AGREEMENT AND PLAN OF MERGER
BY AND AMONG
TRANSPACIFIC INTERNATIONAL GROUP CORP.
AND
COFFEE HOLDING CO., INC.
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER by and between Transpacific International
Group Corp., a Nevada corporation,("Transpacific") and Coffee Holding Co.,
Inc., a New York corporation, ("Coffee").
WHEREAS, the Boards of Directors of Transpacific and Coffee, deem it
advisable for the mutual benefit of Transpacific and Coffee, and their
respective shareholders, that Coffee be merged into Transpacific (the
"Merger"), and have approved this Agreement and Plan of Merger (the
"Agreement"); and
WHEREAS, the Boards of Directors of Transpacific and Coffee have
unanimously resolved to recommend to their shareholders acceptance of the
Merger contemplated herein.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, and for the purpose of
setting forth certain terms and conditions of the Merger, and the mode of
carrying the same into effect, Coffee and Transpacific hereby agree as
follows:
ARTICLE 1
MERGER AND ORGANIZATION
SECTION 1.1 The Merger. As of the Effective Date (as hereinafter
defined), subject to the terms and conditions hereof, Coffee shall be merged
with and into Transpacific, with Transpacific as the surviving entity (the
"Surviving Entity"). Immediately after consummation of the Merger and the ten
for one (10:1) stock split as described in Section 2.1 hereof, the Surviving
Entity shall be and continue as the public entity, and shall have issued and
outstanding 4,000,000 shares of Common Stock; 3,540,400 (representing 88.5% of
the Surviving Entity) to be held by former Coffee stockholders in proportion
to the amount that each of said shareholders previously held shares of Common
Stock of Coffee, and the balance to be held as per Exhibit 2.1. Transpacific
and Coffee are herein sometimes referred to as the "Constituent Corporations."
The Merger is to be consummated in such a manner as to meet the provisions of
Internal Revenue Code Section 368(a)(1)(A), and be a tax-free reorganization
for all parties involved.
SECTION 1.2. Effect of Merger. The parties agree to the following
provisions with respect to the Merger:
(a) Name of Surviving Corporation. After the Merger and Effective
Date (as defined in Section 1.2(f) hereof), the name of the Surviving Entity
shall become Coffee Holding Co., Inc.
(b) Articles of Incorporation. The Articles of Incorporation of
Transpacific as in effect immediately prior to the Effective Date shall from
and after the Effective Date be and continue to be the Articles of
Incorporation of the Surviving Entity until changed or amended as provided.
(c) By-Laws. The By-Laws of Transpacific as in effect immediately
prior to the Effective Date shall from and after the Effective Date be and
continue to be the By-Laws of the Surviving Entity until changed or amended as
provided by law.
(d) Corporate Organization. All of the issued and outstanding
shares of common stock of Coffee shall be canceled. The Surviving Entity
shall thenceforth be responsible for all the liabilities and obligations of
each of the Constituent Corporations, with the effect set forth in the
appropriate provisions of Nevada law and the appropriate provisions of New
York law.
(e) Filing of Articles of Merger and Amendment to Articles of
Incorporation. If this Agreement is duly approved by each of the Constituent
Corporations in accordance with the appropriate provisions of Nevada law and
the appropriate provisions of New York law and the respective Articles or
Certificate of Incorporation and By-laws of the Constituent Corporations and
not terminated pursuant to Article 8 hereof, and approved by the shareholders
of Transpacific pursuant to Rule 419 under Regulation C of the Securities Act
of 1933, as amended ("Rule 419"), as soon as practicable after all other
conditions to the Merger set forth in Article 6 hereof shall have been
satisfied or waived, and after Transpacific's Post-Effective Amendment filed
pursuant to Rule 419 has been declared effective by the Securities and
Exchange Commission and Transpacific's shareholder reconfirmation has been
successfully completed and the closing of this Agreement has taken place on or
before February 12, 1998 (the "Closing"), the Merger shall be consummated and
Articles of Merger, to which this Agreement shall be appended, shall be filed
with the appropriate New York governmental agency and an amendment to
Transpacific's Articles of Incorporation shall be filed with the Nevada
Secretary of State. The Closing of this Agreement shall take place at the
offices of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other time, place or date as the parties may mutually agree.
(f) Further Assurances. If at any time after the Effective Date,
the Surviving Entity shall consider or be advised that any deeds, bills of
sale, assignments or assurances or any other acts or things are necessary,
desirable or proper (a) to vest, perfect or confirm, of record or otherwise,
in the Surviving Entity, its right, title or interest in, to or under any of
the rights, properties or assets of the Constituent Corporations acquired or
to be acquired as a result of the Merger, or (b) otherwise to carry out the
purposes of this Agreement, the Constituent Corporations agree that the
Surviving Entity and its proper officers and directors shall be authorized to
execute and deliver, in the name and on behalf of the Constituent
Corporations, all such deeds, bills of sale, assignments and assurances and
do, in the name and on behalf of the Constituent Corporations, all such other
acts and things necessary, desirable or proper to best, perfect or confirm its
right, title or interest in, to or under any of the rights, properties or
assets of the Constituent Corporations acquired or to be acquired as a result
of the Merger and otherwise to carry out the purposes of this Agreement. The
"Effective Date" shall be the date on which the Certificate of Merger is filed
with the appropriate state authorities. The Certificate of Merger shall be
filed with the appropriate state authorities at the Closing.
(g) Upon consummation of the Merger, the current officers and directors
of Transpacific shall resign, and a minimum of three (3) directors shall be
appointed to the Surviving Entity, which directors shall nominate officers of
the Surviving Entity, subject to shareholder approval.
(h) Release of Deposited Funds. On the Effective Date, the Deposited
Funds held in escrow from Transpacific's initial public offering shall be
released to Transpacific. Transpacific shall then immediately deposit these
funds, into a trust account with Rivikin, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Esqs. to be
disbursed at the Closing.
ARTICLE 2
THE MERGER
SECTION 2.1 Conversion of Shares in the Merger.
(a) Issuance of New Shares. On the Effective Date, Transpacific's
common stock, including those shares purchased pursuant to Transpacific's
initial public offering and held in escrow pursuant to Rule 419 under
Regulation C of the Securities Act of 1933, as amended ("Rule 419), shall be
split ten for one (10:1) (the "Stock Split"), and Transpacific shall then
issue 3,000,000 shares of its authorized Common Stock to former Coffee share
holders, in the same proportion said share holders held shares of Common Stock
of Coffee. Following the Stock Split, shares of Transpacific shall be
distributed as per Exhibit 2.1 Thus, after the Effective Date and the Stock
Split, the Surviving Entity shall have 4,000,000 shares of common stock issued
and outstanding.
SECTION 2.2 Release of Shares and Funds from Escrow. Pursuant to Rule
419, certificates representing the shares of Common Stock purchased in Transpaci
fic 's initial public offering which offering was declared effective by the
United States Securities and Exchange Commission on August 12, 1996, as well
as the funds used to purchase said shares, are being held in escrow pending
consummation of a Merger (the "Deposited Securities" and the "Deposited
Funds," respectively). Transpacific has eighteen (18) months in which to
consummate a Merger. If a Merger is not consummated within that time, the
Deposited Securities and Deposited Funds shall be returned to Transpacific and
Transpacific shareholders, respectively. Pursuant to Rule 419, Deposited
Securities shall be released to shareholders and Deposited Funds released to
Transpacific following effectiveness of a Post-Effective Amendment and a
reconfirmation offering pursuant to which Transpacific shareholders
representing a minimum of 80% of the offering proceeds of Transpacific 's
initial public offering ($14,400) reconfirm their investments.
SECTION 2.3 Surrender of Certificates. (a) Transpacific has designated
Oxford Transfer Agency, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, as Transfer Agent (the "Transfer Agent") hereunder. Immediately
following effectiveness of the Post-Effective Amendment and shareholder
reconfirmation offering and on or before the Effective Date, the Transfer
Agent shall have mailed and/or made available to each Transpacific shareholder
and each former Coffee shareholder notice and letter of transmittal advising
such holder of the effectiveness of the Post-Effective Amendment and
shareholder reconfirmation and of the Effective Date, and the procedure for
surrendering Coffee stock to the Transfer Agent. Coffee shall immediately
turn in Coffee common stock certificates to the Transfer Agent. Upon the
surrender to the Transfer Agent of such certificates, together with a letter
of transmittal, duly executed and completed in accordance with the
instructions thereon, and after the Stock Split, the Transfer Agent shall
promptly convert and issue an aggregate of 3,000,000 shares of Transpacific
common stock to former Coffee shareholders in exchange for 100% of the
authorized and outstanding shares of Coffee. Until so surrendered and
exchanged, each certificate theretofore representing shares shall represent in
the case of Dissenter's Shares, the right to seek appraisal pursuant to the
laws of the state of incorporation of the Constituent Corporation in which the
holder owns stock (if such right has been perfected).
(b) At the Effective Date, the Stock Split shall become effective, and
each holder of Transpacific common stock issued before the Effective Date,
including those 3,000 shares held in escrow pursuant to Rule 419, shall
surrender his/her stock certificate to the Transfer Agent and the Transfer
Agent shall issue such holder ten (10) shares of the Surviving Entity's common
stock for each share of Transpacific common stock held before the Merger and
Stock Split.
SECTION 2.4 Transfer Agent. Prior to the Offering, Transpacific shall
have made such arrangements to insure that an adequate number of its shares of
Common Stock have been deposited with the Transfer Agent as necessary in
sufficient time to permit prompt distribution against surrender of Coffee
stock certificates as provided hereunder.
SECTION 2.5 Confidentiality. Except to the extent disclosure may be
required by law, each of Coffee and Transpacific will, and will cause its
officers, other personnel and authorized representatives to, hold in strict
confidence, and not disclose to others without the prior written consent of
the other, any information received by them from the other in connection with
the transactions contemplated hereby. In the event this Agreement is
terminated, Coffee, on the one hand, and Transpacific, on the other, each
agree to return promptly, if so requested by the other party or any subsidiary
or division of such other party, in connection with the transactions
contemplated hereby and any copies thereof which may have been made and to
cause their representatives promptly to return such documents and any copies
thereof any of them may have made, other than documents filed with the
Securities and Exchange Commission.
ARTICLE 3
ADDITIONAL AGREEMENTS IN CONNECTION WITH THE MERGER
SECTION 3.1 Inconsistent Activities. Unless and until this Agreement
has been terminated in accordance with its terms, neither Coffee nor
Transpacific will (i) solicit or encourage, directly or indirectly, any
inquiries or proposals to acquire any shares of capital stock of Coffee or
Transpacific or any significant portion of the total assets of either
Constituent Corporation or any subsidiary or division of either of the
Constituent Corporations (whether by merger, purchase of assets, tender offer
or other similar transaction); (ii) afford any third party which may be
considering the merger of any shares of capital stock of Coffee or
Transpacific or any significant portion of the total assets of either
Constituent Corporation, access to the properties, books or records of either
Constituent Corporation except as required by mandatory provisions of law; or
(iii) enter into any discussions or negotiations for, or enter into any
agreement which provides for, the sale of any shares of capital stock of
Coffee or Transpacific or any significant portion of the total assets of
Coffee or Transpacific to a person other than in connection with the
transactions contemplated herein.
SECTION 3.2 Reasonable Efforts. Subject to the terms and conditions
hereof, each of the parties hereto agrees to use any and all reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary to satisfy the other conditions of Closing set
forth herein.
SECTION 3.3 Conduct of Business by Each of the Constituent Corporations
Pending the Merger. Coffee and Transpacific covenant and agree that, prior to
the Effective Date, unless Coffee or Transpacific, respectively, shall
otherwise agree in writing and except as contemplated by this Agreement:
(a) the business of each of the Constituent Corporations shall be
conducted only in the ordinary and usual course and consistent with its past
practice, and neither Coffee nor Transpacific shall purchase or sell (or enter
into any agreement to so purchase or sell) any properties or assets or make
any other changes in the operations of Coffee or Transpacific, respectively,
taken as a whole;
(b) Neither Constituent Corporation shall (i) amend its Articles of
Incorporation or By-Laws, (ii) change the number of authorized or outstanding
shares of its capital stock, except as set forth in Section 2 hereof or in
Exhibit 2.1 attached hereof and made a part hereto, or (iii) declare, set
aside or pay any dividend or other distribution or payment in cash, stock or
property in respect of the Shares, except as designated herein or set forth in
Exhibit 3.3;
(c) Neither Constituent Corporation shall (i) issue, grant, sell or
pledge or agree or propose to issue, grant, sell or pledge any shares of, or
rights of any kind to acquire any shares of, its capital stock (ii) incur any
indebtedness other than in the ordinary course of business, except as set
forth in Exhibit 3.3, (iii) acquire directly or indirectly by redemption or
otherwise any shares of its capital stock of any class or (iv) enter into or
modify any contact, agreement, commitment or arrangement with respect to any
of the foregoing.
(d) Each Constituent Corporation shall use its best efforts to
preserve intact its business organizations, to keep available the services of
it and its current officers and key employees, and to preserve the good will
of those having business relationships with it.
(e) Coffee and Transpacific will not (i) increase the compensation
payable or to become payable by it to any of its officers or directors, (ii)
make any payment or provision with respect to any bonus, profit sharing, stock
option, stock purchase, employee stock ownership, pension, retirement,
deferred compensation, employment or other payment plan, agreement or
arrangement for the benefit of its employees, except at set forth in Exhibit
3.3 attached hereto and made a part hereof, (iii) grant any stock options or
stock appreciation rights or permit the exercise of any stock appreciation
right where the exercise of such right is subject to its discretion, except as
set forth in Exhibit 3.3, (iv) make any change in the compensation to be
received by any of its officers, or adopt, or amend to increase compensation
or benefits payable under, any collective bargaining, bonus, profit sharing,
compensation, stock option, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust, fund or
arrangement for the benefit of employees, except as set forth in Exhibit 3.3,
(v) enter into any agreement with respect to termination or severance pay, or
any employment agreement or other contract or arrangement with any officer or
director or employee of Coffee or Transpacific, respectively, with respect to
the performance of personal services that is not terminable without liability
by it on thirty days' notice or less, except as set forth in Exhibit 3.3, (vi)
increase benefits payable under its current severance or termination, pay
agreements or policies or (vii) make any loan or advance to, or enter into any
written contract, lease or commitment with, any of its officers or directors;
(f) Neither Coffee nor Transpacific shall assume, guarantee,
endorse or otherwise become responsible for the obligations of any other
individual, firm or corporation or make any loans or advances to any
individual, firm or corporation;
(g) Neither Coffee nor Transpacific shall make any investment of a
capital nature either by purchase of stock or securities, contributions to
capital, property transfers or otherwise, or by the purchase of any property
or assets of any other individual, firm or corporation, except as set forth in
Exhibit 3.3;
(h) Neither Coffee nor Transpacific shall reduce its cash or short
term investments or their equivalent, other than to meet cash needs arising in
the ordinary course of business, consistent with past practices, or in
performing its obligations under this Agreement; and
(i) Neither Coffee nor Transpacific shall enter into an agreement
to do any of the things described in clauses (a), (b), (c), (e), (f), (g) and
(h), except as set forth in Exhibit 3.3.
SECTION 3.4 Access and Information.
(a) Coffee shall afford to Transpacific and its accountants,
counsel and other representatives full access, during normal business hours
throughout the period prior to the Effective Date, to all of the properties,
books, contracts, commitments and records (including but not limited to tax
returns) of Coffee and, during such period, Coffee shall furnish promptly to
Transpacific (i) a copy of each report, schedule and other document filed or
received by it pursuant to the requirements of federal or state securities
laws, and (ii) all other information concerning the business, properties and
personnel of Coffee that may reasonably be requested. In the event of the
termination of this Agreement, Transpacific will, and will cause its
representatives to, deliver to Coffee all documents, work papers and other
material, and all copies thereof, obtained by it or on its behalf from Coffee
as a result of this Agreement or in connection herewith, whether so obtained
before or after the execution hereof, and will hold in confidence all
confidential information, and will not use any such confidential information,
until such time as such information is otherwise publicly available or as it
is advised by counsel that any such information or document is required by law
to be disclosed. If this Agreement is terminated, Transpacific will deliver
to Coffee all documents so obtained by it.
(b) Transpacific shall afford to Coffee and its accountants,
counsel and other representatives full access, during normal business hours
throughout the period prior to the Effective Date, to all of the properties,
books, contracts, commitments and records (including but not limited to tax
returns) of Transpacific and, during such period, Transpacific shall furnish
promptly to Coffee (i) a copy of each report, schedule and other document
filed or received by it pursuant to the requirements of federal or state
securities laws, and (ii) all other information concerning the business,
properties and personnel of Transpacific that may reasonably be requested. In
the event of the termination of this Agreement, Coffee will, and will cause
its representatives to, deliver to Transpacific all documents, work papers and
other material, and all copies thereof, obtained by it or on its behalf from
Transpacific as a result of this Agreement or in connection herewith, whether
so obtained before or after the execution hereof, and will hold in confidence
all confidential information, and will not use any such confidential
information, until such time as such information is otherwise publicly
available or as it is advised by counsel that any such information or document
is required by law to be disclosed. If this Agreement is terminated, Coffee
will deliver to Transpacific all documents so obtained by it.
SECTION 3.5 Notice of Actions and Proceedings. Coffee shall promptly
notify Transpacific, and Transpacific shall promptly notify Coffee of any
claims, actions, proceedings or investigations commenced or, to the best of
its knowledge, threatened, involving or affecting Coffee or Transpacific or
any of their property or assets, or, to the best of its knowledge, against any
employee, consultant, director, officer or shareholder, in his, her or its
capacity as such, of Coffee or Transpacific which, if pending on the date
hereof, would have been required to have been disclosed in writing pursuant to
Section 4.4 hereof or which relates to the consummation of the Merger or the
transactions contemplated hereby.
SECTION 3.6 Notification of Other Certain Matters. Coffee shall give
prompt notice to Transpacific, and Transpacific shall give prompt notice to
Coffee of:
(a) any notice of, or other communication relating to, a default or
event which, with notice or lapse of time or both, would become a default,
received by Coffee or Transpacific subsequent to the date of this Agreement
and prior to the Effective Date, under any agreement, indenture or instrument
material to the financial condition, properties, business or results of
operations of Coffee or Transpacific taken as a whole to which Coffee or
Transpacific is a party or is subject;
(b) any notice or other communication from any third party alleging
that the consent of such third party is or may be required in connection with
the transactions contemplated by this Agreement; and
(c) any material adverse change in the financial condition,
properties, businesses or results or operations of Coffee or Transpacific, or
the occurrence of an event which, so far as reasonably can be foreseen at the
time of its occurrence, would result in any such change.
SECTION 3.7 Stockholder Meeting of Coffee. Coffee shall, at a meeting
of its stockholders duly called by the Board of Directors of Coffee, to be
held as soon as practicable following execution of this Agreement, present the
following proposals for the authorization and approval of the stockholders of
Coffee and recommend their adoption by the stockholders:
a) ratification of this Agreement and authorization of the
consummation of the Merger contemplated herein;
SECTION 3.8 Filing of Post-Effective Amendment. Upon signing this
Merger Agreement, and shareholder approval pursuant to a special meeting of
shareholders, Transpacific shall promptly file with the Securities and
Exchange Commission a Post-Effective Amendment reflecting the Merger as
required by Rule 419.
SECTION 3.9 Reconfirmation Offering. Within five (5) days after
effectiveness of the Post-Effective Amendment, Transpacific shall issue a
reconfirmation offering to its shareholders. Pursuant to Rule 419, the Merger
will be consummated only if a minimum number of investors representing 80% of
the maximum offering proceeds of Transpacific 's initial public offering
($14,400) elect to reconfirm their investments.
SECTION 3.10 Other Agreements of Transpacific. Transpacific shall file
with the SEC any and all appropriate statements or requirements within the
Securities Exchange Act of 1934, as amended, with respect to the Merger,
obtain any consents, amendments to or waivers under the terms of any of
Transpacific 's arrangements required by the transactions contemplated by this
Agreement, and defend any lawsuits or other legal proceedings, whether
judicial or administrative and whether brought derivatively or on behalf of
third parties (including governmental agencies or officials), challenging this
Agreement, or the consummation of the transactions contemplated hereby
(provided that the maximum amount that Transpacific shall be required to spend
on such lawsuits or proceedings shall be $5,000 in the aggregate).
SECTION 3.11 Transpacific Stockholder Consent. Transpacific shall
obtain written consent of two-thirds of its shareholders to take the following
actions:
a) ratification of this Agreement and authorization of the consummation
of the Merger contemplated herein;
b) a ten for one (10:1) stock split of Transpacific's common stock to
take place on the Effective Date, but prior to issuing 3,000,000 shares to
Coffee
c) issuance of 3,000,000 shares of Transpacific common stock to former
Coffee shareholders after Transpacific's Stock Split;
d) the tender of resignations of the directors of Transpacific, whose
resignations are contingent on the consummation of this Merger, and which
shall occur on the Effective Date.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF TRANSPACIFIC
Transpacific represents and warrants to, and agrees with Coffee as
follows:
SECTION 4.1 Organization and Good Standing. Transpacific is a duly
incorporated and validly existing corporation in good standing under the laws
of the state of its incorporation, with all requisite power and authority
(corporate and other) to own its properties and conduct its business, and is
duly qualified and in good standing as a foreign corporation authorized to do
business.
SECTION 4.2 Authorization; Binding Agreement. Transpacific has the
corporate power and authority to execute and deliver this Agreement and to
carry out the transactions contemplated hereby. This Agreement has been duly
and validly authorized, executed and delivered by Transpacific, and subject to
any requisite approval of the Merger by the shareholders of Transpacific,
including a shareholder reconfirmation pursuant to Rule 419, constitutes a
valid and binding agreement of Transpacific in accordance with its terms.
SECTION 4.3 Capitalization. The authorized capital stock of
Transpacific consists of 20,000,000 shares of common stock, par value $.0001
per share. On November 29, 1995, 97,000 shares of Common Stock were issued to
nine (9) insider shareholders. Transpacific 's public offering, whereby 3,000
shares of Common Stock were sold at $6.00 per share, closed on February 10,
1997. As of the date hereof, 100,000 shares of common stock are outstanding
including the 3,000 shares held in escrow pursuant to Rule 419. All of the
outstanding shares of capital stock of Transpacific have been duly authorized
and validly issued and are fully paid and nonassessable. Transpacific is not
aware of any voting trusts, voting agreements or similar understandings
applicable to the Shares. Transpacific does not have any outstanding options,
subscriptions or other rights, agreements or commitments, which either; (a)
obligates Transpacific to issue, sell or transfer any shares of the capital
stock of Transpacific or (b) restricts the transfer of or otherwise relates to
the shares of its Common Stock.
SECTION 4.4 Litigation. Except as may be disclosed in the SEC Filings
(as defined in Section 4.5 hereof), or to Coffee in writing on or prior to the
date hereof, as of the date hereof there are no claims, actions, proceedings,
or investigations pending or, to the best knowledge of Transpacific,
threatened against Transpacific or to the best of Transpacific knowledge,
pending or threatened against any employee, consultant, director, officer or
shareholder, in his, her or its capacity as such, before any court or
governmental or regulatory authority or body which, if decided adversely,
could materially and adversely affect the financial condition, business,
prospects or operations of Transpacific. As of the date hereof, neither
Transpacific nor any of its property is subject to any order, judgment,
injunction or decree, which materially and adversely affects the financial
condition, business, prospects or operations of Transpacific.
SECTION 4.5 Financial Statements and Reports. Transpacific has provided
Coffee with true and complete copies of (a) Transpacific's annual report on
Form 10-KSB for the year ended September 30, 1996, (b) Transpacific 's
quarterly reports on Form 10-Q for the quarters ended December 31, 1996, March
31, 1997 and June 30, 1997, (c) copies of Transpacific 's Registration
Statement on Form SB-2 and Prospectus which was declared effective by the SEC
on August 12, 1996, (d) all other reports, statements and registration
statements filed by it with the SEC since August 12, 1996. The reports,
statements and registration statements referred to in the immediately
preceding sentence including any that are filed subsequent to the date hereof
and prior to the effective date are referred to in the Agreement as the "SEC
Filings." As of their respective dates, the SEC Filings did not contain 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. The
financial statements of Transpacific included in the SEC Filings were prepared
by an independent certified public accountant in accordance with generally
accepted accounting principles applied on a consistent basis (except as
otherwise noted in such statements) and present fairly the financial position,
results of operations and changes in financial position of Transpacific as of
the dates and for the periods indicated subject, in the case of unaudited
interim financial statements, to normal year-end adjustments and any other
adjustments described therein. Transpacific will have approximately $16,000,
consisting of the proceeds from Transpacific 's initial public offering,
currently held in escrow, on deposit in a bank duly licensed to do business in
the State, pursuant to Rule 419 on the Effective Date. Transpacific has filed
all filings required by the Securities and Exchange Commission (the "SEC"),
and has complied with all SEC rules and regulations.
SECTION 4.6 Absence of Certain Changes or Events. Except as set forth
in the SEC Filings or in Exhibit 4.6 attached hereto and made a part hereof,
or as disclosed to Coffee in writing, (a) there has not been any change or any
development involving a prospective change, which has affected or may affect
materially and adversely the business, assets or prospects or the financial
position or the results of operations of and its subsidiaries taken as whole;
and (b) Transpacific has not incurred any indebtedness for money borrowed, or
purchased or sold any material amount of assets, other than in the ordinary
course of business, or entered into any other transaction other than in the
ordinary course of business.
SECTION 4.7 Absence of Breach. The execution, delivery and performance
by Transpacific of this Agreement, and the performance by Transpacific of its
obligations hereunder, will not
(a) subject to the appropriate approval by Transpacific 's
shareholders, conflict with or result in a breach of any of the provisions of
its Articles of Incorporation or By-Laws;
(b) subject to obtaining the governmental and other consents
referred to in Section 4.8 hereof, contravene any law, rule or regulation of
any state or of the United States or any political subdivision thereof or
therein, or any order, writ, judgment, injunction, decree, determination or
award currently in effect, which, singly or in the aggregate, would have a
material adverse effect on Transpacific;
(c) conflict in any respect with or result in a breach of or
default under any indenture, loan or credit agreement relating to money
borrowed or (iv) conflict in any respect with or result in a breach of or
default under any other indenture, mortgage, lien, lease, agreement, contract
or instrument to which Transpacific is a party or by which it or any of its
properties may be affected or bound, which, singly or in the aggregate, would
have a material adverse effect on Transpacific.
SECTION 4.8 Governmental and Other Consents, etc. Subject to the
requisite shareholder approval and any required filings with the Securities
and Exchange Commission, no consent, waiver, approval, license or
authorization of or designation, declaration or filing with any governmental
agency or authority or other public persons or entities in the United States
on the part of Transpacific is required in connection with the execution or
delivery by Transpacific of his Agreement or the consummation by Transpacific
of the transactions contemplated hereby other than (i) filings in the State of
Nevada in accordance with state law thereof and in New York in accordance with
New York law, (ii) filings under state securities, "Blue Sky" or anti-takeover
laws and (iii) filings with the SEC and any applicable national securities
exchange.
SECTION 4.9 Benefits Plans. Except as described in the SEC filings,
Transpacific does not have any employment agreement with any executive officer
of Transpacific or any incentive compensation, deferred compensation, profit
sharing, stock option, stock bonus, stock purchase, savings, consultant,
retirement, pension or other "fringe benefit" plan or arrangement with or for
the benefit of any officer, employee, former employee or consultant.
SECTION 4.10 Certain Contracts. Except as disclosed in the SEC Filings,
Transpacific is not a party to any collective bargaining agreement or any
other agreement with employees of Transpacific.
SECTION 4.11 ERISA. Transpacific has no employee benefit plans, as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
SECTION 4.12 Transactions With Management. Except as disclosed in the
SEC Filings or in Exhibit 1.13 attached hereto and made a part hereof,
Transpacific is not now a party to any material contract, lease, loan or
commitment with or to any officer or director, or person owning more than 5%
of the outstanding Common Stock of Transpacific or any affiliate or associate
of such officer, director or person.
SECTION 4.13 Compliance with Law. Except as set forth in Exhibit 4.13,
attached hereto and made a part hereof, or disclosed in writing to Coffee,
Transpacific has complied in all material respects with, and Transpacific is
not in default in any material respect under, the applicable statutes,
ordinances, rules, regulations, orders or decrees of all federal states, local
and foreign governmental bodies, agencies and authorities having asserting or
claiming jurisdiction over it or any part of its operations or assets.
SECTION 4.14. Bank Accounts, Depositories; Powers of Attorney. Exhibit
4.14, attached hereto and made a part hereof, sets forth a true, correct and
complete list of the names and locations of all banks or other depositors in
which Transpacific has accounts, trust funds or safe deposit boxes and the
names of the person or persons authorized to draw thereon, borrow therefrom or
have access thereto. Except as listed in Exhibit 4.14, no person or entity
holds a power of attorney of Transpacific.
SECTION 4.15 Complete Disclosure. No representation or warranty in this
Agreement or in any schedule or exhibit hereto nor any information or
certificate delivered or to be delivered to Coffee by or on behalf of
Transpacific will contain any untrue statement of a material fact or omits or
will omit a material fact necessary to make the statements contained therein
not misleading. All information required to be disclosed by this Agreement
concerning Transpacific and all other material information concerning
Transpacific has been disclosed. With respect to any oral agreement disclosed
in any schedule or exhibit hereto, only those terms of such oral agreement
expressly described in such schedule or exhibit shall be deemed to have been
disclosed to Coffee thereby.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF COFFEE
Coffee, represent and warrants to, and agrees with Transpacific as
follows:
SECTION 5.1 Organization and Good Standing. Coffee is a duly
incorporated and validly existing corporation in good standing under the laws
of the State of New York, with all requisite power and authority (corporate
and other) to own its properties and conduct its businesses.
SECTION 5.2 Authorization; Binding Agreement. Coffee has the requisite
corporate power and authority to execute and deliver this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by
Coffee and constitutes a valid and binding agreement of Coffee in accordance
with its terms.
SECTION 5.3 Absence of Breach. The execution, delivery and performance
by Coffee of this Agreement, and the performance by Coffee of its obligations
hereunder, do not (i) conflict with or result in a breach of any of the
provisions of its articles of incorporation or by-laws, (ii) subject to
obtaining the governmental and other consents referred to in Section 5.4
hereof, contravene any law, rule or regulation of any state or of the United
States or any political subdivision thereof or therein, or any order, writ,
judgment, injunction, decree, determination or award currently in effect,
which, singly or in the aggregate, would have a material adverse effect on
Coffee, (iii) conflict in any respect with or result in a breach of or default
under any indenture, loan or credit agreement (appropriate waivers having been
obtained) or any other agreement or instrument to which Coffee is a party or
by which Coffee properties may be affected or bound, which, singly or in the
aggregate, would have a material adverse effect on Coffee.
SECTION 5.4 Governmental and Other Consents, etc. Subject to the
requisite Board of Directors approval, no material consent, approval or
authorization of or designation, declaration or filing with any governmental
agency or authority or other public persons or entities in the United States
on the part of Coffee is required in connection with the execution delivery by
Coffee of this Agreement or the consummation by Coffee of the transaction
contemplated hereby other than (i) filings in the state of Nevada in
accordance with the laws of that state and in New York in accordance with the
laws of that state, thereof, (ii) filings under state securities, "Blue Sky"
or anti-takeover laws, and (iii) filings with the SEC and any applicable
national securities exchange.
SECTION 5.5. Financial Statements. Coffee shall provide Transpacific
with certified consolidated financial statements (including the notes thereto)
which have been prepared by an independent certified public accountant in
accordance with generally accepted accounting principles (as in effect from
time to time) applied on a consistent basis and which present fairly the
consolidated financial position, results of operations and changes in
financial position of Coffee.
SECTION 5.6. Capitalization. Coffee has a minimum value of $50,000.00.
SECTION 5.7 Litigation. Except as disclosed in Exhibit 5.7, attached
hereto and made a part hereof, as of the date hereof there are no claims,
actions, proceedings, or investigations pending or, to the best knowledge of
Coffee, threatened against Coffee or to the best of Coffee's knowledge,
pending or threatened against any employee, consultant, director, officer or
shareholder, in his, her or its capacity as such, before any court or
governmental or regulatory authority or body which, if decided adversely,
could materially and adversely affect the financial condition, business,
prospects or operations of Coffee. As of the date hereof, neither
Transpacific nor any of its property is subject to any order, judgment,
injunction or decree, which materially and adversely affects the financial
condition, business or prospects.
SECTION 5.8 Absence of Certain Changes or Events. Except as disclosed
to Transpacific in writing or in Exhibit 5.8, attached hereto and made a part
hereof, (a) there has not been any change or any development involving a
prospective change, which has affected or may affect materially and adversely
the business, assets or prospects or the financial position or the results of
operations of Transpacific; and (b) Coffee has not incurred any indebtedness
for money borrowed, or purchased or sold any material amount of assets, other
than in the ordinary course of business, or entered into any other transaction
other than in the ordinary course of business.
SECTION 5.9 Compliance with Law. Except as set forth in Exhibit 5.9,
attached hereto and made a part hereof, or as disclosed in writing to
Transpacific, Coffee has complied in all material respects with, and is not in
violation of or in default in any material respect under, the applicable
statutes, ordinances, rules, regulations, orders or decrees of all federal
state, local and foreign governmental bodies, agencies and authorities having,
asserting or claiming jurisdiction over it or over any part of its operations
or assets.
SECTION 15.10 Bank Accounts, Depositories; Powers of Attorney. Exhibit
15.10, attached hereto and made a part hereof, sets forth a true, correct and
complete list of the names and locations of all banks or other depositories in
which Coffee has accounts, trust funds or safe deposit boxes and the names of
the person or persons authorized to draw thereon, borrow therefrom or have
access thereto. Except as listed in Exhibit 15.10, no person or entity holds
a power of attorney of Coffee.
SECTION 15.11 Complete Disclosure. No representation or warranty in this
Agreement or in any schedule or exhibit hereto, nor any information or
certificate delivered or to be delivered to Transpacific by or on behalf of
Coffee pursuant to this Agreement contains or will contain any untrue
statement of a material act or omits or will omit a material fact necessary to
make the statements contained therein not misleading. All information
required to be disclosed by this Agreement concerning Coffee and all other
material information concerning Transpacific has been disclosed. With respect
to any oral agreement disclosed in any schedule or exhibit hereto, only those
terms of such oral agreement expressly described in such schedule or exhibit
shall be deemed to have been disclosed to Transpacific thereby.
ARTICLE 6
CONDITIONS
SECTION 6.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party to effect the Merger shall
be subject to the fulfillment at or prior to the Effective Date of the
following conditions:
(a) this Agreement and the transactions contemplated hereby having
been approved and adopted at or prior to the Effective Date by the requisite
vote of the shareholders of each company as required by applicable law;
(b) no preliminary or permanent injunction or other order issued by
any federal or state court of competent jurisdiction in the United States or
any foreign jurisdiction preventing the consummation of the Merger shall be in
effect;
SECTION 6.2 Conditions to Obligation of Transpacific to Effect the
Merger. The obligation of Transpacific to effect the Merger shall be subject
to the fulfillment at or prior to the Effective Date of the following
conditions any one or more of which (except Section 6.2(h) and (i)) may be
waived by Transpacific:
(a) Coffee shall have performed in all material respects its
agreements contained in this Agreement required to be performed on or prior to
the Effective Date including those specified in Section 5.5 herein;
(b) Coffee shall have performed in all material respects its
agreements contained in this Agreement required to be performed on or prior to
the Effective Date, including the surrender of 100% of its issued and
outstanding common stock to the Transfer Agent and Transpacific 's subsequent
issuance of an aggregate of 3,000,000 shares of its common stock to Coffee
after Transpacific's Stock Split;
(c) the representations and warranties of Coffee set forth in this
Agreement shall be true and correct in all material respects on and as of the
Effective Date as if made on and as of such date, except as contemplated or
permitted by this Agreement.
(d) Coffee shall have delivered a certificate of its President or
its Chairman of the Board to the effect set forth in paragraphs (a), (b) and
(c) of this Section 6.2;
(e) Coffee shall have delivered to Transpacific copies of
resolutions duly adopted by its Board of Directors approving the execution and
delivery of this Agreement, such resolutions being certified by the Secretary;
(f) No action or preceding before any court or governmental or
regulatory authority or body, United States, federal or state or foreign,
shall have been instituted (and be pending) or threatened by any government or
governmental authority, which seeks to prevent or delay the consummation of
the Merger or which challenges any of the terms or provisions of this
Agreement;
(g) No order issued by any United States federal or state or
foreign governmental or regulatory authority or body of by any court of
competent jurisdiction nor any statute, rule, regulation or executive order
promulgated or enacted by any United States federal or state or foreign
governmental authority which prevents the consummation of the Merger shall be
in effect;
(h) Coffee acknowledges that the Post-Effective Amendment filed with
the SEC after this Agreement is signed must be declared effective by the SEC
and the shareholder reconfirmation offering contained therein shall have been
approved by investors representing a minimum of 80% of the proceeds of
Transpacific 's initial public offering, i.e., $14,400;
(i) The fair market value of Coffee is at least $14,400.
(j) Except to the extent such consents are not required at the
Effective Date, Coffee
shall have received the consents or exemptions, or made the filings, as the
case may be, which were referred to in Section 4.8;
(k) Opinion of Counsel to Coffee. Transpacific shall have received
an opinion dated the Effective Date of this Merger by ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
counsel to Coffee, satisfactory to Transpacific, in substantially the
following form:
i) Coffee is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of New York and has the
corporate power to own all of its properties and assets and carry on its
business in all material respects as it is now being conducted, and is
qualified to do business as a foreign corporation in the states in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification.
ii) The execution and delivery by Coffee of this Agreement and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not conflict with or result in a breach of any term
or provision of Coffee's certificate of incorporation or by-laws;
iii) This Agreement has been duly and validly authorized, executed
and delivered and constitutes the legal and binding obligation of Coffee,
except as limited by bankruptcy and insolvency laws and by others laws
affecting the rights of creditors generally; and
iv) To the best knowledge of such counsel, there are no actions,
suits or proceedings pending, or threatened by or against Coffee or affecting
Coffee or its properties, at law or in equity, before any court or any other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind.
SECTION 6.3 Conditions to the Obligation of Coffee to Effect the
Merger. The obligation of the Coffee to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Date of the following conditions,
any one or more of which (except 6.3(m)) may be waived by Coffee:
(a) The representations and warranties of Transpacific set forth in
this Agreement shall be true and correct in all material respects on and as of
the Effective Date as if made on and as of such date, except as contemplated
or permitted by this Agreement;
(b) Except to the extent such consents are not required at the
Effective Date, Transpacific shall have received the consents or exemptions,
or made the filings, as the case may be, which were referred to in Section
5.4;
(c) Transpacific shall have performed in all material respects its
agreements contained in this Agreement required to be performed on or prior to
the Effective Date including those specified in Section 4.5 herein;
(d) Transpacific shall have delivered a certificate of its
President to the effect set forth in paragraphs (a), (b) and (c) of this
Section 6.3;
(e) Transpacific shall have delivered to Coffee copies of
resolutions duly adopted by the Board of Directors of the Company approving
the execution and delivery of this Agreement, such resolutions being certified
by the Secretary of the Company;
(f) No action or proceeding before any court or governmental or
regulatory authority or body, United States federal or state or foreign, shall
have been instituted (and be pending or threatened) by any government or
governmental authority, which seeks to prevent or delay the consummation of
the Merger or which challenges any of the terms or provisions of this
Agreement; and
(g) No order issued by any United States federal or state or
foreign governmental or regulatory authority or body, or by any court of
competent jurisdiction nor any statute, rule, regulation, or executive order
promulgated or enacted by any United States, federal, or state or foreign
government or governmental authority, which prevented the consummation of the
Merger or materially and adversely affects the business, financial condition,
or operations of Transpacific shall be in effect.
(h) Shareholder Approval. Pursuant to a reconfirmation offering in
which shareholders representing a minimum of $14,400 of the proceeds from
Transpacific 's initial public offering elect to reconfirm their investment,
The shareholders of Transpacific upon the Effective Date of this Merger will
have duly approved the Merger, the Stock Split, and the issuance of 3,000,000
shares of Transpacific Common Stock after the Stock Split.
(i) Opinion of Counsel to Transpacific. Coffee shall have received
an opinion dated the Effective Date of this Merger by ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, counsel to Transpacific,
satisfactory to Coffee, in substantially the following form:
i) Transpacific is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Nevada
and has the corporate power to own all of its properties and assets and carry
on its business in all material respects as it is now being conducted, and is
qualified to do business as a foreign corporation in the states in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification.
ii) The execution and delivery by Transpacific of this
Agreement and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not conflict with or result in a breach of any term
or provision of Transpacific's certificate of incorporation or by-laws;
iii) The authorized capitalization of Transpacific consists
of 20,000,000 shares of common stock, par value $.0001 per share. As of the
date of this Agreement, there are 100,000 shares of common stock issued and
outstanding, including the 3,000 shares being held in escrow pending
consummation of the Merger, as per Rule 419. As of the Effective Date, after
the Stock Split and subsequent issuance of 3,000,000 shares to Coffee, there
will be 4,000,000 shares of Transpacific outstanding;
iv) This Agreement has been duly and validly authorized,
executed and delivered and constitutes the legal and binding obligation of
Transpacific, except as limited by bankruptcy and insolvency laws and by
others laws affecting the rights of creditors generally; and
v) To the best knowledge of such counsel, there are no
actions, suits or proceedings pending, or threatened by or against
Transpacific or affecting Transpacific or its properties, at law or in
equity, before any court or any other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind.
(i) Tax Opinion. Coffee shall have received an opinion of its tax
counsel, advisor or accountant that the Merger to be consummated by the terms
of this Agreement qualifies as a tax-free reorganization as defined under the
Internal Revenue Code of 1986, as amended.
(j) Net Cash. Transpacific shall have net cash, including the
Deposited Funds, in excess of $16,000 on the Effective Date.
(k) Coffee acknowledges that the Post-Effective Amendment filed
with the SEC after this Agreement is signed must be declared effective by the
SEC and the shareholder reconfirmation offering contained therein shall have
been approved by investors representing a minimum of 80% of the proceeds of
Transpacific 's initial public offering, i.e., $14,400.
(l) Except to the extent such consents are not required at the
Effective Date, Coffee shall have received the consents or exemptions, or
made the filings, as the case may be, which were referred to in Section 4.8.
(m) The fair market value of Coffee is at least $14,400.
(n) The directors and officers shall resign from Transpacific and
such officers and directors designated by Coffee shall be duly elected.
SECTION 6.4 Waiver of Condition; Right to Proceed. Unless stated
otherwise herein, if any of the conditions to the obligations of Coffee and
Transpacific specified in Sections 6.2 and 6.3 hereof has not been satisfied
(excluding Sections 6.2(h) and (i) and 6.3(h) and (j)), Coffee or
Transpacific, as the case may be, in addition to any other rights which may be
available to them or it, shall have the right to waive such conditions and to
proceed with the Merger (subject to satisfaction of the other conditions
contained herein, unless also waived).
ARTICLE 7
RULE 419 REQUIREMENTS
SECTION 7.1 Merger Criteria. Pursuant to Rule 419 under Regulation C of
the Securities Act of 1933, as amended ("Rule 419"), the fair market value of
Coffee must represent at least 80% of the maximum offering proceeds of
Transpacific 's initial public offering, i.e., Coffee's fair market value must
be at least $14,400 (80% x $18,000). If the fair market value of Coffee is
determined by Transpacific to be less than $14,400 on the Effective Date, this
Agreement shall terminate immediately.
SECTION 7.2 Post-Effective Amendment. Once the Merger Agreement has
been executed, Transpacific shall update its registration statement with a
Post-Effective Amendment. The Post-Effective Amendment shall contain updated
information concerning Transpacific and information about Coffee and its
business including audited financial statements; and the results of
Transpacific 's initial public offering. The Post-Effective Amendment shall
also include the terms of the reconfirmation offer mandated by Rule 419. The
reconfirmation offer shall include certain prescribed conditions which must be
satisfied before Deposited Securities can be released from escrow. If the
Post-Effective Amendment is not declared effective by the Securities and
Exchange Commission, the reconfirmation offering is not complete and the
merger is not consummated within 18 months of the date of effectiveness of
Transpacific's initial public offering, this Agreement shall terminate
automatically.
SECTION 7.3 Reconfirmation Offering. The reconfirmation offer must
commence after the effective date of the Post-Effective Amendment. Pursuant
to Rule 419, the terms of the reconfirmation offer shall include the following
conditions:
(a) The prospectus contained in the Post-Effective Amendment will be
sent to each investor whose securities are held in the Escrow Account within 5
business days after the effective date of the Post-Effective Amendment;
(b) Each investor will have no fewer than 20 and no more than 45
business days from the effective date of the Post-Effective Amendment to
notify Transpacific in writing that the investor elects to remain an investor;
(c) If Transpacific does not receive written notification from any
investor within 45 business days following the effective date of the
Post-Effective Amendment, the pro rata portion of the Deposited Funds (and any
related interest or dividends) held in escrow on such investor's behalf will
be returned to the investor within 5 business days by first class mail or other
equally prompt means;
(d) The Merger will be consummated only if a minimum number of
investors representing 80% of the maximum offering proceeds ($14,400) elect to
reconfirm their investment;
(e) If the Merger has not been consummated by February 12, 1998 (18
months from the date of the prospectus), the Deposited Funds held in escrow
shall be returned to all investors on a pro rata basis within 5 business days
by first class mail or other equally prompt means, and this Agreement shall be
declared null and void.
SECTION 7.4 Release of Deposited Funds and Deposited Securities. The
Deposited Funds and Deposited Securities may be released to Transpacific and
the investors in Transpacific's initial public offering, respectively, after:
(a) The Escrow Agent has received a signed representation from
Transpacific and any other evidence acceptable by the Escrow Agent that:
(i) Transpacific has executed an agreement for Merger of a business
for which the par value of the business represents at least 80% of the maximum
offering proceeds and has filed the required Post-Effective Amendment;
(ii) The Post-Effective Amendment has been declared effective, the
mandated reconfirmation offer having the conditions prescribed by Rule 419 has
been completed, and Transpacific has satisfied all of the prescribed
conditions of the reconfirmation offer.
(b) The Merger of a business with the fair value of at least 80% of
the maximum proceeds is consummated.
ARTICLE 8
TERMINATION
SECTION 8.1 Board Action. This Agreement may be terminated at any time
by mutual consent of the Boards of Directors of Transpacific and Coffee.
SECTION 8.2 Certain Dates. In the event that Transpacific shall not
have received certified financial statements from Coffee or this Agreement is
not executed by both parties by November [ ], 1997, this Agreement may
be terminated by either party upon written notice, whether before or after
approval of the Merger thereof by the holders of the requisite number of
shares of Transpacific. This Agreement shall terminate automatically if the
Merger has not been consummated by February 12, 1998, eighteen (18) months
from the effective date of Transpacific's initial public offering, which
consummation includes a declaration of effectiveness by the Securities and
Exchange Commission of Transpacific 's Post-Effective Amendment and successful
completion of a shareholder reconfirmation offering, pursuant to which
shareholders representing less than 80% of the proceeds from Transpacific 's
initial public offering vote to reconfirm their investments.
SECTION 8.3 Audited Financial Statements. In the event that Coffee's
audited financial statements are materially and adversely inconsistent with
the Coffee unaudited financial statements contained herein, Transpacific shall
have the right to unilaterally terminate this Agreement by the Board of
Directors of Transpacific notifying Coffee and its counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇, of such termination. Such notice shall be sent to Coffee and its
United States counsel prior to the Effective Date.
SECTION 8.4 Government Order. This Agreement may be terminated by
either Coffee or Transpacific if any court of competent jurisdiction in the
United States or other United States governmental body shall have issued an
order, decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement and such
other, decree, ruling or other action shall have become final and
non-appealable.
SECTION 8.5 Effect of Termination. In the event of the termination of
this Agreement, this Agreement shall thereafter become void and have no effect
and no party hereto shall have any liability to any other party hereto or its
shareholders or directors or officers in respect thereof, except for the
obligations of the parties hereto in Section 9.2 hereof.
ARTICLE 9
GENERAL AGREEMENTS
SECTION 9.1 Cooperation. Each of the parties hereto shall cooperate
with the other in every reasonable way in carrying out the transactions
contemplated herein (including obtaining consents and making filings), and in
delivering all documents and instruments deemed reasonably necessary or useful
by counsel for any party hereto.
SECTION 9.2 Supplement Schedule. From time to time prior to the
Effective Date, the parties will promptly disclose in writing to each other
any matter arising which, if existing or occurring at the date of this
Agreement, would have been required to be disclosed in writing to the other.
No such disclosure shall have any effect for the purpose of determining the
satisfaction of the conditions set forth in Sections 6.1, 6.2 and 6.3.
SECTION 9.3 Funds. Except as otherwise provided for herein or
elsewhere in writing, each party shall incur all its own costs and expenses in
connection with this Agreement and the transactions contemplated hereby.
After the consummation of the Merger, all expenses will be incurred by the
Surviving Entity.
SECTION 9.4 Survival of Representations and Warranties. All
representations and warranties in this Agreement or in any instrument or
certificate delivered pursuant to this Agreement delivered on or prior to the
Effective Date shall not survive the consummation of the Merger.
SECTION 9.5 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
by messenger, transmitted by telex or telegram or mailed by registered or
certified mail, postage prepaid, as follows:
(a) If to Transpacific, to:
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(b) If to Coffee, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Coffee Holding Co. Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Esqs.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The date of any such notice shall be the date hand delivered or otherwise
transmitted or mailed.
SECTION 9.6 Amendment. This Agreement (including the documents and
instruments referred to herein or therein) (a) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof, (b) is not intended to confer upon any other person any rights or
remedies hereunder, and (c) shall not be assigned by operation of law or
otherwise. This Agreement may be amended or modified in whole or in part to
the extent permitted by New York law at any time, by an agreement in writing
executed in the same manner as this Agreement after authorization to do so by
the Board of Directors of Coffee and Transpacific.
SECTION 9.7 Waiver. Except as otherwise set forth herein, at any time
prior to the Effective Date, the parties hereto may (a) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representation and warranties
contained herein or in any document delivered pursuant hereto, and (c) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall
be valid is set forth in an instrument in writing signed on behalf of such
party.
SECTION 9.8 Brokers. Coffee and Transpacific each represent and warrant
that no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the Merger. Coffee
represents and warrants that no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the merger, except for South Street Capital Group, L.L.C. or its
assigns. The fee shall be payable in full on the Effective Date. The fee
shall be a cash payment equal to five percent (5%) of the market
capitalization of the Surviving Entity. For the purposes of the preceding
sentence, market capitalization shall equal the number of shares outstanding
multiplied by the price per share of the common stock; in no event shall the
market capitalization be considered less than $12,000,000.
SECTION 9.9 Publicity. So long as this Agreement is in effect, the
parties hereto shall not issue or cause the publication of any press release
or other announcement with respect to the Merger or this Agreement without the
consent of the other party.
SECTION 9.10 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9.11 Successors and Assigns. This Agreement shall be binding
upon and insure to the benefit of and enforceable by the respective successors
and assigns of the parties hereto.
SECTION 9.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
COUNTERPART SIGNATURE PAGE TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
TRANSPACIFIC INTERNATIONAL GROUP CORP.
AND
COFFEE HOLDING CO., INC.
IN WITNESS WHEREOF the parties have executed this Agreement by their duly
authorized officers as of the ____ day of __________, 1997.
COFFEE HOLDING CO., INC.
By:
President
TRANSPACIFIC INTERNATIONAL GROUP CORP.
By:
President