Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made this
18th day of March, 2004, by and between THE COFFEE EXCHANGE, INC., a Delaware
corporation ("Parent"), and TOUCHSTONE RESOURCES USA, INC., a Delaware
corporation ("Subsidiary"). Parent and Subsidiary are sometimes referred to
herein as the "Constituent Corporations."
RECITALS
A. Parent is a corporation duly organized and existing under the laws
of the State of Delaware.
B. Subsidiary is a company duly organized and existing under the laws
of the State of Delaware.
C. On the date of this Merger Agreement, Subsidiary has authority to
issue: (i) 1,000 shares of common stock, par value $0.001 per share ("Subsidiary
Common Stock"), of which 100 shares are held by Parent.
D. On the date of this Merger Agreement, Parent has authority to issue:
(i) 50,000,000 shares of Common Stock, par value $0.001 per share, of which
50,000,000 shares are issued and outstanding ("Parent Common Stock"); and (2)
1,000,000 shares of Preferred Stock, par value $0.001 per share, of which no
shares are issued and outstanding ("Parent Preferred Stock");.
E. The respective Boards of Directors of Parent and Subsidiary have
determined that it is advisable and to the advantage of such corporations that
Subsidiary merge with and into Parent upon the terms and conditions herein
provided (the "Merger").
F. The respective Boards of Directors of Parent and Subsidiary have approved
this Merger Agreement, and the Board of Directors of Subsidiary has directed
that this Merger Agreement be submitted to the vote of its sole stockholder.
G. For United States federal income tax purposes, it is the intention of the
parties to this Agreement that the merger shall qualify as a "reorganization"
for federal income tax purposes within the meaning of Section 368(a) of the
Internal Revenue Code and that this Agreement shall constitute a "plan of
reorganization" for the purposes of the Internal Revenue Code.
NOW, THEREFORE, in consideration of the mutual promises and on the
terms and conditions set forth below, the mutuality, adequacy and sufficiency of
which are hereby
acknowledged, the parties do hereby adopt the plan of reorganization encompassed
by this Merger Agreement and do hereby agree that Subsidiary shall merge with
and into Parent.
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I. TERMS AND CONDITIONS
1.1 Merger. Upon the date this Merger Agreement is made effective in
accordance with applicable Delaware law by filing a Certificate of Ownership and
Merger with the Delaware Secretary of State (the "Effective Date"), Subsidiary
shall be merged with and into Parent (the "Merger"), and Parent shall be the
surviving corporation of the Merger.
1.2 Filing and Effectiveness. The Merger shall become effective when a
properly executed Certificate of Merger meeting the requirements of the DGCL
shall have been filed with the Secretary of State of the State of Delaware.
1.3 Succession. Upon the Effective Date, the separate existence of
Subsidiary shall cease and Parent shall succeed to all of the rights,
privileges, powers and property of Subsidiary in the manner of and as more fully
set forth in Section 259 of the General Corporation Law of the State of
Delaware.
1.4 Subsidiary Common Stock. Upon the Effective Date, by virtue of the
Merger and without any action on the part of the holder thereof or the
Constituent Corporations, each share of Subsidiary Common Stock issued and
outstanding immediately prior thereto shall be cancelled.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation and Bylaws. The Certificate of
Incorporation of Parent as in effect immediately prior to the Effective Date
shall continue in full force and effect thereafter as the Certificate of
Incorporation of Parent without change or amendment until such Certificate of
Incorporation is duly amended in accordance with the provisions thereof and
applicable law, except that the Certificate of Incorporation of Parent shall be
amended in accordance with the provisions of Section 253(b) of the DGCL as
follows:
"FIRST. The name of this corporation is Touchstone Resources USA, Inc."
The Bylaws of Parent in effect immediately prior to the Effective Date shall
continue in full force and effect thereafter as the Bylaws of Parent without
change or amendment, until such Bylaws are duly amended in accordance with the
provisions thereof and applicable law.
2.2 Directors. The directors of Parent immediately prior to the
Effective Date shall upon the Effective Date remain the directors of Parent and
shall serve until the next annual meeting of shareholders of Parent and until
their successors are duly elected and qualified or until their earlier
resignation, removal or death.
2.3 Officers. The officers of Parent shall remain the officers of
Parent upon the Effective Date and shall serve until their successors are duly
elected and qualified or their earliest resignation, removal or death.
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III. MISCELLANEOUS
3.1 Further Assurances. From time to time, as and when required by
Parent or by its successors and assigns, there shall be executed and delivered
on behalf of Subsidiary such deeds and other instruments, and there shall be
taken or caused to be taken by it such further and other actions, as shall be
appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in Parent the title to and possession of all of the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Subsidiary and otherwise to carry out the purposes of this Merger
Agreement, and the proper officers and directors of Parent are fully authorized
in the name and on behalf of Subsidiary or otherwise to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
3.2 Abandonment. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either Subsidiary or Parent or both, notwithstanding the approval
of this Merger Agreement by the shareholders of Subsidiary and Parent.
3.3 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware.
3.4 Counterparts. In order to facilitate the filing and recording of
this Merger Agreement, the same may be executed in any number of counterparts
and delivered via facsimile, each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by the respective Boards of Directors of Subsidiary and Parent, is
hereby executed on behalf of each said corporation and attested by their
respective officers thereunto duly authorized.
THE COFFEE EXCHANGE, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
TOUCHSTONE RESOURCES USA, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
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