EXHIBIT 2.1
OC ENERGY DRINK, INC.
PLAN OF ORGANIZATION
AND
SECURITIES PURCHASE AGREEMENT
This OC ENERGY DRINK, INC. PLAN OF ORGANIZATION AND SECURITIES PURCHASE
AGREEMENT ("Agreement"), is entered into on September 1, 2007 ("Effective Date")
by and among RG Global Lifestyles, Inc., a California corporation ("RGBL"), OC
Energy Drink, Inc. a California corporation and heretofore wholly owned
subsidiary of RGBL ("OC Energy"), Xxx Xxxxxx, an individual ("Xxxxxx"), Xxxxxxx
Xxxxx, an individual ("Xxxxx"), and Xxxxxx Xxxxxx, an individual ("Xxxxxx")
(collectively Xxxxxx, Xxxxx and Xxxxxx are referred to as "Fusion 3") as
follows:
WHEREAS:
A. Prior to August 1, 2007, RGBL had operated OC Energy as a division
with the anticipation of converting such division to a joint venture with the
Fusion 3;
B. On August 1, 2007, RGBL formed OC Energy as a wholly owned
subsidiary;
C. RGBL heretofore owns 1500 shares of common stock OC Energy,
representing 100% of the issued and outstanding shares of OC Energy;
D. As of the Effective Date, RGBL had invested certain sums of money
into the OC Energy line of products, to which it waives all rights of repayment,
except for as stated on SCHEDULE 1;
E. As of the Effective Date, the Fusion 3 had invested certain sums of
money into the OC Energy line of products anticipating OC Energy to be a joint
venture with RGBL, for which the Fusion 3 are waiving all rights of repayment in
exchange for the issuance of the aggregate of 474 shares of common stock of OC
Energy (24% of resulting issued and outstanding);
F. RGBL is transferring all of its intellectual property relating to OC
Energy into OC Energy ("RGBL IP") as listed out on SCHEDULE 2;
G. The Fusion 3 are transferring all of their assets and intellectual
property relating to OC Energy into OC Energy ("Fusion 3 IP") as listed out on
SCHEDULE 3;
H. RGBL will issue an aggregate of 654,925 shares of RGBL common stock
to the Fusion 3 (37.5% of this each to Xxxxx and Xxxxxx, 25% to Xxxxxx) as
purchase of the Fusion 3 IP for OC Energy and other good and valuable
consideration;
I. Until the next annual meeting of shareholders, RGBL will have
nominees for three out of five Director seats of OC Energy, and Xxxxxx and Xxxxx
will be the remaining two Directors of OC Energy;
X. Xxxxx will be CEO of OC Energy;
X. Xxxxxx will be COO of OC Energy.
NOW THEREFORE, RGBL, OC Energy, Xxxxxx, Xxxxx and Xxxxxx agree as
follows:
1. PURCHASE AND SALE OF OC ENERGY COMMON STOCK.
(a) On the Effective Date, OC Energy shall issue and sell to the Fusion
3 and the Fusion 3 agree to purchase from OC Energy 474 shares of restricted
common stock of OC Energy (158 shares each to Xxxxxx, Xxxxx and Xxxxxx), in full
satisfaction in lieu of repayment of all monies spent by the Fusion 3, except as
stated on SCHEDULE 4, up to the Effective Date on OC Energy related expenses.
(b) FUSION 3'S REPRESENTATIONS AND WARRANTIES. The Fusion 3 each
represent and warrant to OC Energy that:
(a) INVESTMENT PURPOSE. As of the date hereof, the Fusion 3
are purchasing the shares of OC Energy common stock for his own account and not
with a present view towards the public sale or distribution thereof, except
pursuant to sales registered or exempted from registration under the 1933 Act;
PROVIDED, HOWEVER, that by making the representations herein, the Fusion 3 do
not agree to hold any of the OC Energy common stock for any minimum or other
specific term and reserves the right to dispose of the OC Energy common stock at
any time in accordance with or pursuant to a registration statement or an
exemption under the 1933 Act.
(b) ACCREDITED INVESTOR STATUS. The Fusion 3 are each an
"accredited investor" as that term is defined in Rule 501(a) of Regulation D
("Accredited Investor").
(c) RELIANCE ON EXEMPTIONS. The Fusion 3 understand that the
OC Energy common stock is being offered and sold to it in reliance upon specific
exemptions from the registration requirements of United States federal and state
securities laws and that OC Energy is relying upon the truth and accuracy of,
and the Fusion 3's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Fusion 3 set forth herein in order to
determine the availability of such exemptions and the eligibility of the Fusion
3 to acquire the OC Energy common stock.
(d) INFORMATION. The Fusion 3 has been furnished with all
materials relating to the business, finances and operations of OC Energy and
materials relating to the offer and sale of the OC Energy common stock which
have been requested by the Fusion 3 or its advisors. The Fusion 3 and its
advisors, if any, have been afforded the opportunity to ask questions of OC
Energy. The Fusion 3 understands that its investment in OC Energy common stock
involves a significant degree of risk.
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(e) GOVERNMENTAL REVIEW. The Fusion 3 understands that no
United States federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of the OC
Energy common stock.
(f) TRANSFER OR RE-SALE. The Fusion 3 understands that the
sale or re-sale of the OC Energy common stock has not been and is not being
registered under the 1933 Act or any applicable state securities laws, and may
not be transferred unless (a) they are sold pursuant to an effective
registration statement under the 1933 Act, (b) the Fusion 3 shall have delivered
to OC Energy an opinion of counsel that shall be in form, substance and scope
customary for opinions of counsel in comparable transactions to the effect that
the OC Energy common stock to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration, (c) the OC Energy common stock
are sold or transferred to an "affiliate" (as defined in Rule 144 promulgated
under the 1933 Act (or a successor rule) ("Rule 144")) of the Fusion 3 who
agrees to sell or otherwise transfer the OC Energy common stock only in
accordance with this Section 1(b)(vi) and who is an Accredited Investor, (d) the
OC Energy common stock are sold pursuant to Rule 144, or (e) the OC Energy
common stock are sold pursuant to Regulation S under the 1933 Act (or a
successor rule) ("Regulation S"), and the Fusion 3 shall have delivered to the
OC Energy an opinion of counsel that shall be in form, substance and scope
customary for opinions of counsel in corporate transactions, which opinion shall
be accepted by the OC Energy; (ii) any sale of such OC Energy common stock made
in reliance on Rule 144 may be made only in accordance with the terms of said
Rule and further, if said Rule is not applicable, any re-sale of such OC Energy
common stock under circumstances in which the seller (or the person through whom
the sale is made) may be deemed to be an underwriter (as that term is defined in
the 0000 Xxx) may require compliance with some other exemption under the 1933
Act or the rules and regulations of the SEC thereunder; and (iii) neither the OC
Energy nor any other person is under any obligation to register such OC Energy
common stock under the 1933 Act or any state securities laws or to comply with
the terms and conditions of any exemption thereunder. Notwithstanding the
foregoing or anything else contained herein to the contrary, the OC Energy
common stock may be pledged as collateral in connection with a BONA FIDE margin
account or other lending arrangement
(g) LEGENDS. The Fusion 3 understands that the OC Energy
common stock certificates shall bear a legend in substantially the following
form (and a stop-transfer order may be placed against transfer of the
certificates for such OC Energy common stock):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
securities may not be sold, transferred or assigned in the
absence of an effective registration statement for the
securities under said Act, or an opinion of counsel, in form,
substance and scope customary for opinions of counsel in
comparable transactions, that registration is not required
under said Act or unless sold pursuant to Rule 144 or
Regulation S under said Act."
2. PURCHASE AND SALE OF RGBL COMMON STOCK
(a) On the Effective Date, RGBL shall issue and sell to the Fusion 3
and the Fusion 3 agree to purchase from RGBL 654,925 shares of restricted common
stock of RGBL (245,597 each to Xxxxx and Xxxxxx, 163,741 to Xxxxxx) in exchange
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for the acquisition of all Fusion 3 IP, and for all benefit associated with
Xxxxxx and Xxxxx joining OC Energy as COO and CEO respectively, and as
Directors, and bringing their experience and customers and contacts to OC
Energy.
(c) FUSION 3'S REPRESENTATIONS AND WARRANTIES. The Fusion 3 each
represent and warrant to RGBL that:
(a) INVESTMENT PURPOSE. As of the date hereof, the Fusion 3
are purchasing the shares of RGBL common stock for his own account and not with
a present view towards the public sale or distribution thereof, except pursuant
to sales registered or exempted from registration under the 1933 Act; PROVIDED,
HOWEVER, that by making the representations herein, the Fusion 3 do not agree to
hold any of the RGBL common stock for any minimum or other specific term and
reserves the right to dispose of the RGBL common stock at any time in accordance
with or pursuant to a registration statement or an exemption under the 1933 Act.
(b) ACCREDITED INVESTOR STATUS. The Fusion 3 are each an
"accredited investor" as that term is defined in Rule 501(a) of Regulation D
("Accredited Investor").
(c) RELIANCE ON EXEMPTIONS. The Fusion 3 understand that the
RGBL common stock is being offered and sold to it in reliance upon specific
exemptions from the registration requirements of United States federal and state
securities laws and that RGBL is relying upon the truth and accuracy of, and the
Fusion 3's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Fusion 3 set forth herein in order to
determine the availability of such exemptions and the eligibility of the Fusion
3 to acquire the RGBL common stock.
(d) INFORMATION. The Fusion 3 has been furnished with all
materials relating to the business, finances and operations of RGBL and
materials relating to the offer and sale of the RGBL common stock which have
been requested by the Fusion 3 or its advisors. The Fusion 3 and its advisors,
if any, have been afforded the opportunity to ask questions of RGBL. The Fusion
3 understands that its investment in RGBL common stock involves a significant
degree of risk.
(e) GOVERNMENTAL REVIEW. The Fusion 3 understands that no
United States federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of the RGBL
common stock.
(f) TRANSFER OR RE-SALE. The Fusion 3 understands that the
sale or re-sale of the RGBL common stock has not been and is not being
registered under the 1933 Act or any applicable state securities laws, and may
not be transferred unless (a) they are sold pursuant to an effective
registration statement under the 1933 Act, (b) the Fusion 3 shall have delivered
to RGBL an opinion of counsel that shall be in form, substance and scope
customary for opinions of counsel in comparable transactions to the effect that
the RGBL common stock to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration, (c) the RGBL common stock are
sold or transferred to an "affiliate" (as defined in Rule 144 promulgated under
the 1933 Act (or a successor rule) ("Rule 144")) of the Fusion 3 who agrees to
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sell or otherwise transfer the RGBL common stock only in accordance with this
Section 1(b)(vi) and who is an Accredited Investor, (d) the RGBL common stock
are sold pursuant to Rule 144, or (e) the RGBL common stock are sold pursuant to
Regulation S under the 1933 Act (or a successor rule) ("Regulation S"), and the
Fusion 3 shall have delivered to RGBL an opinion of counsel that shall be in
form, substance and scope customary for opinions of counsel in corporate
transactions, which opinion shall be accepted by the RGBL; (ii) any sale of such
RGBL common stock made in reliance on Rule 144 may be made only in accordance
with the terms of said Rule and further, if said Rule is not applicable, any
re-sale of such RGBL common stock under circumstances in which the seller (or
the person through whom the sale is made) may be deemed to be an underwriter (as
that term is defined in the 0000 Xxx) may require compliance with some other
exemption under the 1933 Act or the rules and regulations of the SEC thereunder;
and (iii) neither the RGBL nor any other person is under any obligation to
register such RGBL common stock under the 1933 Act or any state securities laws
or to comply with the terms and conditions of any exemption thereunder.
Notwithstanding the foregoing or anything else contained herein to the contrary,
the RGBL common stock may be pledged as collateral in connection with a BONA
FIDE margin account or other lending arrangement
(g) LEGENDS. The Fusion 3 understands that the RGBL common
stock certificates shall bear a legend in substantially the following form (and
a stop-transfer order may be placed against transfer of the certificates for
such RGBL common stock):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
securities may not be sold, transferred or assigned in the
absence of an effective registration statement for the
securities under said Act, or an opinion of counsel, in form,
substance and scope customary for opinions of counsel in
comparable transactions, that registration is not required
under said Act or unless sold pursuant to Rule 144 or
Regulation S under said Act."
3. RGBL WAIVER OF RIGHT TO REPAYMENT OF MONIES SPENT FOR THE BENEFIT OF
OC ENERGY
Except for the amounts stated on SCHEDULE 1, RGBL hereby agrees to waive all
right of repayment from OC Energy for all monies spent prior to the Effective
Date on OC Energy related products and operations.
4. TRANSFER OF RGBL IP AND FUSION 3 IP TO OC ENERGY
RGBL hereby agrees to transfer and/or assign all RGBL IP and Fusion 3 IP to OC
Energy as soon as practicable after the Effective Date without payment.
5. MISCELLANEOUS.
(a) GOVERNING LAW. This agreement shall be enforced, governed by and
construed in accordance with the laws of the state of California applicable to
agreements made and to be performed entirely within such state, without regard
to the principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of the united states federal courts located in California
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with respect to any dispute arising under this agreement, the agreements entered
into in connection herewith or the transactions contemplated hereby or thereby.
Both parties irrevocably waive the defense of an inconvenient forum to the
maintenance of such suit or proceeding. Both parties further agree that service
of process upon a party mailed by registered first class mail shall be deemed in
every respect effective service of process upon the party in any such suit or
proceeding. Nothing herein shall affect either party's right to serve process in
any other manner permitted by law. Both parties agree that a final
non-appealable judgment in any such suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on such judgment or in any other
lawful manner. The party which does not prevail in any dispute arising under
this agreement shall be responsible for all fees and expenses, including
reasonable attorneys' fees, incurred by the prevailing party in connection with
such dispute.
(b) COUNTERPARTS; SIGNATURES BY FACSIMILE. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party. This Agreement, once executed by a party, may be delivered to the
other party hereto by facsimile transmission of a copy of this Agreement bearing
the signature of the party so delivering this Agreement.
(c) SEVERABILITY. In the event that any provision of this Agreement is
invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
(d) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, none of the parties makes any representation, warranty,
covenant or undertaking with respect to such matters. No provision of this
Agreement may be waived or amended other than by an instrument in writing signed
by the party to be charged with enforcement.
(e) NOTICES. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier (including a recognized
overnight delivery service) or by facsimile and shall be effective five days
after being placed in the mail, if mailed by regular United States mail, or upon
receipt, if delivered personally or by courier (including a recognized overnight
delivery service) or by facsimile, in each case addressed to a party. The
addresses for such communications shall be:
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If to OC Energy or RGBL:
30021 Xxxxx, Ste 000
Xxxxxx Xxxxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxx, Esq.
0 Xxx Xxxxxxx
Xxxx xx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to a Fusion 3: To the address set forth immediately below such
Fusion 3's name on the signature pages hereto.
With copy to: Counsel of Fusion 3's choice.
Each party shall provide notice to the other party of any change in
address.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. Neither
the OC Energy nor any Fusion 3 shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, subject to Section 2(f), any Fusion 3 may assign
its rights hereunder to any person that purchases Securities in a private
transaction from a Fusion 3 or to any of its "affiliates," as that term is
defined under the 1934 Act, without the consent of the OC Energy.
(g) THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
(h) FURTHER ASSURANCES. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(i) NO STRICT CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
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IN WITNESS WHEREOF, the undersigned(s) have caused this Agreement to be duly
executed as of the date first above written.
RG GLOBAL LIFESTYLES, INC.
/s/ Xxxxx Xxxx
------------------------------
Xxxxx Xxxx
Chief Executive Officer
OC ENERGY DRINK, INC.
/s/ Xxxxx Xxxx
-------------------------------
Xxxxx Xxxx
Chairman of the Board
Representative of Majority
Shareholder RG Global Lifestyles
XXX XXXXXX
/s/ Xxx Xxxxxx
------------------------------
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
------------------------------
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
------------------------------
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SCHEDULE 1
Amounts owed to RGBL by OC Energy
1. Paid Invoices in the aggregate: $50,000
2. Deposit for OC Energy asset: $20,000
3. Accounts Receivable: $33,000
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SCHEDULE 2
RG Global intellectual property related to OC Energy
Trademarks:
-----------
1. 78953853 OC Energy
2. 78957337 KIK IT
3. 78963323 OC Angels
4. 78957465 WITH A TUDE
5. 78957332 WITH TUDE
6. 78957041 KIK
7. 77141847 INSANE
8. 77023107 O2
9. 77012484 A TOUCH OF OC
10. 77012465 A TASTE OF OC
11. 77059976 RUSH
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SCHEDULE 3
Fusion 3 assets and intellectual property related to OC Energy:
TANGIBLE ASSETS:
o 2 cavity 2 oz bottle tooling
o 2 single cavities 300 ml bottle tools
o 2 single cavities 500ml bottle tools
o 36 Gravure printing cylinders for sleeve labels
o 5 color plates for:
o 12 loose reg
o 12 loose diet
o 12 loose O2
o Insane multi pack
o Reg Static Cling
o Diet Static cling
o Special Static Cling
o OC Logo Static Cling
o 4 Bottle static Cling
o Insane Static Cling
o Table Tent
o Square Table Talker
o O2 Carrier packs
o Diet Carrier pack
o Regular Carrier pack
o Rush Energy Gum
o OC Energy Gum
o Insane Party Pack
o OC Logo Sticker
o OC Angels Stickers
o Insane Party Pack
1 color plates for:
o Insane RSC
o Regular RSC
o O2 RSC
o Insane 4-12 RSC
Master dies for:
o Rush Gum
o OC Gum
o Table Tent
o Square Table Talker
o O2 Carrier packs
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o Diet Carrier pack
o Regular Carrier pack
o OC Logo Sticker
o OC Angels Stickers
o Insane Party Pack
INTANGIBLE ASSETS: Artwork For:
o 12 loose reg
o 12 loose diet
o 12 loose O2
o Insane multi pack
o Reg Static Cling
o Diet Static cling
o Special Static Cling
o OC Logo Static Cling
o 4 Bottle static Cling
o Insane Static Cling
o Table Tent
o Square Table Talker
o O2 Carrier packs
o Diet Carrier pack
o Regular Carrier pack
o Rush Energy Gum
o OC Energy Gum
o Insane RSC
o Regular RSC
o O2 RSC
o Insane 4-12 RSC
o KIK-it Bottle
o Diet Bottle
o Insane Bottle (Original Black and then
the rework)
o O2 Bottle
o AAFES End cap Display
o Smart & Final End Cap Display
o Smart & Final Pallet display
o Insane gum rack Holder
o Insane Party Pack
o Banners for AAFES events
o Road show tent
o Road show table cover
o Ice Barrel Regular
o Ice Barrel Diet
o Hummer Wrap
o M&H Van Wrap
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o Blow-up for Vegas Show
o Designed Both for Vegas show
o Original Sell Sheets for 4 products
o New 2 page sell sheets for 4 products
o Coroplast Cut outs
o Suction cup Rack for Vaults
o All Graphics for the Web site
o Flasher Buttons
o AAFES Tri-fold
INTELLECTUAL PROPERTY: Created the following
o OC Energy Logo
o Bottle Shape
o 2 oz
o 10.14 oz
o 16.9 oz
o Bottle Graphics
o Master design concept for bottles
o Bottle Colors
o Name OC Energy Premium Gum
o Tag Lines" Awakens the Senses"
o Tag Line " Smooth Energy with an Attitude"
o Black Light Effects for products
o Designs of all Packaging concepts for
following products
o 12 loose reg
o 12 loose diet
o 12 loose O2
o Insane multi pack
o Table Tent
o Square Table Talker
o O2 Carrier packs
o Diet Carrier pack
o Regular Carrier pack
o Rush Energy Gum
o OC Energy Gum
o AAFES End cap Display
o Smart & Final End Cap Display
o Smart & Final Pallet display
o Insane gum rack Holder
o Insane Party Pack
o Banners for AAFES events
o Road show tent
o Road show table cover
o Ice Barrel Regular
o Ice Barrel Diet
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o Hummer Wrap
o M&H Van Wrap
o Blow-up for Vegas Show
o AAFES Tri-fold
o Product Flavors
o Bar codes and layouts for retailers
o Text to focus selling of products
o KIK-it
o Diet KIK-it
o Insane
o 02 Water
o Party Four Pack
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SCHEDULE 4
Amounts owed to the following Fusion 3 individuals by OC Energy
1. Expenses to Xxxxxxx Xxxxx: $2,100
2. Accrued Salary for July/August 2007: $40,000 to Xxxxxxx Xxxxx
$40,000 to Xxx Xxxxxx
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