=============================================================================
DEFINITIVE AGREEMENT AND
PLAN OF REVERSE ACQUISITION
AMONG
GEYSER GROUP, LTD.
AND
POWER BEVERAGE CORP.
DATED AS OF SEPTEMBER 14, 2001
=============================================================================
Exhibit 2.2
THIS DEFINITIVE AGREEMENT AND SHARE ACQUISITION, (this
"Agreement"), dated September 14, 2001, the ("Closing Date"), among
defines the principal terms of a reverse acquisition between and
among:
A. Purchaser: GEYSER GROUP, LTD., (formerly known as `The Theme
Factory, Inc.' or hereafter referred to as "TMFT",) a Nevada
Corporation, (herein referred to as "GEYR"), located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇▇▇-▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; which includes
the company AquaPure International, Inc. ("API").
And
B. Seller (s): POWER BEVERAGE CORP., a Florida corporation,
(herein referred to as "PBC"), located ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇; represented by the selling shareholders of
PBC, as listed on Exhibit A, (herein referred to as "Selling
Shareholders"). Power Beverage Corp. is a wholly owned subsidiary of
Xstream Beverage, Inc., a Florida corporation.
W I T N E S S E T H:
--------------------
In this Agreement, the above (A) and (B) (collectively referred
to as the "Parties," and each separately as a "Party") seek to
memorialize a definitive legally binding agreement ("Definitive
Agreement") providing for an Acquisition.
RECITALS:
WHEREAS, as of the Closing Date, PBC had 25,000,000 shares of
Common Stock authorized, ($.0001par value) and 25 million shares of
Series A Cumulative Convertible Voting Preferred Stock authorized, of
which PBC had 8,000,000 shares of Common Stock issued and Outstanding,
and no Preferred Stock issued or outstanding.
WHEREAS, as of the Closing Date, the Board of Directors of GEYR
(formerly known as TMFT) had nullified and rescinded the `Definitive
Agreement And Plan Of Acquisition Among The Theme Factory, Inc. And
Water Star Bottling, Inc. (And 85% Owned Subsidiary of Geyser
Products, LLC)' signed on the 9th day of March, 2001by TMFT and Water
Star Bottling, Inc. (and 85% owned subsidiary Geyser Products, LLC),
(hereafter known collectively as "WBI"). GEYR (formerly known as TMFT)
and WBI mutually agreed to a general release of any and all claims or
obligations from either party from the beginning of time until the end
of time. Simultaneously, Mr. C. ▇▇▇▇▇▇▇ ▇▇▇▇▇, resigned as an Officer
and Director of GEYR, and with his spouse ▇▇▇▇▇ ▇▇▇▇▇ had transferred
back to GEYR all the Common Stock of GEYR that either had owned, or a
total of 6,650,000 shares; C. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and/or any
other parties associated with WBI had released GEYR of any and all
obligations for all time.
WHEREAS, the former Chief Executive Officer of GEYR, ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ had resigned from the Board of Directors of the Company and/or
any position as an officer of the Company; the Board of Directors of
GEYR had requested and accepted that ▇▇. ▇▇▇▇▇▇▇ transfer to the
Company all the Common Stock he had owned, or a total of 2,000,000
shares of Common Stock of the 9,000,000 shares of Common Stock of GEYR
issued to API being held in escrow by Interwest Transfer upon the
satisfaction of Section 6.13 of the `Definitive Agreement And Plan Of
Reverse Acquisition Among The Theme Factory, Inc. And AquaPure
International, Inc.', signed on March 9th, 2001. ("TMFT/API Agreement";
and "API Escrowed Stock"). Subsequently, the Board of Directors of
GEYR accepted the resignation of two other Directors from the Board,
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇▇▇.
WHEREAS, as of the Closing Date, GEYR had 25,000,000 shares of
Common Stock authorized, of which, however the Board had passed a
resolution increasing the authorized shares to 50,000,000 and intends
to file an amendment to the Articles with the Secretary of State of
Nevada. GEYR had 9,800,000 shares were issued and outstanding on a
fully diluted basis, including 7,000,000 of the API Escrowed Stock,
Geyser Group, Ltd./Power Beverage Group.
Page 2 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
and no Preferred Stock authorized; GEYR had no outstanding options
rights, options, or warrants to acquire shares of its common stock.
WHEREAS, as of the Closing date, the Selling Shareholders of PBC,
as listed on Exhibit A, owned beneficially 8,000,000 shares of issued
and outstanding voting Common Stock of PBC on a fully diluted basis,
with the percentage owned by each respectively.
WHEREAS, GEYR is a publicly held Nevada company, listed and
trading under the symbol GEYR on the NASD Electronic Bulletin Board.
WHEREAS, PBC is a privately held Florida corporation, with
management expertise. PBC is a wholly-owned subsidiary corporation of
X-stream Beverage Corp., a privately held Florida corporation.
WHEREAS, the Boards of Directors of each of GEYR and PBC have
determined that it is in the best interests of both companies and
their respective shareholders to consummate the transactions and
reorganization contemplated herein in which, subject to the terms and
conditions of this Agreement, GEYR will acquire PBC as a wholly owned
subsidiary and the Selling Shareholders will acquire stock of GEYR.
WHEREAS, subject to the terms and conditions of this Agreement,
GEYR desires to acquire one hundred (100%) percent of the issued and
outstanding Common Stock of PBC, making the Company a wholly owned
subsidiary of GEYR; and the Selling Shareholders desire to make a tax-
free exchange of their shares of PBC solely for shares of GEYR,
wherein PBC will remain a wholly owned subsidiary of GEYR.
WHEREAS, for Federal income tax purposes, the parties intend that
the transactions and reorganization contemplated in this Agreement
qualify as a non-taxable reorganization under Section 368 (a)(1) (B)
of the Internal Revenue Code of 1986, as amended (the" Code"), and
qualify under a purchase method of accounting;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows.
ARTICLE I: Acquisition
1.1. Acquisition.
------------
Subject to the terms and conditions set forth in this Agreement,
at the Closing (as defined herein) one-hundred percent of PBC held by
the Selling Shareholders shall be exchanged solely for 40,000,000 of
the Issued and Outstanding shares of Common Stock of GEYR, the parties
intend that the transaction shall qualify as a tax-free acquisition
and corporate reorganization under Section 368 (a) (1) (B) and/or
other related or other applicable sections there under. Each Selling
Shareholder shall receive the number of GEYR shares that corresponds
to that Selling Shareholder's percentage ownership of the PBC Shares
set forth on Exhibit A.
Subject to the terms and conditions set forth in this Agreement,
at the Closing (as defined herein) the Selling Shareholders of PBC
shall own one-hundred percent of the 8,000,000 shares issued and
outstanding common stock of PBC shall be exchanged solely with GEYR
for 40,000,000 of GEYR common voting stock and that the transaction
shall qualify as a tax-free acquisition and corporate reorganization
under Section 368 (a) (1) (B) and/or related or other applicable
sections there under.
Selling Shareholders represent and warrant that they will hold
such shares of GEYR common stock for investment purposes and not for
public distribution and further agree that such shares will be
restricted according to Rule 144 of the Securities Act of 1933, as
amended.
Geyser Group, Ltd./Power Beverage Group.
Page 3 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
GEYR further desires to provide for the continuing operation of
the business of PBC and, to that end, wishes to retain PBC as a wholly
owned subsidiary of GEYR; and, obtain certain employment
with attached non-compete agreements with PBC, in the forms attached
hereto.
1.2 Closing Time.
-------------
Subject to terms and conditions of this Agreement as provided in
Article VIII below, the closing of the exchange of the PBC Common
Stock (the "Closing") shall take place at Boca Raton, Florida, on or
before the 14th of September, 2001 at 5:00 P.M Eastern Standard Time
(EST), or such other place, time and date as GEYR and PBC may mutually
agree upon in writing ("Closing Time").
1.3 Upon Closing.
-------------
Selling Shareholders will transfer and assign all right, title
and interest in the PBC Capital stock, free and clear of any and all
liens, claims, options, charges and encumbrances whatsoever. In
exchange GEYR will transfer and deliver the number of GEYR shares that
correspond with each Selling Shareholder percent ownership of PBC.
ARTICLE II: Representations and Warranties
Of PBC and Shareholders
PBC, and its Selling Shareholders, each represent and warrant to GEYR
as follows:
2.1 Organization and Standing.
--------------------------
PBC is a duly organized and validly existing corporation, and in
good standing under the laws of the State of Florida. PBC has all
requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now conducted, and is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the property owned, operated
or leased by it or the nature of the business conducted by it makes
such qualification necessary.
2.2 Capitalization.
---------------
All of the issued and outstanding shares of PBC Capital Stock
have been validly issued, are fully paid and non-assessable; there is
no right of first refusal option or other restriction on transfer
applicable to any shares of any securities PBC. PBC has delivered to
GEYR complete and accurate copies of its
(a) Articles of Incorporation and Bylaws, each as amended
through the date hereof;
(b) Minutes of all of its directors' and Shareholders'
meetings through the date hereof.
2.3 Rights to Acquire.
------------------
(a) PBC does not have outstanding any preemptive or
subscription rights, options, warrants, rights to
convert, capital stock equivalents or other rights to
purchase or otherwise acquire, now or in the future, any
of its capital stock or other securities;
(b) PBC does not have outstanding any stock appreciation
rights or other rights granting to any person the right
to be paid money or other property based on the value of
securities of PBC;
(c) There are no agreements, restrictions or understandings
to which PBC or any Selling Shareholders is a party with
respect to the sale, transfer or voting of any shares of
the PBC Shares.
Geyser Group, Ltd./Power Beverage Group.
Page 4 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
2.4 Subsidiaries.
-------------
PBC does not own or control, directly or indirectly, any interest
or investment (whether equity or debt) in any other corporation,
partnership, business, trust or other entity.
2.5 Authority.
----------
(a) PBC has full corporate power and authority to execute,
deliver and perform its obligations under this Agreement and all
corporate action of PBC necessary for such execution, delivery and
performance has been duly taken. Complete and correct copies,
certified by the Secretary or Assistant Secretary of PBC, of the
resolutions adopted by the Board of Directors, authorizing and
ratifying the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein, will be
delivered upon Closing.
(b) To the knowledge of PBC, the execution and delivery by PBC
and each of the Selling Shareholders of this Agreement and the
performance of the transactions contemplated by this Agreement will
not result in any conflict with, breach or violation of or default,
termination or forfeiture under (or upon the giving of notice or the
lapse of time, or both, result in any conflict with, breach or
violation of or default, termination or forfeiture under) any terms or
provisions of PBC's Articles of Incorporation or Bylaws, each as
amended through the date hereof, or any statute, rule, regulation,
judicial or governmental decree, order or judgment, agreement, lease
or other instrument to which PBC or any Selling Shareholders is a
party or to which any of its or their assets is subject and which
individually or in the aggregate is material to PBC or any Selling
Shareholders.
(c) No consent, approval, authorization, order, registration,
qualification or filing of or with any court or any regulatory
authority or any other governmental body is required for the
consummation by PBC of the transactions contemplated by this
Agreement.
(d) Upon due execution and delivery by the parties hereto, this
Agreement and the agreements related hereto would each be a legal,
valid and binding obligation of PBC and Selling Shareholders. Such
Agreement will be enforceable against PBC and PBC in accordance with
their terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally.
2.6 Financial Statements.
---------------------
To the knowledge of PBC, PBC has no significant liabilities,
receivables nor fixed assets. PBC shall make available to GEYR true
and accurate listing of all financial data that would be required to
be shown on a consolidated financial statement prepared in accordance
with generally accepted accounting principles (collectively the " PBC
Financials"). The books of account of the Company reflect actual
transactions as of the dates shown thereon and provide a true and
correct representation of substantially all items of income and
expense, and all assets, liabilities and accruals of the Company
required to be reflected therein under generally accepted accounting
principles.
2.7 No Undisclosed Liabilities.
---------------------------
PBC has no debts, liabilities or claims against it, contingent or
otherwise, which would be of a nature required to be reflected in a
balance sheet prepared in accordance with generally accepted
accounting principles which are material individually or in the
aggregate and which are not shown or fully provided for on the PBC
Financials, except debts, liabilities and claims incurred in the
ordinary course of business since the date of the PBC Financials which
are not material in the aggregate. The applicable reserves reflected
on the PBC Financials are sufficient for payment of all claims,
asserted and unasserted, of customers to which PBC has sold products
or provided services through such date. All products and services
provided to customers by PBC have complied in all material respects
with all requirements binding upon PBC, whether by law, regulation,
agreement or otherwise.
Geyser Group, Ltd./Power Beverage Group.
Page 5 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
2.8 Taxes.
------
(a) To the knowledge of the PBC,
(i) All federal, state, local and foreign tax returns
and reports required to be filed to date, and which
are properly open for examination under applicable
statutes of limitation, with respect to the
operations of PBC have been accurately prepared and
duly filed, and all taxes shown as payable on such
returns and reports have been paid when due,
including, without limitation income, withholding,
payroll, sales and use, and real and personal
property taxes; and
(ii) PBC has not executed or filed with any taxing
authority any agreement extending the period for
assessment or collection of any tax to a date
subsequent to the date hereof; and
(iii) No issue has been raised by any federal, state,
local or foreign taxing authority in connection
with an audit or examination of the tax returns,
business or properties of PBC that has not been
settled or resolved; and
(iv) There is no pending claim, asserted deficiency or
assessment for additional taxes that has not been
paid, nor is there any basis for the assertion of
any such claim, deficiency or assessment; and
(v) No material special charges, penalties or fines
have ever been asserted against PBC with respect to
payment of or failure to pay any taxes; and
(vi) The provision for taxes shown on the PBC Financials
is sufficient for payment of all unpaid federal,
state, local and foreign taxes (whether asserted or
unasserted) incurred by PBC through such date.
(b) PBC has not filed any consent to the application of Section
341(f) of the Internal Revenue Code of 1986, as amended (the "Code"),
or been subject to any actual or deemed election under Section 338 of
the Code.
2.9 Tangible Assets and Inventories.
--------------------------------
To the knowledge of PBC, PBC has no material assets.
2.12 Real Property.
--------------
To the knowledge of PBC, PBC currently neither owns nor leases
any real property.
2.13 Environmental Matters.
----------------------
To the knowledge of PBC:
(i) PBC has complied in all material respects with the
Safe Drinking Water and Toxic Enforcement Act of
1986; and
(ii) PBC has complied in all material respects with any
and all other applicable statutes, rules and
regulations in effect (and, to the knowledge of
Shareholders or PBC any proposed statutes, rules and
regulations) regarding the environment including,
without limitation, statutes, rules and regulations
Geyser Group, Ltd./Power Beverage Group.
Page 6 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
regarding the production, handling, treatment and
disposal of toxic chemicals and hazardous waste.
2.14 Health and Safety Matters.
--------------------------
To the knowledge of PBC,
(i) PBC has complied in all material respects with any
and all applicable health and safety statutes, rules
and regulations of state, local and federal
authorities in effect (and, to the knowledge of
Shareholders or PBC any proposed statutes, rules and
regulations) regarding the production or
distribution of any PBC product; and
(ii) PBC has not violated any such statute, ordinance,
rule, regulation or order of any agency or court,
including the Food and Drug Administration, in any
respect material to the conduct of its business and
has not received any notice of any such violation
from any agency of the type referred to herein.
2.15 Insurance.
----------
To the knowledge of PBC, PBC does not have nor has ever had any
insurance policies in force.
2.16 Purchase, Sale and Other Agreements.
------------------------------------
Except as disclosed to GEYR, PBC states that it is not a party or
subject to any non-disclosed oral or written Agreement for the
purchase or sale of inventory, supplies, equipment or other real
or personal property, or the procurement of services; or joint
venture, partnership or other contract or arrangement involving
the sharing of profits; or
2.17 Intellectual Property.
----------------------
PBC currently neither holds nor has filed for any recipes,
formulas, trade secrets, trademarks, trade names, patents, copyrights,
inventions nor discoveries. PBC is not making use of any patentable or
unpatentable invention or any confidential information in which any
present or past employee of PBC has or has claimed an interest and PBC
and Selling Shareholders are not aware of facts that could reasonably
be expected to give rise to such a claim.
2.18 Employees and Consultants.
--------------------------
(a) PBC currently has neither consulting, employment agreements
nor other material agreements, either oral or written, with individual
consultants or employees to which PBC is a party. Except for the
Officers and Directors of PBC, as agreed upon in this Agreement, no
other officer, manager or key employee of PBC has notified PBC of an
intention to terminate employment or to seek a material change in his
terms of employment. No employee of PBC has accrued more than three
(3) weeks of paid vacation. PBC agrees that at the closing all such
consulting and employment agreements, bonus plans, employee stock
option plans and/or other agreements between PBC and its Officers,
Directors, Consultants or Employees shall be void and null.
(b) PBC is not a party to any pension, retirement, profit
sharing, savings, bonus, incentive, deferred compensation, group
health insurance or group life insurance plan or obligation, employee
welfare benefit plan, or collective bargaining agreement or other
agreement, written or oral, with any trade or labor union, employees'
association or similar organization.
(c) PBC has delivered to counsel for GEYR all documentation
received by PBC relating to union activities, including but not
limited to, correspondence or orders from the National Labor Relations
Geyser Group, Ltd./Power Beverage Group.
Page 7 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
Board and any state labor relations agencies or organizations, and all
documentation relating to union activity and labor practices at PBC
given by PBC to its employees. There are currently no agreements with
any unions and no strikes or labor disputes pending or threatened by
any of the employees of PBC. PBC has complied in all material
respects with all applicable laws or regulations relating to the
employment of labor; and PBC has withheld all amounts required by law
or agreement to be withheld from its employees for the payment of any
tax or contribution.
(d) There are no currently outstanding loans from PBC or to
any officer, director or employee of PBC and no
commitments to lend any money or other property to any
such person.
(e) To the knowledge of PBC,
a. No employee is obligated under any agreement or judgment
that would conflict with such employee's obligation to
use his best efforts to promote the interests of PBC
would conflict with PBC's or 's business as conducted or
proposed to be conducted; and
b. No employee of PBC is in violation of the terms of any
employment agreement or any other agreement relating to
such employee's relationship with any previous employer
and no litigation is pending or threatened with regard
thereto.
2.19 Bank Accounts.
--------------
Exhibit B identifies all bank accounts used in connection with
the operations of PBC whether or not such accounts are held in the
name of PBC, lists the respective signatories therefore and lists the
names of all persons holding a power of attorney from PBC and a
summary statement of the terms thereof
2.20 Borrowings and Guarantees.
--------------------------
To the knowledge of PBC, PBC has neither entered into any
agreements nor undertakings to which PBC is borrowing nor is entitled
to borrow any money, is lending nor has committed itself to lend any
money, is a guarantor nor surety with respect to the obligations of
any person.
2.21 Compliance with Laws.
---------------------
To the knowledge of PBC, the present conduct of the business of
PBC does not violate any law, ordinance, regulation, judgment, order,
decree or rule of any court, arbitrator or governmental agency or
entity in any respect material to the conduct of its business and, to
the knowledge of PBC or any Selling Shareholder, there are no laws,
ordinances or regulations proposed, and legal or administrative
proceedings or investigations pending or threatened, which, if enacted
or determined adversely to PBC, could reasonably be expected to
result, individually or in the aggregate, in any material adverse
change in PBC 's business, prospects or financial condition..
2.22 Customers.
----------
To the knowledge of PBC, PBC has no nor has ever had any
customers.
2.23 Absence of Litigation:
----------------------
Except as otherwise disclosed, neither PBC, its officers or
directors, nor Selling Shareholders are engaged in or received any
threat of any litigation, arbitration, investigation, proceedings
relating to PBC, its employee benefit plans, property, business
assets, licenses, permits, goodwill, or against or affecting the
Geyser Group, Ltd./Power Beverage Group.
Page 8 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
transactions contemplated by this Agreement, nor, to the knowledge of
the PBC, is there any basis therefore.
2.24 Transactions.
-------------
To the knowledge of PBC, PBC has no material contracts now in
effect between PBC and any person who now is or at any time since
inception has been an officer, director or controlling shareholder of
PBC, other than salary and incentive compensation arrangements of a
customary nature entered into in the ordinary course of business.
2.25 Accuracy of Documents
---------------------
The copies of all instruments, agreements, other documents and
written information delivered to GEYR by PBC or any Selling
Shareholders, or any of their representatives are and will be true and
correct copies as of the date of delivery thereof. No representations
or warranties made by PBC or any Shareholders in this Agreement nor
any document, written information statement, financial statement,
certificate or exhibit prepared and furnished or to be prepared and
furnished by PBC or any Selling Shareholders, or their
representatives, to GEYR pursuant hereto or in connection with the
transactions contemplated hereby, taken as a whole, contains or will
contain any untrue statement of a material fact, or omits or will omit
to state a material fact necessary to make the statements or facts
contained herein or therein not misleading. There is no event, fact or
condition which, to the knowledge and belief of the PBC, materially
and adversely affects the business, assets, financial condition or
prospects of PBC, or which could reasonably be expected to do so,
which has not been set forth in this Agreement or the Exhibits hereto.
2.26 Title to Shares.
----------------
Each Selling Shareholder has good, valid and marketable title to
the PBC shares listed in opposite his or her respective name on
Exhibit A attached hereto, free and clear of any and all liens,
claims, options, charges and encumbrances whatsoever.
2.27 Authority of Shareholders
-------------------------
Each Selling Shareholders has the absolute and unrestricted
right, power and authority to sell, assign, transfer and deliver the
PBC shares listed opposite his or her respective name on Exhibit A
attached hereto, to execute this Agreement and the agreements related
hereto, to make the representations, warranties and agreements
contained herein and in the related agreements and to perform his or
her obligations hereunder and under the agreements related hereto.
2.28 Representations of Selling Shareholders
---------------------------------------
Each Selling Shareholders hereby represents and warrants to GEYR
as of the date hereof that, to his or her knowledge, the
representations and warranties of PBC and each other Selling
Shareholders set forth herein are true and correct.
ARTICLE III: Representations And Warranties Of GEYR
GEYR represents, warrants and covenants to PBC and Selling
Shareholders as follows:
3.1 Organization and Standing.
--------------------------
GEYR is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada and has all
requisite corporate power and authority to own, operate and lease its
properties and carry on its business as now conducted. GEYR is a fully
reporting public company pursuant to section 15 (d) of the Exchange
Geyser Group, Ltd./Power Beverage Group.
Page 9 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
Act of 1934, as amended. The voting common stock currently trades on
the NASD Over The Counter (OTC) Electronic Bulletin Board under the
symbol [OTC BB: GEYR]. The authorized capital stock of GEYR consists
of: 25,000,000 shares of voting common stock, ($.001 par value per
share), and the Board has authorized 10,000,000 shares of Preferred
Stock, however no amendment has been filed with the Secretary of State
of Nevada. GEYR has currently 9,800,000 shares of common stock issued
and outstanding and has issued no preferred stock. GEYR has issued no
options to acquire common shares, has no other obligations to issue
shares of its common stock and has no other securities outstanding
that are convertible into its common stock. GEYR's common stock is the
only publicly listed security.
3.2 Authority:
----------
(a) GEYR has full corporate power and authority to execute,
deliver and perform its obligations under this Agreement, and all
corporate action necessary for such execution, delivery and
performance hereof and thereof by GEYR has been duly taken. Complete
and correct copies, certified by the Secretary or Assistant Secretary
of GEYR, of the resolutions adopted by the Board of Directors,
authorizing and ratifying the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein,
(b) Subject to GEYR obtaining all necessary consents, which
consents have been obtained or will be obtained on or prior to the
Closing Date, the execution and delivery by GEYR of this Agreement and
the agreements related hereto do not, and the performance and
consummation of the transactions contemplated by this Agreement and
the agreements related hereto will not, result in any conflict with,
breach or violation of or default, termination or forfeiture under (or
upon the giving of notice or the lapse of time, or both, result in any
conflict with, breach or violation of or default, termination or
forfeiture under) any terms or provisions of its Certificate of
Incorporation or Bylaws, each as amended through the date hereof, or
any statute, rule, regulation, judicial or governmental decree, order
or judgment, agreement, lease or other instrument to which GEYR is a
party or to which any of the assets of GEYR is subject and which
individually or in the aggregate is material to GEYR.
(c) Each consent, approval, authorization, order, registration,
qualification or filing of or with any court or any regulatory
authority or any other governmental body which is required for the
consummation by GEYR of the transactions contemplated by this
Agreement has been obtained or will be obtained prior to or upon the
Closing.
(d) Upon due execution and delivery by the parties hereto, this
Agreement and the agreements related hereto will each be legal, valid
and binding obligations of GEYR, enforceable against GEYR in
accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally. Except for the actions and
filings with the State of Nevada, the Securities & Exchange Commission
and the NASDAQ OTC Bulletin Board, hereof, no consent, approval or
authorization of, exemption or other action by notice or
declaration, filing or registration with, any third party or
governmental agency is required to be obtained, made or given by GEYR
in connection with the execution, delivery and performance of this
Agreement or the consummation by GEYR of the transactions contemplated
by this Agreement.
3.3 Absence of Litigation.
----------------------
Except for a Settlement Agreement between GEYR and API as
collective parties and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PLC as
collective parties, neither GEYR nor any officer or director of GEYR
is engaged in, or has received any threat of any litigation,
arbitration, investigation or other proceeding related to or affecting
the transactions contemplated by this Agreement, nor to the knowledge
of GEYR, is there any basis therefore. There is no litigation,
arbitration, action or proceeding pending, or to the knowledge of
GEYR, threatened, against or relating to GEYR, its properties or
business.
3.4 No Liabilities.
---------------
Geyser Group, Ltd./Power Beverage Group.
Page 10 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
GEYR has no material liabilities of any nature except to the
extent reflected or reserved in its financial statements, whether
accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due, except
for additional liabilities which may have been incurred in the
ordinary course of business by GEYR since the date of the financial
statements.
3.5 No Current Business Operations.
-------------------------------
Other than the operation of API, GEYR has no present business
operations or subsidiaries, and no liabilities or obligations of any
nature and shall have no material liabilities or obligations at time
of Closing whether accrued, absolute, contingent or otherwise,
including, without limitation, tax liabilities and interest due or to
become due.
3.6 S.E.C. Compliance and Listings.
-------------------------------
GEYR is a full-reporting Nevada Corporation currently traded on
the NASD Electronic Bulletin Board (under the symbol: "GEYR"). GEYR is
not in full compliance with federal securities laws. All outstanding
shares of common stock of GEYR have been duly authorized and are
validly issued, fully paid, and non-assessable and free of preemptive
rights, and there are no registration rights existing or granted to
any holders of restricted common stock of GEYR.
3.7 Compliance With Reporting Requirements.
---------------------------------------
GEYR represents, warrants and agrees that, as of the date of
Closing, GEYR has not filed all forms, reports and documents with the
S.E.C. required to be filed by it pursuant to the Securities Act and
the Exchange Act, including, without limitation, all reporting
requirements of the Exchange Act. The reports filed with the S.E.C.,
to GEYR's knowledge, did not contain, as of their respective dates,
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3.8 Title to Property.
------------------
GEYR has all requisite corporate power and authority to own its
properties and assets and has good and marketable title to all
properties and assets, real and personal, reflected in the Balance
Sheet of GEYR, and the properties and assets of GEYR are subject to no
mortgage, pledge, lien or encumbrances, except for liens shown
therein, with respect to which no default exists.
3.9 Accuracy of Documents and Information.
--------------------------------------
The copies of all instruments, agreements, other documents and
written information delivered to PBC or any Shareholders by GEYR, or
any of their representatives are and will be true and correct copies
as of the date of delivery thereof. No representations or warranties
made by GEYR in this Agreement nor any document, written information
statement, financial statement, certificate or exhibit prepared and
furnished or to be prepared and furnished by GEYR, or their
representatives, to PBC or any Shareholders pursuant hereto or in
connection with the transactions contemplated hereby, taken as a
whole, contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact necessary to make
the statements or facts contained herein or therein not misleading.
3.10 Financial Statements.
---------------------
GEYR shall have furnished PBC and the Selling Shareholders
financial statements and balance sheets for the period ending December
31,2000 accompanied by a report of its independent certified public
accountants; and the financial information necessary to prepare
reviewed balance sheets and statements of operations for the most
recent quarter of March 31st, 2001, and June 30, 2001 as required by
Geyser Group, Ltd./Power Beverage Group.
Page 11 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
the SEC on Form10-SB. To the knowledge of GEYR, such financial
statements, together with and subject to the disclosures and notes
thereto,
(i) Are in accordance with the books and records of GEYR; and
(ii) Present fairly and accurately the financial condition of
GEYR as of the dates of the balance sheets; and
(iii) Present fairly and accurately the results of operations for
the periods covered by such statements; and
(iv) Have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis; and
(v) Include all adjustments (consisting of only normal
recurring accruals) which are necessary for a fair
presentation of the financial condition of GEYR, and of the
results of operations of GEYR for the periods covered by
such statements; and
(vi) Fully comply with all requirements of Regulation SB and/or
SK K and all applicable securities laws.
3.11 Books and Records:
------------------
From the date of this Agreement to the Closing, GEYR will:
(1) Provide to PBC and the Selling Shareholders or their
respective representatives any and all relevant
documents regarding securities filings, broker
dealer due diligence packages, offering memorandums,
and copies of Form D; and
(2) Give to PBC and the Selling Shareholders, or their
respective representatives, full access during
normal business hours to all of its offices, books,
records, contracts, stock certificate books, stock
certificates, transfer Ledgers, minutes books and
other corporate documents ("Corporate Records") and
properties so that Selling Shareholders may inspect
and audit them; and
(3) Furnish such information concerning the properties
and affairs of GEYR as the Selling Shareholders may
reasonably request. GEYR represents and warrants
that all of GEYR's Corporate Records are true,
correct and complete and constitute all of its
Corporate Records, thereof and, the minute books of
GEYR reflect all material actions taken and
authorizations given by the Board of Directors of
GEYR or any committee thereof and all material
actions taken and authorization given by the Selling
Shareholders of GEYR.
3.12 Tax Returns.
------------
GEYR has filed (or has obtained extensions for filing) all
income, excise, sales, corporate franchise, property, payroll and
other tax returns or reports required to be filed by it, as of the
date hereof by the United States of America, any state or other
political subdivision thereof or any foreign country and has other
paid all taxes or assessments relating to the time periods covered by
such returns or reports. The amounts set up as provisions for taxes
in the latest financial statements are sufficient for the payment of
all unpaid federal, foreign, state or local taxes of accrued for or
applicable to all periods ended on or prior to the date of this
Agreement, or which may subsequently be determined to be owing by with
respect to all periods ending on or prior to the Closing date, subject
to normal year-end adjustments, which will not be material. There are
no present audits or disputes with any federal, foreign, state or
local taxing authority as to taxes of any nature payable by GEYR.
3.13 Environmental Matters.
----------------------
GEYR represents and warrants:
(a) GEYR represents and warrants it is and has at all times
been in compliance with all applicable federal state and local
environmental laws.
(b) GEYR has not been required to obtain any licenses or
permits required under environmental laws for the operation of its
business.
(c) No hazardous substances (as defined in applicable
federal, state and local environmental laws and regulations) have been
generated, transported, stored, treated, recycled, disposed of or
otherwise handled in any way in the operation of the GEYR's business,
except in compliance with all applicable Environmental laws. There are
no locations now owned or operated by GEYR where hazardous substances
have been generated, transported, stored, treated, recycled, disposed
of or otherwise handled, except in compliance with all applicable
environmental laws. There is no past or ongoing release or threat of
release of hazardous substances from any of the properties currently
owned or operated by GEYR or any of its affiliates or, to the
knowledge of GEYR, from any properties formerly owned or operated by
GEYR or any of its affiliates. GEYR has not treated, stored for more
than 90 days, or disposed of any hazardous waste; as such term is used
within the meaning of federal state or local law, except in compliance
with all applicable environmental laws.
(d) GEYR has not received any written notice from any
governmental authority, regulatory agency or other person advising
that GEYR is potentially responsible for costs associated with any
release or threatened release of hazardous substances or potentially
liable for any violation of any environmental law. No pending or, to
the knowledge of GEYR, threatened order, litigation, settlement or
citation with respect to hazardous substances exists with respect to
or in connection with the operation of the business. There has been
no environmental investigation conducted by any governmental
authority or regulatory agency with respect to the operation of its
business.
(e) No underground storage tanks are or, to the knowledge
of GEYR, ever were located on any properties currently or previously
owned or leased by GEYR. To the knowledge of GEYR, no PCBs or
asbestos-containing materials are located on, contained in or
otherwise form a part of any of the assets or properties of GEYR.
3.14 Depositories.
-------------
GEYR shall make available to PBC a complete list of the name,
location and account numbers of each bank, trust company, securities
broker or other financial institution in which GEYR has an account,
deposits, safe deposit box, lock box or other assets on hand and the
names of all authorized persons with respect thereto.
3.15 Structure of Transaction.
-------------------------
The transaction between PBC and GEYR is a stock-for-stock
acquisition, and not a statutory merger. The current shareholders of
GEYR will not be entitled to dissenters or appraisal rights under the
corporate laws of Nevada.
3.16 Benefit Plans of GEYR.
----------------------
Except as otherwise described, GEYR is not a party to (i) any
"employee benefit plan" within the meaning of Section 3(3) of ERISA,
(ii) any profit sharing, pension, defined compensation, bonus, stock
option, stock purchase, disability, severance, health, welfare or
incentive plan or agreement or (iii) any written or unwritten plan or
policy providing for "fringe benefits" to its employees, including but
Geyser Group, Ltd./Power Beverage Group.
Page 13 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
not limited to vacation, paid holidays, personal leave, employee
discount, educational benefit or similar programs (individually a
"Plan," and collectively the "Plans").
3.17 Confidentiality:
----------------
GEYR and its representatives will keep confidential any
information that they obtain from the Selling Shareholders or from PBC
concerning the properties, assets and business of PBC. If the
transactions contemplated by this Agreement are not consummated by
September 17, 2001 GEYR will return to PBC all written matter with
respect to PBC obtained by GEYR in connection with the negotiation or
consummation of this Agreement.
3.18 Investment Intent.
------------------
GEYR is acquiring PBC shares transferred to it under this
Agreement for investment and not with a view to the sale or
distribution thereof, and GEYR has no commitment or present intention
to liquidate PBC or to sell or otherwise dispose of shares of its
stock.
ARTICLE IV: Covenants Of PBC And Selling Shareholders
4.1 Maintenance of Business.
------------------------
PBC and Selling Shareholders will use their best efforts to carry
on and preserve the business, goodwill and relationships of PBC with
customers, suppliers, officers, employees, agents and others in
substantially the same manner as they have prior to the date hereof.
Subject to any directions from GEYR, PBC and Selling Shareholders will
use its best efforts to keep and maintain the existing favorable
business relationship with each of such customers, suppliers and
officers, employees and agents. If PBC or any Shareholders becomes
aware of deterioration in a relationship with any customer, supplier
or officer, employee or agent, PBC or such Shareholders will promptly
bring such information to the attention of GEYR and will exert its
best efforts to restore such relationship.
4.2 Commitment to Raise Capital and Complete an Acquisition.
--------------------------------------------------------
The Parties agree that between the Closing date and March 1st,
2002, PBC and/or Selling Shareholders shall have (a) received
commitments from investors participating in a private or public
offering of a minimum of one million dollars ($1,000,000), less
selling commissions and costs. The kind of securities offered in the
Private or Public Offering (whether common stock, preferred stock,
debt, etc.), the number or price of said securities offered, and all
other details of said Private or Public Offering are to be determined
by PBC. The Private or Public Offering shall be completed in
compliance with all applicable state and federal securities laws; and
(b) completed an acquisition of a bottled water or beverage company.
4.3 Absence of Certain Changes.
---------------------------
Prior to the Closing, including 90 days prior to this Agreement,
except as expressly permitted or contemplated hereby, neither PBC nor
any Shareholders has or will, without GEYR's prior express written
consent, cause PBC to:
(i) Incur any additional indebtedness for money borrowed,
or guarantee any indebtedness or obligation of any
other party;
(ii) Set aside or pay any dividend or distribution of
assets to, or repurchase any of its stock from, any of
its Shareholders,
Geyser Group, Ltd./Power Beverage Group.
Page 14 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
(iii) Issue any capital stock or securities convertible into
capital stock or grant or issue any options, warrants
or rights to subscribe for its capital stock or
securities convertible into its capital stock;
(iv) Enter into, amend or terminate any employment
agreement or any agreement or arrangement which, if in
effect on the date hereof, would be required to be
disclosed;
(v) Extraordinarily increase the compensation payable or
to become payable by PBC to any of its officers,
employees or agents above the amount payable, or adopt
or amend any employee benefit plan or arrangement;
(vi) Acquire or dispose of any material properties or
assets used in its business;
(vii) Waive any statute of limitations so as to extend any
tax or other liability of PBC;
(viii) Permit any material change in the nature of the
business of PBC or the manner in which the PBC books
and records are maintained;
(ix) Create or suffer to be imposed any lien, mortgage,
security interest or other charge on or against its
properties or assets, except for purchase money
security interests incurred in the ordinary course of
business;
(x) Enter into, amend or terminate any lease of real or
personal property;
(xi) Amend its Articles of Incorporation or Bylaws; or
(xii) Engage in any activities or transactions outside the
ordinary course of its business as conducted at the
date hereof.
4.4 Maintenance of Condition.
-------------------------
Prior to the Closing, including 90 days prior to this Agreement,
except as expressly permitted or contemplated hereby, no Shareholders
will, without GEYR's prior express written consent:
(i) Enter into any agreement, restriction or understanding
with respect to the sale, transfer or voting of any
shares of PBC Capital Stock;
(ii) Permit any change in the good, valid and marketable
title to his or her PBC Capital Stock, including the
imposition any lien, charge or encumbrance on such
stock;
(iii) Impair his or her right, power and authority to sell,
assign, transfer and deliver the PBC Capital Stock, to
execute this Agreement and the agreements related
hereto, to make the representations, warranties and
agreements contained herein and in the related
agreements and to perform his or her obligations
hereunder and under the agreements related hereto;
(iv) Be obligated under any agreement or judgment that
would conflict with such Shareholders obligations
under the proposed Employment Agreement, Consulting
Agreements or Noncompetition Agreement attached, as
applicable;
(v) Enter into any agreement containing a covenant or
covenants that purport to limit the ability or right
of any Shareholders to engage in any lawful business
activity.
Geyser Group, Ltd./Power Beverage Group.
Page 15 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
4.5 Access to Information.
----------------------
At all times throughout the period prior to the Closing, PBC will
give GEYR and its accountants, legal counsel and other representatives
reasonable access, during normal business hours, to all of the
properties, books, contracts, commitments and records relating to the
business, assets and liabilities of PBC, and will furnish GEYR, its
accountants, legal counsel and other representatives during such
period all such information concerning its affairs as GEYR may
reasonably request; provided, however, that any furnishing of such
information pursuant hereto or any investigation by GEYR shall not
affect GEYR's right to rely on the representations, warranties and
covenants made by PBC in this Agreement.
4.6 Compliance with Obligations.
----------------------------
Prior to the Closing, PBC shall comply with:
(a) All applicable federal, state, local and foreign laws,
rules and regulations;
(b) All material agreements and obligations, including Articles
of Incorporation and Bylaws, by which it, its properties or
its assets may be bound; and
(c) All decrees, orders, writs, injunctions, judgments,
statutes, rules and regulations applicable to PBC, its
properties or assets, which, if enforced individually or in
the aggregate, would have a material adverse effect on PBC.
4.7 Necessary Consents.
-------------------
Prior to the Closing, PBC and each Shareholders will use their
best efforts to obtain such written consents and take such other
actions as may be necessary or appropriate to allow the consummation
of the transactions contemplated hereby and to allow the continuation
of PBC's business after the Closing as conducted and as proposed to be
conducted at the date hereof.
4.8 Notification.
-------------
PBC will give prompt notice to GEYR of:
(a) Any notice of default received by PBC subsequent to the date
of this Agreement under any material instrument or material agreement
to which PBC is a party or by which it is bound, which default could,
if not remedied, result in any material adverse change in the
financial condition, business or prospects of PBC, taken as a whole,
or which would render incorrect in any material respect any
representation made herein; and
(b) Any suit, action, proceeding or investigation instituted
or, to the knowledge of PBC or any Shareholders, threatened
against or affecting PBC or concerning any claim of ownership
of or rights with respect to any PBC Capital Stock subsequent
to the date of this Agreement and prior to the Closing which,
if adversely determined, could result in any material adverse
change in the financial condition, business or prospects of
PBC, taken as a whole, or which would render incorrect any
representation made herein.
4.9 Good Faith.
-----------
From the date hereof until the termination of this Agreement,
neither PBC, any Shareholders nor any of its officers or directors
will initiate discussions or negotiate, or authorize any person or
entity to discuss or negotiate on its behalf, with any other party, or
entertain or consider (except to the extent required by their
respective fiduciary duties) any inquiries or proposals received from
any other party, concerning the possible disposition of PBC's
business, assets or Capital stock.
Geyser Group, Ltd./Power Beverage Group.
Page 16 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
ARTICLE V: Covenants Of GEYR
5.1 Investment Representation.
--------------------------
GEYR hereby represents, warrants and agrees that it is acquiring
the PBC Capital Stock solely for purposes of investment and not with a
view to any public distribution thereof. GEYR will deliver to PBC at
the Closing an investment representation, in form and substance to the
reasonable satisfaction of Shareholders and their counsel.
5.2 Documents.
----------
GEYR agrees to deliver unto Shareholders at the Closing, duly
certified as of the Closing Date by the Secretary or any Assistant
Secretary of GEYR, copies of resolutions duly adopted by GEYR 's Board
of Directors, authorizing the execution, delivery and performance of
this Agreement and all agreements related hereto. Such resolutions and
certification shall be in form and substance to the reasonable
satisfaction of Shareholders and their counsel.
5.3 Continued Escrow of API stock.
------------------------------
GEYR represents and warrants that 2,000,000 shares of Common
Stock of the API escrowed stock shall have been cancelled in
connection with the resignation of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇. The parties
agree to amend Section 6.13 of the TMFT/API Agreement ("Section
6.13"), wherein 7,000,000 shares of common stock of GEYR shall be the
total amount of GEYR Common Stock issued and designated to the selling
shareholders of API, shall continue to be held as amended by Interwest
Stock Transfer as escrow agent ("API Escrowed Stock"). The Parties
agree to release said API Escrowed Stock to API upon such time as API
has satisfied Section 6.13; or to prorate the remaining shares upon
remaining months left. The parties agree to amend Section 6.13 wherein
in the event that API has not satisfied Section 6.13 after 30 days
from the Closing date of this Agreement, GEYR shall begin to cancel
1,000,000 shares of the API Escrowed Stock every 30 days until such
time as API shall have no capital stock.
5.4 Issuance of Shares for Services.
--------------------------------
In connection with a settlement agreement, the Parties agree
that GEYR shall have issued 1,000,000 shares of Common Stock of GEYR to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PLC.
ARTICLE VI: Conditions To Obligations Of GEYR
The obligations of GEYR to consummate the transactions
contemplated hereby are, at GEYR's election, subject to satisfaction
or waiver of the following conditions by PBC:
6.1 Consents and Approvals.
-----------------------
PBC shall have obtained all consents and approvals of third
parties (including governmental authorities) required of PBC and GEYR
to consummate the transactions contemplated by this Agreement.
6.2 Representations.
----------------
All representations and warranties made herein by PBC and/or
Selling Shareholders shall be true in all material respects as of the
date made and as of the Closing, except to the extent such
representations and warranties are rendered untrue by the performance
by PBC or any Shareholders of obligations and agreements undertaken by
them to be performed at or prior to the Closing as set forth in this
Agreement. PBC and each Shareholder shall have performed all
obligations and agreements undertaken by it herein to be performed at
or prior to the Closing.
6.3 Certificate.
------------
Geyser Group, Ltd./Power Beverage Group.
Page 17 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
GEYR shall have received at the Closing a certificate, dated as
of the Closing and executed by PBC's President and each Shareholders,
to the effect that the conditions set forth in Sections 6 have been
satisfied. If any representation or warranty made herein is not true
as of the Closing, such certificate shall identify such representation
or warranty expressly and shall indicate in reasonable detail the
nature of all exceptions thereto not previously disclosed in the
Schedule of Exceptions. If GEYR thereafter elects to consummate the
transactions contemplated hereby, Shareholders shall not be liable for
indemnification for any Damages resulting solely from the facts
described in such certificate.
6.4 Opinion of Counsel.
-------------------
GEYR shall have received at the Closing, in form and substance
satisfactory to GEYR and its counsel, to the effect that:
(a) PBC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida, has all
requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now conducted and is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the nature of its business
or the ownership of its properties makes such qualification necessary;
(b) All outstanding shares of such stock are held of record and
beneficially. All outstanding shares of PBC Capital stock have been
validly issued, are fully paid and nonassessable, and have been issued
in full compliance with all applicable federal and state securities
laws (provided such counsel need not express any opinion with respect
to the anti-fraud provisions of such securities laws).
(c) To such counsel's actual knowledge, no right of first refusal
option or other restriction is applicable to any shares of PBC Capital
Stock. To such counsel's actual knowledge, PBC does not have
outstanding any preemptive or subscription rights, options, warrants,
rights to convert, Capital stock equivalents, stock appreciation
rights or other rights to purchase or otherwise acquire any of its
Capital stock or other securities, or to be paid any amount based on
the value of any such securities.
(d) PBC has full corporate power and authority to execute and
deliver, and to perform its obligations under this Agreement. PBC has
taken all requisite corporate action to approve and adopt this
Agreement and the performance by PBC of its obligations hereunder.
This Agreement, the Employment Agreement and Agreement Not to Compete
have been duly and validly executed and delivered by PBC to the extent
that each is a party thereto, and constitute legal, valid and binding
obligations of PBC and each such Shareholders that is a party to the
applicable agreement, enforceable against them in accordance with
their terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws affecting creditors' rights generally and subject
to general equity principles and to limitations on availability of
equitable relief, including specific performance.
(e) To such counsel's actual knowledge, the execution and
delivery of this Agreement and the Related Agreements by PBC and
Selling Shareholders, and the performance and consummation by PBC and
Selling Shareholders of the transactions contemplated by this
Agreement and Related Agreements, do not result in any conflict with,
breach or violation of or default, termination, forfeiture or lien
under (or upon the failure to give notice or the lapse of time, or
both, result in any conflict with, breach or violation of or default,
termination, forfeiture or lien under) any terms or provisions of
PBC's Articles of Incorporation or Bylaws, or any statute, rule,
regulation, judicial or governmental decree, order or judgment, or to
f such counsel' s actual knowledge, any material agreement, lease or
other instrument to which PBC or any Shareholders is a party or to
which they or any of PBC's assets are subject.
(f) Assuming GEYR is a bona fide purchaser within the meaning of
[Section] 8 of the Uniform Commercial Code, the transfer and assignment
in accordance with this Agreement by or on behalf of each Shareholders to
GEYR of the PBC Capital Stock to be purchased from such Shareholders,
against the payment provided by this Agreement, will transfer good,
Geyser Group, Ltd./Power Beverage Group.
Page 18 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
absolute, valid and marketable title thereto, free and clear of any
and all liens, claims, options, charges and encumbrances whatsoever.
(g) To such counsel's actual knowledge, there is no consent,
approval, authorization, order, registration, qualification or filing
of or with any court or any regulatory authority or other governmental
body required for the consummation by PBC and Selling Shareholders of
the transactions contemplated by this Agreement which has not been
obtained.
(h) To such counsel's actual knowledge, there is no suit,
arbitration or legal, administrative or other proceeding or
governmental investigation pending or threatened to which PBC or any
Shareholders are a party.
(i) To such counsel's actual knowledge, there is no outstanding
judicial or administrative order, ruling, decree, judgment or
stipulation to which PBC or any Shareholders is a party or is subject
materially adversely affecting or threatening PBC or its business or
financial condition.
6.5 Delivery of the PBC Capital Stock.
----------------------------------
Within 60 days of Closing, GEYR shall have received at the
Closing certificates representing all of the PBC Capital Stock, duly
endorsed to GEYR or accompanied by stock powers duly executed in blank
(with signatures guaranteed by any national bank or trust company) and
otherwise in form acceptable for transfer on the books of PBC, duly
endorsed to GEYR.
6.6 Good Standing Certificate.
--------------------------
Within 60 days of Closing, GEYR shall have received a Status
Certificate from PBC, issued by the Secretary of State of the State of
Florida and a good standing certificate from any other state in which
PBC is qualified to do business, dated as of the date hereof, or in
the alternative in a letter of opinion from PBC counsel.
6.7 No Material Adverse Change.
---------------------------
During the period from the date of this Agreement to the Closing
Date, there shall not have been any material adverse change in the
condition (financial or other), liabilities, business or prospects of
PBC, and Selling Shareholders shall not have sustained any material
uninsured loss or damage to its assets that could materially and
adversely affect its ability to conduct its business.
6.8 No Actions.
-----------
Consummation of the transactions contemplated by this Agreement
shall not violate any order, decree or judgment of any court or governmental
body having jurisdiction and no action or proceeding shall have been
instituted by any person or entity or threatened by any governmental
agency which, in either such case, in the good faith judgment of
GEYR's Board of Directors (acting upon advice of its outside counsel)
has a reasonable probability of resulting in an order, judgment or
decree restraining, prohibiting or rendering unlawful the consummation
of the transactions contemplated by this Agreement.
6.9 Proceedings and Documents.
--------------------------
All corporate and other proceedings in connection with the
transactions contemplated hereby and all documents and instruments
incident to such transactions shall be in form and substance to the
reasonable satisfaction of GEYR's counsel, and GEYR shall have
received all such counterpart originals or certified or other copies
of such documents as it may reasonably request.
6.10 Reconstitute PBC Board of Directors and Resignations.
-----------------------------------------------------
Geyser Group, Ltd./Power Beverage Group.
Page 19 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
After Closing, the Board of Directors of PBC shall be
reconstituted to consist of one (1) or more persons as shall be
appointed by a majority vote of the newly constituted Board of
Directors of GEYR.
6.11 Executive Officers of PBC and Resignations.
-------------------------------------------
After the Closing, the newly constituted Board of Directors of
PBC shall elect persons to serve as executive officers of PBC. Any
persons serving as executive officers of PBC prior to the Closing who
will not continue in such capacity immediately after the Closing shall
tender their resignations in accordance with the Florida General
Corporation Law; however, this section shall have no effect on PBC's
hired employees.
ARTICLE VII: Conditions To Obligations Of PBC And Selling Shareholders
The obligations of PBC and Selling Shareholders to consummate the
transactions contemplated hereby are, at PBC's election, subject to
satisfaction or waiver of the following conditions by GEYR:
7.1 Consents and Approvals.
-----------------------
GEYR shall have obtained all consents and approvals of third
parties (including governmental authorities) required of PBC and GEYR
to consummate the transactions contemplated by this Agreement. GEYR
shall have obtained the consents and approval of the Board of
Directors.
7.2 Representations.
----------------
All representations and warranties made herein by GEYR shall be
true in all material respects as of the date made and as of the
Closing except to the extent such representations and warranties are
rendered untrue by the performance by GEYR of obligations and
agreements undertaken by it to be performed at or prior to the Closing
as set forth in this Agreement. GEYR shall have performed all
obligations and agreements undertaken by it herein to be performed at
or prior to the Closing.
7.3 Opinion of Counsel.
-------------------
PBC shall have received at the Closing the opinion of counsel to
GEYR, in form and substance satisfactory to PBC and their counsel, to
the effect that:
(a) GEYR is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada and has full
corporate power and authority to own, operate and lease its properties
and to carry on its business as now conducted;
(b) GEYR has full corporate power and authority to execute and
deliver, and to perform its obligations under this Agreement and the
Related Agreements. GEYR has taken all requisite corporate action to
approve and adopt this Agreement and the Related Agreements, and the
performance by GEYR of its obligations hereunder and hereunder. This
Agreement and the Related Agreements have been duly and validly
executed and delivered by GEYR and constitute legal, valid and binding
obligations of GEYR, enforceable against it in accordance with their
terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar
laws affecting creditors rights generally, and subject to general
equity principles and to limitations on availability of equitable
relief, including specific performance;
(c) The execution and delivery of this Agreement by GEYR, and
the performance and consummation by GEYR of the transactions contemplated
by this Agreement, does not violate any provision of GEYR's Certificate
of Incorporation or Bylaws, and does not constitute a material default
under the provisions of any material agreement known to counsel to which
GEYR is a party or by which it is bound;
Geyser Group, Ltd./Power Beverage Group.
Page 20 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
(d) There is no consent, approval, authorization, order,
registration, qualification or filing of or with any court or any
regulatory authority or other governmental body required for the
consummation by GEYR of the transactions contemplated by this
Agreement which has not been obtained;
(e) The execution and delivery of this Agreement and the
Related Agreements by GEYR and the performance and consummation by GEYR
of the transactions contemplated by this Agreement and the Related
Agreements, does not result in any conflict with, breach or violation
of or default, termination, forfeiture or lien under (or upon the
failure to give notice or the lapse of time, or both, result in any
conflict with, breach or violation of or default, termination,
forfeiture or lien under) any terms or provisions of GEYR's
Certificate of Incorporation or Bylaws, or any statute, rule,
regulation, judicial or governmental decree, order or judgment, or to
f such counsel' s actual knowledge, any material agreement, lease or
other instrument to which GEYR is a party or to which it or any of
its assets are subject.
7.4 Election of Board of Directors.
-------------------------------
On Closing, the current members of the Board of Directors of GEYR
shall, as their last act of business prior to their resignation, in
accordance with the Nevada General Corporation Law and the Articles of
Incorporation and By-Laws of GEYR, cause the Board of Directors (the
"Board") of GEYR to be reconstituted to consist of a total of five (5)
persons, who shall be the sole members of the Board of Directors. The
current members of the GEYR Board of Directors shall resign their
respective board memberships, and PBC shall determine the members of
the Board of Directors.
7.5 Executive Officers of GEYR.
---------------------------
Upon Closing, the newly constituted Board of Directors of GEYR
shall call a Special Meeting to elect officers for the Corporation.
Any persons presently serving, as executive officers of GEYR shall not
continue in such capacity; and, upon Closing shall tender their
resignations in accordance with the Nevada General Corporation Law.
7.6 Finders and/or Consultants.
---------------------------
To the knowledge of the Parties, neither of them, or any party
acting on their behalf, has incurred any liabilities, either express
or implied, to any "broker" of "finder" or similar person in
connection with this Agreement or any of the transactions
contemplated. In this regard, GEYR, on the one hand, and PBC on the
other hand, will indemnify and hold the other harmless from any claim,
loss, cost or expense whatsoever (including reasonable fees and
disbursements of counsel) from or relating to any such express or
implied liability other than as disclosed herein.
7.7 GEYR To Be Free of all Debts and Obligations.
---------------------------------------------
Upon Closing GEYR shall be free of all material debts or
obligations, and the Reorganized Company shall have no outstanding
obligations associated with the transaction.
7.8 GEYR to transfer API Capital Stock to PBC.
------------------------------------------
Upon Closing, the Board of Directors of GEYR shall transfer, or
alternatively assign, to PBC the issued, fully voting but escrowed
Common stock of GEYR designated to API, with its condition to satisfy
Section 6.13 of the TMFT/API Agreement.
7.9 Rescission of TMFT/ WBI Agreement and Mutual Release of Claims.
---------------------------------------------------------------
Upon Closing GEYR shall prepare and obtain a mutual rescission
of the `Definitive Agreement And Plan Of Acquisition Among The Theme
Factory, Inc. And Water Star Bottling, Inc. (And 85% Owned Subsidiary
of Geyser Products, LLC) signed by TMFT and WBI on the 9th day of
March, 2001. Simultaneously, GEYR (formerly known as TMFT) shall have
Geyser Group, Ltd./Power Beverage Group.
Page 21 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
obtained a general release of any and all claims or obligations from
the beginning of time until the end of time.
7.10 No Action.
----------
Consummation of the transactions contemplated by this Agreement
shall not violate any order, decree or judgment of any court or
governmental body having jurisdiction and no action or proceeding
shall have been instituted by any person or entity or threatened by
any governmental agency which, in either such case, in the good faith
judgment of PBC (acting upon advice of their outside counsel) has a
reasonable probability of resulting in an order, judgment or decree
restraining, prohibiting or rendering unlawful the consummation of the
transactions contemplated by this Agreement.
ARTICLE VIII: Termination
8.1 Termination by Mutual Consent.
------------------------------
At any time prior to the Closing, this Agreement may be
terminated by mutual written consent of GEYR, PBC or Selling
Shareholders. Either party, GEYR or PBC, may terminate this Agreement
at any time prior to the Closing by delivery of written notice to PBC
or Selling Shareholders if PBC or Selling Shareholders have materially
violated this Agreement, any representation or warranty made by PBC in
this Agreement is materially false or grossly inaccurate or there is
any material misrepresentation or material omission by PBC.
ARTICLE IX: Miscellaneous
9.1 Notices.
--------
Any notice given hereunder shall be in writing and shall be
deemed effective upon the earlier of personal delivery (including
personal delivery by telex) or the third business day after mailing by
certified or registered mail, postage prepaid, as follows:
(a) If to GEYR:
-----------
Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
C/o Geyser Group, Ltd.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇. ▇▇▇-▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
---------------
Law Offices of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. P.C.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(b) If to PBC:
----------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
C/o Power Beverage Corp.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
---------------
Geyser Group, Ltd./Power Beverage Group.
Page 22 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(c) If to Selling Shareholders:
---------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
C/o Power Beverage Corp.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Or to such other address as any party may have furnished in writing to
the other parties in the manner provided above.
9.2 Entire Agreement.
-----------------
Except for the TMFT/API Agreement, this Agreement constitutes the
final, exclusive and complete understanding of the parties with
respect to the subject matter hereof and supersedes any and all prior
agreements, understandings and discussions with respect thereto. No
variation or modification of this Agreement and no waiver of any
provision or condition hereof, or granting of any consent contemplated
hereby, shall be valid unless in writing and signed by the party
against whom enforcement of any such variation, modification, waiver
or consent is sought.
9.3 Confidentiality.
----------------
Except for disclosure (if any) required by any law to which any
party is subject, no public announcement regarding the consummation of
the transactions described herein, shall be made without the approval
of GEYR and PBC. GEYR, PBC and Selling Shareholders agree to hold all
information regarding the Letter of Intent and the transactions
described herein in confidence until the time of any such public
announcement.
9.4 Limitation on Communication with Other Parties.
-----------------------------------------------
PBC and the Selling Shareholders agree to refrain from initiating
any contact or participating in any discussions with any person other
than their own representatives relating to a purchase of the PBC
Capital Stock or assets or an acquisition, merger or reorganization of
PBC. Such agreement shall terminate upon the closing of this
Agreement.
9.5 Successors and Assigns.
-----------------------
No party may, without the prior express written consent of each
other party, assign this Agreement in whole or in part. This Agreement
shall be binding upon and inure to the benefit of the respective
heirs, personal representatives, successors and permitted assigns of
the parties hereto.
9.6 Governing Law.
--------------
This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
9.7 Survival.
---------
Geyser Group, Ltd./Power Beverage Group.
Page 23 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
The representations and warranties made by the parties hereto in
this Agreement, and their respective obligations to be performed under
the terms hereof at or prior to the Closing hereunder shall terminate
and expire one year after the Closing Date, notwithstanding any
investigation of the facts constituting the basis of the
representations and warranties of any party by any other party hereto.
9.8 Arbitration.
------------
Arbitration shall be the initial means for resolving disputes
between the parties with respect to this Agreement and any agreements
related thereto, and any such arbitration shall take place in the
county of Palm Beach, in the state of Florida. If any party wishes to
commence arbitration hereunder, it shall serve written notice to such
effect on the other party or parties hereto and, within fifteen (15)
days thereafter, the parties shall mutually select a single arbitrator
to conduct such arbitration. In the event that the parties fail to
agree on such single person, each of the parties shall choose one (1)
member of three- (3) member panel and those two (Section 2) members
shall select a third. In conducting the arbitration, the arbitrator or
arbitration panel shall apply the Commercial Arbitration Rules of the
American Arbitration Association as modified by any other instructions
that the parties may agree upon at the time, except that each party
shall have the right to conduct discovery in any manner and to any
extent authorized by the Federal Rules of Civil Procedure as
interpreted by the federal courts. The arbitrator shall decide the
dispute upon equitable principles and industry usage, as determined by
the arbitrator, but shall not modify the terms of this Agreement.
Costs and expenses, including reasonable attorneys ' fees, incurred
with respect to the arbitration shall be borne by the losing party,
unless otherwise determined by the arbitrator based on a showing of
good cause to vary from usual rule expressed in this sentence. The
arbitrator's award shall be final and unappealable. A judgment upon
the award may be entered in any court having jurisdiction of the
parties.
9.9 Confidential.
-------------
GEYR and its representatives agree that all information obtained
during its investigation conducted that is not publicly available will
be held in confidence and will be used solely for the purpose of
evaluating the GEYR investment in PBC. In the event the transaction
contemplated by this Agreement does not close, all copies of such
information will be returned to PBC, and such information will
continue to be kept in confidence by GEYR and its representatives,
except for such information that is required to be disclosed by court
order or decree or that is otherwise in the public domain.
9.10 Captions and/or Headings.
-------------------------
The Captions and /or Headings in this Agreement are for
convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement.
9.11 Counterparts.
-------------
This Agreement may be executed in any number of counterparts,
each of which when so executed shall constitute an original copy
hereof, but all of which together shall constitute one agreement.
DEFINITIONS:
"Actual Knowledge" - Notwithstanding anything to the contrary, a
Person will only be deemed to have actual knowledge if such Person is
actually aware of such fact or other matter.
"Breach"--a "Breach" of a representation, warranty, covenant,
obligation, or other provision of this Agreement or any instrument
delivered pursuant to this Agreement will be deemed to have occurred
if there is or has been (a) any inaccuracy in or breach of, or any
failure to perform or comply with, such representation, warranty,
covenant, obligation, or other provision, or (b) any claim (by any
Person) or other occurrence or circumstance that is or was
inconsistent with such representation, warranty, covenant, obligation,
Geyser Group, Ltd./Power Beverage Group.
Page 24 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
or other provision, and the term "Breach" means any such inaccuracy,
breach, failure, claim, occurrence, or circumstance.
"Consent"--any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"Contract"--any agreement, contract, obligation, promise, or
undertaking (whether written or oral and whether express or implied)
that is legally binding.
"Damages"--any loss, liability, claim, damage (incidental and
consequential damages), expense (including costs of investigation and
defense and reasonable attorneys' fees) or diminution of value,
whether or not involving a third- party claim (collectively,
"Damages"), arising, directly or indirectly, from or in connection
with:
a. Any Breach of any representation or warranty made
by Selling Shareholders in this Agreement; or
b. Any Breach by either Shareholders of any covenant
or obligation of such Shareholders in this
Agreement; or
c. Any claim by any Person for finder's fees based
upon any agreement or understanding alleged to have
been made by any such Person in connection with any
of the Contemplated Transactions.
"Duty of Care"-Directors occupy a fiduciary relationship to the
Corporation, and must exercise the care of ordinarily prudent and
diligent persons in like positions.
"Earn-In Provision"-Shares agreed to be issued but set aside as
unissued in contemplation of Specific Performance or Act to certain
shareholders to earn such shares or not, per the provisions set forth
in Section 6.11.
"Encumbrance"--any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security
interest, right of first refusal, or restriction of any kind,
including any restriction on use, voting, transfer, receipt of income,
or exercise of any other attribute of ownership.
"Environment"--soil, land surface or subsurface strata, surface waters
(including navigable waters, ocean waters, streams, ponds, drainage
basins, and wetlands), ground waters, drinking water supply, stream
sediments, ambient air (including indoor air), plant and animal life,
and any other environmental medium or natural resource.
"Environmental, Health, and Safety Liabilities"--any cost, damages,
expense, liability, obligation, or other responsibility arising from
or under Environmental Law or Occupational Safety and Health Law and
consisting of or relating to:
(a) Any environmental, health, or safety matters or
conditions (including on-site or off- site
contamination, occupational safety and health, and
regulation of chemical substances or products); or
(b) Fines, penalties, judgments, awards, settlements,
legal or administrative proceedings, damages,
losses, claims, demands and response,
investigative, remedial, or inspection costs and
expenses arising under Environmental Law or
Occupational Safety and Health Law; or
(c) Financial responsibility under Environmental Law
or Occupational Safety and Health Law for cleanup
costs or corrective action, including any
investigation, cleanup, removal, containment, or
other remediation or response actions ("Cleanup")
required by applicable Environmental Law or
Occupational Safety and Health Law (whether or not
Geyser Group, Ltd./Power Beverage Group.
Page 25 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
such Cleanup has been required or requested by any
Governmental Body or any other Person) and for any
natural resource damages; or
(d) Any other compliance, corrective, investigative,
or remedial measures required under Environmental
Law or Occupational Safety and Health Law.
"Environmental Law"--any Legal Requirement that requires or relates
to:
(a) Advising appropriate authorities, employees, and
the public of intended or actual releases of
pollutants or hazardous substances or materials,
violations of discharge limits, or other
prohibitions and of the commencements of
activities, such as resource extraction or
construction, that could have significant impact on
the Environment; or
(b) Preventing or reducing to acceptable levels the
release of pollutants or hazardous substances or
materials into the Environment; or
(c) Reducing the quantities, preventing the release,
or minimizing the hazardous characteristics of
wastes that are generated; or
(d) Assuring that products are designed, formulated,
packaged, and used so that they do not present
unreasonable risks to human health or the
Environment when used or disposed of; or
(e) Protecting resources, species, or ecological
amenities; or
(f) Reducing to acceptable levels the risks inherent
in the transportation of hazardous substances,
pollutants, oil, or other potentially harmful
substances; or
(g) Cleaning up pollutants that have been released,
preventing the threat of release, or paying the
costs of such clean up or prevention; or
(h) Making responsible parties pay private parties,
or groups of them, for damages done to their health
or the Environment, or permitting self-appointed
representatives of the public interest to recover
for injuries done to public assets.
"ERISA"--the Employee Retirement Income Security Act of 1974 or any
successor law, and regulations and rules issued pursuant to that Act
or any successor law.
"Exchange Act" - the Exchange Act of 1934, as amended.
"Facilities"--any real property, leaseholds, or other interests
currently or formerly owned or operated by any Acquired Company and
any buildings, plants, structures, or equipment (including motor
vehicles, tank cars, and rolling stock) currently or formerly owned or
operated
"GAAP"--generally accepted United States accounting principles,
applied on a basis consistent with the basis on which the Balance
Sheet and the other financial statements referred to.
"Governmental Authorization"--any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise
made available by or under the authority of any Governmental Body or
pursuant to any Legal Requirement.
"Governmental Body"-includes any nation, state, county, city, town,
village, district, or other jurisdiction of any nature; or Federal,
state, local, municipal, foreign, or other government; or Governmental
or quasi-governmental authority of any nature (including any
governmental agency, branch, department, official, or entity and any
court or other tribunal); or Multi-national organization or body; or
Body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature.
"Hazardous Activity"--the distribution, generation, handling,
importing, management, manufacturing, processing, production,
refinement, Release, storage, transfer, transportation, treatment, or
use (including any withdrawal or other use of groundwater) of
Geyser Group, Ltd./Power Beverage Group.
Page 26 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
Hazardous Materials in, on, under, about, or from the Facilities or
any part thereof into the Environment, and any other act, business,
operation, or thing that increases the danger, or risk of danger, or
poses an unreasonable risk of harm to persons or property on or off
the Facilities, or that may affect the value of the Facilities or the
Acquired Companies.
"Hazardous Materials"--any waste or other substance that is listed,
defined, designated, or classified as, or otherwise determined to be,
hazardous, radioactive, or toxic or a pollutant or a contaminant under
or pursuant to any Environmental Law, including any admixture or
solution thereof, and specifically including petroleum and all
derivatives thereof or synthetic substitutes therefore and asbestos or
asbestos-containing materials.
"HSR Act"--the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 or
any successor law, and regulations and rules issued pursuant to that
Act or any successor law.
"Intellectual Property Assets" -includes
(i) All fictional business names, trading names,
registered and unregistered trademarks, service
marks, and applications (collectively, "Marks"); and
(ii) All patents, patent applications, and inventions and
discoveries that may be patentable (collectively,
"Patents"); and
(ii) All copyrights in both published works and
unpublished works (collectively, "Copyrights"); and
(iii) All know-how, trade secrets, confidential
information, customer lists, software, technical
information, data, process technology, plans,
drawings, and blue prints (collectively, "Trade
Secrets"); owned, used, or licensed by any Acquired
Company as licensee or licensor.
"IRC"--the Internal Revenue Code of 1986 or any successor law, and
regulations issued by the IRS pursuant to the Internal Revenue Code or
any successor law.
"IRS"--the United States Internal Revenue Service or any successor
agency, and, to the extent relevant, the United States Department of
the Treasury.
"Knowledge"--an individual will be deemed to have "Knowledge" of a
particular fact or other matter if:
(a) Such individual is actually aware of such fact or other
matter; or, a prudent individual in similar circumstances
should be expected to be aware of such fact or other matter
if he or she had conducted a reasonably thorough inquiry
concerning the existence of such fact or other matter; or
(b) In the case of an officer or director of a corporation, he
or she would be expected to either know or should have known
of facts or other matters material to the corporation, in the
course of conducting reasonable corporate governance in
satisfying their Duty of Care to the Corporation; or a prudent
officer or director in similar circumstances should be
expected to be aware of facts or other matters material to the
corporation, if he or she had conducted a reasonably thorough
inquiry concerning such fact or other matter. A Person (other
than an individual) will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is
serving, or who has at any time served, as a director,
officer, partner, executor, or trustee of such Person
(or in any similar capacity) has, or at any time had or should
have had, knowledge of such fact or other matter.
"Legal Requirement"--any federal, state, local, municipal, foreign,
international, multinational, or other administrative order,
constitution, law, ordinance, principle of common law, regulation,
statute, or treaty.
"Net Tangible Assets" -- Net tangible assets equals Total Assets minus
Total Liabilities minus Goodwill minus Redeemable Securities.
Geyser Group, Ltd./Power Beverage Group.
Page 27 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
"Occupational Safety and Health Law"--any Legal Requirement designed
to provide safe and healthful working conditions and to reduce
occupational safety and health hazards, and any program, whether
governmental or private (including those promulgated or sponsored by
industry associations and insurance companies), designed to provide
safe and healthful working conditions.
"Order"--any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any
arbitrator.
"Ordinary Course of Business"--an action taken by a Person will be
deemed to have been taken in the "Ordinary Course of Business" only
if:
(a) Such action is consistent with the past practices
of such Person and is taken in the ordinary course
of the normal day-to-day operations of such Person;
and
(b) Such action is not required to be authorized by
the board of directors of such Person (or by any
Person or group of Persons exercising similar
authority) [and is not required to be specifically
authorized by the parent company (if any) of such
Person]; and
(c) Such action is similar in nature and magnitude to
actions customarily taken, without any
authorization by the board of directors (or by any
Person or group of Persons exercising similar
authority), in the ordinary course of the normal
day-to-day operations of other Persons that are in
the same line of business as such Person.
"Organizational Documents"-
(a) The articles or certificate of incorporation and
the bylaws of a corporation;
(b) The partnership agreement and any statement of
partnership of a general partnership;
(c) The limited partnership agreement and the
certificate of limited partnership of a limited
partnership;
(d) Any charter or similar document adopted or filed
in connection with the creation, formation, or
organization of a Person; and
(e) Any amendment to any of the foregoing.
"Person"--any individual, corporation (including any non-profit
corporation), general or limited partnership, Limited Liability
Company, joint venture, estate, trust, association, organization,
labor union, or other entity or Governmental Body.
"Proceeding"--any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative,
investigative, or informal) commenced, brought, conducted, or heard by
or before, or otherwise involving, any Governmental Body or
arbitrator.
"Related Person"--with respect to a particular individual,
(a) Each other member of such individual's Family;
(b) Any Person that is directly or indirectly
controlled by such individual or one or more
members of such individual's Family;
(c) Any Person in which such individual or members of
such individual's Family hold (individually or in
the aggregate) a Material Interest; and
(d) Any Person with respect to which such individual
or one or more members of such individual's Family
serves as a director, officer, partner, executor,
or trustee (or in a similar capacity).
Geyser Group, Ltd./Power Beverage Group.
Page 28 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
"Representative"--with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative
of such Person, including legal counsel, accountants, and financial
advisors.
"Securities Act"--the Securities Act of 1933, as amended or any
successor law.
"Subsidiary"--with respect to any Person (the "Owner"), any
corporation or other Person of which securities or other interests
having the power to elect a majority of that corporation's or other
Person's board of directors or similar governing body, or otherwise
having the power to direct the business and policies of that
corporation or other Person (other than securities or other interests
having such power only upon the happening of a contingency that has
not occurred) are held by the Owner or one or more of its
Subsidiaries; when used without reference to a particular Person,
"Subsidiary" means a Subsidiary of the Company.
"Tax Return"--any return (including any information return), report,
statement, schedule, notice, form, or other document or information
filed with or submitted to, or required to be filed with or submitted
to, any Governmental Body in connection with the determination,
assessment, collection, or payment of any Tax.
[Remainder of page left intentionally blank]
-- Signatures to Follow --
Geyser Group, Ltd./Power Beverage Group.
Page 29 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2
FACSIMILE COPY SHALL BE DEEMED AS ORIGINAL
IN WITNESS WHEREOF, the parties hereto have caused this definitive
final and legally binding Agreement to be executed by their respective
authorized officers as of this 14th day of September 2001.
GEYSER GROUP, LTD.
By:_/s/▇▇▇▇▇▇ Miller_______________
Name: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
POWER BEVERAGE CORP.
By:_/s/▇▇▇▇▇▇ Arioli_______________
Name: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Representative to Selling Shareholders:
By: _/s/▇▇▇▇▇▇ Arioli________________
Name: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Geyser Group, Ltd./Power Beverage Group.
Page 30 of 30
Initialed by GEYR:__/s/_ Initialed by PBC:__/s/_
Exhibit 2.2