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 Section368(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 following changes in its Certificate of Incorporation:
ARTICLE FOURTH: The first complete sentence of Article
Fourth of the Certificate of Incorporation of AQUA VIE
BEVERAGE CORPORATION shall be amended to read as follows:
"The aggregate number of shares of common stock which
the corporation shall have authority to issue is One
Hundred Twenty Million, $.001 par value per share".
ARTICLE FOURTH: Article Fourth is further amended to add a
new Subsection D which shall provide as follows:
"The authorized shares of a class of stock may be
increased or decreased without the approval of the
shares of that class, but not below the number of
shares issued unless a combination shall have occurred."
ARTICLE FOURTEENTH: A new Article Fourteenth is added to
read as follows:
"Section 203 of the Delaware General Corporation Law
shall not be applicable to the Corporation.
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.
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 21,785,657 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 General 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 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 became effective pursuant to the Securities Exchange Act
of 1934 and is a reporting company pursuant to Section12 thereunder.
14.3 REPORTING COMPANY STATUS. Barhill has timely filed
and is current on all reports required to be filed by it pursuant to
Section12(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 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 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 21,785,657 shares are issued and outstanding, and 1,000,000
shares of Preferred Stock, $.001 par value, of which 3,897.689
shares of Series A and 4,987.444 shares of Series B Preferred Stock
have been issued. Each Series A share of Preferred Stock is
entitled to 1,800 voting rights on all matters on which shareholders
are entitled to vote and can be converted into shares of Common
Stock at a ratio of 1,800 shares of common stock for each Series A
share. Each Series B share of Preferred Stock is entitled to 10,800
voting rights on all matters on which shareholders are entitled to
vote. Each Series B share can be converted into shares of common
stock on a sliding scale geared to the market price of Aqua Vie's
stock starting at a conversion ratio of 1,800 shares of Common Stock
for each Series B share when the Common Stock is trading at $2.00
per share to a maximum ratio of 10,800 shares of Common Stock for
each Series B share when the Common Stock is trading at $12.00 per
share.
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 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 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.
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 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
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 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 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:
Barhill Acquisition Corporation
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to Aqua Vie, to
Aqua Vie Beverage Corporation
XX Xxx 0000
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.
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 /s/ Xxxxx X. Xxxxxxx
AQUA VIE BEVERAGE CORPORATION
By /s/ Xxxxxx Xxxxxxxxx
