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AGREEMENT AND PLAN OF MERGER
OF
AQUA VIE BEVERAGE CORPORATION-S
a Delaware corporation
INTO
AQUA VIE BEVERAGE CORPORATION
a Delaware corporation
AGREEMENT AND PLAN OF MERGER, dated October 14, 1998, by and among
Aqua Vie Beverage Corporation-S, a Delaware corporation, ("Sub"), which is
wholly owned by Aqua Vie Beverage Corporation-Holding, Aqua Vie Beverage
Corporation-Holding, a Delaware corporation ("Holding"), which is wholly owned
by Aqua Vie Beverage Corporation, and Aqua Vie Beverage Corporation, a Delaware
corporation ("Parent").
W I T N E S S E T H
WHEREAS, the respective Boards of Directors of Sub, Holding and
Parent have approved the merger of Sub with and into Parent on the terms and
subject to the conditions set forth herein;
WHEREAS, pursuant to the merger as set out below, Sub will merge into
Parent and shares of Sub will be converted by way of the merger consideration.
WHEREAS, pursuant to the merger as set out below, shares of Parent,
as the surviving corporation, will be converted into the merger consideration in
the manner set forth herein, and as a result, Parent will become a wholly owned
subsidiary of Holding;
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NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, Sub, Holding and Parent agree as
follows:
ARTICLE I-DEFINITIONS
Section 1.1. DEFINITIONS. The following terms, as used in this Agreement, have
the meaning set forth below:
1.1.1 "Agreement" means this Agreement and Plan of Merger.
1.1.2 "Certificate of Merger" shall mean the certificate evidencing
the completion of this Agreement, executed in accordance with
section 103 of the General Corporation Law of the State of
Delaware, and which may be filed in lieu of this Agreement. The
merger shall be effective at the time and on the date of the
filing of the Certificate of Merger, which filing shall occur on
the Closing date.
1.1.3 "Holding company" has the same meaning set forth in section
251(g) of Title 8, Chapter 1, Delaware code. (i.e." A
corporation which, from its incorporation until consummation of
a merger governed by this subsection, was at all times a direct
or indirect wholly-owned subsidiary of the constituent
corporation and whose capital stock is issued in such
merger...")
1.1.4 "Closing date" means the effective date of the Merger.
1.1.5 "Merger documents" means, collectively, this Agreement, the
Certificate of Merger, and all other agreements and documents
entered into in connection with the Merger and the other
transactions contemplated hereby.
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1.1.6 "Shares of Parent" means certificates evidencing common and
preferred stock, {and any warrants options or rights (whether or
not certificated) to such stock approved by the Board of
Directors prior to the Merger being consummated} of the Parent
referred to herein.
1.1.7 "Shares of Sub" means certificates evidencing the common stock
of the Sub referred to herein.
ARTICLE II- TERMS AND CONDITIONS
Section 2.1 THE MERGER. Upon the terms and subject to the conditions of this
Agreement, Sub shall, pursuant to section(s) 251(a),(b) and (g) of the General
Corporation law of the State of Delaware, be merged with and into Parent, and
the separate corporate existence of Sub shall thereupon cease in accordance with
the provisions of General Corporation Law of the State of Delaware. Parent, as
the surviving corporation in the Merger, shall continue to exist under the name
of BEVA CORPORATION, Holding shall be renamed Aqua Vie Beverage Corporation.
Parent shall possess all of the rights, privileges and powers of a public and
private nature and be subject to all of the restrictions, disabilities and
duties of Sub; and all rights, privileges and powers of Sub and all property,
real, personal, and mixed, and all debts due to Sub, on whatever account, shall
be vested in Parent. Holding shall transfer all of its interest in Sub to
Parent. Parent shall transfer and exchange all of its shares to Holding both
Common and Preferred, share for share so that the shareholders of Aqua Vie
Beverage Corporation shall become the shareholders of Aqua Vie Beverage
Corporation-H with the same numbers and Classes, Common and Preferred, and the
same rights, designations and preferences as in Parent, it effectively
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becoming a wholly owned subsidiary of Holding. Rights, Reservations, Options and
Warrants to Common and Preferred Shares, Series A, B, C, which have been
approved by the Board of Directors of Parent prior to the Merger, whether or not
Certificated, as defined herein shall become Rights, Reservations, Warrants and
Options of Holding in the same fashion and to the same extent as with respect to
Parent.
Section 2.2 OUTSTANDING SHARES.
a) As of the date hereof, the number of outstanding shares of
capital stock of Sub is the maximum amount, common and
preferred, Series A, B, C provided in the Articles of
Incorporation of Sub.
b) As of the date hereof, the number of outstanding Shares of
capital stock of Parent (including Rights, Reservations, Options
and Warrants duly approved by the Board of Parent prior to the
Merger provided herein) is as stated in Exhibit A attached
hereon and has the same designations, rights, powers and
preferences, qualifications, limitations and restrictions
thereof, as the shares of stock of Sub being converted in the
merger, and the same designations, rights, powers, preferences,
qualifications, limitations and restrictions as the Shares of
Holding to be issued in lieu and in exchange for Shares of
Parent.
Section 2.3. ARTICLES OF INCORPORATION. With certain exceptions allowed by
statute, the Certificate of Incorporation of the holding company immediately
following the effective time of the merger shall contain provisions identical to
the Certificate of Incorporation of the Parent, the constituent corporation.
Articles of Incorporation of Holding in effect at the closing date shall be the
Articles of Incorporation of Parent immediately prior to the
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merger, but not reflecting changes to said Articles made as a result of the
Merger as provided hereunder, and shall continue in full force and effect until
further amended in the manner prescribed by the provisions of the General
Corporation Law of the State of Delaware.
Effective upon the date of the Merger, the Articles of Parent shall
be amended as follows:
"(1) To add a new Article XIV to read:
Any act or transaction by or involving this corporation
which action requires shareholder approval under this
Certificate of Incorporation or under the General Corporation
Law of Delaware, must, pursuant to section 251(g) of the General
Corporation Law of Delaware, also require, in addition, the
approval of the stockholders of Aqua Vie Beverage Corporation-H,
or any successor by merger, by the same vote as is required by
the Certificate of Incorporation of this corporation and/or by
the General Corporation Law of Delaware.
(2) To Change the name of Aqua Vie Beverage Corporation after
the merger is effected to BEVA CORPORATION.
(3) To reduce the authorized Capital of Parent to 100,000 Common
Shares and 10,000 Shares Each of Preferred Shares Series A and
Series B and Series C."
The Articles of Holding shall be amended to conform exactly
to the Articles of Parent immediately prior to the Merger, except for
Designated Directors and Registered Agent and Office, and shall be
further amended to Change the name of Aqua Vie Beverage Corporation-H
to Aqua Vie Beverage Corporation.
Section 2.4. BY-LAWS. With certain exceptions allowed by statute, the By-laws of
the Holding Company immediately prior to the effective time of the merger shall
contain provisions identical to the By Laws of the constituent corporation
immediately prior to the effective time of the merger. The By-laws of Holding,
in effect at the closing date
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shall be the By-laws of Parent and shall continue in full force and effect until
further amended in accordance with applicable law.
Section 2.5. OFFICERS. The Officers of Holding, immediately prior to the closing
date of the merger, shall be the Officers of Parent, and will hold office until
their successors are duly elected or appointed and qualify in the manner
provided in the certificate of incorporation or by-law of Parent or as otherwise
provided by law, or until their earlier death, resignation or removal.
Section 2.6. DIRECTORS. The Directors of Holding, immediately prior to the
closing date of the merger, shall be the Directors of Parent, and will serve
until their successors are duly elected or appointed and qualify in the manner
provided in the certificate of incorporation or by-laws of Parent or as
otherwise provided by law, or until their earlier death, resignation or removal.
Section 2.7. CLOSING. The closing date of this merger shall become effective on
the date of the filing of the Certificate of Merger with the Delaware Secretary
of State.
ARTICLE III-AMENDMENT TO CERTIFICATE OF INCORPORATION
Section 3.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Parent, which is the surviving subsidiary corporation of Holding, shall be
amended herein below on the closing date of the merger, as required by Section
251(g) of the General Corporation Law of Delaware and such Amended Certificate
of Incorporation shall continue in full force and effect as the Certificate of
Incorporation of Parent.
Section 3.2 AMENDMENt. The Certificate of Incorporation of Aqua Vie Beverage
Corporation shall be amended:
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"(1) To add a new Article XIV to read:
Any act or transaction by or involving this corporation
which action requires shareholder approval under this
Certificate of Incorporation or under the General Corporation
Law of Delaware, must, pursuant to section 251(g) of the General
Corporation Law of Delaware, also require, in addition, the
approval of the stockholders of Aqua Vie Beverage Corporation-H,
or any successor by merger, by the same vote as is required by
the Certificate of Incorporation of this corporation and/or by
the General Corporation Law of Delaware.
(2) To Change the name of Aqua Vie Beverage Corporation after
the merger is effected to BEVA CORPORATION.
(3) To reduce the authorized Capital of Aqua Vie Beverage
Corporation to 100,000 Common Shares and 10,000 Shares Each of
Preferred Shares Series A and Series B and Series C."
Section 3.3 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Holding, shall be amended herein below on the closing date of the Merger and
such Amended Certificate of Incorporation shall continue in full force and
effect as the Certificate of Incorporation of Holding:
(i) The name of Aqua Vie Beverage Corporation-H shall be changed to Aqua Vie
Beverage Corporation;
(ii) The Articles of Aqua vie Beverage Corporation-H shall be conformed to
provide as is provided by the Articles of Aqua Vie Beverage Corporation
as of immediately prior to the merger date, except for the initial
Director, who shall remain Xxxxxx X. Xxxxxxxxx, the Incorporator and
Registered Agent and such other differences as may be permitted by
Section 251(g) of the Delaware Corporate Code.
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ARTICLE IV - CONVERSION OF SHARES
Section 4.1 CONVERSION OF SHARES. As of the closing date, by virtue of the
Merger and without any action on the part of any holder thereof or any party
hereto, each share of the Common Stock of Sub, issued and outstanding
immediately prior to the closing date, shall be cancelled and converted into one
millionth share of fully paid and non-assessable Parent Common Stock, par value
$.0001 per share.
Section 4.2 EXCHANGE OF SHARES. At the closing date, by virtue of the Merger and
without any action on the part of any holder thereof or any party hereto, (a)
each share of the Common Stock of Parent, issued and outstanding immediately
prior to the closing date, shall be converted into and become one (1) share of
fully paid and non-assessable Holding Common Stock; (b) each Preferred Share,
Series A issued and outstanding immediately prior to the closing date, shall be
converted into and become one (1) share of fully paid and non-assessable Holding
Preferred Stock, Series A; (c) each Preferred Share, Series B issued and
outstanding immediately prior to the closing date, shall be converted into and
become one (1) share of fully paid and non-assessable Holding Preferred Stock,
Series B; (d) each Preferred Share, Series C issued and outstanding immediately
prior to the closing date, shall be converted into and become one (1) share of
fully paid and non-assessable Holding Preferred Stock, Series C; (e) each Right,
Warrant, Reservation or Option as to Common Shares approved by the Board of
Parent prior to the Merger, whether or not Certificated, shall become an
equivalent, Right, Warrant, Reservation or Option of Holding as to its Common
Shares; (f) each Right, Warrant, Reservation or Option as to Preferred Shares,
Series A approved by the Board of Parent prior to the Merger, whether or not
Certificated, shall become an equivalent, Right,
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Warrant, Reservation or Option of Holding as to its Preferred Shares, Series A;
(g) each Right, Warrant, Reservation or Option as to Preferred Shares, Series B
approved by the Board of Parent prior to the Merger, whether or not
Certificated, shall become an equivalent, Right, Warrant, Reservation or Option
of Holding as to its Preferred Shares, Series B; (h) each Right, Warrant,
Reservation or Option as to Preferred Shares, Series C approved by the Board of
Parent prior to the Merger, whether or not Certificated, shall become an
equivalent, Right, Warrant, Reservation or Option of Holding as to its Preferred
Shares, Series C.
Section 4.3 HOLDING OF SHARES. As of the closing date, by virtue of the Merger
and without any action on the part of any holder thereof or any party hereto,
Holding will receive the shares of Parent, which will become a wholly owned
subsidiary of Holding.
Section 4.3 OUTSTANDING COMMON CERTIFICATES. After the closing date, each holder
of an outstanding certificate representing shares of Common Stock of Parent
shall surrender the same to Holding and each holder shall be entitled upon such
surrender to receive the number of shares of Common Stock of Holding, on the
basis provided herein above. Until so surrendered, the outstanding shares of the
stock of Parent to be converted into the stock of Holding, as provided herein
may be treated by Holding for all corporate purposes as evidencing the ownership
of shares by Holding as though said surrender and exchange had taken place.
After the closing date, each registered owner of any uncertificated shares of
Common Stock of Parent shall have said shares cancelled and said registered
owner shall be entitled to the number of common shares of Holding on the basis
provided herein.
Section 4.4 OUTSTANDING PREFERRED SHARE CERTIFICATES
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(a) After the closing date, each holder of an outstanding certificate
representing shares of Preferred Stock, Series A of Parent shall
surrender the same to Holding and each holder shall be entitled upon
such surrender to receive the number of shares of Preferred Stock,
Series A of Holding, on the basis provided herein above. Until so
surrendered, the outstanding shares of the stock of Parent to be
converted into the stock of Holding, as provided herein may be treated
by Holding for all corporate purposes as evidencing the ownership of
shares by Holding as though said surrender and exchange had taken place.
After the closing date, each registered owner of any uncertificated
shares of Preferred Stock, Series A of Parent shall have said shares
cancelled and said registered owner shall be entitled to the number of
Preferred Series A shares of Holding on the basis provided herein.
(b) After the closing date, each holder of an outstanding certificate
representing shares of Preferred Stock, Series B of Parent shall
surrender the same to Holding and each holder shall be entitled upon
such surrender to receive the number of shares of Preferred Stock,
Series B of Holding, on the basis provided herein above. Until so
surrendered, the outstanding shares of the stock of Parent to be
converted into the stock of Holding, as provided herein may be treated
by Holding for all corporate purposes as evidencing the ownership of
shares by Holding as though said surrender and exchange had taken place.
After the closing date, each registered owner of any uncertificated
shares of Preferred Stock, Series B of Parent shall have said shares
cancelled and said registered owner shall be entitled to the number of
Preferred Series B shares of Holding on the basis provided herein;
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(c) After the closing date, each holder of an outstanding certificate
representing shares of Preferred Stock, Series C of Parent shall
surrender the same to Holding and each holder shall be entitled upon
such surrender to receive the number of shares of Preferred Stock,
Series C of Holding, on the basis provided herein above. Until so
surrendered, the outstanding shares of the stock of Parent to be
converted into the stock of Holding, as provided herein may be treated
by Holding for all corporate purposes as evidencing the ownership of
shares by Holding as though said surrender and exchange had taken place.
After the closing date, each registered owner of any uncertificated
shares of Preferred Stock, Series C of Parent shall have said shares
cancelled and said registered owner shall be entitled to the number of
Preferred Series B shares of Holding on the basis provided herein;
Section 4.5 RIGHTS, RESERVATIONS, OPTIONS & WARRANTS
Rights, Reservations, Options and Warrants approved by the Board of
Directors of Parent as to Common Shares, Series A Preferred Shares, Series B
Preferred Shares and Series C Preferred Shares shall be documented in a
Directors Resolution of Parent immediately prior to the merger and shall be
attached as Exhibit A hereto. Said Exhibit A shall become part of the Corporate
Records of Holding after the Merger, and shall then and thereafter constitute
the rights of the Holders of said Rights, Reservations, Options and Warrants as
to said Common Shares, Series A Preferred Shares, Series B Preferred Shares and
Series C Preferred Shares with respect to and to the same extent as to Holding
of said Rights, Reservations, Options and Warrants as to said Common Shares,
Series A Preferred Shares, Series B Preferred Shares and Series C Preferred
Shares. Holders thereof may be issued Certificates as to said Rights,
Reservations, Options and
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Warrants as to Holding, but the absence of a certificate issuance shall not
affect the validity thereof.
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by resolutions adopted by their respective
Board of Directors and that fact having been certified on said Agreement by the
Secretary of each corporate party thereto, have caused these presents to be
executed by the Presidents of each party hereto as the respective act, deed and
agreement of each said corporations, on this 14th day of October, 1998.
Aqua Vie Beverage Corporation-S, a Delaware
corporation
ATTEST:
/S/
-------------------------------------------
Xxxxxx X. Xxxxxxxxx
/S/
------------------------------
Xxxx X. Xxxxxx, Xx.
I, Xxxx X. Xxxxxx, Xx., Secretary of Aqua Vie Beverage Corporation-S, a
corporation organized and existing under the laws of the State of Delaware,
hereby certify, as such Secretary that the Agreement and Plan of Merger to which
this Certificate is attached, after having first duly signed on behalf of the
said corporation and having been signed on behalf of Aqua Vie Beverage
Corporation-S, a corporation of the State of Delaware, was duly adopted pursuant
to Section 251(g) of the General Corporation law of Delaware without any vote of
the stockholders of the surviving corporation; and that no shares of the
corporation were issued prior to the adoption of the Merger; and that Section
251(g) of the General Corporation Law of Delaware is applicable; and that the
Agreement of Merger was adopted by the Board of Directors by the attached
Resolution of said Aqua Vie Beverage Corporation-S, and is the duly adopted
agreement and act of said corporation.
WITNESS my hand on this 14th day of October, 1998.
/S/
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Xxxx X. Xxxxxx, Xx.
Aqua Vie Beverage Corporation-H,
a Delaware corporation
ATTEST:
/S/
--------------------------------
/S/ Xxxxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxx, Xx
I, Xxxx X. Xxxxxx, Xx., Secretary of Aqua Vie Beverage Corporation-H, a
corporation organized and existing under the laws of the State of Delaware,
hereby certify, as such Secretary that the Agreement and Plan of Merger to which
this Certificate is attached, after having first duly signed on behalf of the
said corporation and having been signed on behalf of Aqua Vie Beverage
Corporation-H, , a corporation of the State of Delaware, was duly adopted
pursuant to Section 251(g) of the General Corporation law of Delaware without
any vote of the stockholders of the surviving corporation; and that no shares of
the corporation were issued prior to the adoption of the Merger; and that
Section 251(g) of the General Corporation Law of Delaware is applicable; and
that the Agreement of Merger was adopted by the Board of Directors by the
attached Resolution of said Aqua Vie Beverage Corporation-H, and is the duly
adopted agreement and act of said corporation.
WITNESS my hand on this 14th day of October, 1998.
/S/
---------------------------------------
Xxxx X. Xxxxxx, Xx.
Aqua Vie Beverage Corporation,
a Delaware corporation
ATTEST:
/S/
--------------------------------
/S/ Xxxxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxx, Xx
I, Xxxx X. Xxxxxx, Xx., Secretary of Aqua Vie Beverage Corporation-H, a
corporation organized and existing under the laws of the State of Delaware,
hereby certify, as such Secretary that the Agreement and Plan of Merger to which
this Certificate is attached, after having first duly signed on behalf of the
said corporation and having been signed on behalf of Aqua Vie Beverage
Corporation-H, , a corporation of the State of Delaware, was duly adopted
pursuant to Section 251(g) of the General Corporation law of Delaware without
any vote of the stockholders of the surviving corporation; and that no shares of
the corporation were issued prior to the adoption of the Merger; and that
Section 251(g) of the General Corporation Law of Delaware is applicable; and
that the Agreement of Merger was adopted by the Board of Directors by the
attached Resolution of said Aqua Vie Beverage Corporation-H, and is the duly
adopted agreement and act of said corporation.
WITNESS my hand on this 14th day of October, 1998.
/S/
-------------------------------------------
Xxxx X. Xxxxxx, Xx.
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