AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

You are currently viewing:

This Agreement and Plan of Merger involves

Nannaco Acquisition Inc | Amenni Inc

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: AGREEMENT AND PLAN OF MERGER
Governing Law: Washington Date: 7/27/2005

AGREEMENT AND PLAN OF MERGER

This Agreement and Plan of Merger ("Agreement") is entered into on this

___________ day of July 2005 (the "Execution Date"), by and between Nannaco,

Inc., a Texas corporation ("Nannaco"), Nannaco Acquisition Inc., a Washington

corporation ("Acquisition Sub"), and Amenni Inc., a Maryland corporation

("Amenni").

RECITALS

A. Nannaco wishes to merge with Amenni the ("Merger"), on the terms and

conditions set forth in this Agreement; and

B. Upon consummation of the Merger (defined in Section 1.2 below), Acquisition

Sub shall merge with and into Amenni, and Amenni shall become a wholly-owned

subsidiary of Nannaco; and

C. Existing shareholders of Amenni shall receive shares of common stock of

Nannaco as provided herein; and

D. All Amenni Shares issued and outstanding (other than shares to be canceled in

accordance with Section 1.1(b)) shall be converted fully paid and nonassessable

shares of common stock, par value $0.001 per share, of Nannaco representing, on

a pro rata basis, 97% of the fully diluted number of shares of common stock of

Nannaco to be issued and outstanding immediately after Closing (the "Nannaco

Shares"). As of the Effective Time (defined in Section 1.2), all outstanding

Amenni Shares shall no longer be outstanding and shall automatically be canceled

and shall cease to exist, and each holder of an Amenni Share shall cease to have

any rights with respect thereto, except the right to receive the portion of the

Nannaco Shares to be issued in consideration therefore in accordance with this

Agreement.

E. It is the intent of the parties that the Merger qualify as a tax-free

corporate reorganization under Section [368(a)(2)(E)] of the Internal Revenue

Code of 1986, as amended (the "Code").

Accordingly, the parties hereby agree as follows:

1. MERGER.

1.1. Effect on Capital Stock. As of the Effective Time, by virtue of the Merger

and without any action on the part of the holder of any of Amenni Shares or any

shares of capital stock of Acquisition Sub:

Page 1

<PAGE>

(a) Capital Stock of Acquisition Sub. Each issued and outstanding share of

capital stock of Acquisition Sub shall be converted into one share of Treasury

Stock of Amenni.

(b) Cancellation of Treasury Stock of Amenni owned by Amenni. Each share of

Amenni that is owned by Amenni shall automatically be cancelled and shall cease

to exist, and no consideration shall be delivered or deliverable in exchange

therefore.

canceled in accordance with Section 1.1(b)) shall be converted into fully paid

and nonassessable shares of common stock, par value $0.001 per share, of the

Nannaco Shares necessary to give effect to the relative ownership of Nannaco

Shares by Amenni Share holders expressed above in Recital D. As of the Effective

Time, all the Amenni Shares shall no longer be outstanding and shall

automatically be canceled and shall cease to exist, and each holder of a

certificate representing any such shares of Amenni Shares shall cease to have

any rights with respect thereto, except the right to receive the portion of the

Nannaco Shares to be issued in consideration therefore in accordance herewith.

1.2 Articles of Merger. The Merger shall be effectuated at the Effective Time

pursuant to the Articles of Merger ("Articles of Merger") filed in accordance

with applicable provisions of Maryland, Washington law and Texas (the

"Applicable Law"). The Articles of Merger shall be filed together with any other

filings or recordings required by the Applicable Law in connection with the

Merger as soon as practicable after the Closing (as defined below in Section

2.1). The term "Effective Time" as used in this Agreement means the time at

which the Merger becomes effective under the laws of Washington and shall occur

as soon as practicable following the 20th day after Nannaco's filing of Schedule

14C in definitive form that has been approved by the Securities and Exchange

Commission (the "SEC"), which shall be filed, in part, in connection with the

necessary Nannaco shareholder approval, of this Agreement, in definitive form

(the "Schedule 14C," further described below").

1.3 Procedure. Each and all of the Amenni Shares outstanding immediately prior

to the Effective Time shall, immediately after the Effective Time, be exchanged

for a certificate or certificates evidencing ownership of the applicable number

of the Nannaco Shares. At the Closing (as defined below in Section 2.1) Amenni

Shares shall cease to be outstanding and shall be converted into and exchanged

for the Nannaco Shares. The Nannaco Shares exchanged for Amenni Shares shall be

referred to herein as the "Closing Shares".

1.4 Name Change. At the Effective Time, the articles of incorporation of Nannaco

shall be amended such that the name "Nannaco, Inc." shall become "Amenni Inc."

2. CLOSING AND SUBSEQUENT CONDITIONS.

2.1 Date, Time and Place of Closing. The Merger contemplated by this Agreement

shall take place at a closing to be held at The Otto Law Group, PLLC, and shall

be deemed effective upon the execution of this Agreement (the "Closing"), and

shall remain subject to completion and satisfaction of certain conditions

subsequent to the Closing (the "Conditions Subsequent"). The date on which the

Closing occurs is referred to in this Agreement as the "Closing Date."

<PAGE>

2.2 Amenni Conditions Subsequent. Following the Closing and prior to the

Effective Time, unless otherwise stated herein, Amenni shall deliver the

following documents to Nannaco (collectively, the "Amenni Closing Documents"):

2.2.1 Amenni Share Certificates. Certificates, or equivalent documentation

thereof, representing all of Amenni Shares;

2.2.2 Articles of Merger. The Articles of Merger (to be prepared by the

Otto Law Group, PLLC (the "OLG")) to be filed with the state of Washington and,

in necessary, with the state of Maryland, executed by Amenni;

2.2.3 Amenni Officer's Certificate. A certificate (to be prepared by the

OLG with the assistance of Amenni)) dated as of the Closing Date executed by a

duly authorized officer of Amenni certifying that all necessary actions have

been taken by Amenni's shareholders and directors to authorize the transactions

contemplated by this Agreement and that all representations and warranties made

by Amenni in this Agreement are complete and correct in all material respects as

of the Closing Date as if made on the Closing Date;

2.2.4 Resolutions. Copies of signed resolutions of the board of directors

and the shareholders of Amenni approving the Merger with Acquisition Sub and

Amenni Inc. and the execution by Amenni of this Agreement;

2.2.5 Appraisal Rights.In the event that shareholders of Amenni are

entitled to "appraisal rights" pursuant to Maryland or Washington law, copies of

all written appraisal notices and forms sent by Amenni to the shareholders of

Amenni as required by Maryland or Washington law, including any waiver of

"appraisal rights" by Amenni Shareholders;

2.2.6 Other Documents and Instruments. Such other documents and

instruments as Nannaco's counsel may deem to be necessary or advisable to effect

the transactions contemplated by this Agreement.

2.3 Nannaco Closing Documents. Following the Closing and prior to the

Effective Time, Nannaco shall deliver or cause to be delivered to Amenni the

following documents (collectively, the "Nannaco Closing Documents"):

2.3.1 Articles and Certificate of Merger. The Certificate of Merger to be

filed with the State of Washington, executed by Nannaco and Acquisition Sub,

respectively;

2.3.2 Nannaco Share Certificates. Executed minutes of a special meeting of

the board of directors of Nannaco authorizing the issuance of one or more stock

certificates in the name of each of Amenni Shareholders representing such Amenni

Shareholder's ownership of the Nannaco Shares;

<PAGE>

2.3.3 Good Standing Certificate. A certificate issued by the Texas

Secretary of State indicating that Nannaco is qualified and in good standing

within such jurisdiction and a certificate issued by the Washington Secretary of

State indicating that the Nannaco Acquisition, Inc., is qualified and in good

standing within such jurisdiction;

2.3.4 Nannaco Officer's Certificate. A certificate dated as of the

Effective Time executed by a duly authorized officer of Nannaco certifying that

all necessary actions have been taken by Nannaco's officers and directors to

authorize the transactions contemplated by this Agreement and that all

representations and warranties made by Nannaco in this Agreement are complete

and correct in all material respects as of the Closing Date as if made on the

Closing Date;

2.3.5 Resolutions. Copies of signed resolutions of the board of directors

and documented evidence of shareholders of Nannaco approving the Merger with;

2.3.6 Appraisal Rights.In the event that shareholders of Nannaco are

entitled to "appraisal rights" pursuant to Texas law, copies of all written

appraisal notices and forms sent by Nannaco to the shareholders of Nannaco as

required by Texas law;

2.3.7 Such other documents and instruments as Amenni's counsel may deem to

be necessary or advisable to effect the transactions contemplated by this

Agreement.

2.4 Schedule 14C. Upon Execution of this Agreement, Nannaco shall prepare and

file with the SEC a Schedule 14C to disclose to shareholder approval of the

following:

(1) Nannaco's authority to enter into, consummate, and take all action

necessary and proper to effect this Agreement, and

(2) A reverse split of the issued and outstanding Nannaco common stock

on a one thousand to one (1,000:1) basis, or as otherwise determined

by the parties, while leaving the number of common stock that

Nannaco is authorized to issue at 500,000,000 shares.

2.5 Board of Directors. The parties hereto agree that Steve Careaga, the current

director of Nannaco, Inc., shall retain a seat on the board of Directors of the

merged entity for a period of not less than the time between the Effective Time

and the next election of the board of directors of the merger entity. Any change

to the composition of the board of directors shall require the mutual agreement

of both parties.

3. REPRESENTATIONS AND WARRANTIES OF AMENNI.

Amenni represents and warrants to Nannaco that the statements contained in this

Section 3 are correct and complete as of the date of this Agreement in all

material respects.

<PAGE>

3.1 Organization of Amenni. Amenni is a Maryland corporation duly organized,

validly existing, and in good standing under the laws of the State of Maryland.

Amenni has all the requisite power and authority to own, lease and operate all

of its properties and assets and to carry on its business as currently conducted

and as proposed to be conducted. Amenni is duly licensed or qualified to do

business and is in good standing in each jurisdiction in which the nature of the

business conducted by it makes such licensing or qualification necessary and

where the failure to be so qualified would, individually or in the aggregate,

have a Material Adverse Effect upon it. As used in this Agreement, the term

"Material Adverse Effect" with respect to any party, shall mean any change or

effect that is reasonably likely to be materially adverse to the business,

operations, properties, condition (financial or otherwise), assets or

liabilities of such party and such party's subsidiaries taken as a whole.

3.2 Authorization. Subject to the approval of its shareholders, Amenni has full

power and authority (including full corporate power and authority) to execute

and deliver this Agreement and Amenni Closing Documents and to perform its

obligations hereunder and thereunder. This Agreement constitutes, and Amenni

Closing Documents will constitute, valid and legally binding obligations of

Amenni, enforceable in accordance with their respective terms and conditions.

3.3 Noncontravention. Neither the execution and the delivery of this Agreement

or Amenni Closing Documents, nor the consummation of the transactions

contemplated hereby or thereby by Amenni, will (i) violate any constitution,

statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,

or other restriction of any government, governmental agency, or court to which

Amenni is subject or any provision of its articles of incorporation or bylaws,

or (ii) conflict with, result in a breach of, constitute a default under, result

in the acceleration of, create in any party the right to accelerate, terminate

modify, or cancel, or require any notice under any agreement, contract, lease,

license, instrument, or other arrangement to which Amenni is a party or by which

it is bound or to which any of its assets is subject. Amenni does not need to

give any notice to, make any filing with, or obtain any authorization, consent,

or approval of any government or governmental agency in order for the parties to

consummate the transactions contemplated by this Agreement.

3.4 Disclosure. The representations and warranties contained in this Section 3

do not contain any untrue statement of a material fact or omit to state any

material fact necessary in order to make the statements and information

contained in this Section 3 not misleading.

3.5 Capitalization. The authorized capital stock of Amenni Inc., at the Closing

Date, shall consist of 50,000,000 shares of capital stock, of which 20,000,000

shares are common stock and zero (0) shares are designated Preferred Stock, all

of which at the Closing Date shall be deemed issued and outstanding. All issued

and outstanding shares of Amenni stock have been duly authorized and validly

issued, and are fully paid and nonassessable. All of the outstanding shares of

common stock (and options to purchase common stock) and other outstanding

securities of Amenni have been duly and validly issued in compliance with

federal and state securities laws. Except as set forth on Schedule 3.5 there are

no outstanding or authorized subscriptions, options, warrants, plans or, except

for this Agreement and as contemplated by this Agreement, other agreements or

rights of any kind to purchase or otherwise receive or be issued, or securities

or obligations of any kind convertible into, any shares of capital stock or

other securities of Amenni, and there are no dividends which have accrued or

been declared but are unpaid on the capital stock of Amenni. There are no

outstanding or authorized stock appreciation, phantom stock or similar rights

with respect to Amenni. Amenni Shares are duly authorized and validly issued,

fully paid and nonassessable. Amenni Shares are not subject to any preemptive

rights or other similar restrictions.

<PAGE>

3.6 Tax Treatment. As of the date of this Agreement, Amenni has no reason to

believe that the Merger, in its entirety, will not qualify as a "reorganization"

within the meaning of Section 368(a) of the Code.

3.7 Noncontravention. Neither the execution and the delivery of this Agreement

or the Amenni Closing Documents, nor the consummation of the transactions

contemplated hereby or thereby, by Amenni will (i) violate any constitution,

statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,

or other restriction of any government, governmental agency, or court to which

Amenni is subject, or (ii) conflict with, result in a breach of, constitute a

default under, result in the acceleration of, create in any party the right to

accelerate, terminate modify, or cancel, or require any notice under any

agreement, contract, lease, license, instrument, or other arrangement to which

Amenni is a party or by which Amenni is bound or to which Amenni is subject.

Amenni does not need to give any notice to, make any filing with, or obtain any

authorization, consent, or approval of any government or governmental agency in

order for the parties to consummate the transactions contemplated by this

Agreement.

3.8 Financial Statements and Financial Condition. Each of the financial

statements (the "Financial Statements") submitted in connection with filing the

post-Merger entities consolidated and audited financial statements to be

included on a Form 8-K filed within 71 days following the filing of a Form 8-K

disclosing this Agreement (such documents, to the extent necessary to comply

with the Rules and Regulations of the SEC, deemed the "Reports") with the

Securities and Exchange Commission ("SEC") shall be prepared from, and is in

accordance with, the books and records of Amenni, shall comply with all material

respects with applicable accounting requirements and with the published rules

and regulations of the SEC with respect thereto, and shall be prepared in

accordance with U.S. generally accepted accounting principles applied on a

consistent basis during the periods involved (except as may be indicated in the

notes thereto) and fairly present in all material respects the consolidated

results of operations and cash flows (and changes in financial position, if any)

of Amenni, as at the date(s) thereof or for the period(s) presented therein.

3.9 Absence of Material Change. Following the Closing Date and prior to the

Effective Time, there have been no change in the business, operations, financial

condition or liabilities of Amenni as stated in the Reports that would result in

a Material Adverse Effect on Amenni.

3.10 Litigation. Except as provided in the Reports and Financial Statements, or

otherwise disclosed to Nannaco prior to the Effective Time on Schedule 3.10,

there shall have been actions, suits, claims, inquiries, proceedings or

investigations before any court, tribunal, commission, bureau, regulatory,

administrative or governmental agency, arbitrator, body or authority pending or

threatened against Amenni which would reasonably be expected to result in any

liabilities, including defense costs, in excess of $10,000 U.S. in the

aggregate. Amenni is not the named subject of any order, judgment or decree and

is not in default with respect to any such order, judgment or decree.

<PAGE>

3.11 Taxes and Tax Returns. Except as provided in the Reports and Financial

Statements, or otherwise disclosed to Nannaco prior to the Effective Time,

Amenni has timely and correctly filed tax returns and reports (collectively,

"Returns") required by applicable law to be filed (including, without

limitation, estimated tax returns, income tax returns, excise tax returns, sales

tax returns, use tax returns, property tax returns, franchise tax returns,

information returns and withholding, employment and payroll tax returns) and all

such returns were (at the time they were filed) correct in all material

respects, and have paid all taxes, levies, license and registration fees,

charges or withholdings of any nature whatsoever reflected on such Returns to be

owed and which have become due and payable except for any that is being

contested in good faith.

3.12 Compliance with Applicable Law.

3.12.1 Amenni holds all licenses, certificates, franchises, permits and

other governmental authorizations ("Permits") necessary for the lawful conduct

of its business and such Permits are in full force and effect, and Amenni is in

all material respects complying therewith, except where the failure to possess

or comply with such Permits would not have, in the aggregate, a Material Adverse

Effect on Amenni.

3.12.2 Amenni is and for the past three years has been in compliance with

all foreign, federal, state and local laws, statutes, ordinances, rules,

regulations and orders applicable to the operation, conduct or ownership of its

business or properties except for any noncompliance which is not reasonably

likely to have, in the aggregate, a Material Adverse Effect on Amenni.

3.13 Contracts and Agreements. Amenni is not a party to or bound by any

commitment, contract, agreement or other instrument which limits the freedom of

Amenni to compete in any line of business or with any person, except to the

extent disclosed on Schedule 3.13. Amenni is not in default on any material

contract, agreement or other instruments.

3.14 Affiliate Transactions.

3.14.1 Except as otherwise disclosed on Schedule 3.14, Amenni has not

engaged in, and is not currently obligated to engage in (whether in writing or

orally), any transaction with any Affiliated Person (as defined below) involving

aggregate payments by or to Amenni of $10,000 U.S. or more.

3.14.2 For purposes of this Section 3.14, "Affiliated Person" means:

(a) a director, executive officer or Controlling Person (as defined

below) of Amenni;

(b) a spouse of a director, executive officer or Controlling Person

of Amenni;

<PAGE>

officer, or Controlling Person of Amenni who has the same home as such person;

(d) any corporation or organization (other than Amenni) of which a

director, executive officer or Controlling Person of Amenni is a chief executive

officer, chief financial officer, or a person performing similar functions or is

a Controlling Person of such other corporation or organization;

(e) any trust or estate in which a director, executive officer, or

Controlling Person of Amenni or the spouse of such person has a substantial

beneficial interest or as to which such person or his spouse serves as trustee

or in a similar fiduciary capacity; and

(f) for purposes of this Section 3.14, "Controlling Person" means

any person or entity which, either directly or indirectly, or acting in concert

with one or more other persons or entities owns, controls or holds with power to

vote, or holds proxies representing ten percent or more of the outstanding

common stock or equity securities.

3.15 Limited Representations and Warranties. Except for the representations and

warranties of Nannaco expressly set forth in Section 4, Amenni has not relied

upon any representation and warranty made by or on behalf of Nannaco in making

its determination to enter into this Agreement and consummate the transactions

contemplated by this Agreement.

3.16 Disclosure. No representation or warranty made by a Amenni contained in

this Agreement, and no statement contained in the Schedules delivered by Amenni

hereunder, contains any untrue statement of a material fact or omits any

material fact necessary in order to make a statement herein or therein, in light

of the circumstances under which it is made, not misleading.

3.17 Title to Property.

3.17.1 Real Property. Amenni does not own or lease, directly or

indirectly, any real property, except as otherwise disclosed to Nannaco on

Schedule 3.17.1.

3.17.1 Environmental Matters. Amenni does not have any financial liability

under any environmental laws except as otherwise disclosed to Nannaco on

Schedule 3.17.2.

3.19 Appraisal Rights. Amenni agrees that, within forty-five (45) days following

the Closing, it shall have has complied in full with any and all provisions of

Maryland law relating to "appraisal rights".

<PAGE>

4. REPRESENTATIONS AND WARRANTIES OF NANNACO

Nann

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates