EXHIBIT 3.1
AGREEMENT AND PLAN OF MERGER
BETWEEN
LA JOLLA FRESH SQUEEZED COFFEE CO., INC.
(A WASHINGTON CORPORATION)
AND
JAVO BEVERAGE COMPANY, INC.
(A DELAWARE CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER, dated as of August 15, 2002 (this
"Agreement"), is between La Jolla Fresh Squeezed Coffee Co., Inc., a Washington
corporation ("La Jolla") and Javo Beverage Company, Inc., a Delaware corporation
("Javo"), which corporations are sometimes referred to herein individually as a
"Constituent Corporation" and collectively as the "Constituent Corporations."
R E C I T A L S
A. La Jolla is a corporation duly organized and existing under the laws
of the State of Washington and has the authority to issue 150,000,000 shares of
common stock, par value $0.001 per share ("La Jolla Common Stock"), of which
138,895,471 shares were issued and outstanding as of June 21, 2002, and
10,000,000 shares of preferred stock, par value $0.001 per share ("La Jolla
Preferred"), of which no shares have been issued.
B. Javo is a corporation duly organized and existing under the laws of
the State of Delaware and has an authorized capital of 150,000,000 shares of
Common Stock, par value $0.001 per share ("Javo Common Stock"), of which 1,000
shares of Javo Common Stock are issued and outstanding, all of which are held by
La Jolla, and 10,000,000 shares of Preferred Stock, par value $0.001 per share
("Javo Preferred"), of which no shares have been issued and of which 150,000
shares have been designated Series A Junior Participating Preferred Stock
("Series A Preferred"), of which no shares have been issued.
C. The respective Boards of Directors of La Jolla and Javo have
determined that, for the purpose of reorganizing La Jolla and Javo, it is
advisable and in the best interests of La Jolla and Javo and their respective
stockholders that La Jolla merge with and into Javo upon the terms and
conditions herein provided.
D. The respective Boards of Directors of La Jolla and Javo have
approved this Agreement pursuant to Section 23B.11.010 of the Washington
Business Corporation Act ("WBCA") and Section 252(c) of the Delaware General
Corporation Law ("DGCL") and have directed that this Agreement be submitted to a
vote of its shareholders and stockholders, respectively.
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E. The Board of Directors of La Jolla has provided its shareholders
notice in accordance with Sections 23B.11.030 and 23B.07.050 of the WBCA and has
recommended approval of this Agreement to its shareholders in accordance with
Section 23B.11.030 of the WBCA.
F. The shareholders of La Jolla and La Jolla, as the sole stockholder
of Javo, have approved this Agreement pursuant to Section 23B.11.030 of the WBCA
and Sections 252(c) and 228(a) of the DGCL, respectively.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, La Jolla and Javo hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
I.
MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the
WBCA and the DGCL, La Jolla shall be merged with and into Javo (the "Merger"),
the separate existence of La Jolla shall cease and Javo shall become, and is
herein sometimes referred to as, the "Surviving Corporation," and the name of
the Surviving Corporation shall be "Javo Beverage Company, Inc.".
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective on
August 21, 2002, at 9:00 a.m. Eastern Time. The date and time when the Merger
shall become effective, as aforesaid, is herein called the "Effective Date" of
the Merger. Prior to the Effective Date, an executed Certificate of Merger or an
executed counterpart of this Agreement meeting the requirements of the DGCL
shall have been filed with the Secretary of State of the State of Delaware. The
Surviving Corporation shall execute and file Articles of Merger with the
Secretary of State of the State of Washington.
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, after
giving effect to the cancellation of La Jolla Common Stock pursuant hereto, the
separate existence and corporate organization of La Jolla shall cease and Javo,
as the Surviving Corporation, shall continue its corporate existence under the
laws of the State of Delaware.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Javo immediately prior to the Effective Date shall be the Certificate of
Incorporation of the Surviving Corporation.
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2.2 BYLAWS. The Bylaws of Javo as in effect immediately before the
Effective Date of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended or repealed in accordance
with the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of La Jolla
immediately before the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until the expiration of their current
terms and until their successors have been duly elected and qualified, or until
their prior resignation, removal or death, subject to the Certificate of
Incorporation and the Bylaws of the Surviving Corporation.
2.4 PURPOSE OF SURVIVING CORPORATION. The Surviving Corporation's
purpose shall be to conduct any lawful business at the sole discretion of the
Board of Directors.
III.
MANNER OF CONVERSION OF STOCK
3.1 LA JOLLA SHARES. Upon the Effective Date, by virtue of the Merger
and without any action on the part of any holder thereof, each share of La Jolla
Common Stock outstanding immediately prior thereto shall be changed and
converted into one fully paid and nonassessable share of Javo Common Stock and
one attached Right to purchase a fractional share of Series A Preferred pursuant
to the Javo Shareholder Rights Plan as then in effect.
3.2 JAVO SHARES. Upon the Effective Date, by virtue of the Merger and
without any action on the part of the holder thereof, each share of Javo Common
Stock outstanding immediately prior thereto shall be cancelled and returned to
the status of authorized but unissued shares.
IV.
TRANSFER OF ASSETS AND LIABILITIES
4.1 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, (i) the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all the disabilities, duties
and restrictions of or upon each of the Constituent Corporations; (ii) all
rights, privileges, powers and franchises of each of the Constituent
Corporations, all property, real, personal and mixed, of each of the Constituent
Corporations, all debts due to each of the Constituent Corporations on whatever
account and all things in action or belonging to each of the Constituent
Corporations shall be transferred to and vested in the Surviving Corporation;
(iii) all property, rights, privileges, powers and franchises, as well as all
other interests, shall be as effectively the property of the Surviving
Corporation as they were of the Constituent Corporations before the Effective
Date; and (iv) the title to any real estate vested by deed or otherwise in
either of the Constituent Corporations shall not revert to either of the
Constituent Corporations or be in any way impaired by reason of the Merger.
Notwithstanding the foregoing, (i) the liabilities of the Constituent
Corporations and of their stockholders, directors and officers shall not be
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affected by the Merger; (ii) all rights of creditors and all liens upon any
property of either of the Constituent Corporations shall be preserved unimpaired
notwithstanding the Merger; and (iii) any claim existing or action or proceeding
pending by or against either of the Constituent Corporations may be prosecuted
to judgment as if the Merger had not taken place; provided, however, that the
claims and rights of the creditors of either or both of the Constituent
Corporations may be modified with the consent of such creditors; and, provided
further, that all debts, liabilities and duties of or upon each of the
Constituent Corporations shall attach to the Surviving Corporation and
accordingly may be enforced against it to the same extent as if such debts,
liabilities and duties had been incurred or contracted by it.
4.2 FURTHER ASSURANCES. From time to time, as and when required by Javo
or by its successors or assigns, there shall be executed and delivered on behalf
of La Jolla 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 or perfect in or conform of record or otherwise by
Javo the title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of La Jolla and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of Javo are fully authorized in the name and on behalf of La Jolla or
otherwise to take all such actions and to execute and deliver all such deeds and
other instruments.
V.
GENERAL
5.1 COVENANTS. Each Constituent Corporation covenants and agrees that
it will, on, before or after the Effective Date of the Merger:
(a) File all documents necessary for the assumption by Javo of
all of the franchise or other tax liabilities of La Jolla in the various states
where La Jolla is qualified or does business; and
(b) File all documents necessary to report or evidence the
Merger wherever either Constituent Corporation is or intends to be qualified;
and
(c) Take such other actions as may be required by applicable
law.
5.2 DEFERRAL. Consummation of the Merger may be deferred by the Board
of Directors of Javo or La Jolla for a reasonable period of time if such Board
of Directors determines that deferral would be in the best interests of Javo and
its sole stockholder or La Jolla and its shareholders, respectively.
5.3 AMENDMENT. The parties hereto, by mutual consent of their
respective Boards of Directors, may amend, modify or supplement this Agreement
in such manner as may be agreed upon by them in writing at any time before or
after adoption and approval of this Agreement by the shareholders of La Jolla
and the sole stockholder of Javo, but not later than the Effective Date;
provided, however, that no such amendment, modification or supplement not
adopted and approved by the shareholders of La Jolla and the sole stockholder of
Javo shall affect the rights of such shareholders and stockholder or change any
of the principal terms of this Agreement.
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5.4 ABANDONMENT. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Javo or of La Jolla, or of both,
notwithstanding the approval of this Agreement by the stockholder of Javo and by
the shareholders of La Jolla. In the event of abandonment of this Agreement, as
above provided, this Agreement shall become wholly void and of no effect, and no
liability on the part of either Constituent Corporation or its Board of
Directors or its shareholders or stockholders shall arise by virtue of such
termination.
5.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is located at 0000 Xxxxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000, and Registered Agent is CSC Corporation.
5.6 AGREEMENT. Executed copies of this Agreement will be on file at an
office of the Surviving Corporation at 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxx Xxxxx,
Xxxxxxxxxx 00000, and, upon request and without cost, copies thereof will be
furnished to any shareholder or stockholder of either Constituent Corporation.
5.7 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.
5.8 COUNTERPARTS. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
5.9 SERVICE OF PROCESS. Upon the Effective Date, the Surviving
Corporation is deemed to appoint the Secretary of State of the State of
Washington as its agent for service of process in any proceeding to enforce any
obligation or the rights of dissenting shareholders of La Jolla.
5.10 DISSENTING SHARES. On or following the Effective Date, the
Surviving Corporation will promptly pay to the dissenting shareholders of La
Jolla, if any, the amounts, if any, to which they are entitled under chapter
23B.13 of the WBCA.
IN WITNESS WHEREOF, this Agreement and Plan of Merger is hereby
executed by the undersigned thereunto duly authorized, and the undersigned
acknowledges, under penalty of perjury, this Agreement and Plan of Merger to be
the act and deed of each Constituent Corporation and the act and deed of the
undersigned, and that the facts stated in this Agreement and Plan of Merger are
true of the undersigned's own knowledge.
La Jolla Fresh Squeezed Coffee Co., Inc.,
a Washington corporation
By: /S/ XXXX X. XXXXXXX
----------------------------------------
Xxxx X. Xxxxxxx, Chief Executive Officer
Javo Beverage Company, INC.,
a Delaware corporation
By: /S/ XXXX X. XXXXXXX
-----------------------------------------
Xxxx X. Xxxxxxx, Chief Executive Officer
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