RESCISSION AND SETTLEMENT AGREEMENT
This Rescission and Settlement Agreement (this "Agreement") is entered
into this 14th day of September, 2001, by, between and among
Xxxxxxxxxxx Xxxxxxx Xxxxx and Xxxxx Xxxxx, husband and wife ( the
"Vances"), Water Star Bottling, Inc., a Wyoming corporation ("WSB"),
Geyser Group, Ltd., a Nevada corporation aqua The Theme Factory Inc.
("TMFT" or Geyser Group"), Aquapure International, Inc. a Nevada
corporation ("API"), Xxxxxx Xxxxxx, a single man, ("Xxxxxx") for
himself and as authorized representative of the shareholders of API (
the "API Shareholders") The Vances, WSB, Geyser Group, API and
Xxxxxx are referred to collectively herein as the "Parties".
Recitals:
A. In February of 2001, the Vances, WSB, WSB's 85% owned
subsidiary Geyser Products, LLC ("Geyser Products") and Geyser
Group ( then known as The Theme Factory, Inc. and referred to
as "TMFT") entered into a Definitive Agreement and Share
Acquisition (the "TMFT-WSB Agreement").
B. Contemporaneous with and as a condition precedent to the TMFT-
WSB Agreement, API, TMFT and Xxxxxx, in behalf of the API
Shareholders, entered into a Definitive Agreement and Plan of
Reverse Acquisition ( the "API-TMFT Agreement").
C. Under the terms of the API-TMFT Agreement, the API
Shareholders exchanged all of their shares of API for
9,000,000 shares of TMFT pursuant to a "Subsequent Financing"
which required the escrow of the 9,000,000 TMFT shares until
the API Shareholders had prepared a private or public offering
and received commitments from investors in such offering of
one million dollars ( the "Subsequent Financing");
D. Subsequent to the execution of the TMFT-WSB Agreement, TMFT
elected new officers and directors and amended its articles of
incorporation to change its corporate name to "Geyser Group,
Ltd."
E. The API Shareholders have not prepared the private or public
offering and the Subsequent Financing and other conditions
precedent to the TMFT-WSB Agreement have not occurred as of
today's date;
F. C. Xxxxxxx Xxxxx resigned as an officer and director of Geyser
Group on September 5, 2001 and the Vances and WSB, by letter
from Udall, Shumway,Xxxxxxxxxx, Xxxxx & Xxxxx, P.C. dated
September 6, 2001 to T. Gerald Chilton, Xx.Xxx., counsel for
the Geyser Group, notified Geyser Group of their intent to
rescind the TMFT-WSB Agreement and return the shares of Geyser
Group held by them.
Exhibit 2.1 - Pg. 1
G. The Parties desire to rescind and nullify the TBFT-WSB
Agreement ab initio and settle all disputes between them.
Agreement
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For and in consideration of the mutual covenants contained herein,
the parties covenant and agree as follows:
1. The foregoing recitals are incorporated herein by reference.
2. The Parties hereby agree that because of the failure of the
Subsequent Financing and other condition precedent to and
anticipated consideration for the execution of the TMFT-WSB
agreement before today's date and because of the parties mutual
desires to nullify ab initio the legal, contractual and business
relationship among them prior to today's date, the TMFT-WSB
agreement is rescinded and nullified ab initio and therefore is
of no force or effect from the outset of its execution.
3. Simultaneously with the execution of this Agreement, Geyser Group
shall return to the Vances and share certificates, assignments
separate from certificate or other documentation in its
possession or the possession of its agents, employees, attorneys
or affiliates which constitutes legal title to shares of WSB
stock. Geyser Group, API and Xxxxxx hereby disclaim any interest
whatsoever in WSB, Geyser Products or any assets property rights
or interest or contractual or proprietary right of either of
them.
4. Simultaneously with the execution of this Agreement, the Vances
shall return to Geyser Group any share certificates, assignments
separate from certificate or other documentation in their
possession or the possession of their agents or attorneys which
constitutes legal title to shares of Geyser Group stock. Subject
to Geyser Group's amendment of its articles of incorporation as
set forth in Section 5 hereof, the Vances and WSB, for itself and
its subsidiary Geyser Products, hereby disclaim any interest
whatsoever in Geyser Group or any of its assets, property rights
or interest or contractual or proprietary rights.
5. The Parties acknowledge and agree that the names "Geyser Group"
and "Geyser" are proprietary to WSB and Geyser Products. Within
ten (10) business days from the date of this Agreement, Geyser
Group shall amend its articles of incorporation to change its
corporate name to a name to a name which is not proprietary to
WSB or Geyser Products. Geyser Group shall promptly return to
WSB any information, documentation or other rights or property
which are proprietary to WSB or Geyser Products.
6. WSB, in behalf of its subsidiary Geyser Products, hereby agrees
to authorize the re-issuance of Geyser Products payroll check
number 0381847 and 0372233 to Xxxxxx and to cause the re-issuance
Exhibit 2.1 - Pg. 2
with five (5) business days from the date of this Agreement.
7. Geyser Group, the Vances and WSB agree that Xxxxxx may present
check number 3 on BankOne Account Number 00000000 ( the "BankOne
Account") at which time the balance in the Bank One Account will
be zero.
8. WSB agrees that it will pay all rental payments for Xxxxxx and
Xxxxxxx Xxxxxxxxx for the locations known to WSB to be the
temporary residences of Xxxxxx and Xxxxxxx Xxxxxxxxx in Mesa,
Arizona through the period ending September 30, 2001.
Notwithstanding anything herein to the contrary; however, neither
WSB or Geyser Products shall be responsible for any rental
obligations of Xxxxxx or Xxxxxxx Xxxxxxxxx subsequent to
September 30, 2001 or any other rental obligations prior to that
time which have not been disclosed to WSB in writing as of the
date of this Agreement.
9. Geyser Group will not prepare a press release or any Securities
and Exchange Commission filing concerning the rescission of the
TMFT-WSB Agreement or relating to Geyser Group's business
relations with theVances, SB or Geyser Products without first
obtaining the express, written approval of WSB and the Vances
prior to the release or submission of such item, which approval
will not unreasonably be withheld.
10. Upon the execution of this Agreement, Geyser Group, API and
Xxxxxx on the one side and the Vances and WSB on the other
mutually release each other from any and all claims, demands,
actions of any kind or nature arising out of the TMFT-WSB
Agreement or the API-TMFT Agreement and agree that they shall
never assert any claim whatsoever arising from or based upon the
TMFT-WSB Agreement or the API-TMFT Agreement nor upon the claims
that are or could have been set forth in said agreements. Geyser
Group, API and Xxxxxx xxxxx jointly and severally agree to
indemnify WSB (and its subsidiary Geyser Products) and the Vances
against and hold them harmless from any and all claims, demands,
actions of any kind or nature arising out of or related to amount
due any Geyser Group Shareholder or the API Shareholders or
claimed to be due by them under (1) the terms of the API-TMFT
Agreement or the TMFT-WSB Agreement; or (2) any of the operations
of Geyser Group subsequent to the execution of such agreements
unless such claims, demands or actions arise out of or are
related to the negligence or intentional misconduct of WSB (and
its subsidiary Geyser) or the Vances. WBI hereby agrees to
indemnify Geyser Group against and hold it harmless from any and
all claims, demands or notions of any kind or nature arising out
of or relating to the operations of WBI or Geyser Products unless
such claims, demand or actions arise out of or are related to the
negligence or intentional misconduct of Geyser Group, API or
Xxxxxx.
Exhibit 2.1 - Pg. 3
11. This Agreement is executed by the parties for the sole
purpose of compromising and settling disputes at present existing
between them arising from their business relationship and to
terminate any controversy or claims for damages of any nature,
whether now known, or unknown at the time o the execution of this
Agreement or hereafter known, resulting from such business
relationship, so that, by the execution of this Agreement, and
the exchange of consideration identified, except for rights to
indemnity and confidentiality set forth in Sections 10, 12 and
13, hereof, each party shall be barred completely and forever
from making any further claims or bringing any other actions or
suits in connection with the parties' business relationship.
Moreover, the execution of this Agreement does not constitute an
admission on the part of any party to the truthfulness or
correctness of any claims asserted by either of them.
12. It is further understood and agreed by the parties hereto
that the specific contents of this Agreement shall be considered
confidential and shall not be disclosed to any third person or
entity by any party except with the prior written approval of the
other party or upon the order of a court of competent
jurisdiction compelling its disclosure. Furthermore; (1) Xxxxxx,
API and Geyser Group hereby agree that information obtained by
them about the Vances, WSB and its subsidiary Geyser Products in
connection with the Parties' business relationships shall be
confidential (unless the information is of such a nature as would
be generally known by or available to the public) and shall not
be disclosed to any third person or entity by any party except
with the prior written approval of the Vances, WSB or Geyser
Products, as the case may be or upon the order of a court of
competent jurisdiction compelling its disclosure; or (2) Vances
and WSB (for itself and in behalf of its subsidiary Geyser
Products) hereby agree that information obtained by them about
Xxxxxx API and Geyser Group in connection with Parties' business
relationships shall be confidential (unless the information s of
such a nature as would be generally known by or available to the
public) and shall not be disclosed to any third person or entity
by any party except with the prior written approval of the
Xxxxxx, API or Geyser Group, as the case may be or upon the order
of a court of competent jurisdiction compelling its disclosure.
In addition, the parties may refer to this Agreement as
necessary to properly repot income and/or expenses in their
Federal and State Tax Returns. Violation of this provision
compelling confidentiality shall render the party disclosing the
specific terms or contents of this agreement liable for all
consequential damages suffered by the other party or parties on
account of such disclosure, and in no event less than the amount
of $1,000 which is hereby stipulated to by the parties as an
agreed upon liquidated damage figure.
13. In the spirit of compromise, the parties agree to refrain
from making disparaging remarks about any other party to this
Agreement. Specifically, each party hereto agrees to refrain
from making negative or disparaging remarks that would tend to
cast a negative light upon any other party to this agreement in
business and/or social circles in which the parties operate.
Exhibit 2.1 - Pg. 4
14. Each party agrees to do any and all such acts and things as
may reasonably be required to carry out the obligation of such
party under this Agreement and to consummate the transactions
provided for in this Agreement.
15. This Agreement shall be binding upon the parties, their
heirs, legal representatives, successors and assigns.
16. This Agreement supersedes all agreements previously made
between the parties relating to its subject matter.
17. No delay or failure by a party to exercise any right under
this Agreement, and no partial or single exercise of that right,
shall constitute a waiver of that or any other right, unless
otherwise expressed an provided herein.
18. This Agreement shall be construed in accordance with and
governed by the laws o the State of Arizona and venue for any
action with respect to this Agreement shall be in the State of
Arizona.
19. This Agreement may be executed 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.
20. Should any portion of this Agreement be held unenforceable
or inoperative for any reason, such shall not affect any other
portion of this Agreement, but the remainder shall be as
effective as though such ineffective portion had not been
contained herein.
21. Should any party breach this contract or fail to honor any
or all of the provisions of this contract, and should either
party be required to seed legal counsel in connection with the
recovery of any losses or damages suffered as a result of the
breach, the successful party in the lawsuit shall be entitled to
recover all costs and attorney's fees in association with the
litigation.
22. This Agreement has been duly executed, and delivered by
each party to this Agreement and is a valid an binding obligation
of such party enforceable in accordance with its terms and all
consents, authorizations, approvals and requirements for
execution, deliver and performance of this Agreement have been
complied with and all requirements for the performance hereof to
be complied with hereafter, will be complied within a timely
manner.
23. Opportunity for Consultation with Counsel. The Parties
understand that the execution of this Agreement creates certain
legal rights and responsibilities between the parties. The
Exhibit 2.1 - Pg. 5
Parties represent and warrant that they have had an opportunity
to consult with legal counsel regarding the legal effect of the
transactions and acts contemplated herein, and that they have
consulted with counsel prior to entering into this transaction,
or have voluntarily chosen not to consult with counsel.
WATER STAR BOTTLING, INC.
A Wyoming corporation
BY: _/s/ Xxxxxxxxxxx Xxxxxxx Xxxxx __________
C. Xxxxxxx Xxxxx, President
/s/ Xxxxxxxxxxx Xxxxxxx Xxxxx ________________
Xxxxxxxxxxx Xxxxxxx Xxxxx, Shareholder
/s/Xxxxx Xxx Xxxxx ___________________________
Xxxxx Xxx Xxxxx, Shareholder
GEYSER GROUP, LTD.
A Nevada corporation
BY: /s/Xxxxxx Xxxxxx _________________________
Xxxxxx Xxxxxx, President
AQUAPURE INTERNATIONAL, INC.
A Nevada corporation
BY: /s/ Xxxxxx X. Xxxxxx _____________________
Xxxxxx X. Xxxxxx, President
/s/ Xxxxxx X. Miller__________________________
Xxxxxx X. Xxxxxx, individually and as authorized representative of the
shareholders of AquaPure International, Inc.
Exhibit 2.1 - Pg. 6
