UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14C/A
(RULE 14c-101)
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c)
of the Securities Exchange Act of 1934
(Amendment No. 1)
Check the appropriate box:
[X] Preliminary information statement.
[_] Confidential, for use of the Commission only (as permitted by Rule
14c-5(d)(2)).
[_] Definitive information statement.
ABSOLUTE WASTE SERVICES, INC.
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(Name of Registrant as Specified in its Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[_] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies: N/A
(2) Aggregate number of securities to which transaction applies: N/A
(3) Per unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined): N/A
(4) Proposed maximum aggregate value of transaction: N/A
(5) Total fee paid: N/A
[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1) Amount Previously Paid: -0-
(2) Form, Schedule or Registration Statement No.: N/A
(3) Filing Party: N/A
(4) Date Filed: N/A
ABSOLUTE WASTE SERVICES, INC.
141 West Jackson Boulevard, Suite 2182
Chicago, Illinois 60604
INFORMATION STATEMENT
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NOTICE OF ACTION TO BE TAKEN WITHOUT A STOCKHOLDER MEETING
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TO OUR SHAREHOLDERS:
Notice is hereby given that on June 15, 2005, we received the written
consent, in lieu of a meeting of stockholders, from the holders of approximately
90.9% of our outstanding voting stock, approving an amendment to our certificate
of incorporation that changes our name from "Absolute Waste Services, Inc." to
"Absolute Potential, Inc." This action is taken in connection with a settlement
agreement that requires us to change our name.
You are encouraged to read the attached Information Statement, including
exhibits, for further information regarding these actions. In accordance with
Rule 14c-2, the actions described herein will be deemed ratified and effective
at a date that is a least 20 days after the date this Information Statement has
been mailed to our stockholders. We anticipate this date to occur on or about
July 15, 2005.
THIS IS NOT A NOTICE OF A MEETING OF STOCKHOLDERS AND NO STOCKHOLDERS'
MEETING WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED HEREIN AND NO PROXY OR
VOTE IS SOLICITED BY THIS NOTICE. This Information Statement is being furnished
to you solely for the purpose of informing stockholders of the matters described
herein in compliance with Regulation 14C of the Securities Exchange Act of 1934,
as amended, and Section 607.0704, Florida Statutes.
Chicago, Illinois
June __, 2005
By Order of the Board of Directors
/s/ Thomas F. Duszynski
-----------------------------------
Thomas F. Duszynski
Chief Executive Officer
ABSOLUTE WASTE SERVICES, INC.
141 West Jackson Boulevard, Suite 2182
Chicago, Illinois 60604
INFORMATION STATEMENT
The purpose of this Information Statement is to notify the holders of our
common stock as of the close of business on June 15, 2005 (the "Record Date"),
that on June 15, 2005, we received the written consent, in lieu of a meeting of
stockholders, from the holders of 54,976,438 shares of our common stock,
representing approximately 90.9% of our outstanding voting stock, approving an
amendment to our certificate of incorporation that changes our name from
"Absolute Waste Services, Inc." to "Absolute Potential, Inc."
The Information Statement is first being mailed or furnished to
stockholders on or about June __, 2005. We will pay all costs associated with
the preparation and distribution of this Information Statement, including all
mailing and printing expenses. We will also, upon request, reimburse brokers,
banks and similar organizations for reasonable out-of-pocket expenses. We will
also, upon request, reimburse brokers, banks and similar organizations for
reasonable out-of-pocket expenses incurred in forwarding this Information
Statement to their clients.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
SECURITY OWNERSHIP
As of the Record Date, there were 60,469,250 shares of common stock issued
and outstanding and entitled to vote. Each share of common stock entitles its
holder to one vote.
The following table sets forth ownership information as of June 15, 2005
with respect to (i) our sole director and executive officer and (ii) each person
known by us to be a beneficial owner of more than 5.0% of our outstanding voting
securities. The address of each of the individuals or entities listed below is
c/o us at 141 West Jackson Boulevard, Suite 2182, Chicago, Illinois 60604.
==============================================================================
Amount and nature Percentage of
of beneficial outstanding voting
Name ownership(1) securities (2)
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Thomas F. Duszynski ................ 54,976,438 90.9%
Augustine Fund, L.P. (3)............ 49,976,438 82.6%
PAC Funding LLC (4)................. 5,000,000 8.3%
All executive officers and
directors as a group (one person.... 54,976,438 90.9%
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(1) Beneficial ownership is determined in accordance with the Rule 13d-3(a) of
the Exchange Act, and generally includes voting or investment power with
respect to securities. Pursuant to the rules and regulations of the
Commission, shares of common stock that an individual or group has a right
to acquire within 60 days pursuant to the exercise of options or warrants
are deemed to be outstanding for the purposes of computing the percentage
ownership of such individual or group, but are not deemed to be outstanding
for the purposes of computing the percentage ownership of any other person
shown in the table. Except as subject to community property laws, where
applicable, the person named above has sole voting and investment power
with respect to all shares of our common stock shown as beneficially owned
by him.
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(2) Applicable percentage of ownership as of June 15, 2005 is based on
60,469,250 shares of common stock outstanding.
(3) Thomas F. Duszynski is a principal of Augustine Fund, L.P.
(4) Thomas F. Duszynski is a principal of Augustine Fund, L.P., which is a
manager of PAC Funding LLC.
STOCKHOLDER ACTIONS
INTRODUCTION
On June 15, 2005, our sole director approved an amendment and restatement
of our Certificate of Incorporation, attached hereto as Exhibit A, which changes
our name from "Absolute Waste Services, Inc." to "Absolute Potential, Inc." (the
"Name Change Amendment") and submitted such matter for stockholder approval. On
June 15, 2005, stockholders holding approximately 90.9% of our outstanding
voting stock, acting by majority written consent, approved and ratified the Name
Change Amendment, a copy of which is attached to this Information Statement as
Exhibit B.
PURPOSE OF THE NAME CHANGE
The purpose of the name change is to comply with paragraph 6 of a Mutual
Settlement Agreement dated June 3, 2004 by and among the Company and certain
former shareholders, a copy of which is attached hereto as Exhibit C.
EFFECTS OF THE NAME CHANGE
Changing our name will not have any effect on our corporate status, the
rights of stockholders or the transferability of outstanding stock certificates.
Outstanding stock certificates bearing the name "Absolute Waste Services, Inc."
will continue to be valid and represent shares of Absolute Potential, Inc.
VOTE REQUIRED
The affirmative vote of the holders of a majority of our outstanding common
stock is required to change our name from "Absolute Waste Services, Inc." to
"Absolute Potential, Inc.", which vote was obtained by a majority written
consent dated June 15, 2005 from holders of approximately 90.9% of our
outstanding common stock.
DISSENTERS' RIGHTS OF APPRAISAL
Florida General Corporation Law does not provide for appraisal or dissenter
rights in connection with our name change.
ADDITIONAL INFORMATION
We are subject to the information requirements of the Securities Exchange
Act of 1934, as amended, and in accordance therewith file reports, proxy
statements and other information including annual and quarterly reports on Form
10-KSB and 10-QSB with the Securities and Exchange Commission. Reports and other
information filed by us can be inspected and copied at the public reference
facilities maintained at the Securities and Exchange Commission at Room 1024,
450 Fifth Street, N.W., Washington, DC 20549. Copies of such material can be
obtained upon written request addressed to the Securities and Exchange
Commission, Public Reference Section , 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Securities and Exchange Commission also
maintains a website on the Internet (http://www.sec.gov) where reports, proxy
and information statements and other information regarding issuers that file
electronically with the Securities and Exchange Commission through the
Electronic, Data Gathering, Analysis and Retrieval System may be obtained free
of charge.
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EXHIBITS TO INFORMATION STATEMENT
Exhibit Letter Description
A Action by Written Consent of Shareholders Approving Name
Change Amendment
B Form of Amendment to Articles of Incorporation Changing Name
C Mutual Settlement Agreement dated June 3, 2004 by and among
the Company and certain former shareholders
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EXHIBIT A
ACTION BY WRITTEN CONSENT OF SHAREHOLDERS
OF
ABSOLUTE WASTE SERVICES, INC.
We, the undersigned being the holders of a majority of the voting rights
for the shares of the outstanding common stock of ABSOLUTE WASTE SERVICES, INC.,
a Florida corporation (the "Corporation"), having not less than the minimum
number of votes necessary to take the actions set forth herein, and acting
pursuant to the authority conferred in Section 607.0704 and 607.0722 of the
Florida Business Corporation Act (the "Florida Act"), do hereby take and adopt
the following actions, in writing without a meeting: Amendment to Articles of
Incorporation
WHEREAS, the Board of Directors of the Corporation has
approved resolutions (the "Board Resolutions") that authorize an
amendment to the Amended and Restated Articles of Incorporation
of the Corporation to provide for a new corporate name of
"Absolute Potential, Inc." (the "Amendment to the Articles"); and
WHEREAS, a copy of such Board Resolutions approving the
Amendment to the Articles has been presented to and reviewed by
the undersigned shareholders.
NOW, THEREFORE, BE IT RESOLVED, that the undersigned
shareholders do hereby adopt and approve an Amendment to the
Articles as described and approved in the Board Resolutions, and
the execution, delivery and filing by the Corporation of the
Amendment to the Articles with the Florida Division of
Corporations;
FURTHER RESOLVED, that prompt notice of the action shall be
given to those shareholders entitled to vote who have not signed
this Consent, as provided in Section 607.0704 of the Florida Act;
FURTHER RESOLVED, that the Chief Executive Officer be and
hereby is authorized, empowered and directed on behalf of the
Corporation to prepare and file or have filed with the Securities
and Exchange Commission an information statement ("Schedule 14C")
concerning the Corporation's name change pursuant to Regulation
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14(c) of the Securities Exchange Act of 1934 and effect the
distribution of copies of the Schedule 14C to those holders of
stock of the Company entitled to receive copies of the Schedule
14C;
FURTHER RESOLVED, that the Director hereby sets the close of
business on June 15, 2005, as the record date for purposes of
determining the shareholders entitled to receipt of the Schedule
14C to be distributed in connection with the Corporation's name
change;
FURTHER RESOLVED, that this action by written consent may be
executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument; and
FURTHER RESOLVED, that no proxies were solicited or use of
the mails or means of interstate commerce in executing this
consent it being expressly represented the consents were executed
in person at the offices of the Corporation located at 141 West
Jackson Blvd., Suite 2182, Chicago, Illinois 60604.
The actions contained herein were approved on the 15th day of June, 2005,
and shall be effective as of the date the Amendment to the Articles are filed.
IN WITNESS WHEREOF, the undersigned shareholders have executed this written
consent as of 15th day of June, 2005.
/s/ Thomas F. Duszynski
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Thomas F. Duszynski
AUGUSTINE FUND, L.P.
By: /s/ Thomas F. Duszynski
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Thomas F. Duszynski, not individually
but solely as a principal
PAC FUNDING LLC
By: /s/ Thomas F. Duszynski
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Thomas F. Duszynski, not individually
but solely as a principal of Augustine Fund, L.P., as manager
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EXHIBIT B
ARTICLES OF AMENDMENT TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
ABSOLUTE WASTE SERVICES, INC.
The undersigned, being the Chief Executive Officer of ABSOLUTE WASTE
SERVICES, INC., a Florida corporation (the "Corporation"), does hereby certify
that the Amendment provided for herein to change the name of the Corporation was
adopted by Written Consent of the Sole Member of the Board of Director of the
Corporation on June __, 2005, and Written Consent of Shareholders of the
Corporation, owning a majority of the outstanding shares entitled to vote in
accordance with the provisions of Chapter 607 of the General Corporation Law of
the State of Florida (the "Florida Act"), and the number of votes cast in favor
of the Amendment was sufficient to carry the motion.
1. Article I of the Amended and Restated Articles of Incorporation of the
Corporation is hereby amended to read as follows:
I. The name of the corporation is Absolute Potential, Inc.
IN WITNESS WHEREOF, the undersigned, being the Chief Executive Officer of
the Corporation has executed this Amendment to the Amended and Restated Articles
of Incorporation of the Corporation, the ___ day of June, 2005, for the purpose
of amending the Amended and Restated Articles of Incorporation under Section
607.1006, Florida Act, and hereby certify that the facts herein stated are true
and correct, and were approved by the votes of Shareholders owning a majority of
the shares entitled to vote and the vote was sufficient to carry motion.
ABSOLUTE WASTE SERVICES, INC., a Florida corporation
By: /s/ Thomas F. Duszynski
-------------------------------
Name: Thomas F. Duszynski
Title: Chief Executive Officer
STATE OF )
COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of June,
2005 by THOMAS F. DUSZYNSKI as Chief Executive Officer of ABSOLUTE WASTE
SERVICES, INC., a Florida corporation, on behalf of said corporation, who is
personally known to me.
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Notary Public
-----------------------------------
Print Name
My Commission Expires:
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EXHIBIT C
MUTUAL SETTLEMENT AGREEMENT
This MUTUAL SETTLEMENT AGREEMENT dated June 3rd, 2004 (the "Agreement") is
made and entered into by and among Absolute Waste Services, Inc. (formally known
as Thermacell Technologies, Inc.), a Florida corporation ("AWS"), Absolute Waste
Acquisitions, Inc., a Texas corporation and wholly owned subsidiary of AWS
("Absolute Sub"), and the former holders of membership interests ("Holders") of
Absolute Industries, LLC, a Texas limited liability company ("Absolute"). AWS,
the Holders, Absolute, PAC Funding, LLC ("PAC"), Tom Duszynski and Donald
Huggins are collectively referred to herein as the "Parties" and each
individually as a "Party".
RECITALS
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A. On July 2, 2003, AWS, Absolute Sub, Absolute and the Holders entered
into a certain Agreement and Plan of Merger ("Merger Agreement").
B. Immediately prior to the Merger, AWS had 10,000,000 shares of its common
stock issued and outstanding.
C. The Merger Agreement provided for a tax-free issuance of securities
pursuant to the provisions of Section 368(a) of the Internal Revenue Code, as
amended ("IRC"), whereby AWS acquired 100% of the membership interests of
Absolute through the merger of Absolute with and into Absolute Sub (the
"Merger").
D. On August 25, 2003 (the "Effective Date"), a Certificate of Merger by
and between Absolute and Absolute Sub ("Certificate of Merger") was issued by
the Texas Secretary of State pursuant to which Absolute merged with and into
Absolute Sub, and the separate legal existence of Absolute ceased and Absolute
Sub continued as the surviving corporation to operate the former business of
Absolute.
E. In consideration of the Merger and the acquisition by AWS of Absolute in
connection therewith, AWS issued 27,000,000 shares of ASW's Class A convertible
preferred stock ("Merger Stock") which, following the Merger, represented all of
the issued and outstanding shares of ASW's Class A convertible preferred stock.
F. Absolute Sub is a wholly owned subsidiary of AWS and, since the Merger,
the former business and operations of Absolute have been carried out by and
through Absolute Sub.
G. In connection with the Merger, PAC Funding, LLC ("PAC"), Tom Duszynski
and Donald Huggins executed a certain Inducement/Indemnity Agreement requiring
PAC to undertake certain actions and indemnify AWS against certain liabilities
and obligations ("Inducement Agreement").
H. The Board of Directors of AWS and the Holders have determined that as a
result of the failure to cause AWS common stock to be tradable on the
over-the-counter bulletin board, the failure to file the reports required under
the Exchange Act of 1934, as amended ("Exchange Act") in a timely manner, and
other breaches of the Merger Agreement and the Inducement Agreement, it is
equitable and appropriate to rescind the Merger Agreement and terminate the
Merger ab initio, for each Party to return to the other Party the consideration
received in connection with the Merger, and to release each other from all
duties, rights, claims, causes of action, obligations and liabilities arising
from, in connection with or relating to the Merger Agreement and the Merger, all
as provided herein.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants and agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Agreement to Rescind. Subject to the terms and conditions set forth
herein, the Parties agree to rescind the Merger Agreement and terminate the
Merger ab initio, and the Merger Agreement (together with all agreements,
documents and instruments delivered in connection therewith including, without
limitation, the Inducement Agreement) shall be rescinded ab initio and shall be
of no further force and effect, as of the Closing. On the Closing, the Parties
shall have no further liabilities and obligations under or with respect to the
Merger Agreement (or any agreements, documents and instruments delivered in
connection therewith including, without limitation, the Inducement Agreement).
In furtherance of the foregoing, at the Closing, AWS and the Holders agree to
exchange the Merger Stock and the issued and outstanding shares of stock in the
Absolute Sub as more fully set forth in Section 5 hereof, so that: (i) AWS will
divest itself of and no longer will have any ownership interest in Absolute Sub;
(ii) the Holders and their assignees ("Absolute Group"), all other persons who
were issued AWS stock in consideration for causing the Merger to occur ("Merger
Facilitators"), and those who have been issued AWS stock subsequent to the
merger in consideration for services rendered or assets conveyed to Absolute Sub
("Post Merger Group") will divest themselves of and no longer have any ownership
interest in AWS; and (iii) after the Closing, the Absolute Group and the Post
Merger Group will own 100% of the common stock of Absolute Sub, the
successor-in-interest to the business of Absolute by virtue of the Merger.
2. Regulatory Compliance. AWS agrees, following the execution of this
Agreement, and at its cost, to (a) file a Current Report on Form 8-K pursuant to
the Exchange Act to disclose this Agreement ("Form 8-K"); and (b) file an
Information Statement pursuant to Section 14(c) of the Exchange Act
("Information Statement"), each of which shall be acceptable to the Parties and
are attached hereto as Schedule A.
3. Closing. The closing ("Closing") of the transactions and the
effectiveness of this Agreement as contemplated by Section 1 hereof shall take
place at the principal offices of AWS at the time this agreement is executed by
all parties.
4. Approval. Prior to Closing, the Board of Directors of AWS and a majority
of its stockholders will have consented in writing to the actions contemplated
hereby. Copies of such consents are attached hereto as Schedule B.
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5. Return of Consideration. At the Closing, each Party agrees to return to
the other the consideration received by it in connection with the Merger
Agreement as follows:
a) Merger Stock. The Holders agree to endorse, assign and transfer to
AWS and cause their assignees to endorse, assign and transfer to AWS all of
their right title and interest in and to the Merger Stock. The Holders shall, at
Closing, deliver the certificate(s) representing the Merger Stock, duly endorsed
to AWS or accompanied by stock powers duly endorsed to AWS, with each Holder's
signature medallion guaranteed by a national bank. From time to time after the
Closing, and without further consideration, the Holders agree to execute and
deliver such other instruments of transfer and take such other actions as AWS
may reasonably request in order to effectively transfer the Merger Stock to AWS.
Thereafter, AWS shall take such actions to cancel the Merger Stock.
b) Absolute Sub Stock. AWS hereby agrees to endorse, assign and transfer
to the members of the Absolute Group and the members of the Post Merger Group
all of its right, title and interest in and to all of the issued and outstanding
shares of stock ("Absolute Sub Stock") in Absolute Sub, in such proportion as
directed by the Holders in a writing signed by all of the Holders. AWS shall, at
Closing, deliver the certificate(s) representing the Absolute Sub Stock, duly
endorsed to the members of the Absolute Group and the Post Merger Group or
accompanied by stock powers duly endorsed to the members of the Absolute Group
and the Post Merger Group, with AWS's signature medallion guaranteed by a
national bank. From time to time after the Closing, and without further
consideration, AWS agrees to execute and deliver such other instruments of
transfer and take such other actions as the Holders may reasonably request in
order to effectively transfer the Absolute Sub Stock.
c) Merger Facilitators. Thomas Duszynski agrees to endorse, assign and
transfer to AWS for cancellation the one million shares of common stock in AWS
issued to him in connection with the Merger. Messrs. Huggins and Duszynski shall
cause the two million shares of common stock in AWS issued to Glen Bagwell, as
escrow agent, to be surrendered for cancellation with any necessary or
appropriate endorsement thereof. Mr. Huggins shall cause the 4 million shares of
common stock in AWS issued to Private Capital Group, Inc. to be surrendered for
cancellation with any necessary or appropriate endorsement thereof. Messrs.
Duszynski and Huggins shall use their best efforts to cause three million shares
of common stock in AWS issued to the Harrelson Group in connection with the
Merger to be surrendered for cancellation with any necessary pr appropriate
endorsement thereof.
d) Post-Merger Group. The Holders shall cause the Post-Merger Group to
endorse, assign and transfer to AWS for cancellation the shares of stock in AWS
issued to each such person.
6. Other Closing Matters. At the Closing, the Holders shall each tender his
resignation as an officer and/or director of AWS, all effective as of the
Closing. At the Closing, AWS shall cause to be filed an amendment to its
articles of incorporation changing its name to a name other than Absolute Waste
Services, Inc. and shall execute and deliver to Absolute Sub an assignment of
all of its rights and interest in the name "Absolute Waste Services."
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7. Representations and Warranties of AWS. AWS warrants and represents to
the Holders that: (i) AWS has and shall transfer at the Closing, good and
marketable title to the Absolute Sub Stock, free and clear of all liens, claims,
charges, encumbrances, pledges, mortgages, security interests, options, rights
to acquire, proxies, voting trusts or similar agreements, restrictions on
transfer or adverse claims of any nature whatsoever ("Liens"); (ii) AWS has all
requisite power and authority to execute and perform its obligations under this
Agreement; that it has taken all necessary action to authorize such execution,
delivery and performance; that such execution, delivery and performance does not
violate or conflict with any law applicable to it, any provision of its charter
or bylaws, or any order or judgment or order of any court or other agency of
government applicable to it and that it has obtained any and all consents
necessary such that this Agreement, when executed, will constitute the legal,
valid and binding obligation of the Parties, enforceable in accordance with its
respective terms, subject only to the laws of bankruptcy or insolvency; and
(iii) since the Effective Date, AWS has not incurred, nor has it caused the
incurrence of, any liabilities or obligations for or on the account of Absolute
Sub, other than liabilities and obligations arising out of the actions of the
Holders or duly authorized by the Board of Directors of AWS.
8. Representations and Warranties of the Holders. The Holders warrant and
represent to AWS that: (i) the Holders shall transfer or cause to be transferred
to AWS at the Closing, good and marketable title to the Merger Stock, free and
clear of all Liens; (ii) each Holder has all requisite power and authority to
execute and perform its obligations under this Agreement; that it has taken all
necessary action to authorize such execution, delivery and performance; that
such execution, delivery and performance does not violate or conflict with any
law applicable to it, or any order or judgment or order of any court or other
agency of government applicable to it and that it has obtained any and all
consents necessary such that this Agreement, when executed, will constitute the
legal, valid and binding obligation of the Parties, enforceable in accordance
with its respective terms, subject only to the laws of bankruptcy or insolvency;
and (iii) since the Effective Date, the Holders have not incurred, nor have they
caused the incurrence of, any liabilities or obligations for or on the account
of AWS or any changes in the capital structure of AWS, or agreements to effect
any changes in the capital structure, except for liabilities or obligations or
changes duly authorized by the Board of Directors of AWS.
9. Survival; Indemnification. The representations and warranties of the
Parties contained herein shall survive the Closing. The Holders, jointly and
severally, agree to indemnify and hold AWS harmless (from and after the
Closing), and its directors, officers, shareholders, employees and agents
(collectively, the "AWS Indemnified Parties") against any and all liabilities,
obligations, losses, damages, claims, or actions (including reasonable
attorneys' fees) based upon, resulting from or arising out of, any breach or
inaccuracy of any representation or warranty by Holders, or any statement,
agreement or covenant made by the Holders in or pursuant to this Agreement. AWS
agrees to indemnify and hold the Holders harmless (from and after the Closing),
against any and all liabilities, obligations, losses, damages, claims, or
actions (including reasonable attorneys' fees) based upon, resulting from or
arising out of, any breach or inaccuracy of any representation or warranty by
AWS, or any statement, agreement or covenant made by AWS in or pursuant to this
Agreement. No claim for indemnity by Holders or AWS shall be made hereunder
after 11:59 p.m. on the date that is one year after the Closing hereof.
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10. Releases.
(a) The Parties hereby unequivocally release and discharge each other
Party and any of its directors, agents, attorneys, representatives,
stockholders, managers, members, financial advisors, affiliates, principals, or
parents, and any administrators, successors and assigns ("Related Parties") of
any action, choses in action, cases, claims, suits, injuries, damages,
judgments, obligations, debts, and liabilities whatsoever, in law, equity or
otherwise arising under, in connection with or relating to the Merger Agreement,
the Merger, any documents and agreements delivered pursuant to the Merger
Agreement, any transactions contemplated thereby, or in connection with the
events leading to the termination of the Merger and the rescission of the Merger
Agreement, including without limitation the Inducement Agreement.
Notwithstanding the foregoing, the obligations of the Parties specifically set
forth in this Agreement are not hereby released, discharged or compromised.
(b) Each Party hereby irrevocably agrees to refrain from directly or
indirectly asserting any claim or demand or commencing (or causing to be
commenced) any suit, action, or proceeding of any kind, in any court or before
any tribunal, against any other Party or their Related Parties based upon any
released claim.
11. Publicity and Disclosure. Except as required by law, no press releases
except as set forth herein shall be issued regarding the rescission of the
Merger Agreement by any Party without the prior written consents of the other
Parties.
12. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the Parties with respect to the subject matter hereof and
supercedes all prior and contemporaneous agreements and understandings. This
Agreement is binding upon and shall inure to the benefit of the Parties hereto
and their legal representatives, successors and permitted assigns. This
Agreement may not be assigned and, except as stated herein, may not be altered
or amended except in writing executed by all of the Parties hereto.
13. Governing Law, Dispute Resolution and Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Texas, without giving effect to the conflicts of laws principles thereof. All
disputes, controversies or claims ("Disputes") arising out of or relating to
this Agreement shall in the first instance be the subject of a meeting between a
representative of each Party who has decision-making authority with respect to
the matter in question. Should the meeting either not take place or not result
in a resolution of the Dispute within twenty (20) business days following notice
of the Dispute to the other Party, then the Dispute shall be resolved in a
binding arbitration proceeding to be held in Dallas, Texas, in accordance with
the international rules of the American Arbitration Association. The Parties
agree that a panel of three arbitrators shall be required. Any award of the
arbitrators shall be deemed confidential information for a minimum period of
five years. The arbitrators may award attorneys' fees and other arbitration
related expense, as well as pre- and post-judgment interest on any award of
damages, to the prevailing Party, in their sole discretion.
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14. Notices. All notices or other communications to be sent by any Party to
this Agreement to any other Party shall be sent by certified mail, personal
delivery or national overnight courier to the addresses herein designated or as
may hereafter be designated in writing by a Party. Notice shall be deemed given
and received on the date of actual delivery to the address specified thereon.
15. Counterparts. This Agreement may be executed in counterparts, all of
which, when taken together, shall constitute the entire Agreement.
16. Severability. The provisions of this Agreement shall be severable, so
that the unenforceability, validity or legality of any one provision shall not
affect the enforceability, validity or legality of the remaining provisions
thereof.
17. Joint Drafting. This Agreement shall be deemed to have been drafted
jointly by the Parties hereto, and no inference or interpretation against any
Party shall be made solely by virtue of such Party allegedly having been the
draftsperson of the Agreement. IN WITNESS WHEREOF, the Parties have made and
executed this Agreement as of the day and year first above written.
Absolute Waste Services, Inc. Absolute Waste Acquisitions, Inc
By: /s/ James D. Wright By: /s/ James D. Wright
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James D. Wright James D. Wright
Title: CEO Title: President
Holders:
/s/ James D. Wright
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James D. Wright
/s/ William M. Davis
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William M. Davis
/s/ Larry Woods
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Larry Woods
PAC Funding, LLC
By: /s/ Donald Huggins
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Donald Huggins, Jr
Title: Co-Manager
/s/ Thomas F. Duszynski
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Thomas F. Duszynski