AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is dated
January 28, 2003, and is by and between Back Channel Investments, Inc., a
Delaware corporation (the "Company") and Pacific Land and Coffee Corporation, a
Hawaii corporation ("Pacific Land").
R E C I T A L S
WHEREAS, the shareholders of Pacific Land ("Shareholders") own the
shares of capital stock of Pacific Land as set forth in Schedule 1 attached
hereto, constituting all of the issued and outstanding stock of Pacific Land
(the "Pacific Land Shares");
WHEREAS, the Company is a public company, required to file reports
under Section 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx");
WHEREAS, the Board of Directors of the Company and Pacific Land deem it
advisable that the acquisition by the Company of Pacific Land be effected
through an exchange (the "Exchange") of Pacific Land Shares pursuant to this
Agreement;
WHEREAS, the Company desires to acquire all of the outstanding Pacific
Land Shares for shares of Common Stock of the Company.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in reliance upon the representations and warranties
hereinafter set forth, the parties agree as follows:
I. EXCHANGE
1.01 Exchange. The Shareholders shall exchange all of their Pacific
Land Shares for a total of 7,000,000 shares of Common Stock of the Company (the
"Common Stock") at the Closing of this Agreement. Immediately prior to Closing
there shall be 3,000,000 shares of Common Stock outstanding, so that after
Closing the Company shall have outstanding 10,000,000 shares of Common Stock.
1.02. Closing. The Closing of the transactions
contemplated by this Agreement (the "Closing") shall take place on
or before February 25, 2003 at the corporate offices of Pacific
Land.
1.03. Deliveries. Upon Closing, the parties are
delivering the following documents:
1.03(a). The items and documents set forth in Sections
1.01 and 1.02.
1.03(b). The Company shares of Common Stock described
in Section 1.02.
1.03(c). The Company shall deliver the resignations of all of
its current officers and directors, and board resolutions electing Xxxx
X. Xxxxxxx and Xx Xxxxxxx to the Board of Directors of the Company and
Xxxx X.Xxxxxxx as President and Al Csocina as Chief Financial Officer.
1.04. Filings. Immediately following the Closing, the
Company shall file the following documents:
1.04(a). A Current Report on Form 8-K with the U.S.
Securities and Exchange Commission, reporting the
transactions set forth in this Agreement.
1.04(b). A Certificate of Amendment to the Certificate of
Incorporation of the Company with the Delaware Secretary of State
changing the name of the Company to "Pacific Land and Coffee
Corporation" or a similar name as may be determined by the Board of
Directors.
II. REPRESENTATIONS AND WARRANTIES OF PACIFIC LAND AND COFFEE
Pacific Land represents and warrants to the Company as follows, as of
the date of this Agreement and as of the Closing:
2.01. Organization.
2.01(a). Pacific Land is a corporation duly organized, validly
existing and in good standing under the laws of the State of Hawaii;
Pacific Land has the corporate power and authority to carry on its
business as presently conducted; and Pacific Land is qualified to do
business in all jurisdictions where the failure to be so qualified
would have a material adverse effect on its business.
2.02. Capitalization.
2.02(a). The authorized capital stock and the issued and
outstanding shares of Pacific Land is as set forth on Exhibit 2.02(a).
All of the issued and outstanding shares of Pacific Land are duly
authorized, validly issued, fully paid and nonassessable.
2.02(b). Except as set forth in Exhibit 2.02(b) there are no
outstanding options, warrants, or rights to purchase any securities of
Pacific Land.
2.03. Subsidiaries and Investments. Pacific Land does
not own any capital stock or have any interest in any corporation,
partnership or other form of business organization, except as de-
scribed in Exhibit 2.03 hereto.
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2.04. Financial Statements. The audited financial statements of Pacific
Land as of and for the two years ended December 31, 2002, including the audited
balance sheet as of December 31, 2002 and the related audited statement of
operations, cash flows and changes in stockholders' equity for the two years
then ended present fairly the financial position and results of operations of
Pacific Land, on a consistent basis.
2.05. No Undisclosed Liabilities. To the best knowledge of Pacific
Land, other than as described in Exhibit 2.05 attached hereto, Pacific Land is
not subject to any material liability or obligation of any nature, whether
absolute, accrued, contingent, or otherwise and whether due or to become due,
which is not reflected or reserved against in the Financial Statements, except
those incurred in the normal course of business.
2.06. Absence of Material Changes. Since December 31,
2002, except as described in any Exhibit attached hereto or as
required or permitted under this Agreement, there has not been:
2.06(a). any material adverse change in the condition
(financial or otherwise) of the properties, assets, liabilities or
business of Pacific Land, except changes in the ordinary course of
business which, individually and in the aggregate, have not been
materially adverse;
2.06(b). any redemption, purchase or other acquisition of any
shares of the capital stock of Pacific Land, or any issuance of any
shares of capital stock or the granting, issuance or exercise of any
rights, warrants, options or commitments by Pacific Land relating to
their authorized or issued capital stock; or
2.06(c). any change or amendment to the Certificate of
Incorporation of Pacific Land.
2.07. Litigation. Except as set forth in Exhibit 2.07 attached hereto,
to the best knowledge of Pacific Land there is no litigation, proceeding or
investigation pending or threatened against Pacific Land affecting any of its
properties or assets against any officer, director, or stockholder of Pacific
Land that might result, either in any case or in the aggregate, in any material
adverse change in the business, operations, affairs or condition of Pacific Land
or its properties or assets, or that might call into question the validity of
this Agreement, or any action taken or to be taken pursuant hereto.
2.08. Title To Assets. Pacific Land has good and marketable title to
all of its assets and properties now carried on its books including those
reflected in the balance sheets contained in the Financial Statements, free and
clear of all liens, claims, charges, security interests or other encumbrances,
except as described in Exhibit 2.08 attached hereto or any other Exhibit.
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2.09. Transactions with Affiliates, Directors and Shareholders. Except
as set forth in Exhibit 2.09 attached hereto, there are and have been no
contracts, agreements, arrangements or other transactions between Pacific Land,
and any officer, director, or stockholder of Pacific Land, or any corporation or
other entity controlled by the Shareholders, a member of the Shareholders'
families, or any affiliate of the Shareholders.
2.10. No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
result in a breach of any term or provision of, or constitute a default under,
the Articles of Incorporation or Bylaws of Pacific Land, or any agreement,
contract or instrument to which Pacific Land is a party or by which it or any of
its assets are bound.
2.11. Disclosure. To the actual knowledge of Pacific Land, neither this
Agreement, the Financial Statements nor any other agreement, document,
certificate or written or oral statement furnished to the Company by or on
behalf of Pacific Land in connection with the transactions contemplated hereby,
contains any untrue statement of a material fact or when taken as a whole omits
to state a material fact necessary in order to make the statements contained
herein or therein not misleading.
2.12. Authority. Pacific Land has full power and authority to enter
into this Agreement and to carry out the transactions contemplated herein. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, have been duly authorized and approved by the
Board of Directors of Pacific Land and, other than the approval by the
Shareholders of Pacific Land described in Section 6.04, no other corporate
proceedings on the part of Pacific Land are necessary to authorize this
Agreement and the transactions contemplated hereby.
III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Pacific Land as follows,
as of the date of this Agreement and as of the Closing:
3.01. Organization.
3.01(a). The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware;
has the corporate power and authority to carry on its business as
presently conducted; and is qualified to do business in all
jurisdictions where the failure to be so qualified would have a
material adverse effect on the business of the Company.
3.01(b). The copies of the Certificate of Incorpor-
ation, of the Company, as certified by the Secretary of State
of Delaware, and the Bylaws of the Company are complete and
correct copies of the Certificate of Incorporation and the
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Bylaws of the Company as amended and in effect on the date hereof. All
minutes of meetings and actions in writing without a meeting of the
Board of Directors and shareholders of the Company are contained in the
minute book of the Company and no minutes or actions in writing without
a meeting have been included in such minute book since such delivery to
Pacific Land that have not also been delivered to Pacific Land.
3.02. Capitalization of the Company. The authorized capital stock of
the Company consists of 20,000,000 shares of Common Stock, par value $.001 per
share, of which 10,000,000 shares will be outstanding at Closing, and 1,000,000
shares of preferred stock, none of which is outstanding. All outstanding shares
are duly authorized, validly issued, fully paid and non-assessable.
3.03. Subsidiaries and Investments. The Company does not
own any capital stock or have any interest in any corporation,
partnership, or other form of business organization.
3.04. Authority. The Company has full power and authority to enter into
this Agreement and to carry out the transactions contemplated herein. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby, and the issuance of the Company Shares in accordance with
the terms hereof, have been duly authorized and approved by the Board of
Directors of the Company and no other corporate proceedings on the part of
Company are necessary to authorize this Agreement, the transactions contemplated
hereby and the issuance of the Company Shares in accordance with the terms
hereof.
3.05. No Undisclosed Liabilities. Other than as
described in Exhibit 3.05 attached hereto, the Company is not
subject to any material liability or obligation of any nature,
whether absolute, accrued, contingent, or otherwise and whether
due or to become due.
3.06. Litigation. There is no litigation, proceeding or investigation
pending or to the knowledge of the Company, threatened against the Company
affecting any of its properties or assets, or, to the knowledge of the Company,
against any officer, director, or stockholder of the Company that might result,
either in any case or in the aggregate, in any material adverse change in the
business, operations, affairs or condition of the Company or any of its
properties or assets, or that might call into question the validity of this
Agreement, or any action taken or to be taken pursuant hereto.
3.07. Title To Assets. The Company has good and
marketable title to all of its assets and properties now carried
on its books including those reflected in the balance sheet
contained in the Company's financial statements, free and clear of
all liens, claims, charges, security interests or other encum-
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brances, except as described in the balance sheet included in the Company's
financial statements or on any Exhibits attached hereto.
3.08. Contracts and Undertakings. Exhibit 3.08 attached hereto contains
a list of all contracts, agreements, leases, licenses, arrangements, commitments
and other undertakings to which the Company is a party or by which it or its
property is bound. Each of said contracts, agreements, leases, licenses,
arrangements, commitments and undertakings is valid, binding and in full force
and effect. The Company is not in material default, or alleged to be in material
default, under any contract, agreement, lease, license, commitment, instrument
or obligation and, to the knowledge of the Company, no other party to any
contract, agreement, lease, license, commitment, instrument or obligation to
which the Company is a party is in default thereunder nor, to the knowledge of
the Company, does there exist any condition or event which, after notice or
lapse of time or both, would constitute a default by any party to any such
contract, agreement, lease, license, commitment, instrument or obligation.
3.09. Underlying Documents. Copies of all documents
described in any Exhibit attached hereto (or a summary of any such
contract, agreement or commitment, if oral) have been made
available to Pacific Land and are complete and correct and include
all amendments, supplements or modifications thereto.
3.10. Transactions with Affiliates, Directors and Shareholders. Except
as set forth in Exhibit 3.10 hereto, there are and have been no contracts,
agreements, arrangements or other transactions between the Company, and any
officer, director, or 5% stockholder of the Company, or any corporation or other
entity controlled by any such officer, director or 5% stockholder, a member of
any such officer, director or 5% stockholder's family, or any affiliate of any
such officer, director or 5% stockholder.
3.11. No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
result in a breach of any term or provision of, or constitute a default under,
the Certificate of Incorporation or Bylaws of the Company, or any agreement,
contract or instrument to which the Company is a party or by which it or any of
its assets are bound.
3.12. Disclosure. To the actual knowledge of the Company, neither this
Agreement nor any other agreement, document, certificate or written or oral
statement furnished to Pacific Land and the Shareholders by or on behalf of the
Company in connection with the transactions contemplated hereby, contains any
untrue statement of a material fact or when taken as a whole omits to state a
material fact necessary in order to make the statements contained herein or
therein not misleading.
3.13. Financial Statements. The financial statements of
the Company set forth in its Form 10K-SB for the year ended June
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30, 2002 and its Form 10-QSB for the quarter ended September 30, 2002 present
fairly the financial position and results of operations of the Company, on a
consistent basis.
3.14. Absence of Material Changes. Since December 31,
2002, except as described in any Exhibit hereto or as required or
permitted under this Agreement, there has not been:
3.14(a). any material change in the condition (financial or
otherwise) of the properties, assets, liabilities or business of
Company, except changes in the ordinary course of business which,
individually and in the aggregate, have not been materially adverse.
3.14(b). any redemption, purchase or other acquisition of any
shares of the capital stock of the Company, or any issuance of any
shares of capital stock or the granting, issuance or exercise of any
rights, warrants, options or commitments by Pacific Land relating to
their authorized or issued capital stock.
3.14(c). any amendment to the Certificate of
Incorporation of the Company.
3.15 Securities Law Compliance
3.15(a) The Company's common stock is registered under Section
12(g) of the Exchange Act. The Company has filed all reports and other
material required to be filed by it with the SEC pursuant to Section
15(d). Such filed reports and materials do not contain any
misstatements of material facts, nor do they omit any material
information required to be stated therein or necessary to prevent the
statements therein from becoming misleading.
3.15(b) The currently outstanding common stock of the Company
was issued pursuant to the Registration Statement or valid exemptions
from registration under the Securities Act of 1933 pursuant to
Regulation D promulgated thereunder.
IV. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
All representations, warranties and covenants of the Company and
Pacific Land contained herein shall survive the consummation of the transactions
contemplated herein and remain in full force and effect.
V. CONDITIONS TO CLOSING
5.01. Conditions to Obligation of Pacific Land. The
obligations of Pacific Land under this Agreement shall be subject
to each of the following conditions:
5.01(a). The representations and warranties of the
Company herein contained shall be true in all material
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respects at the Closing with the same effect as though made at such
time. The Company shall have performed in all material respects all
obligations and complied in all material respects, to its actual
knowledge, with all covenants and conditions required by this Agreement
to be performed or complied with by it at or prior to the Closing.
5.01(b). No injunction or restraining order shall be in
effect, and no action or proceeding shall have been instituted and, at
what would otherwise have been the Closing, remain pending before a
court to restrain or prohibit the transactions contemplated by this
Agreement.
5.01(c). All statutory requirements for the valid consummation
by the Company of the transactions contemplated by this Agreement shall
have been fulfilled. All authorizations, consents and approvals of all
governments and other persons required to be obtained in order to
permit consummation by the Company of the transactions contemplated by
this Agreement shall have been obtained.
5.01(d). The fulfillment of the
obligations of the Company set forth in Section 6.02.
5.02. Conditions to Obligations of the Company. The
obligation of the Company under this Agreement shall be subject to
the following conditions:
5.02(a). The representations and warranties of Pacific Land
herein contained shall be true in all material respects as of the
Closing, and shall have the same effect as though made at the Closing;
Pacific Land shall have performed in all material respects all
obligations and complied in all material respects, to its actual
knowledge, with all covenants and conditions required by this Agreement
to be performed or complied with by it prior to the Closing.
5.02(b). No injunction or restraining order shall be in effect
prohibiting this Agreement, and no action or proceeding shall have been
instituted and, at what would otherwise have been the Closing, remain
pending before the court to restrain or prohibit the transactions
contemplated by this Agreement.
5.02(c). All statutory requirements for the valid consummation
by Pacific Land of the transactions contemplated by this Agreement
shall have been fulfilled. All authorizations, consents and approvals
of all governments and other persons required to be obtained in order
to permit consummation by Pacific Land of the transactions contemplated
by this Agreement shall have been obtained.
VI. CERTAIN AGREEMENTS
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6.01. Forward Stock Split; Registration Statement. The
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Company shall effect a three for one forward stock split
immediately prior to Closing. The Company shall file a
registration statement on Form SB-2 or other appropriate form as
soon as practicable following the Closing, but in no event later
than 90 days thereafter, registering all of the 3,000,000
outstanding pre-exchange shares of common stock, and shall use its
best efforts to cause such registration statement to be declared
effective and to remain effective for at least nine months. The
Company shall file for a listing on the OTC Bulletin Board and/or
the BBX Exchange if such Exchange is authorized by the SEC.
6.02. Reporting Requirements. The Company shall file all reports
required by Section 15(d) of the Securities Act of 1933 and shall maintain its
books and records in accordance with Sections 12 and 13 of the Securities
Exchange Act of 1934. The parties agree that the failure of the Company to make
such filings with the Securities and Exchange Commission shall constitute a
material breach of this Agreement.
VII. MISCELLANEOUS
7.01. Finder's Fees, Investment Banking Fees. Neither
Pacific Land nor the Company have retained or used the services of
any person, firm or corporation in such manner as to require the
payment of any compensation as a finder or a broker in connection
with the transactions contemplated herein.
7.02. Tax Treatment. The transactions contemplated hereby are intended
to qualify as a so-called "tax-free" reorganization under the provisions of
Section 368 of the Code. The Company and Pacific Land acknowledge, however, that
they each have been represented by their own tax advisors in connection with
this transaction; that neither has made any representation or warranty to the
other with respect to the treatment of such transaction or the effect thereof
under applicable tax laws, regulations, or interpretations; and that no
attorney's opinion or private revenue ruling has been obtained with respect to
the effects thereof under the Internal Revenue Code of 1986, as amended.
7.03. Further Assurances. From time to time, at the other party's
request and without further consideration, each of the parties will execute and
deliver to the others such documents and take such action as the other party may
reasonably request in order to consummate more effectively the transactions
contemplated hereby.
7.04. Parties in Interest. Except as otherwise expressly provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective heirs,
beneficiaries, personal and legal representatives, successors and assigns of the
parties hereto.
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7.05. Entire Agreement; Amendments. This Agreement, including the
Schedules, Exhibits and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by the parties or their respective successors or assigns.
7.06. Headings, Etc. The section and paragraph headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretations of this
Agreement.
7.07. Pronouns. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter,
singular or plural, as the identity of the person, persons, entity
or entities may require.
7.08. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same in-
strument.
7.09. Governing Law. This Agreement shall be governed by
the laws of the State of Delaware (excluding conflicts of laws
principles) applicable to contracts to be performed in the State
of Delaware.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto as the date first above written.
BACK CHANNEL INVESTMENTS, INC. PACIFIC LAND AND COFFEE
CORPORATION
By: By:
Name: Name:
Title: Title:
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SCHEDULE I
NUMBER OF SHARES NUMBER OF
OF PACIFIC LAND AND COFFEE SHARES OF
COMMON STOCK COMPANY
NAMES OF OWNED AND COMMON STOCK
SHAREHOLDERS TO BE DELIVERED TO BE RECEIVED
Xx Xxxxxxx 334 2,338,000
Xxxx X. Xxxxxxx 666 4,662,000
Totals
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