ACQUISITION AGREEMENT
Agreement dated as of May 5, 2000 between Amstar Acquisitions., Inc., a
Nevada corporation ("Buyer") on behalf of its shareholders, and NATURE
TREAT INC., a Delaware corporation (" Seller") on behalf of its
shareholders.
The parties wish to provide for Seller's sale of the Shares to Buyer and
Buyer 's purchase of the Shares from Seller on the terms and conditions
of this Agreement.
The parties agree as follows:
1. The Acquisition.
1.1 Purchase and Sale Subject to the terms and conditions of this
Agreement, at the Closing to be held as provided in Section 2,
Seller shall sell the Shares to Buyer, and Buyer shall purchase the
Shares from Seller, free and clear of all Encumbrances. Buyer shall
change its name to NATURE TREAT, INC.
1.2 Purchase Price. Purchaser will exchange shares of its restricted
common stock on a one for one basis for each share representing all
of the outstanding capital stock or ownership interest of Nature
Treat, Inc. It is anticipated that this transaction is a non-
taxable share exchange under Rule 368 of the Internal Revenue Code.
2. The Closing.
2.1 Place and Time. The closing of the sale and purchase of the Shares
(the "Closing") shall take place at the offices of Xxxxx Xxxxxxx,
Esq. 0000 X. Xxxxxx #000, Xxx Xxxxx, XX 00000 no later than the
close of business (Las Vegas time) on 5/10/00, or at such other
place, date and time as the parties may agree in writing.
2.2 Deliveries by Seller. At the Closing, Seller shall deliver the
following to Buyer:
(a) Certificates representing the Shares, duly endorsed for transfer to
Buyer and accompanied by any applicable stock transfer tax stamps;
Seller shall cause Amstar Acquisitions, Inc. to change those
certificates for, and to deliver to Buyer at the Closing, a
certificate representing the Shares registered in the name of Buyer
(without any legend or other reference to any Encumbrance).
(b) The documents contemplated by Section 3.
(c) All other documents, instruments and writings required by this
Agreement to be delivered by Seller at the Closing and any other
documents or records relating to NATURE TREAT, INC. 's business
reasonably requested by Buyer in connection with this Agreement.
2.3 Deliveries by Buyer. At the Closing, Buyer shall deliver the
following to Seller:
(a) The shares as contemplated by section 1.
(b) The documents contemplated by Section 4.
(c) All other documents, instruments and writings required by this
Agreement to be delivered by Buyer at the Closing.
(d) A legal opinion certifying the Buyer representatives and warranties
3. Conditions to Buyer's Obligations.
The obligations of Buyer to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any
one or more of which may be waived by Buyer:
3.1 Representations, Warranties and Agreements.
(a) The representations and warranties of Seller set forth in this
Agreement shall be true and complete in all material respects as of
the Closing Date as though made at such time, (b) Seller shall have
performed and complied in all material respects with the agreements
contained in this Agreement required to be performed and complied
with by it at or prior to the Closing and (c) Buyer shall have
received a certificate to that effect signed by an authorized
representative of Seller.
3.2 Resignations of Directors. All directors of Amstar Acquisitions.,
Inc. and its Subsidiaries whose resignations shall have been
requested by Buyer not less than ten Business Days before the
Closing Date shall have submitted their resignations or been
removed effective as of the Closing Date.
4. Conditions to Seller 's Obligations.
The obligations of Seller to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any
one or more of which may be waived by Seller:
4.1 Representations, Warranties and Agreements.
(a) The representations and warranties of Buyer set forth in this
Agreement shall be true and complete in all material respects as of
the Closing Date as though made at such time, (b) Buyer shall have
performed and complied in all material respects with the agreements
contained in this Agreement required to be performed and complied
with by it prior to or at the Closing and (c) Seller shall have
received a certificate to that effect signed by an officer of
Buyer.
5. Representations and Warranties of Seller.
Seller represents and warrants to Buyer that, to the Knowledge of Seller
(which limitation shall not apply to Section 5.3), and except as set
forth in the Disclosure Letter:
5.1 Organization of Seller; Authorization. Seller is a corporation duly
organized, validly existing and in good standing under the laws of
Nevada with full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
The execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action of Seller and
this Agreement constitutes a valid and binding obligation of
Seller, enforceable against it in accordance with its terms.
5.2 Conflict as to Seller: Neither the execution and delivery of this
Agreement nor the performance of Buyer's obligations hereunder will
(a) violate any provision of the certificate of incorporation or
by-laws of Seller or (b) violate any statute or law or any
judgment, decree, order, regulation or rule of any court or other
Governmental Body applicable to Seller.
5.3 Ownership of Shares. The delivery of certificates to Buyer and the
payment to Seller will result in Buyer's immediate acquisition of
record and beneficial ownership of the Shares, free and clear of
all Encumbrances. There are no outstanding options, rights,
conversion rights, agreements or commitments of any kind relating
to the issuance, sale or transfer of any Equity Securities or other
securities of Nature Treat, Inc.
5.4 Title to Properties. Either NATURE TREAT, INC., Inc. or one of its
Subsidiaries owns all the material properties and assets that they
purport to own (real, personal and mixed, tangible and intangible),
including, without limitation, all the material properties and
assets reflected in the Balance Sheet (except for property sold
since the date of the Balance Sheet in the ordinary course of
business or leased under capitalized leases), and all the material
properties and assets purchased or otherwise acquired by Nature
Treat, Inc. or any of its Subsidiaries since the date of the
Balance Sheet.
5.5 Buildings, Plants and Equipment. The buildings, plants, structures
and material items of equipment and other personal property owned
or leased by Nature Treat, Inc. or its Subsidiaries are, in all
respects material to the business or financial condition of Nature
Treat, Inc. and its Subsidiaries, taken as a whole, in good
operating condition and repair (ordinary wear and tear excepted)
and are adequate in all such respects for the purposes for which
they are being used.
5.6 Absence of Certain Changes. Since the date of the Balance Sheet,
neither Nature Treat, Inc. nor any of its Subsidiaries has:
(a) Suffered the damage or destruction of any of its properties or
assets (whether or not covered by insurance) which is materially
adverse to the business or financial condition of Nature Treat, Inc.
and its Subsidiaries, taken as a whole, or made any disposition of
any of its
Material properties or assets other than in the ordinary course of
business;
(b) Made any change or amendment in its certificate of incorporation or
by-laws, or other governing instruments,
(c) Issued or sold any Equity Securities or other securities, acquired,
directly or indirectly, by redemption or otherwise, any such Equity
Securities, reclassified, split-up or otherwise changed any such
Equity Security, or granted or entered into any options, warrants,
calls or commitments of any kind with respect thereto;
(d) Paid, discharged or satisfied any material claim, liability or
obligation (absolute, accrued, contingent or otherwise), other than
in the ordinary course of business;
(e) Prepaid any material obligation having a maturity of more than 90
days from the date such obligation was issued or incurred;
(f) Cancelled any material debts or waived any material claims or
rights, except in the ordinary course of business;
5.8 No Material Adverse Change. Since the date of the Balance Sheet,
there has not been any material adverse change in the business or
financial condition of Nature Treat, Inc. and its Subsidiaries
taken as a whole, other than changes resulting from economic
conditions prevailing in the United States.
5.9 Brokers or Finders. Seller has not employed any broker or finder or
incurred any liability for any brokerage or finder's fees or
commissions or similar payments in connection with the sale of the
Shares to Buyer.
5.10 Transactions with Directors and Officers. Nature Treat, Inc. and
its Subsidiaries do not engage in business with any Person (other
than Seller) in which any of Nature Treat, Inc.'s directors or
officers has a material equity interest. No director or officer of
Nature Treat, Inc. owns any property, asset or right which is
material to the business of Nature Treat, Inc. and its
Subsidiaries, taken as a whole.
6. Representations and Warranties of Buyer.
Buyer represents and warrants to Seller as follows:
6.1 Organization of Buyer; Authorization. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of
Nevada, with full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
The execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action of Buyer and this
Agreement constitutes a valid and binding obligation of Buyer,
enforceable against it in accordance with its terms.
6.2 Brokers or Finders. Buyer has not employed any broker or finder or
incurred any liability for any brokerage or finder's fees or
commissions or similar payments in connection with any of the
transactions contemplated hereby.
6.3 Purchase for Investment. Buyer is purchasing the shares solely for
its own account for the purpose of investment and not with a view
to, or for sale in connection with, any distribution of any portion
thereof in violation of any applicable securities law.
6.4 Conflict as to Buyer. Neither the execution and delivery of this
Agreement nor the performance of Buyer's obligations hereunder will
(a) violate any provision of the certificate of incorporation or
by-laws of Buyer or (b) violate any statute or law or any judgment,
decree, order, regulation or rule of any court or other
Governmental Body applicable to Buyer.
6.5 Buyer is a publicly traded company that will trade on the OTC: BB.
Buyer has properly filed all documentation with the SEC, NASD or
other applicable bodies necessary to become and remain a publicly
traded company.
6.6 There are no pending or threatened legal or regulatory claims,
demands or liabilities of any kind or nature against buyers of it
assets.
6.7 Buyer has filed all federal, state and local income or other tax
returns as required by law, and has paid all taxes which are due,
and has no tax delinquencies of any kind.
6.8 There are currently 5,000,000 shares issued and outstanding in
Buyer. The shares, when issued were properly distributed under
applicable securities laws, and Buyer has taken no action to cause
said stock to lose its free trading status. There are no warrants,
option agreements or pending subscription agreements whereby Buyer
is obligated to issue any additional stock to any person.
6.9 Upon on closing, seller's shareholders will receive a controlling
interest in and complete management control over Buyer by virtue of
their stock ownership, and there are no shareholder rights or
agreements, or other legal impediments to the transfer of
management control of Buyers.
7. Access and Reporting; Filings With Governmental Authorities.
7.1 Access. Between the date of this Agreement and the Closing Date,
Seller shall, and shall cause Nature Treat, Inc. To, (a) give Buyer
and its authorized representatives reasonable access to all plants,
offices, warehouse and other facilities and properties of Nature
Treat, Inc. and its Subsidiaries and to the books and records of
Nature Treat, Inc. And its Subsidiaries, (b) permit Buyer to make
inspections thereof, and (c) cause its officers and its advisors to
furnish Buyer with such financial and operating data and other
information with respect to the business and properties of Nature
Treat, inc. and its Subsidiaries and to discuss with Buyer and its
Authorized representatives the affairs of Nature Treat, Inc. and its
Subsidiaries, all as Buyer may from time to time reasonably request.
7.2 Exclusivity. From the date hereof until the earlier of the Closing
or the termination of this Agreement, Seller shall not solicit or
negotiate or enter into any agreement with any other Person with
respect to or in furtherance of any proposal for a merger or
business combination involving, or acquisition of any interest in,
or (except in the ordinary course of business) sale of assets by,
Nature Treat, Inc. , except for the acquisition of the Shares by
Buyer.
7.3 Publicity. Between the date of this Agreement and the Closing Date,
Seller and Buyer shall, and Seller and Buyer shall cause Amstar
Acquisitions to, discuss and coordinate with respect to any public
filing or announcement or any internal or private announcement
(including any general announcement to employees) concerning the
contemplated transaction.
7.4 Confidentiality. Prior to the Closing Date (or at any time if the
Closing does not occur) Buyer shall keep confidential and not
disclose to any Person (other than its employees, attorneys,
accountants and advisors) or use (except in connection with the
transactions contemplated hereby) all nonpublic information
obtained by Buyer pursuant to Section 7.1. Following the Closing,
Seller shall keep confidential and not disclose to any Person
(other than its employees, attorneys, accountants and advisors) or
use (except in connection with preparing Tax Returns and conducting
proceeds relating to Taxes) any nonpublic information relating to
Amstar Acquisitions and its Subsidiaries. This Section 7.7 shall
not be violated by disclosure pursuant to court order or as
otherwise required by law, on condition that notice of the
requirement for such disclosure is given the other party prior to
making any disclosure and the party subject to such requirement
cooperates as the other may reasonably request in resisting it. If
the Closing does not occur, Buyer shall return to Seller, or
destroy, all information it shall have received from Seller or
Nature Treat, Inc. in connection with this Agreement and the
transactions contemplated hereby, together with any copies or
summaries thereof or extracts there from. Seller and Buyer shall
use their best efforts to cause their respective representatives,
employees, attorneys, accountants and advisors to whom information
is disclosed pursuant to Sections 7.1 and 7.6 to comply with the
provisions of this Section 7.7.
8. Conduct of Nature Treat, Inc.'s Business Prior to the Closing.
8.1 Operation in Ordinary Course. Between the date of this Agreement and
the Closing Date, Seller shall cause Nature Treat, Inc. and its
Subsidiaries to conduct their businesses in all material respects
in the ordinary course.
8.2 Business Organization. Between the date of this Agreement and the
Closing Date, Seller shall use its reasonable efforts, and shall
cause Nature Treat, Inc. and each of its Subsidiaries to use its
respective reasonable efforts, to
(a) Preserve substantially intact the business organization of Nature
Treat, Inc. and each of its Subsidiaries and keep available the
services of the present officers and employees of Nature Treat,
Inc. and each of its Subsidiaries, and
(b) preserve in all material respects the present business
relationships and good will of Nature Treat, Inc. and each of its
Subsidiaries.
8.3 Corporate Organization. Between the date of this Agreement and the
Closing Date, neither Buyer or Seller shall not cause or permit any
amendment of the certificate of incorporation or by-laws (or other
governing instrument) of Nature Treat, Inc. or any of its
Subsidiaries, and shall cause Nature Treat, Inc. and each of its
Subsidiaries not to:
(a) Issue, sell or otherwise dispose of any of its Equity Securities, or
create, sell or otherwise dispose of any options, rights,
conversion rights or other agreements or commitments of any kind
relating to the issuance, sale or disposition of any of its Equity
Securities;
(b) Sell or otherwise dispose of any Equity Securities of Nature Treat,
Inc. or any of its Subsidiaries, or create or suffer to be created
any Encumbrance thereon, or create, sell or otherwise dispose of
any options, rights, conversion rights or other agreements or
commitments of any kind relating to the sale or disposition of any
Equity Securities of Nature Treat, Inc. or any of its Subsidiaries;
(c) Reclassify, split up or otherwise change any of its Equity
Securities;
(d) Be party to any merger, consolidation or other business combination;
(e) Sell, lease, license or otherwise dispose of any of its properties
or assets (including, but not limited to rights with respect to
patents and registered trademarks and copyrights or other
proprietary rights), in an amount which is material to the business
or financial condition of Nature Treat, Inc. and its Subsidiaries,
taken as a whole, except in the ordinary course of business.
9. Survival of Representations and Warranties; Indemnification.
9.1 Survival. No representation or warranty contained in this Agreement
or in any certificate or document delivered pursuant hereto shall
survive the Closing, except for those contained in Sections 5.1,
5.2, 5.3(only as to Seller), 5.10, 6.1, 6.2, 6.3, 6.4(the
"Surviving Representations and Warranties ").
9.2 Indemnification by Seller. Seller shall indemnify and hold harmless
Buyer and Amstar Acquisitions, and shall reimburse Buyer and Amstar
Acquisitions for, any loss, liability, damage or expense (including
reasonable attorneys fees) (collectively, "Damages") arising from
or in connection with (a) any inaccuracy in any of the Surviving
Representations and Warranties of Seller in this Agreement or (b)
any failure by Seller to perform or comply with any agreement in
this Agreement.
9.3 Indemnification by Buyer. Buyer shall indemnify and hold harmless
Seller, and shall reimburse Seller for, any Damages arising from or
in connection with (a) any inaccuracy in any of the Surviving
Representations and Warranties of Buyer in this Agreement, (b) any
failure by Buyer to perform or comply with any agreement in this
Agreement, except that after the Closing no claim shall be made
with respect to the failure to perform or comply with any agreement
required to have been performed or complied with prior to the
Closing Date, and (c) any payments made by Seller after the Closing
pursuant to any guaranty by Seller of any obligation of Amstar
Acquisitions or any of its Subsidiaries (other than as contemplated
by Section 2.4). Buyer shall use its best efforts to obtain
Seller's release from any such guaranties.
10. Termination.
Termination. This Agreement may be terminated before the Closing occurs
only as follows:
(a) By written agreement of Seller and Buyer at any time.
(b) By Seller, by notice to Buyer at any time, if one or more of the
conditions specified in Section 4 is not satisfied at the time at
which the Closing (as it may be deferred pursuant to Section 2.1)
would otherwise occur or if satisfaction of such a condition is or
becomes impossible.
(c) By Buyer, by notice to Seller at any time, if one or more of the
conditions specified in Section 3 is not satisfied at the time at
which the Closing (as it may be deferred pursuant to Section 2.1),
would otherwise occur of if satisfaction of such a condition is or
becomes impossible.
(d) By Buyer or Seller, by notice to the other at any time after 5-10-
00.
10. Effect of Termination.
If this Agreement is terminated pursuant to Section 10(a), this
Agreement shall terminate without any liability or further obligation of
any party to another.
11. Notices.
All notices, consents, assignments and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given when (a) delivered by hand, (b) sent by telex or telecopier (with
receipt confirmed), provided that a copy is mailed by registered mail,
return receipt requested, or (c) received by the delivery service
(receipt requested), in each case to the appropriate addresses, telex
numbers and telecopier numbers set forth below (or to such other
addresses, telex numbers and telecopier numbers as a party may designate
as to itself by notice to the other parties).
(a) If to Buyer: (b) If to Seller:
C/o Xxxxx X. Xxxxxxx, a P.C.,
0000 X. Xxxxxx #000
Xxx Xxxxx, XX 00000
Telecopier No.: 000-000-0000 Telecopier No.:
Attention: Xxxxx X. Xxxxxxx Attention:
12. Miscellaneous.
12.1 Expenses. Each party shall bear its own expenses incident to the
preparation, negotiation, execution and delivery of this Agreement
and the performance of its obligations hereunder.
12.2 Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the
interpretation of this agreement.
12.3 No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be
considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing.
12.4 Exclusive Agreement; Amendment. This Agreement supersedes all prior
agreements among the parties with respect to its subject matter and
is intended (with the documents referred to herein) as a complete
and exclusive statement of the terms of the agreement among the
parties with respect thereto and cannot be changed or terminated
orally.
12.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but
all of which together shall constitute the same instrument.
12.6 Governing Law. This Agreement and (unless otherwise provided) all
amendments hereof and waivers and consents hereunder shall be
governed by the internal law of the State of Nevada, without regard
to the conflicts of law principles thereof.
12.7 Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and
assigns, provided that neither party may assign its rights hereunder
without the consent of the other except that Buyer may assign its
rights (but not its obligations) under this Agreement to its wholly-
owned Subsidiary without the consent of Seller, provided that, after
the Closing, no consent of Seller shall be needed in connection with
any merger or consolidation of Buyer with or into another entity.
Amstar Acquisitions
By
Nature Treat, Inc.
By
