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AGREEMENT AND PLAN OF MERGER between BARHILL ACQUISITION CORPORATION, a
Delaware corporation ("Barhill"), and AQUA VIE BEVERAGE CORPORATION, a Delaware
corporation ("Aqua Vie"), Barhill and Aqua Vie being sometimes referred to
herein as the "Constituent Corporations."
WHEREAS, the board of directors of each Constituent Corporation deems it
advisable that the Constituent Corporations merge into a single corporation in a
transaction intended to qualify as a reorganization within the meaning of
Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended ("the
Merger");
NOW, THEREFORE, in consideration of the premises and the respective
mutual covenants, representations and warranties herein contained, the parties
agree as follows:
1. SURVIVING CORPORATION. Barhill shall be merged with and into Aqua Vie
which shall be the surviving reporting corporation (hereinafter the "Surviving
Corporation") in accordance with the applicable laws of the State of Delaware.
2. MERGER DATE. The Merger shall become effective (the "Merger Date")
upon the completion of:
2.1 Adoption of this Agreement by the shareholders of Barhill
pursuant to the General Corporation Law of Delaware and by the shareholders of
Aqua Vie by a vote of the shareholders ratified by the Board of Directors of
Aqua Vie, pursuant to the Business Corporation Law of Delaware.
2.2 Execution and filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with the General
Corporation Law of Delaware.
3. TIME OF FILINGS. The Certificate of Merger shall be filed with the
Secretary of State of Delaware upon the approval of this Agreement by the
shareholders of the Constituent Corporations and the fulfillment or waiver of
the terms and conditions herein.
4. GOVERNING LAW. The Surviving Corporation shall be governed by the
laws of the State of Delaware.
5. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Aqua Vie shall be the Certificate of Incorporation of the Surviving Corporation
from and after the Merger Date, subject to the right of the Surviving
Corporation to amend its Certificate of Incorporation in accordance with the
laws of the State of Delaware.
6. BYLAWS. The Bylaws of the Surviving Corporation shall be the Bylaws
of Aqua Vie as in effect on the date of this Agreement.
7. NAME OF SURVIVING CORPORATION. The Surviving Corporation will
continue to use its name "Aqua Vie Beverage Corporation" or such name as it may
choose and shall be available.
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8. CONVERSION. The mode of carrying the merger into effect and the
manner and basis of converting the shares of Barhill into shares of the
Surviving Corporation are as follows:
8.1 The aggregate number of shares of Barhill Common Stock issued
and outstanding on the Merger Date shall, by virtue of the merger and without
any action on the part of the holders thereof, be converted into an aggregate of
250,000 shares of Aqua Vie Common Stock adjusted by any increase for fractional
shares and reduced by any Dissenting Shares (defined below).
8.2 At June 30, 1999, there were issued and outstanding
approximately 20,978,516 shares of Common Stock of Aqua Vie.
8.3 The Aqua Vie Common Stock shall be issued to the holders of
such Barhill Common Stock in exchange for their shares on a pro rata basis in
accordance with each holder's relative ownership of the Barhill Common Stock
that is being exchanged.
8.4 All outstanding warrants of Barhill and any other outstanding
rights to purchase stock of Barhill shall be adjusted, pursuant to the terms
contained in such warrants or other rights documents, for conversion to warrants
or rights to purchase stock of Aqua Vie on the same ratio as provided herein for
holders of Aqua Vie Common Stock.
8.5 The shares of Aqua Vie Common Stock to be issued in exchange
for Barhill Common Stock hereunder shall be proportionately reduced by any
shares owned by Barhill shareholders who shall have timely objected to the
merger (the "Dissenting Shares") in accordance with the provisions of Business
Corporation Law of Delaware which objections will be dealt with as provided in
those sections.
8.6 Each share of Barhill Common Stock that is issued and
outstanding and owned by Barhill on the Merger Date shall, by virtue of the
merger and without any action on the part of Barhill, be retired and canceled.
8.7 Each certificate evidencing ownership of shares of Aqua Vie
Common Stock issued and outstanding on the Merger Date or held by Aqua Vie in
its treasury shall continue to evidence ownership of the same number of shares
of Aqua Vie Common Stock.
9. EXCHANGE OF CERTIFICATES. As promptly as practicable after the Merger
Date, each holder of an outstanding certificate or certificates theretofore
representing shares of Barhill Common Stock (other than certificates
representing Dissenting Shares) shall surrender such certificate(s) for
cancellation to the party designated by the Surviving Corporation to handle such
exchange (the "Exchange Agent"), and shall receive in exchange a certificate or
certificates representing the number of full shares of Aqua Vie Common Stock
into which the shares of Barhill Common Stock represented by the certificate or
certificates so surrendered shall have been converted.
10. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding
certificate that prior to the Merger Date represented Barhill Common Stock
(other than certificates representing Dissenting Shares) shall be deemed for all
purposes, other than the payment of dividends or other distributions, to
evidence ownership of the number of shares of Aqua Vie Common Stock into which
it was converted. No dividend or other distribution payable to holders of Aqua
Vie Common Stock as of any date subsequent to the Merger Date shall be paid to
the holders of outstanding certificates of Barhill Common Stock; provided,
however, that upon surrender and exchange of such outstanding certificates
(other than certificates representing Dissenting Shares), there shall be paid to
the record holders of the certificates
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issued in exchange therefor the amount, without interest thereon, of dividends
and other distributions that would have been payable subsequent to the Merger
Date with respect to the shares of Aqua Vie Common Stock represented thereby.
11. BOARD OF DIRECTORS AND OFFICERS. The members of the board of
directors of the Surviving Corporation shall be the members of the board of
directors of Aqua Vie on the Merger Date or such others as Aqua Vie may
designate. The officers of the Surviving Corporation shall be the officers of
Aqua Vie on the Merger Date or such others as Aqua Vie may designate.
12. EFFECT OF THE MERGER. On the Merger Date, the separate existence of
Barhill shall cease (except insofar as continued by statute), and it shall be
merged with and into the Surviving Corporation. All the property, real,
personal, and mixed, of each of the Constituent Corporations, and all debts due
to either of them, shall be transferred to and vested in the Surviving
Corporation, without further act or deed. The Surviving Corporation shall
thenceforth be responsible and liable for all the liabilities and obligations,
including liabilities to holders of Dissenting Shares, of each of the
Constituent Corporations, and any claim or judgment against either of the
Constituent Corporations may be enforced against the Surviving Corporation.
13. APPROVAL OF SHAREHOLDERS. This Agreement shall be adopted by the
shareholders of the Constituent Corporations at meetings of such shareholders
called for that purpose or by written consent pursuant to the laws applicable
thereto. There shall be required for the adoption of this Agreement the
affirmative vote of the holders of at least a majority of the holders of all the
shares of the Common Stock issued and outstanding and entitled to vote for each
of the Constituent Corporations.
14. REPRESENTATIONS AND WARRANTIES OF BARHILL. Barhill represents and
warrants that:
14.1 CORPORATE ORGANIZATION AND GOOD STANDING. Barhill is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, and is qualified to do business as a foreign
corporation in each jurisdiction, if any, in which its property or business
requires such qualification.
14.2 REPORTING COMPANY. Barhill has filed with the Securities and
Exchange Commission a registration statement on Form F-10 which was declared
effective pursuant to the Securities Exchange Act of 1934 and is a reporting
company pursuant to Section 12 thereunder.
14.3 REPORTING COMPANY STATUS. Barhill has timely filed and is
current on all reports required to be filed by it pursuant to Section 12(g) of
the Securities Exchange Act of 1934.
14.4 CAPITALIZATION. Barhill's authorized capital stock consists
of 120,000,000 shares of Common Stock, $.0001 par value, of which 5,000,000
shares are issued and outstanding, and 20,000,000 shares of non-designated
preferred stock of which
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no shares are designated or issued.
14.5 ISSUANCE OF STOCK. All the outstanding shares of its Common
Stock are duly authorized and validly issued, fully paid and non-assessable.
14.6 STOCK RIGHTS. There are no stock grants, options, rights,
warrants or other rights to purchase or obtain the Barhill Common or Preferred
Stock issued or committed to be issued.
14.7 CORPORATE AUTHORITY. Barhill has all requisite corporate
power and authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver, perform and
conclude the transactions contemplated by this Agreement and all other
agreements and instruments related to this Agreement.
14.8 AUTHORIZATION. Execution of this Agreement has been duly
authorized and approved by Barhill's board of directors.
14.9 SUBSIDIARIES. Barhill has no subsidiaries.
14.10 FINANCIAL STATEMENTS. Barhill's audited financial
statements dated December 31, 1998, copies of which will have been delivered by
Barhill to Aqua Vie prior to the Merger Date (the "Barhill Financial
Statements"), fairly present the financial condition of Barhill as of the date
therein and the results of its operations for the periods then ended in
conformity with generally accepted accounting principles consistently applied.
14.11 ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
reflected or reserved against in the Barhill Financial Statements, Barhill did
not have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) of a nature customarily reflected in a corporate
balance sheet prepared in accordance with generally accepted accounting
principles.
14.12 NO MATERIAL CHANGES. There has been no material adverse
change in the business, properties, or financial condition of Barhill since the
date of the Barhill Financial Statements.
14.13 LITIGATION. There is not, to the knowledge of Barhill, any
pending, threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated against
Barhill or against any of its officers.
14.14 CONTRACTS. Barhill is not a party to any material contract
not in the ordinary course of business that is to be performed in whole or in
part at or after the date of this Agreement.
14.15 TITLE. Barhill has good and marketable title to all the
real property and good and valid title to all other property included in the
Barhill Financial Statements. Except as set out in the balance sheet thereof,
the properties of Barhill are not subject to any mortgage, encumbrance, or lien
of any kind except minor encumbrances that do not
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materially interfere with the use of the property in the conduct of the business
of Barhill.
14.16 TAX RETURNS. All federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all interest,
penalties and additions imposed with respect to such amounts, have been properly
prepared and filed by Barhill for all years to and including the taxable year
ending December 31, 1998. Any and all federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all interest,
penalties and additions imposed with respect to such amounts for the year ending
December 31, 1998, have been paid or if any is outstanding as at the date hereof
provision has been made prorated to the date hereof to be an adjustment to the
credit of Aqua Vie payable to Aqua Vie on the merger hereof. The provisions for
federal and state taxes reflected in the Barhill Financial Statements are
adequate to cover any such taxes that may be assessed against Barhill in respect
of its business and its operations during the periods covered by the Barhill
Financial Statements and all prior periods.
14.17 NO VIOLATION. Consummation of the merger will not
constitute or result in a breach or default under any provision of any charter,
bylaw, indenture, mortgage, lease, or agreement, or any order, judgment, decree,
law, or regulation to which any property of Barhill is subject or by which
Barhill is bound.
15. REPRESENTATIONS AND WARRANTIES OF AQUA VIE. Aqua Vie represents and
warrants that:
15.1 CORPORATE ORGANIZATION AND GOOD STANDING. Aqua Vie is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware and is qualified to do business as a foreign
corporation in each jurisdiction, if any, in which its property or business
requires such qualification.
15.2 CAPITALIZATION. Aqua Vie's authorized capital stock consists
of 50,000,000 shares of Common Stock, $.001 par value, of which 20,978,516
shares are issued and outstanding, and 1,000,000 shares of Series A preferred
stock, $.001 par value and 9,330 shares of Series B preferred stock which shares
are convertible into approximately 16,922,995 shares of Aqua Vie Common Stock.
15.3 ISSUED STOCK. All the outstanding shares of its Common Stock
are duly authorized and validly issued, fully paid and non-assessable.
15.4 CORPORATE AUTHORITY. Aqua Vie has all requisite corporate
power and authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver, perform and
conclude the transactions contemplated by this Agreement and all other
agreements and instruments related to this Agreement.
15.5 AUTHORIZATION. Execution of this Agreement has been duly
authorized and approved by Aqua Vie's board of directors.
15.6 SUBSIDIARIES. Aqua Vie has one subsidiary.
15.7 FINANCIAL STATEMENTS. Aqua Vie's unaudited financial
statements of
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May 30, 1999, copies of which will have been delivered by Aqua Vie to Barhill by
the Merger Date (the "Aqua Vie Financial Statements"), are believed to be
substantially correct and fairly present the financial condition of Aqua Vie as
of the date therein and the results of its operations for the periods then ended
in conformity with generally accepted accounting principles consistently
applied.
15.8 ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
reflected or reserved against in the Aqua Vie Financial Statements, Aqua Vie did
not have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) of a nature customarily reflected in a corporate
balance sheet prepared in accordance with generally accepted accounting
principles.
15.9 NO MATERIAL CHANGES. There has been no material adverse
change in the business, properties, or financial condition of Aqua Vie since the
date of the Aqua Vie Financial Statements.
15.10 LITIGATION. There is not, to the knowledge of Aqua Vie, any
pending, threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated against Aqua
Vie or against any of its officers.
15.11 CONTRACTS. Aqua Vie is not a party to any material contract
not in the ordinary course of business that is to be performed in whole or in
part at or after the date of this Agreement.
15.12 TITLE. Aqua Vie has good and marketable title to all the
real property and good and valid title to all other property included in the
Aqua Vie Financial Statements. Except as set out in the balance sheet thereof,
the properties of Aqua Vie are not subject to any mortgage, encumbrance, or lien
of any kind except minor encumbrances that do not materially interfere with the
use of the property in the conduct of the business of Aqua Vie.
15.13 TAX RETURNS. All federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all interest,
penalties and additions imposed with respect to such amounts, have been properly
prepared and filed by Aqua Vie for all years to and including the taxable year
ending December 31, 1998, unless an extension for filing such return has been
properly filed. The provisions for federal and state taxes reflected in the Aqua
Vie Financial Statements are adequate to cover any such taxes that may be
assessed against Aqua Vie in respect of its business and its operations during
the periods covered by the Aqua Vie Financial Statements and all prior periods.
15.14 NO VIOLATION. Consummation of the merger will not
constitute or result in a breach or default under any provision of any charter,
bylaw, indenture, mortgage, lease, or agreement, or any order, judgment, decree,
law, or regulation to which any property of Aqua Vie is subject or by which Aqua
Vie is bound.
16. CONDUCT OF BARHILL PENDING THE MERGER DATE. Barhill covenants that
between the date of this Agreement and the Merger Date:
16.1 No change will be made in Barhill's articles of
incorporation or bylaws.
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16.2 Barhill will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock other than as
provided herein.
16.3 Barhill will submit this Agreement for its shareholders'
approval with a favorable recommendation by its board of directors and will use
its best efforts to obtain the requisite shareholder approval.
16.4 Barhill will use its best efforts to maintain and preserve
its business organization, employee relationships, and goodwill intact, and will
not enter into any material commitment except in the ordinary course of
business.
17. CONDUCT OF AQUA VIE PENDING THE MERGER DATE. Aqua Vie covenants that
between the date of this Agreement and the Merger Date:
17.1 No change will be made in Aqua Vie's certificate of
incorporation or bylaws.
17.2 Aqua Vie will not make any change in its authorized or
issued capital stock, declare or pay any dividend or other distribution or
issue, encumber, purchase, or otherwise acquire any of its capital stock
otherwise than as provided herein.
17.3 Aqua Vie will submit this Agreement for its shareholders'
approval with a favorable recommendation by its board of directors and will use
its best efforts to obtain the requisite shareholder approval.
17.4 Aqua Vie will use its best efforts to maintain and preserve
its business organization, employee relationships, and goodwill intact, and will
not enter into any material commitment except in the ordinary course of
business.
18. CONDITIONS PRECEDENT TO OBLIGATION OF BARHILL. Barhill's obligation
to consummate this merger shall be subject to fulfillment on or before the
Merger Date of each of the following conditions, unless waived in writing by
Barhill:
18.1 AQUA VIE'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Aqua Vie set forth herein shall be true and
correct at the Merger Date as though made at and as of that date, except as
affected by transactions contemplated hereby.
18.2 AQUA VIE'S COVENANTS. Aqua Vie shall have performed all
covenants required by this Agreement to be performed by it on or before the
Merger Date.
18.3 SHAREHOLDER APPROVAL. This Agreement shall have been
approved by the required number of shareholders of the Constituent Corporations.
18.4 SUPPORTING DOCUMENTS OF AQUA VIE. Aqua Vie shall have
delivered
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to Barhill supporting documents in form and substance satisfactory to Barhill to
the effect that:
(i) Aqua Vie is a corporation duly organized, validly existing,
and in good standing.
(ii) Aqua Vie's authorized and issued capital stock is as set
forth herein.
(iii) The execution and consummation of this Agreement have been
duly authorized and approved by Aqua Vie's board of directors.
19. CONDITIONS PRECEDENT TO OBLIGATION OF AQUA VIE. Aqua Vie's
obligation to consummate this merger shall be subject to fulfillment on or
before the Merger Date of each of the following conditions, unless waived in
writing by Aqua Vie:
19.1 BARHILL'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Barhill set forth herein shall be true and
correct at the Merger Date as though made at and as of that date, except as
affected by transactions contemplated hereby.
19.2 BARHILL'S COVENANTS. Barhill shall have performed all
covenants required by this Agreement to be performed by it on or before the
Merger Date.
19.3 SHAREHOLDER APPROVAL. This Agreement shall have been
approved by the required number of shareholders of the Constituent Corporations.
19.4 SUPPORTING DOCUMENTS OF BARHILL. Barhill shall have
delivered to Aqua Vie supporting documents in form and substance satisfactory to
Aqua Vie to the effect that:
(i) Barhill is a corporation duly organized, validly existing,
and in good standing.
(ii) Barhill's authorized and issued capital stock is as set
forth herein.
(iii) The execution and consummation of this Agreement have been
duly authorized and approved by Barhill's board of directors.
20. ACCESS. From the date hereof to the Merger Date, Aqua Vie and
Barhill shall provide each other with such information and permit each other's
officers and representatives such access to its properties and books and records
as the other may from time to time reasonably request. If the merger is not
consummated, all documents received in connection with this Agreement shall be
returned to the party furnishing such documents, and all information so received
shall be treated as confidential.
21. CLOSING. The transfers and deliveries to be made pursuant to this
Agreement (the "Closing") shall be made by and take place at the offices of the
Exchange Agent or other location designated by the Constituent Corporations
without requiring the
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meeting of the parties hereof. All proceedings to be taken and all documents to
be executed at the Closing shall be deemed to have been taken, delivered and
executed simultaneously, and no proceeding shall be deemed taken nor documents
deemed executed or delivered until all have been taken, delivered and executed.
21.1 Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission required by this Agreement or any
signature required thereon may be used in lieu of an original writing or
transmission or signature for any and all purposes for which the original could
be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
transmission or original signature.
21.2 At the Closing, Barhill shall deliver to the Exchange Agent
in satisfactory form, if not already delivered to Aqua Vie:
(i) A list of the holders of the shares of Barhill Common Stock
being exchanged with an itemization of the number of shares held by each, the
address of each holder, and the aggregate number of shares of Aqua Vie Common
Stock to be issued to each holder;
(ii) Evidence of the consent of shareholders of Barhill to this
Agreement;
(iii) Certificate of the Secretary of State of Delaware as of a
recent date as to the good standing of Barhill;
(iv)Certified copies of the resolutions of the board of directors
of Barhill authorizing the execution of this Agreement and the consummation of
the Merger;
(v) The Barhill Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and
directors of Barhill; and
(vii) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated elsewhere
herein.
21.3 At the Closing, Aqua Vie shall deliver to the Exchange Agent
in satisfactory form, if not already delivered to Barhill:
(i) A list of the shareholders of record of Aqua Vie, including,
wherever available, addresses and telephone numbers;
(ii) Evidence of the consent of shareholders of Aqua Vie to this
Agreement;
(iii) Certificate of the Secretary of State of Delaware as of a
recent date as to the good standing of Aqua Vie;
(iv) Certified copies of the resolutions of the board of
directors of Aqua Vie
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authorizing the execution of this Agreement and the consummation of the merger;
(v) The Aqua Vie Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and
directors of Aqua Vie; and
(vii) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated elsewhere
herein.
22. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
23. ARBITRATION.
23.1 SCOPE. The parties hereby agree that any and all claims
(except only for requests for injunctive or other equitable relief) whether
existing now, in the past or in the future as to which the parties or any
affiliates may be adverse parties, and whether arising out of this agreement or
from any other cause, will be resolved by arbitration before the American
Arbitration Association within the District of Columbia.
23.2 CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The parties
hereby irrevocably consent to the jurisdiction of the American Arbitration
Association and the situs of the arbitration within the District of Columbia.
Any award in arbitration may be entered in any domestic or foreign court having
jurisdiction over the enforcement of such awards.
23.3 APPLICABLE LAW. The law applicable to the arbitration and
this agreement shall be that of the District of Columbia, determined without
regard to its provisions which would otherwise apply to a question of conflict
of laws.
23.4 DISCLOSURE AND DISCOVERY. The arbitrator may, in its
discretion, allow the parties to make reasonable disclosure and discovery in
regard to any matters which are the subject of the arbitration and to compel
compliance with such disclosure and discovery order. The arbitrator may order
the parties to comply with all or any of the disclosure and discovery provisions
of the Federal Rules of Civil Procedure, as they then exist, as may be modified
by the arbitrator consistent with the desire to simplify the conduct and
minimize the expense of the arbitration.
23.5 RULES OF LAW. Regardless of any practices of arbitration to
the contrary, the arbitrator will apply the rules of contract and other law of
the jurisdiction whose law applies to the arbitration so that the decision of
the arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
23.6 FINALITY AND FEES. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable except as to
errors of law or the failure of the arbitrator to adhere to the arbitration
provisions contained in this agreement. Each party to the arbitration shall pay
its own costs and counsel fees except as specifically
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provided otherwise in this agreement.
23.7 MEASURE OF DAMAGES. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and\or securities issued
or to be issued and no claims shall be made by any party or affiliate for lost
profits, punitive or multiple damages.
23.8 COVENANT NOT TO XXX. The parties covenant that under no
conditions will any party or any affiliate file any action against the other
(except only requests for injunctive or other equitable relief) in any forum
other than before the American Arbitration Association, and the parties agree
that any such action, if filed, shall be dismissed upon application and shall be
referred for arbitration hereunder with costs and attorney's fees to the
prevailing party.
23.9 INTENTION. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever arising,
whether in regard to this agreement or any other matter, from whatever cause,
based on whatever law, rule or regulation, whether statutory or common law, and
however characterized, be decided by arbitration as provided herein and that no
party or affiliate be required to litigate in any other forum any disputes or
other matters except for requests for injunctive or equitable relief. This
agreement shall be interpreted in conformance with this stated intent of the
parties and their affiliates.
23.10 SURVIVAL. The provisions for arbitration contained herein
shall survive the termination of this agreement for any reason.
24. GENERAL PROVISIONS.
24.1 FURTHER ASSURANCES. From time to time, each party will
execute such additional instruments and take such actions as may be reasonably
required to carry out the intent and purposes of this Agreement.
24.2 WAIVER. Any failure on the part of either party hereto to
comply with any of its obligations, agreements, or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
24.3 BROKERS. Each party agrees to indemnify and hold harmless
the other party against any fee, loss, or expense arising out of claims by
brokers or finders employed or alleged to have been employed by the indemnifying
party.
24.4 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first-class certified mail, return receipt requested,
or recognized commercial courier service, as follows:
If to Barhill, to:
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Barhill Acquisition Corporation
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to Aqua Vie, to
Aqua Vie Beverage Corporation
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
25 GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
26. ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
27. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
28. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent shall be Xxxxxxx
& Associates. Closing shall take place on August 31, 1999, or as soon thereafter
as practicable. The date of Closing may be accelerated or extended by agreement
of the parties.
29. EFFECTIVE DATE. This effective date of this Agreement shall be
August 31, 1999.
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SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER
BETWEEN BARHILL ACQUISITION CORPORATION AND
AQUA VIE BEVERAGE CORPORATION
IN WITNESS WHEREOF, the parties have executed this Agreement.
BARHILL ACQUISITION CORPORATION
By
AQUA VIE BEVERAGE CORPORATION
By
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