JVA 8-K
Coffee Holding Co Inc (JVA)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported):
(Exact Name of Registrant as Specified in its Charter)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act ☐
Item 1.01. Entry into a Material Definitive Agreement.
Amendment No. 2 to the Merger Agreement
As previously disclosed, on September 29, 2022, Coffee Holding Co., Inc., a Nevada corporation (the “Company” or “JVA”), entered into a Merger and Share Exchange Agreement, dated September 29, 2022, as amended (the “Merger Agreement”), by and among JVA, Delta Corp Holdings Limited, a Cayman Islands exempted company (“Pubco”), Delta Corp Holdings Limited, a company incorporated in England and Wales (“Delta”), CHC Merger Sub Inc., a Nevada corporation and wholly owned subsidiary of Pubco (“Merger Sub”), and each of the shareholders of Delta as named therein (the “Sellers”), pursuant to which, among other things, Merger Sub will merge with and into JVA, with JVA surviving as a direct, wholly-owned subsidiary of Pubco (the “Merger”).
On June 29, 2023, JVA, Delta, Pubco, Merger Sub and the Sellers entered into Amendment No. 1 (the “First Amendment”) to amend the Merger Agreement dated September 29, 2022. On January 4, 2024, JVA, Delta, Pubco, Merger Sub and the Sellers entered into Amendment No. 2 (the “Second Amendment”) to further amend the Merger Agreement, dated September 29, 2022, as amended by the First Amendment to the Merger Agreement, dated June 29, 2023. The Second Amendment extends the Outside Date (as defined in the Merger Agreement) from December 31, 2023 to April 1, 2024.
The foregoing description of the Second Amendment and the Merger Agreement does not purport to be complete. The Second Amendment is qualified in its entirety by the full text of the Second Amendment, a copy of which is filed as Exhibit 10.1 hereto and is incorporated by reference herein.
Important Information for Investors and Stockholders
This current report on Form 8-K is provided for informational purposes only and contains information with respect to a proposed business combination (the “proposed business combination”) among JVA, Pubco and Delta. This report does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval nor shall there be any sale of securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction. This report does not constitute a proxy statement, prospectus or any equivalent document. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, as amended, or an exemption therefrom.
In connection with the proposed business combination, Pubco intends to file relevant materials with the U.S. Securities and Exchange Commission, or the SEC, including a registration statement on Form F-4 that will include a proxy statement to JVA stockholders and also a prospectus for the registration of securities of Pubco, in connection with the proposed business combination (as amended from time to time, the “Registration Statement”). After the Registration Statement is declared effective by the SEC, a definitive proxy statement/prospectus will be mailed to stockholders of JVA as of the record date in the future to be established for voting on the proposed business combination and will contain important information about the proposed business combination and related matters. INVESTORS AND SECURITY HOLDERS OF JVA AND OTHER INTERESTED PERSONS ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS THAT WILL BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Security holders and other interested persons will be able to obtain free copies of the preliminary proxy statement/prospectus, definitive proxy statement/prospectus, and other relevant material (in each case when available) at the website maintained by the SEC at www.sec.gov. or by directing a request to: Coffee Holding Co., Inc. 3475 Victory Boulevard, Staten Island, New York 10314, Attn: Andrew Gordon, Chief Executive Officer.
Certain Information Regarding Participants in the Solicitation
This Form 8-K is not a solicitation of a proxy from any investor or securityholder. JVA, Delta, Pubco and each of their directors, executive officers and certain other members of management and employees may, under SEC rules, be deemed to be participants in the solicitation of proxies from the stockholders of JVA with respect to the proposed business combination. Information about the directors and executive officers of JVA, including their ownership of shares of JVA common stock, is included in JVA’s Annual Report on Form 10-K for the year ended October 31, 2022, which was filed with the SEC on March 29, 2023.
Additional information regarding the persons or entities who may be deemed participants in the solicitation of proxies from JVA’s stockholders, including a description of their interests in the proposed merger by security holdings or otherwise, will be included in the Registration Statement and proxy statement/prospectus that Pubco intends to file with the SEC and other relevant documents to be filed with the SEC when they become available. Additional information regarding the interests of participants in the solicitation of proxies in connection with the proposed business combination will likewise be included in that Registration Statement. You may obtain free copies of these documents as described above.
Cautionary Note Regarding Forward-Looking Statements
This report contains forward-looking statements within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995 and other U.S. federal securities laws. All statements other than statements of historical facts contained in this report, including statements regarding JVA, Pubco or Delta’s future results of operations and financial position, JVA, Pubco and Delta’s business strategy, prospective costs, timing and likelihood of success, plans and objectives of management for future operations, future results of current and anticipated operations of JVA, Pubco and Delta, and the expected value of the combined company after the transactions, are forward-looking statements. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. These forward-looking statements are subject to a number of risks, uncertainties and assumptions, including, but not limited to, the following risks relating to the proposed transaction: the occurrence of any event, change or other circumstances that could give rise to the termination of the transaction agreement; the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect the price of JVA’s securities; the occurrence of any event, change or other circumstances that could give rise to the termination of the transaction agreement; the inability to complete the transactions contemplated by the transaction agreement, including due to failure to obtain approval of the stockholders of JVA or other conditions to closing in the transaction agreement; the inability to obtain or maintain the listing of Pubco ordinary shares on Nasdaq following the transaction; the risk that the transactions disrupt current plans and operations of JVA as a result of the announcement and consummation of the transactions; the ability to recognize the anticipated benefits of the transactions, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth economically and hire and retain key employees; costs related to the transactions; changes in applicable laws or regulations; the possibility that JVA, Pubco or Delta may be adversely affected by other economic, business, and/or competitive factors; and other risks and uncertainties to be identified in the proxy statement/prospectus (when available) relating to the transactions, including those under “Risk Factors” therein, and in other filings with the SEC made by JVA and Pubco. Moreover, JVA, Pubco, and Delta operate in very competitive and rapidly changing environments. Because forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified and some of which are beyond JVA’s, Pubco’s or Delta’s control, you should not rely on these forward-looking statements as predictions of future events. Forward-looking statements speak only as of the date they are made. For these reasons, investors and other interested persons are cautioned not to put undue reliance on forward-looking statements. Neither JVA, Pubco, nor Delta undertake any obligation to update or revise these forward-looking statements, to reflect information, events, or otherwise after the date of this report, except as required by applicable law.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are filed as part of this Current Report on Form 8-K:
| Exhibit No. | Description | |
| 10.1 | Amendment No. 2, dated January 4, 2024, to the Merger and Share Exchange Agreement, dated September 29, 2022, as amended, by and among Coffee Holding Company, Inc., Delta Corp Holdings Limited, Delta Corp Holdings Limited, CHC Merger Sub Inc., and each of the shareholders named therein. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| COFFEE HOLDING CO., INC. | ||
| By: | /s/ Andrew Gordon | |
| Name: | Andrew Gordon | |
| Title: | President and Chief Executive Officer | |
Date: January 4, 2024
Exhibit 10.1
AMENDMENT NO. 2 TO MERGER AND SHARE EXCHANGE AGREEMENT
This AMENDMENT NO. 2 TO MERGER AND SHARE EXCHANGE AGREEMENT (this “Amendment”) is made and entered into as of January 4, 2024 with effect from December 31, 2023, by and among (i) Delta Corp Holdings Limited, a company incorporated in England and Wales (together with its successors and assigns, “Delta”), (ii) Delta Corp Holdings Limited, a Cayman Islands exempted company (“Pubco”), (iii) CHC Merger Sub Inc., a Nevada corporation and a wholly owned subsidiary of Pubco (“Merger Sub”), (iv) Coffee Holding Co., Inc., a Nevada corporation (“CHC”), and (v) each of the shareholders of Delta named on the signature pages hereto (collectively, the “Sellers”). Delta, Pubco, Merger Sub, CHC and the Sellers are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties”. Any capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Agreement (as defined below).
WHEREAS, the Parties entered into that certain Merger and Share Exchange Agreement, dated as of September 29, 2022 (the “Original Agreement”);
WHEREAS, pursuant to the Agreement, among other matters, upon the consummation of the transactions contemplated thereby, (a) Merger Sub shall merge with and into CHC, with CHC continuing as the surviving entity in the merger, as a result of which, (i) CHC shall become a wholly owned subsidiary of Pubco and (ii) each issued and outstanding security of CHC immediately prior to the Effective Time shall no longer be outstanding and shall automatically be cancelled, in exchange for the right of the holder thereof to receive a substantially equivalent security of Pubco (the “Merger”), and (b) Pubco shall acquire all of the issued and outstanding Delta Shares from the Sellers in exchange for ordinary shares of Pubco (the “Share Exchange” and, collectively with the Merger and the other transactions contemplated by the Transaction Agreement and the Ancillary Documents, the “Transactions”), all upon the terms and subject to the conditions set forth in the Agreement and in accordance with the provisions of applicable law;
WHEREAS, the Parties entered into that certain Amendment No. 1 to Merger and Exchange Agreement, dated as of June 29, 2023 (the “First Amendment”, and the Original Agreement as amended by the First Amendment, the “First Amended Agreement”); and
WHEREAS, in connection with the Transactions, the Parties desire to amend the Original Agreement upon the terms and subject to the conditions set forth herein (the Original Agreement, as amended pursuant to this Amendment and as may be further amended, supplemented, modified and/or restated from time to time in accordance with its terms, the “Agreement”).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
| 1. | Amendments to the Agreement. |
1.1 Amendment to Recitals. The words “simultaneously with the execution and delivery of this Agreement” in the Fifth Recital of the Agreement are hereby deleted and replaced with the words “simultaneously with the execution and delivery of this Agreement or prior to the Closing”.
1.2 Amendment to Section 7.7. Clause (c) of Section 7.7 of the Agreement is hereby deleted and replaced with the following: “(c) has been advised and understands that (i) to the extent that the Exchange Shares are not registered under the Registration Statement, the Exchange Shares (x) are being issued in reliance upon one or more exemptions from the registration requirements of the Securities Act and any applicable state securities Laws, and (y) have not been and shall not be registered under the Securities Act or any applicable state securities Laws and, therefore, must be held indefinitely and cannot be resold unless such Exchange Shares are registered under the Securities Act and all applicable state securities Laws, unless exemptions from registration are available, and (ii) the Exchange Shares are subject to additional restrictions on transfer pursuant to such Seller’s Lock-Up Agreement”.
1.3 Amendment to Section 10.1. Clause (b) of Section 10.1 of the Agreement is hereby deleted and replaced with the following: “(b) by written notice by CHC or Delta if any of the conditions to the Closing set forth in Article IX have not been satisfied or waived by April 1, 2024 (the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 10.1(b) shall not be available to a Party if the breach or violation by such Party or its Affiliates (or with respect to Delta, the Sellers, Pubco or Merger Sub) of any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date”.
1.4 Amendment to Section 10.4. The words “pursuant to Section 10.3(h)” in clause (c) of Section 10.4 of the Agreement are hereby deleted and replaced with the words “pursuant to Section 10.1(h)”.
| 2. | Miscellaneous. |
2.1 No Further Amendment. The Parties agree that all other provisions of the First Amended Agreement shall, subject to the amendments set forth in Section 1 of this Amendment, continue unmodified, in full force and effect and constitute legal and binding obligations of the parties in accordance with their terms. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Agreement or any of the documents referred to therein. This Amendment shall form an integral and inseparable part of the Agreement. From and after the date of this Amendment, each reference in the Agreement to “this Agreement,” “hereof,” “hereunder” or words of like import, and all references to the Agreement in any and all agreements, instruments, documents, notes, certificates and other writings of every kind of nature (other than in this Amendment or as otherwise expressly provided) will be deemed to mean the First Amended Agreement, as amended by this Amendment, whether or not this Amendment is expressly referenced.
2.2 Other Terms. The provisions of Article XII of the Agreement are incorporated herein by reference and shall apply to the terms and provisions of this Amendment and the Parties, mutatis mutandis.
[Remainder of page intentionally left blank. Signature pages follow.]
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed and delivered as of the date first written above by their respective officers thereunto duly authorized.
| Delta: | ||
| DELTA CORP HOLDINGS LIMITED, a company incorporated in England and Wales | ||
| By: | /s/ Mudit Paliwal | |
| Name: | Mudit Paliwal | |
| Title: | Chief Executive Officer | |
| Pubco: | ||
| DELTA CORP HOLDINGS LIMITED, a Cayman Islands exempted company | ||
| By: | /s/ Mudit Paliwal | |
| Name: | Mudit Paliwal | |
| Title: | Chief Executive Officer | |
| Merger Sub: | ||
| CHC MERGER SUB INC., a Nevada corporation | ||
| By: | /s/ Mudit Paliwal | |
| Name: | Mudit Paliwal | |
| Title: | Chief Executive Officer | |
| CHC: | ||
| COFFEE HOLDING CO., INC., a Nevada corporation | ||
| By: | /s/ Andrew Gordon | |
| Name: | Andrew Gordon | |
| Title: | Chief Executive Officer | |
[Signature Page to Amendment No. 2 to Merger and Share Exchange Agreement]
| The Sellers: | ||
| Print
Name of Seller: |
Core Maritime Commodities FZ-LLZ | |
| By: | /s/ Mudit Paliwal | |
| [Signature] | ||
| If
Entity, Print Name and Title of Signatory: |
Mudit Paliwal, Director | |
| Address: | c/o Delta Corp Holdings Limited | |
| Suite 3016, The Leadenhall Building | ||
| 122 Leadenhall Street | ||
| London EC3V 4AB, United Kingdom | ||
| Facsimile: | ||
| Telephone: | ||
| Email: | ||
[Signature Page to Amendment No. 2 to Merger and Share Exchange Agreement]