcy
Court, Middle District of Tennessee, filed May 23,2000.
2.3* Amended Disclosure Statement, In Re: Digital Wireless Systems, Inc.,
Debtor, Case No. 398-10899, U.S. Bankruptcy Court, Middle District of
Tennessee, dated April 14, 2000.
2.4* Asset Purchase Agreement by and between Digital Wireless Systems,
Inc., as Debtor and Advanced Wireless Systems, Inc., as Purchaser,
February 15, 2000.
2.6* Closing Agreement between Digital Wireless Systems, Inc., and Advanced
Wireless Systems, Inc., entered on August 6, 2000.
2.7* Escrow Agreement with respect to 284,410 units of equity of Advanced
Wireless Systems, Inc.
2.8**Plan and Agreement of Reorganization, by and between Daybreak Auto
Recovery, Inc., and Advanced Wireless Systems, Inc., September 8,
2000.
4.1* Form of Warrant Agreement.
4.2* Form of Series C Warrant Certificate.
4.3* Form of Series D Warrant Certificate.
4.4* Form of Series E Warrant Certificate.
4.5* Form of Series F Warrant Certificate.
10.1*Spectrum Lease Agreement between Digital Wireless Systems, Inc., and
Advanced Wireless Systems, Inc., entered on August 6, 2000.
16.1*Letter of Brown, Armstrong, Randall, Reyes, Pauldin & McCown
Accounting Corporation regarding change in certifying certifying
accountant.
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* Incorporated by reference to the Company's Form 8-K dated August 6,
2000.
** Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ADVANCED WIRELESS SYSTEMS, INC.
Date: May 22, 2001 /s/ Stan Wilson
--------------------------------
Stan Wilson, President
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EXHIBIT 2.8
PLAN AND AGREEMENT OF REORGANIZATION
This Plan and Agreement of Reorganization (the "Agreement") is executed
as of September 8, 2000, between Advanced Wireless Systems, Inc., an Alabama
corporation (the "Purchaser"); Daybreak Auto Recovery, Inc., a California
corporation (the "Acquired Corporation"); and the shareholders of the Acquired
Corporation listed on the attached Schedule "A" (the "Shareholders").
RECITALS
A. This Agreement contemplates a reorganization within the meaning of
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended. The
Purchaser will acquire from the Shareholders, all of the issued and
outstanding shares of common stock of the Acquired Corporation, in exchange
solely for shares of common stock of the Purchaser. Under this Agreement, the
Acquired Corporation will become a subsidiary of the Purchaser.
B. Immediately prior to the Closing of this Agreement, the Shareholders
will own 1,000,000 shares of Common Stock, $0.01 par value per share, of the
Acquired Corporation, being 100% of the issued and outstanding voting stock of
the Acquired Corporation. All such shares will be acquired by the Purchaser
on the Closing Date.
In order to consummate the Agreement, the Purchaser, the Acquired
Corporation and the Shareholders, in consideration of the mutual covenants and
on the basis of the representations and warranties set forth, agree as
follows:
Article 1
Exchange of Common Stock
1.1 Transfer of Acquired Corporation's Common Stock. Subject to the terms
and conditions of this Agreement, the Shareholders will transfer and deliver
to the Purchaser on the Closing Date all of the certificates for shares of
common stock of the Acquired Corporation (the "Daybreak Shares"), duly
endorsed in blank or accompanied by stock powers duly executed in blank, in
proper form for transfer as provided in this Agreement. The number of
Daybreak Shares to be delivered by each Shareholder is set forth opposite the
Shareholder's name on the attached Schedule "A".
1.2 Consideration for Transfer. In exchange for the Acquired Corporation
shares transferred by the Acquired Corporation pursuant to Paragraph 1.1,
Purchaser will issue and cause to be delivered on the Closing Date, 2,667,000
shares of Common Stock of the Purchaser (the "AWSS Shares").
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1.3 Distribution of the AWSS Shares.
(a) Finder's Fee. The Acquired Corporation has agreed to pay a
finder's fee to Daniel J. Demers in the amount of 53,340 AWSS Shares. The
parties agree that this finder's fee will be paid out of, and not in addition
to, the 2,667,000 AWSS Shares to be issued pursuant to Paragraph 1.2.
(b) Allocation of the Stockholders. The remaining 2,613,660 AWSS
Shares will be titled and issued to the Shareholders on a pro rata basis.
1.4 Closing Date. Subject to the conditions precedent set forth in this
Agreement, and the other obligations of the parties set forth in this
Agreement, the Plan of Reorganization shall be consummated at the offices the
Purchaser, 716 College Avenue, Suite A-2, Santa Rosa, California 95404, on
September 8, 2000, at the hour of 10:00 a.m. Pacific Time, or at any other
place and date as the parties fix by mutual consent. Consummation shall
include the delivery by the Shareholders of all of the Daybreak Shares, as
provided in Paragraph 1.1 of this Agreement, and the delivery by the Purchaser
of its shares of Common Stock, as provided in Paragraphs 1.2 and 1.3 of this
Agreement. The date of the consummation of this Agreement is called the
"Closing Date."
Article 2
Representations And Warranties of
Acquired Corporation
2.1 Organization and Standing of Acquired Corporation. The Acquired
Corporation is a corporation duly organized, validly existing, and in good
standing under the laws of the State of California, with corporate power to
own property and carry on its business as it is now being conducted.
2.2 Capitalization. The Acquired Corporation has an authorized
capitalization of One Million (1,000,000) shares of capital stock, all of one
class, of the par value $0.01 per share, and as of the date of this Agreement
1,000,000 shares are issued and outstanding, fully paid, and nonassessable.
There are no outstanding subscriptions, options, contracts, commitments, or
demands relating to any authorized but unissued stock of the Acquired
Corporation or other agreements of any character under which the Acquired
Corporation would be obligated to issue or purchase shares of its capital
stock.
2.3 Authorization. The execution, delivery and performance by the
Acquired Corporation of this Agreement and the consummation by the Acquired
Corporation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action. This Agreement has been duly executed and
delivered by the Acquired Corporation and constitutes the valid and binding
obligations of the Acquired Corporation enforceable in accordance with its
terms. The execution, delivery and performance of the transactions
contemplated by this Agreement and compliance with its provisions by the
Acquired Corporation will not violate any provision of law and will not
conflict with or result in any breach of any of the terms, conditions or
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provisions of, or constitute a default under, or require a consent or waiver
under, the Articles of Incorporation or Bylaws (each as amended to date) or
any indenture, lease, agreement or other instrument to which the Acquired
Corporation is a party or by which it or any of its properties is bound, or
any decree, judgment, order, statute, rule or regulation applicable to the
Acquired Corporation.
2.4 Governmental Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with,
any governmental authority is required on the part of the Acquired Corporation
in connection with the execution and delivery of this Agreement; the offer,
issuance, sale and delivery of the Shares; or the other transactions to be
consummated at the Closing, as contemplated by this Agreement, except such
filings as will have been made prior to and will be effective on and as of the
Closing Date.
2.5 Litigation. There is no action, suit or proceeding, or governmental
inquiry or investigation, pending, or, to the Acquired Corporation's
knowledge, any basis therefor or thereof, against the Acquired Corporation,
that questions the validity of this Agreement or the right of the Acquired
Corporation to enter into or perform this Agreement, or that could reasonably
be expected to have, either individually or in the aggregate, any material
adverse effect on the Acquired Corporation or this Agreement.
2.6 Conduct of Business by Acquired Corporation Pending Closing. During
the period commencing on the date hereof and continuing through the Closing
Date, the Acquired Corporation shall have:
(a) maintained all qualifications to transact business and remained
in good standing in the State of California and in such other jurisdictions in
which it owns or leases any property, or conducts any business so as to
require such qualification.
(b) conducted its business in, and only in, the ordinary course and,
to the extent consistent with such business, shall have preserved intact its
current business organization and its properties and assets in good condition
and repair.
(c) not (i) amended its articles of incorporation or bylaws, (ii)
acquired by merging or consolidating with, or agreeing to merge or consolidate
with, or purchased substantially all of the stock or assets of, or acquired,
any business or any corporation, partnership, association, or other business
organization or division thereof, (iii) entered into any partnership or joint
venture, (iv) declared, set aside, made or paid any dividend or other
distribution in respect of its capital stock or purchased or redeemed,
directly or indirectly, any shares of its capital stock, (v) issued or sold
any shares of its capital stock of any class or any options, warrants,
conversion or other rights to purchase any such shares or any securities
convertible into or exchangeable for such shares or (vi) liquidated or
dissolved or obligated themselves to do so.
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(d) not incurred any indebtedness, sold any debt securities or lent
money to or guaranteed the indebtedness of any person or restructured or
refinanced their existing indebtedness or paid any intercompany debt.
(e) not made any change in the accounting principles, methods,
records or practices followed by them or depreciation or amortization policies
or rate heretofore adopted by it.
(f) complied promptly with all requirements that applicable law may
impose upon it in its operations and with respect to the transactions
contemplated by this Agreement.
(g) not have sold, transferred, licensed, leased, or otherwise
disposed of, or suffered or caused the encumbrance by lien upon any of their
properties or assets, tangible or intangible, or any interest therein.
(h) not terminated or modified any agreement to which it is a party
and shall have met all of its contractual obligations in accordance with its
respective terms.
(i) not purchased or entered into any contract to purchase any
assets.
(j) used its best efforts to obtain any consent, authorization or
approval of, or exemption by, any Person required to be obtained or made by
any party hereto in connection with the transactions contemplated hereby or
the taking of any action in connection with the consummation thereof.
(k) maintained any insurance policies in full force and effect and
shall not have done, permitted or willingly allowed to be done any act by
which any of the insurance policies may be suspended, impaired, or canceled.
(l) not canceled, compromised, released or discharged any claim upon
or against any person or entity or waived any right.
(m) maintained in full force and effect, and complied with, all
permits.
2.7 Conduct of Business by the Daybreak Auto Recovery Subsidiary Post
Closing. Effective on the Closing Date, all cash, accounts receivable,
revenues and other income produced by the Daybreak Auto Recovery subsidiary
will be forwarded to Purchaser, who will administer the financial affairs of
the Daybreak Auto Recovery subsidiary. The parties agree and understand that
all expenses of the Daybreak Auto Recovery subsidiary, including wages and
salaries to its officers, directors, and employees of the Daybreak Auto
Recovery subsidiary, will be paid from revenues generated by the Daybreak Auto
Recovery subsidiary and not from operating funds of the Purchaser.
2.8 Assets and Liabilities. The Acquired Corporation represents and
warrants that, as of the Closing Date, the assets, rights, properties,
obligations, and liabilities described in Exhibit 2.8 shall be owned by the
Purchaser.
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2.9 Brokers or Finders. Other than the finder's fee to be paid to Daniel
J. Demers, pursuant to Paragraph 1.3(a), the Acquired Corporation has not
incurred any liability for brokerage fees, agents' commissions, financial
advisory fees or other similar forms of compensation in connection with this
Agreement or any form of transaction contemplated hereby, and the Acquired
Corporation has not made any payment on account of such liability.
Article 3
Representations And Warranties of
Purchaser
3.1 Organization and Standing of Purchaser. Purchaser is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Alabama, with corporate power to own property and carry on its
business as it is now being conducted. Copies of the articles of
incorporation of Purchaser, that have been certified by the Secretary of State
of Alabama, are complete and accurate as of the date of this Agreement.
3.2 Capitalization. Purchaser has an authorized capitalization of One
Hundred Fifty Million (150,000,000) shares of common stock of the par value of
$0.01 per share, of which 15,818,221 shares are issued, outstanding, and fully
paid as of the date of this Agreement. In addition, 284,410 AWSS Shares are
currently held in an escrow account.
3.3 Authorization. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by the
Purchaser and constitutes the valid and binding obligations of the Purchaser
enforceable in accordance with its terms. The execution, delivery and
performance of the transactions contemplated by this Agreement and compliance
with its provisions by the Purchaser will not violate any provision of law and
will not conflict with or result in any breach of any of the terms, conditions
or provisions of, or constitute a default under, or require a consent or
waiver under, the Articles of Incorporation or Bylaws (each as amended to
date) or any indenture, lease, agreement or other instrument to which the
Purchaser is a party or by which it or any of its properties is bound, or any
decree, judgment, order, statute, rule or regulation applicable to the
Purchaser.
3.4 Governmental Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with,
any governmental authority is required on the part of the Purchaser in
connection with the execution and delivery of this Agreement; the offer,
issuance, sale and delivery of the Shares; or the other transactions to be
consummated at the Closing, as contemplated by this Agreement, except such
filings as will have been made prior to and will be effective on and as of the
Closing.
3.5 Litigation. There is no action, suit or proceeding, or governmental
inquiry or investigation, pending, or, to the Purchaser's knowledge, any basis
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therefor or thereof, against the Purchaser, that questions the validity of
this Agreement or the right of the Purchaser to enter into or perform this
Agreement, or that could reasonably be expected to have, either individually
or in the aggregate, any material adverse effect on the Purchaser or this
Agreement, except as described in Exhibit 3.5.
3.6 Election and Replacement of AWSS Director. On or before the Closing
Date, the Board of Directors of the Purchaser shall have resolved to elect
Brent Doyle as a director of Purchaser's board of directors to replace one of
its current directors.
3.7 Employment of Brent Doyle. In conjunction with the Closing of this
reorganization, the Acquired Corporation agrees to enter into an Executive
Employment Agreement to employ Brent Doyle as President of the newly-formed
Daybreak Auto Recovery subsidiary, at an annual salary of Seventy Thousand
Dollars ($70,000) per year.
Article 4
Representations and Warranties of the Shareholders
Each of the Shareholders severally represents and warrants to the
Purchaser as follows:
4.1 Purchase for Investment, Sophistication, Etc.
(a) Such Shareholder is acquiring the AWSS Shares for his or her own
account for investment not as a nominee or agent and not with a view to, or
for sale in connection with, any distribution thereof, nor with any present
intention of distributing or selling the same. Except as contemplated by this
Agreement, and the exhibits hereto and thereto, such Shareholder has no
present or contemplated agreement, undertaking, arrangement, obligation,
indebtedness or commitment providing for the disposition thereof. Such
Shareholder acknowledges the restrictions on transfer of the AWSS Shares set
forth in this Agreement.
(b) Such Shareholder understands that the AWSS Shares are not
registered under the Securities Act of 1933, as amended (the "Securities Act")
for the reason that the offer and sale of AWSS Shares provided for in this
Agreement and the issuance of securities hereunder is exempt from registration
under one or more exemptions from registration pursuant to the Securities Act,
including pursuant to Section 4(2) thereof, and that the Purchaser's reliance
on such exemption is predicated in part on such Shareholder's representations
set forth herein.
(c) Such Shareholder believes that such Shareholder has received all
the information that such Shareholder considers necessary or appropriate for
deciding whether to purchase the AWSS Shares. Such Shareholder has had an
opportunity to ask questions and receive answers from the Purchaser regarding
the terms and conditions of the offer and sale of the AWSS Shares and the
business, properties, prospects and financial condition of the Purchaser and
to obtain additional information (to the extent that the Purchaser possessed
such information or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to such
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Shareholder or to which such Shareholder has access. The foregoing, however,
does not limit or modify the representations or warranties of the Purchaser in
Article 3 or the right of the Shareholders to rely thereon.
(d) Such Shareholder is experienced in evaluating and investing in
private placement transactions of securities of companies in a similar stage
of development to the Purchaser and acknowledges that such Shareholder is able
to fend for himself, herself or itself; can bear the economic risk of such
Shareholder's investment; and has such knowledge and experience in financial
and business matters that such Shareholder is capable of evaluating the merits
and risks of the investment in the AWSS Shares.
(e) Such Shareholder understands that the AWSS Shares may not be
sold, transferred, or otherwise disposed of without registration under the
Securities Act or an exemption therefrom and, that in the absence of an
effective registration statement covering such AWSS Shares or an available
exemption from registration under the Securities Act, the AWSS Shares must be
held indefinitely.
4.2 Authority. Such Shareholder has full power and authority to enter
into and to perform this Agreement in accordance with its terms, and this
Agreement, when executed and delivered, will constitute a valid and legally
binding obligation of such Shareholder.
Article 5
Conduct of Business of Purchaser Pending Closing Date
5.1 Conduct of Business in Its Ordinary Course. Purchaser will carry on
its business in substantially the same manner as before the date of execution
of this Agreement.
5.2. Satisfy Conditions Precedent. Purchaser will use its best efforts to
satisfy all conditions precedent contained in this Agreement.
Article 6
Compliance with Securities Laws
6.1 No Transfers in Violation of the 1933 Act. The Purchaser covenants
and represents that none of the shares of AWSS Common Stock that will be
issued to the Shareholders pursuant to this Agreement, will be offered, sold,
assigned, pledged, transferred, or otherwise disposed of except after full
compliance with all of the applicable provisions of the Securities Act and the
rules and regulations of the Securities and Exchange Commission under the
Securities Act. The Shareholders covenant and represent that none of the
Daybreak Shares that will be transferred to the Purchaser pursuant to this
Agreement, will be offered, sold, assigned, pledged, transferred, or otherwise
disposed of except after full compliance with all of the applicable provisions
of the Securities Act and the rules and regulations of the Securities and
Exchange Commission under the Securities Act.
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6.2 Investment Legend on Certificates. The Shareholders agree that the
certificates evidencing the shares of the Purchaser that the Shareholders will
receive under this Agreement, and the Purchaser agrees that the certificates
evidencing the shares of the Acquired Corporation that the Purchaser will
receive under this Agreement, will each contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER
THE SECURITIES ACT OF 1933, OR A PRIOR OPINION OF COUNSEL SATISFACTORY
TO THE ISSUER, THAT REGISTRATION IS NOT REQUIRED UNDER THAT ACT.
Article 7
Actions to Be Taken at the Closing
The following actions shall be taken at the Closing, each of which shall
be conditioned on completion of the other and shall be deemed to have taken
place simultaneously.
7.1 Acquired Corporation's Stock Certificates. The Shareholders shall
deliver to the Purchaser the stock certificates representing all of the
outstanding common stock of the Acquired Corporation, duly endorsed in blank
or accompanied by stock powers duly executed in blank, in proper form for
transfer, in accordance with the terms of Article 1 of this Agreement.
7.2 Issuance of New Share Certificates. The Purchaser shall deliver to
the Shareholders stock certificates representing 2,613,660 shares of AWSS
stock, issued to and in the names of each of the Shareholders in the amounts
listed opposite their names on Schedule "A". The Purchaser shall also deliver
a stock certificate representing 53,340 shares of AWSS stock, issued to and in
the name of Daniel J. Demers.
7.3 Execution of Employment Agreement. At or prior to Closing, Acquired
Corporation shall have entered into an Executive Employment Agreement
employing Brent Doyle as President of the Daybreak Auto Recovery subsidiary.
7.4 Election of Director. At or prior to Closing, Purchaser shall have
issued a resolution electing Brent Doyle to the board of directors of
Purchaser.
Article 8
Termination
This Agreement may be terminated at any time prior to the Closing Date by
mutual written agreement of the parties hereto.
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Article 9
Miscellaneous
9.1 Amendment. This Agreement may be amended or modified at any time and
in any manner only by an instrument in writing executed by each of the
parties.
9.2 Waiver. Either Purchaser or Shareholder may, in writing:
(a) Extend the time for the performance of any of the obligations of
any other party to the Agreement.
(b) Waive any inaccuracies and misrepresentations contained in this
Agreement or any document delivered pursuant to the Agreement made by any
other party to the Agreement.
(c) Waive compliance with any of the covenants or performance of any
obligations contained in this Agreement by any other party to the Agreement.
(d) Waive the fulfillment of any condition precedent to the
performance by any other party to the Agreement.
9.3 Assignment.
(a) Neither this entire Agreement nor any right created by the
Agreement shall be assignable by either the Shareholder or the Purchaser
without the prior written consent of the other, except by the laws of
succession.
(b) Except as limited by the provisions of subparagraph (a), this
Agreement shall be binding on and inure to the benefit of the respective
successors and assigns of the parties, as well as the parties.
(c) Nothing in this Agreement, expressed or implied, is intended to
confer upon any person, other than the parties and their successors, any
rights or remedies under this Agreement.
9.4. Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly given
when delivered in person to an officer of the other party, when deposited in
the United States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph company for
transmittal, charges prepaid, provided that the communication is addressed:
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In the case of the Purchaser, to:
Advanced Wireless Systems, Inc.
716 College Avenue, Suite A-2
Santa Rosa, CA 95404
Attention: Thomas M. Howard, President
With a copy to:
Sheinfeld, Maley & Kay, P.C.
301 Congress Avenue, Suite 1400
Austin, TX 78701
Attention: Lee Polson
or to such other person or address designated by Purchaser to receive
notice.
In the case of the Acquired Corporation, to:
Daybreak Auto Recovery, Inc.
P.O. Box 125
Graton, CA 95444
Attention: Brent Doyle, President
With a copy to:
Roger J. Illsley, Esq.
703 Second Street, 4{th} Floor
Santa Rosa, CA 95404
or to such other person or address designated by the Acquired
Corporation to receive notice.
In the case of the Shareholders, to the address designated by each
Shareholder on Exhibit 9.4.
9.5 HEADINGS. Paragraph and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
9.6 ENTIRE AGREEMENT; COUNTERPARTS. This instrument and the
schedules and exhibits to this instrument contain the entire Agreement
between the parties with respect to the transaction contemplated by the
Agreement and supersede all prior agreements, arrangements and
understandings related to the subject matter hereof. No representation,
promise, inducement or statement of intention has been made by the Acquired
Corporation or Purchaser that is not embodied in this Agreement or in any
documents referred to herein, and neither Acquired Corporation, nor
Purchaser shall be bound by or liable for any alleged representation,
promise, inducement or statement of intention not so set forth. This
Agreement may be executed in any number of counterparts but the aggregate
of the counterparts together constitute one and the same instrument.
9.7 EFFECT OF PARTIAL INVALIDITY. In the event that any one or more
of the provisions contained in this Agreement shall for any reason be held
to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provisions of
this Agreement, but this Agreement shall be constructed as if it never
contained any such invalid, illegal, or unenforceable provisions.
9.8 CONTROLLING LAW. The validity, interpretation, and performance
of this agreement shall be controlled by and construed under the laws of
the State of Alabama.
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9.9 SPECIFIC PERFORMANCE. The parties declare that it is impossible
to measure in money the damages that will accrue to a party or its
successors as a result of any other party's failure to perform any of the
obligations under this Agreement. Therefore, if a party or its successor
institutes any action or proceeding to enforce the provisions of this
Agreement, any party opposing such action or proceeding agrees that
specific performance may be sought and obtained for any breach of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
ADVANCED WIRELESS SYSTEMS, INC., PURCHASER
______________________________
Thomas M. Howard, President
DAYBREAK AUTO RECOVERY, INC., ACQUIRED CORPORATION
______________________________
Brent Doyle, President
SHAREHOLDERS OF DAYBREAK AUTO RECOVERY, INC.:
______________________________
Brent Doyle
______________________________
Heidi O. Doyle
______________________________
Steven M. Schneider
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Schedule "A" to
Plan and Agreement of Reorganization
Name of Shareholder Number of Daybreak Number of AWSS Shares
Shares Exchanged Received
- ------------------- ------------------ ---------------------
Brent Doyle 375,000 1,000,125
Heidi O. Doyle 375,000 1,000,125
Steven M. 250,000 666,750
Schneider
EXHIBIT 2.7 TO
PLAN AND AGREEMENT OF REORGANIZATION
Assets, Liabilities, Properties, and Rights of Daybreak Auto Recovery, Inc.
ASSETS:
Capital Leases:
1998 Chevrolet 3500 (VIN # 1GBKC34JSWF063945)
1999 GMC Truck (VIN # 1GCKC34J9XF050614)
1999 Chevrolet 3500 (VIN # 1GBKC34J3XF082113)
1996 Chevrolet 3500 (VIN # 1GCGC34RXTE228692)
2000 Chevrolet 3500 (VIN # 1GBKC34J4YF422158)
2000 Ford F-450 (VIN # 1FDXF46F1YEC26638)
Computers/Furniture (Graton, CA location)
Printer (February 1999)
Office furniture (March 1999)
Computer parts (April 1999)
Furniture (June 1999)
Chairs (June 1999)
Printer (June 1999)
Computer (June 1999)
Computer (September 1999)
Computer (October 1999)
Monitor (October 1999)
Phones (October 1999)
Computers/Furniture (San Jose, CA location)
Computer (September 1999)
Phone and accessories (September 1999)
Computer (September 1999)
Computer parts (October 1999)
Software
REPO Software
LIABILITIES:
None, other than leases on trucks.
PROPERTIES:
None.
RIGHTS:
All contracts and agreements with banks, credit unions and other
groups or agencies which enable Daybreak to perform its services.
EXHIBIT 3.5 TO
PLAN AND AGREEMENT OF REORGANIZATION
Litigation Involving Advanced Wireless Systems, Inc.
On October 28, 1999 Digital Wireless Systems, Inc. ("DWSI") filed a
complaint against Decathlon Communications, Inc. ("Decathlon") alleging
that Decathlon owed it $210,745 for digital compression equipment that was
paid for, but not delivered, and asserting damages in the amount of
$582,280. On February 23, 2000, the U.S. Bankruptcy Court - Middle
District of Tennessee heard Decathlon's motion for a change of venue and
ruled that Colorado was the proper venue. DWSI subsequently filed its
lawsuit in the Federal Bankruptcy Court in Denver, Colorado.
In May 2000, Decathlon filed lawsuits in the U.S. District Court - District
of Colorado against the Baton Rouge Wireless Cable Television LLC and the
Shreveport Wireless Cable Television Partnership alleging that each entity
was in breach of its contract with Decathlon by failing to pay the
remaining balance on digital compression equipment. DWSI, and now AWSS, in
accordance with the terms of their respective asset purchase agreements,
have assumed the defense for these cases.
On August 25, 2000, AWSS and Decathlon began discussions to settle the
three lawsuits out of court. We cannot now predict the outcome of these
settlement discussions or, if an out-of-court settlement cannot be
achieved, the underlying lawsuits.
Exhibit 9.4 to
Plan and Agreement of Reorganization
Addresses of Shareholders of Daybreak Auto Recovery, Inc.
Brent Doyle
3025 Gravenstein Highway North
Sebastopol, CA 95472
Heidi O. Doyle
3025 Gravenstein Highway North
Sebastopol, CA 95472
Steven M. Schneider
P.O. Box 295
Fulton, CA 95439