Exhibit 10.4
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement") is entered into as of
July 8, 2004 (the "Execution Date"), by and among Nannaco, Inc., a Texas
corporation ("NNCO"), Nannaco Acquisitions, Inc., a Delaware corporation
("Acquisition Sub"), and Red Alert Group, Inc., a Georgia corporation ("Red
Alert").
RECITALS
A. NNCO wishes to issue to Red Alert shareholders (the "Red Alert
Shareholders"), on the terms and conditions set forth in this Agreement,
153,341,900 shares of NNCO such that, subsequent to the Closing (defined below
in Section 2.1), the shareholders of Red Alert shall own approximately Ninety
Seven Percent (97%) of the issued and outstanding shares of NNCO.
B. Upon consummation of the Merger (defined in Section 1.1.1 below), Acquisition
Sub shall merge with and into Red Alert, and Red Alert shall become a
wholly-owned subsidiary of NNCO.
C. Together, Red Alert Shareholders are the owners of the following amount of
common stock of Red Alert, which amount represents all issued and outstanding
capital stock of Red Alert: 34,280,191 shares of common stock (the "Red Alert
Shares").
D. Each Red Alert share (other than shares to be canceled in accordance with
Section 1.1(b)) shall be converted into the right to receive 4.4732 (the
"Exchange Ratio") fully paid and nonassessable shares of common stock, par value
$0.001 per share, of NNCO (the "NNCO Shares"). As of the Effective Time, all the
Red Alert 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 Red Alert Shares shall cease to have any rights with respect
thereto, except the right to receive the their portion of the NNCO Shares to be
issued in consideration therefor upon surrender of such certificate in
accordance herewith.
E. It is the intent of the parties that the Merger qualify as a tax-free
corporate reorganization under Section 368(a)(1)(B) 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 shares of Red Alert
Shares or any shares of capital stock of Acquisition Sub:
(a) Capital Stock of Acquisition Sub. Each issued and outstanding share of
capital stock of Acquisition Sub shall be converted into one share of common
stock of Red Alert.
(b) Cancellation of Treasury Stock of Red Alert Owned by Red Alert. Each share
of Red Alert that is owned by Red Alert shall automatically be cancelled and
shall cease to exist, and no consideration shall be delivered or deliverable in
exchange therefor.
(c) Conversion of the Red Alert Shares.Each of the Red Alert Shares (other than
shares to be canceled in accordance with Section 1.1(b)) shall be converted into
the right to receive 4.4732 (the "Exchange Ratio") fully paid and nonassessable
shares of common stock, par value $0.001 per share, of the NNCO Shares. As of
the Effective Time, all the Red Alert 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 Red Alert Shares shall cease to have
any rights with respect thereto, except the right to receive the their portion
of the NNCO Shares to be issued in consideration therefor upon surrender of such
certificate in accordance herewith.
1.2 Articles of Merger. The Merger shall be effectuated at the Effective Time
pursuant to Articles of Merger ("Articles of Merger") filed in accordance with
applicable provisions of Texas, Georgia and Delaware law (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 Texas.
1.3 Procedure. Each certificate evidencing ownership of Red Alert 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 NNCO Shares. At the Closing (as
defined below in Section 2.1) Red Alert Shares shall cease to be outstanding and
shall be converted into and exchanged for the NNCO Shares(1). The NNCO Shares
exchanged for Red Alert Shares shall be referred to herein as the "Closing
Shares".
1.4 Name Change. At the Effective Time, the articles of incorporation of NNCO
shall be amended hereby such that name "Nannaco, Inc." shall become "Red Alert
Group, Holding Corp.".
2. CLOSING AND CLOSING DOCUMENTS.
2.1 Date, Time and Place of Closing. The Merger contemplated by this Agreement
shall take place at a closing upon the completion and satisfaction of all the
closing conditions hereto (the "Closing") to be held at The Otto Law Group,
PLLC, on a date and at a time convenient to the parties. The date on which the
Closing occurs is referred to in this Agreement as the "Closing Date."
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(1) Red Alert Shares and the NNCO Shares shall be converted on a 1 for 4.4732
basis. Accordingly, for each share of Red Alert held by Red Alert
Shareholders, Red Alert Shareholders shall receive 4.4732 shares of the
NNCO Shares.
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2.2 Red Alert Closing Documents. At the Closing, Red Alert shall deliver the
following documents to NNCO (collectively, the "Red Alert Closing Documents"):
2.2.1 Red Alert Share Certificates. Certificates representing
all of Red Alert Shares;
2.2.2 Articles of Merger. The Articles of Merger to be filed
with the state of Georgia, executed by Red Alert;
2.2.3 Good Standing Certificate. A certificate issued by the
Georgia Secretary of State indicating that Red Alert is qualified and in good
standing within such jurisdiction;
2.2.4 Red Alert Officer's Certificate. A certificate dated as
of the Closing Date executed by a duly authorized officer of Red Alert
certifying that all necessary actions have been taken by Red Alert 's
shareholders and directors to authorize the transactions contemplated by this
Agreement and that all representations and warranties made by Red Alert in this
Agreement are complete and correct in all material respects as of the Closing
Date as if made on the Closing Date;
2.2.5 Resolutions. Copies of signed resolutions of the board
of directors and the shareholders of Red Alert approving the Merger with NNCO
and the Acquisition Sub and the execution by Red Alert of this Agreement;
2.2.6 Appraisal Rights.In the event that shareholders of Red
Alert are entitled to "appraisal rights" pursuant to Georgia law, copies of all
written appraisal notices and forms sent by Red Alert to the shareholders of Red
Alert as required by Georgia law, including any waiver of "appraisal rights" by
Red Alert Shareholders;
2.2.7 Other Documents and Instruments. Such other documents
and instruments as NNCO's counsel may deem to be necessary or advisable to
effect the transactions contemplated by this Agreement.
2.3 NNCO Closing Documents. At the Closing, NNCO shall deliver or cause to be
delivered to Red Alert the following documents (collectively, the "NNCO Closing
Documents"):
2.3.1 Articles and Certificate of Merger. The Articles of
Merger to be filed with the state of Texas and the Certificate of Merger to be
filed with the State of Delaware, executed by NNCO and the Acquisition Sub,
respectively;
2.3.2 NNCO Share Certificates. Executed minutes of a special
meeting of the board of directors of NNCO authorizing the issuance of one or
more stock certificates in the name of each of Red Alert Shareholders
representing such Red Alert Shareholder's ownership of the NNCO Shares;
2.3.3 Good Standing Certificate. A certificate issued by the
Texas Secretary of State indicating that NNCO is qualified and in good standing
within such jurisdiction, and a certificate issued by the Delaware Secretary of
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State indicating that the Acquisition Sub is qualified and in good standing
within such jurisdiction;
2.3.4 NNCO Officer's Certificate. A certificate dated as of
the Closing Date executed by a duly authorized officer of NNCO certifying that
all necessary actions have been taken by NNCO's shareholders and directors to
authorize the transactions contemplated by this Agreement and that all
representations and warranties made by NNCO 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 the shareholders of NNCO approving the Merger with Red Alert
and the execution by NNCO of this Agreement;
2.3.6 Appraisal Rights.In the event that shareholders of NNCO
are entitled to "appraisal rights" pursuant to Texas law, copies of all written
appraisal notices and forms sent by NNCO to the shareholders of NNCO as required
by Texas law;
2.3.7 Legal Opinion. Red Alert shall have received an opinion
dated the Closing Date of The Otto Law Group, PLLC, counsel for NNCO, in form
and substance reasonably satisfactory to Red Alert and its counsel relating to
such matters as are customarily delivered in connection with the transactions
contemplated herein, including an opinion that the Merger has been approved by
all requisite action of NNCO and its shareholders in accordance with Texas Law
and the NNCO Shares will be issued in accordance with all applicable securities
laws; and
2.3.8 Other Documents and Instruments. Such other documents
and instruments as Red Alert's counsel may deem to be necessary or advisable to
effect the transactions contemplated by this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF RED ALERT.
Red Alert represents and warrants to NNCO that the statements contained in this
Section 3 are correct and complete as of the date of this Agreement in all
material respects.
3.1 Organization of Red Alert. Red Alert is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Georgia.
Red Alert 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. Red Alert 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.
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3.2 Authorization. Subject to the approval of its shareholders, Red Alert has
full power and authority (including full corporate power and authority) to
execute and deliver this Agreement and Red Alert Closing Documents and to
perform its obligations hereunder and thereunder. This Agreement constitutes,
and Red Alert Closing Documents will constitute, valid and legally binding
obligations of Red Alert, enforceable in accordance with their respective terms
and conditions.
3.3 Noncontravention. Neither the execution and the delivery of this Agreement
or Red Alert Closing Documents, nor the consummation of the transactions
contemplated hereby or thereby by Red Alert, 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
Red Alert 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
Red Alert is a party or by which it is bound or to which any of its assets is
subject. Red Alert 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 Red Alert consists of
50,000,000 shares of common stock, of which 34,280,191 shares are issued and
outstanding, and 50,000,000 shares of preferred stock, of which zero (0) shares
are issued and outstanding. All issued and outstanding shares of Red Alert 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 Red Alert have been
duly and validly issued in compliance with federal and state securities laws.
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 Red Alert, and there are no dividends which have
accrued or been declared but are unpaid on the capital stock of Red Alert. There
are no outstanding or authorized stock appreciation, phantom stock or similar
rights with respect to Red Alert. Red Alert Shares are duly authorized and
validly issued, fully paid and nonassessable. Red Alert Shares are not subject
to any preemptive rights or other similar restrictions.
3.6 Tax Treatment. As of the date of this Agreement, Red Alert has no reason to
believe that the Merger 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 Red Alert Closing Documents, nor the consummation of the transactions
contemplated hereby or thereby, by Red Alert will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
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or other restriction of any government, governmental agency, or court to which
Red Alert 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
Red Alert is a party or by which Red Alert is bound or to which Red Alert is
subject. Red Alert 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") included in the Information Statements
filed by NNCO (the "Reports") with the Securities and Exchange Commission
("SEC") has been prepared from, and is in accordance with, the books and records
of Red Alert, complies with all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, has been 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 presents in all
material respects the consolidated results of operations and cash flows (and
changes in financial position, if any) of Red Alert, as at the date(s) thereof
or for the period(s) presented therein.
3.9 Absence of Material Change. Since the Execution Date, there has been no
change in the business, operations, financial condition or liabilities of Red
Alert as stated in the Financial Statements that would result in a Material
Adverse Effect on Red Alert.
3.9 Litigation. Except as provided in the Reports and Financial Statements, or
otherwise disclosed to Red Alert prior to the Execution Date, there are no
actions, suits, claims, inquiries, proceedings or investigations before any
court, tribunal, commission, bureau, regulatory, administrative or governmental
agency, arbitrator, body or authority pending orthreatened against Red Alert
which would reasonably be expected to result in any liabilities, including
defense costs, in excess of $10,000 U.S. in the aggregate. Red Alert 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.
3.10 Taxes and Tax Returns. Except as provided in the Reports and Financial
Statements, or otherwise disclosed to Red Alert prior to the Execution Date, Red
Alert 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. Any unpaid U.S. Federal income taxes, interest and
penalties of Red Alert do not exceed $5,000 U.S. in the aggregate.
3.11 PURPOSELY LEFT BLANK.
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3.12 Compliance with Applicable Law.
3.12.1 Red Alert 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 Red
Alert 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 Red Alert.
3.12.2 Red Alert 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 Red Alert.
3.13 Contracts and Agreements. Red Alert is not a party to or bound by any
commitment, contract, agreement or other instrument which involves or could
involve aggregate future payments by Red Alert of more than $10,000 U.S., (ii)
Red Alert is not a party to or bound by any commitment, contract, agreement or
other instrument which is material to the business, operations, properties,
assets or financial condition of Red Alert, and (iii) no commitment, contract,
agreement or other instrument, other than charter documents, to which Red Alert
is a party or by which Red Alert is bound, limits the freedom of Red Alert to
compete in any line of business or with any person. Red Alert is not in default
on any contract, agreement or other instruments.
3.14 Affiliate Transactions.
3.14.1 Red Alert 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 Red
Alert 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 Red Alert;
(b) a spouse of a director, executive officer or
Controlling Person of Red Alert;
(c) a member of the immediate family of a director,
executive officer, or Controlling Person of Red Alert who has the same home as
such person;
(d) any corporation or organization (other than Red
Alert) of which a director, executive officer or Controlling Person of Red Alert
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 Red Alert or the spouse of such
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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 NNCO expressly set forth in Section 3, Red Alert has not relied
upon any representation and warranty made by or on behalf of NNCO 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 Red Alert contained in
this Agreement, and no statement contained in the Schedules delivered by Red
Alert 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 Environmental Matters. Red Alert does not have any financial
liability under any environmental laws.
3.18 Appraisal Rights. Red Alert has complied and is in full compliance with any
and all provisions of Texas law relating to "appraisal rights".
4. REPRESENTATIONS AND WARRANTIES OF NNCO
NNCO hereby represents and warrants to Red Alert that the statements contained
in this Section 4 are correct and complete as of the date of this Agreement in
all material respects.
4.1 Organization. NNCO is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Texas. NNCO 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. NNCO 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.
4.2 Authorization of Transaction. NNCO has full power and authority to execute
and deliver this Agreement and the NNCO Closing Documents and to perform all
obligations hereunder and thereunder. This Agreement constitutes, and the NNCO
Closing Documents will constitute, the valid and legally binding obligation of
NNCO enforceable in accordance with their respective terms and conditions.
4.3 Capitalization. The authorized capital stock of NNCO consists of 500,000,000
shares of common stock, $.001 par value, of which 474,253,389 shares are issued
and outstanding, and 100,000,000 shares of preferred stock, $.001 par value, of
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which zero (0) shares are issued and outstanding. All issued and outstanding
shares of NNCO 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 NNCO have
been duly and validly issued in compliance with federal and state securities
laws. With the exception of the convertible debentures executed during the
months of April and March, 2003, by NNCO, copies of which have been provided to
Red Alert, 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 NNCO, and there are no
dividends which have accrued or been declared but are unpaid on the capital
stock of NNCO. There are no outstanding or authorized stock appreciation,
phantom stock or similar rights with respect to NNCO. The NNCO Shares are duly
authorized and validly issued, fully paid and nonassessable. The NNCO Shares are
not subject to any preemptive rights or other similar restrictions.
4.4 Subsidiaries. Except for Acquisition Sub, NNCO does not own, directly or
indirectly, any capital stock or other equity interest in any corporation,
partnership or other entity.
4.5 Ownership of NNCO Shares. Each NNCO shareholder owns and holds of record
that number of NNCO Shares shown on Schedule 4.5.
4.6 Noncontravention. Neither the execution and the delivery of this Agreement
or the NNCO Closing Documents, nor the consummation of the transactions
contemplated hereby or thereby, by NNCO 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
NNCO 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
NNCO is a party or by which NNCO is bound. NNCO 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.
4.7 Financial Statements and Financial Condition. Each of the financial
statements (the "Financial Statements") included in the reports (the "Reports")
filed with the Securities and Exchange Commission ("SEC") has been prepared
from, and is in accordance with, the books and records of NNCO, complies with
all material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, has been
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 presents in all material respects the
consolidated results of operations and cash flows (and changes in financial
position, if any) of NNCO, as at the date(s) thereof or for the period(s)
presented therein.
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4.8 Absence of Material Change. Since the Execution Date, there has been no
change in the business, operations, financial condition or liabilities of NNCO
as stated in the Financial Statements that would result in a Material Adverse
Effect on NNCO.
4.9 Litigation. Except as provided in the Reports and Financial Statements, or
otherwise disclosed to Red Alert prior to the Execution Date, there are no
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 NNCO which
would reasonably be expected to result in any liabilities, including defense
costs, in excess of $10,000 U.S. in the aggregate. NNCO 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.
4.10 Taxes and Tax Returns. Except as provided in the Reports and Financial
Statements, or otherwise disclosed to Red Alert prior to the Execution Date,
NNCO 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. Any unpaid U.S. Federal income taxes, interest and
penalties of NNCO do not exceed $5,000 U.S. in the aggregate.
4.11 Employees. NNCO has one (1) employee, Mr. Steve Careaga, Chief Executive
Officer.
4.12 Compliance with Applicable Law.
4.12.1 NNCO 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 NNCO 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 NNCO.
4.12.2 NNCO 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 NNCO.
4.13 Contracts and Agreements. NNCO is not a party to or bound by any
commitment, contract, agreement or other instrument which involves or could
involve aggregate future payments by NNCO of more than $10,000 U.S., (ii) NNCO
is not a party to or bound by any commitment, contract, agreement or other
instrument which is material to the business, operations, properties, assets or
financial condition of NNCO, and (iii) no commitment, contract, agreement or
other instrument, other than charter documents, to which NNCO is a party or by
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which NNCO is bound, limits the freedom of NNCO to compete in any line of
business or with any person. NNCO is not in default on any contract, agreement
or other instruments.
4.14 Affiliate Transactions.
4.14.1 NNCO 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 NNCO of $10,000
U.S. or more.
4.14.2 For purposes of this Section 4.14, "Affiliated Person"
means:
(a) a director, executive officer or Controlling
Person (as defined below) of NNCO;
(b) a spouse of a director, executive officer or
Controlling Person of NNCO;
(c) a member of the immediate family of a director,
executive officer, or Controlling Person of NNCO who has the same home as such
person;
(d) any corporation or organization (other than NNCO)
of which a director, executive officer or Controlling Person of NNCO 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 NNCO 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 4.14, "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.
4.15 Limited Representations and Warranties. Except for the representations and
warranties of Red Alert expressly set forth in Section 3, NNCO has not relied
upon any representation and warranty made by or on behalf of Red Alert in making
its determination to enter into this Agreement and consummate the transactions
contemplated by this Agreement.
4.16 Disclosure. No statement contained in the Schedules delivered by NNCO
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.
4.17 Title to Property.
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4.17.1 Real Property. NNCO does not own or lease, directly or
indirectly, any real property.
4.17.2 Environmental Matters. NNCO does not have any financial
liability under any environmental laws.
4.18 Personal Property. NNCO does not own any personal property the current fair
market value of which is more than $1,000 U.S. in the aggregate.
4.19 Intellectual Property. NNCO does not own or lease, directly or indirectly,
any Intellectual Property. "Intellectual Property", for purposes of this
Agreement, shall mean: patents, patent applications, trademarks, trademark
registrations, applications for trademark registration, trade names, service
marks, registered Internet domain names, licenses and other agreements with
respect to any of the foregoing to which NNCO is licensor or licensee. In
addition, there are no pending or threatened, claims against NNCO by any person
as to any of the Intellectual Property, or their use, or claims of infringement
by NNCO on the rights of any person and no valid basis exists for any such
claims.
4.20 Insurance. NNCO does not own, directly or indirectly, any insurance
policies with respect to the business and assets of NNCO.
4.21 Powers of Attorney. NNCO does not have any powers of attorney outstanding
other than those in the ordinary course of business with respect to routine
matters.
4.22 Bank Accounts. Schedule 4.22 is a true and complete list of all bank
accounts, safe deposit boxes and lock boxes of NNCO, including, with respect to
each such account and lock box: (a) identification of all authorized
signatories; (b) identification of the business purpose of such account or lock
box, including identification of any accounts or lock boxes representing escrow
funds or otherwise subject to restriction; and (c) identification of the amount
on deposit on the date indicated.
4.24 Product Claims. No product or service liability claim is pending against
NNCO or against any other party with respect to the products or services of
NNCO.
4.25 SEC Reports and Financial Statements. NNCO has filed with the SEC, and has
heretofore made available to Red Alert, complete and correct copies of all
forms, reports, schedules, statements and other documents required to be filed
by NNCO under the Securities Act, and the Exchange Act (as such documents have
been amended or supplemented since the time of their filing) (collectively, the
"SEC Reports"). As of their respective dates, the SEC Reports (including without
limitation, any financial statements or schedules included therein) (a) did not
contain any untrue statement of a material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading, and (b) complied in
all material respects with the applicable requirements of the Securities Act and
Exchange Act (as the case may be) and all applicable rules and regulations of
the SEC promulgated thereunder. Each of the financial statements included in the
SEC Reports has been prepared from, and is in accordance with, the books and
records of NNCO, complies with all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
12
respect thereto, has been prepared in accordance with U.S. generally accepted
accounting principles ("U.S. GAAP") applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto) and fairly
presents in all material respects the consolidated results of operations and
cash flows (and changes in financial position, if any) of NNCO, as at the
date(s) thereof or for the period(s) presented therein.
4.26 Issued and Outstanding Shares of NNCO. The issued and outstanding stock
disclosed in Schedule 4.5 of this Agreement is all of the issued and outstanding
stock of NNCO. With the exception of the convertible debentures executed during
the months of April and March, 2003, by NNCO, copies of which have been provided
to Red Alert, there exist no options, warrants, rights or any other arrangements
for the issuance of additional shares of NNCO stock.
4.27 Appraisal Rights. NNCO has complied and is in full compliance with any and
all provisions of Texas law relating to "appraisal rights".
5. COVENANTS OF THE PARTIES.
5.1 Conduct of the Business of NNCO. During the period from the date of this
Agreement to the Closing Date, NNCO will conduct its business and engage in
transactions only in the ordinary course consistent with past practice. During
such period, NNCO will use its best efforts to (a) preserve its business
organization intact, and (b) maintain its current status as a company whose
shares are traded on the Over The Counter Bulletin Board. In addition, without
limiting the generality of the foregoing, NNCO agrees that from the date of this
Agreement to the Closing Date, except as otherwise consented to or approved by
Red Alert in writing (which consent or approval shall not be unreasonably
withheld, delayed or conditioned) or as permitted or required by this Agreement
or as required by law, NNCO will not:
5.1.1 grant any severance or termination pay to or enter into
or amend any employment agreement with, or increase the amount of payments or
fees to, any of its employees, officers or directors other than salary increases
to employees consistent with past increases; 5.1.2 make any capital expenditures
in excess of $1,000 U.S.;
5.1.3 guarantee the obligations of any person except in the
ordinary course of business consistent with past practice;
5.1.4 acquire assets other than those necessary in the conduct
of its business in the ordinary course having a total value in excess of $1,000
U.S.;
5.1.5 sell, transfer, assign, encumber or otherwise dispose of
assets with a value in excess of $1,000 U.S.;
5.1.6 enter into or amend or terminate any long term (one year
or more) contract (including real property leases);
13
5.1.7 enter into or amend any contract that calls for the
payment by NNCO of $1,000 U.S. or more after the date of this Agreement;
5.1.8 engage or participate in any material transaction or
incur or sustain any material obligation otherwise than in the ordinary course
of business;
5.1.9 contribute to any benefit plans;
5.1.10 increase the number of employees;
5.1.11 acquire any real property; or
5.1.12 agree to do any of the foregoing.
5.2 No Solicitation and Liquidated Damages. During the period beginning on the
date of this Agreement and ending on the Closing Date, neither NNCO nor any of
its directors, officers, shareholders, representatives, agents or other persons
controlled by any of them, shall, directly or indirectly encourage or solicit,
or hold discussions or negotiations with, or provide any information to, any
persons, entity or group other than Red Alert concerning any merger, sale of
substantial assets not in the ordinary course of business, sale of shares of
capital stock or similar transactions involving NNCO. NNCO will promptly
communicate to Red Alert the identity of any interested or inquiring party, all
relevant information surrounding the interest or inquiry, as well as the terms
of any proposal that NNCO may receive in respect of any such transaction. If
this Agreement is terminated by NNCO due to uncured breach of this Section 5.2,
then Red Alert shall be entitled to Two Hundred Thousand Dollars ($200,000) U.S.
from NNCO as liquidated damages. Such liquidated damages shall constitute full
payment and the exclusive remedy for any damages suffered by Red Alert by reason
of such breach and the terms of this Agreement. NNCO and Red Alert agree that
actual damages would be difficult to ascertain and that $200,000 U.S. is a fair
and equitable amount to reimburse Red Alert for such damages and the termination
of this Agreement.
5.3 Access to Properties and Records; Confidentiality.
5.3.1 NNCO shall permit Red Alert and its representatives
reasonable access to its properties and shall disclose and make available to Red
Alert all books, papers and records relating to the assets, stock, ownership,
properties, obligations, operations and liabilities of NNCO, including but not
limited to, all books of account (including the general ledger), tax records,
minute books of directors and stockholders meetings, organizational documents,
bylaws, material contracts and agreements, filings with any regulatory
authority, accountants work papers, litigation files, plans affecting employees,
and any other business activities or prospects in which Red Alert may have a
reasonable interest, in each case during normal business hours and upon
reasonable notice. NNCO shall not be required to provide access to or disclose
information where such access or disclosure would jeopardize the attorney-client
privilege or would contravene any law, rule, regulation, order, judgment, decree
or binding agreement entered into prior to the date of this Agreement. The
parties will use all reasonable efforts to make appropriate substitute
disclosure arrangements under circumstances in which the restrictions of the
preceding sentence apply.
14
5.3.2 All information furnished by NNCO to Red Alert or the
representatives or affiliates of Red Alert pursuant to, or in any negotiation in
connection with, this Agreement shall be treated as the sole property of NNCO
until consummation of the Merger and if the Merger shall not occur Red Alert and
its affiliates, agents and advisors shall upon written request return to NNCO
all documents or other materials containing, reflecting, referring to such
information, and shall keep confidential all such information and shall not
disclose or use such information for competitive purposes for a period of two
(2) years. The obligation to keep such information confidential shall not apply
to (i) any information which (w) Red Alert can establish by evidence was already
in its possession (subject to no obligation of confidentiality) prior to the
disclosure thereof by NNCO; (x) was then generally known to the public; (y)
becomes known to the public other than as a result of actions by Red Alert or by
the directors, officers, employees, agents or representatives of Red Alert; or
(z) was disclosed to Red Alert, or to the directors, officers, employees or
representatives of Red Alert, solely by a third party not bound by any
obligation of confidentiality; or (ii) disclosure in accordance with the federal
securities laws, a federal banking laws, or pursuant to an order of a court or
agency of competent jurisdiction.
5.4 Regulatory Matters.
5.4.1 The parties will cooperate with each other and use all reasonable
efforts to prepare all necessary documentation, to effect all necessary filings
and to obtain all necessary permits, consents, approvals, and authorizations of
all third parties and governmental bodies necessary to consummate the
transactions contemplated by this Agreement including, without limitation, those
that may be required from the SEC, other regulatory authorities, or Red Alert's
shareholders. NNCO and Red Alert shall each have the right to review reasonably
in advance all information relating to NNCO or Red Alert, as the case may be,
and any of their respective subsidiaries, together with any other information
reasonably requested, which appears in any filing made with or written material
submitted to any governmental body in connection with the transactions
contemplated by this Agreement.
5.4.2 NNCO and Red Alert will promptly furnish each other with copies
of written communications received by NNCO or Red Alert or any of their
respective subsidiaries from, or delivered by any of the foregoing to, any
governmental body in respect of the transactions contemplated by this Agreement.
5.5 Further Assurances. Subject to the terms and conditions of this Agreement,
each of the parties agrees to use all commercially reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
5.6 Public Announcements. Prior to the Closing, no party will issue or
distribute any information to its shareholders or employees, any news releases
or any other public information disclosures with respect to this Agreement or
any of the transactions contemplated by this Agreement without the consent of
the other parties or their designated representative, except as may be otherwise
required by law.
15
5.7 Appraisal and Dissenters' Rights. Notwithstanding any other provision in
this Agreement to the contrary, Red Alert agrees to be responsible for any and
all payments required to be made by NNCO to shareholders of NNCO in connection
with the "appraisal" and/or "dissenters" rights provided to NNCO shareholders
under Texas law.
6. CONDITIONS PRECEDENT TO RED ALERT'S OBLIGATIONS.
The obligations of Red Alert to consummate the transactions contemplated by this
Agreement are subject to satisfaction of the following conditions at or before
the Closing Date and may be waived only in writing by Red Alert:
6.1 NNCO's Covenants, Representations and Warranties. All the covenants, terms
and conditions of this Agreement to be complied with or performed by NNCO at or
before the Closing Date shall have been complied with and performed in all
respects. The representations and warranties made by NNCO in this Agreement
shall be complete and correct at and as of the Closing Date with the same force
and effect as though such representations and warranties had been made at and as
of the Closing Date.
6.2 Delivery of Documents by NNCO. NNCO shall have duly executed and delivered,
or caused to be executed and delivered this Agreement and the NNCO Closing
Documents.
6.3 NNCO shareholder Approval. This Agreement shall have been approved and
adopted by the affirmative votes of that amount of NNCO's outstanding capital
stock necessary for the consummation of the Merger pursuant to Texas law.
6.4 Other Approvals. All authorizations, consents, orders or approvals of any
United States federal or state governmental agency necessary for the
consummation of the Merger or the transactions contemplated by this Agreement
(other than such actions, approvals or filings which, pursuant to the terms of
this Agreement, are to take place on or after the Closing) shall have been
filed, occurred or been obtained.
6.5 No Litigation. No administrative investigation, action, suit or proceeding
seeking to enjoin the consummation of the transactions contemplated by this
Agreement shall be pending or threatened.
6.6 Current Liabilities of NNCO. NNCO shall have no liabilities other than those
listed the Financial Statement and the Reports.
6.7 Appraisal Rights. NNCO shall have complied with any and all provisions of
the Texas General Business Law relating to "appraisal rights".
6.8 Absence of Material Change. There shall have been no change in the business,
operations, financial condition or liabilities of NNCO as stated in the
Financial Statements that has had a Material Adverse Effect on NNCO.
6.9 Legal Opinion. Red Alert shall have received an opinion dated the Closing
Date of The Otto Law Group, PLLC, counsel for NNCO, in form and substance
reasonably satisfactory to Red Alert relating to such matters as are customarily
delivered in connection with the transactions contemplated herein, including an
16
opinion that the Merger has been approved by all requisite action of NNCO and
its shareholders in accordance with Texas Law and the NNCO Shares will be issued
in accordance with all applicable securities laws.
6.10 Certificate. A certificate issued by the Texas Secretary of State
indicating that NNCO is qualified and in good standing within such jurisdiction
shall have been delivered to Red Alert.
6.11 Reverse-Split. NNCO shall have completed a 1 for 100 reverse-split of the
issued and outstanding shares of the common stock of the Company while
maintaining the amount of shares of common stock NNCO is authorized to issue at
500,000,000 ("Reverse-Split"), such that, subsequent to the Reverse-Split, NNCO
has approximately 4,742,533 shares of common stock issued and outstanding.
7. CONDITIONS PRECEDENT TO NNCO'S OBLIGATIONS.
The obligations of NNCO to consummate the transactions contemplated by this
Agreement are subject to satisfaction of the following conditions at or before
the Closing Date and may be waived only in writing by NNCO:
7.1 Red Alert's Covenants, Representations and Warranties. All the covenants,
terms and conditions of this Agreement to be complied with or performed by Red
Alert on or before the Closing Date shall have been complied with and performed
in all respects. The representations and warranties made by Red Alert in this
Agreement shall be complete and correct at and as of the Closing Date with the
same force and effect as though such representations and warranties had been
made at and as of the Closing Date.
7.2 Delivery of Documents by Red Alert. Red Alert shall have duly executed and
delivered, or caused to be executed and delivered, to NNCO, or at its direction,
this Agreement, Red Alert Shares and Red Alert Closing Documents.
7.3 Other Approvals. All authorizations, consents, orders or approvals of any
United States federal or state governmental agency necessary for the
consummation of the Merger or the transactions contemplated by this Agreement
(other than such actions, approvals or filings which, pursuant to the terms of
this Agreement, are to take place on or after the Closing) shall have been
filed, occurred or been obtained.
7.4 Red Alert Shareholder Approval. This Agreement shall have been approved and
adopted by the affirmative votes of that amount of Red Alert's outstanding
capital stock necessary for the consummation of the Merger pursuant to the
Applicable Law.
7.5 No Litigation. No administrative investigation, action, suit or proceeding
seeking to enjoin the consummation of the transactions contemplated by this
Agreement shall be pending or threatened.
7.6 Due Diligence. NNCO shall be satisfied with its due diligence review of Red
Alert and all of Red Alert's affiliated entities including, but not limited to,
any subsidiaries, parents or brother or sister corporations of Red Alert.
17
8. TERMINATION.
8.1 Termination of Agreement. This Agreement shall terminate as follows:
(a) at any time prior to the Effective Time by the mutual
written agreement of all parties;
(b) by Red Alert, in the event of a breach of any of the
representations or warranties or covenants made by NNCO in this Agreement that
has not been cured within 30 days after notice of such breach as delivered to
NNCO by Red Alert;
(c) by NNCO in the event of any of the representations or
warranties made by Red Alert in this Agreement that has not been cured within 30
days after notice of such breach as delivered to Red Alert by NNCO; or
(d) by either NNCO or Red Alert if the Closing shall have not
occurred by August 27, 2004 (the "Upset Date") provided, however, that the right
to terminate this Agreement pursuant to this clause shall not be available to
any party whose failure to fulfill any obligation of this Agreement has been the
cause of, or resulted in, the failure of the closing to have been effected on or
prior to such date.
9. MISCELLANEOUS.
9.1 Tax Treatment by the Parties. Unless otherwise required by law, the parties
shall treat the Merger as a reorganization under Section 368 of the Code for all
tax reporting purposes; furthermore, the parties shall not take, and have not
taken, any action that is inconsistent with reorganization treatment under
Section 368 of the Code.
9.2 No Third Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person or entity other than the parties and their respective
successors and assigns.
9.3 Successors and Assigns. No party may assign either this Agreement or any of
its rights, interests, or obligations under this Agreement without the prior
written consent of all other parties. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the parties and their
respective permitted successors and assigns.
9.4 Notices. All notices, requests, demands, claims, consents and other
communications required or permitted under this Agreement shall be in writing.
Any notice, request, demand, claim, communication or consent under this
Agreement shall be deemed duly given if (and shall be effective two business
days after) it is sent by certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth below:
If to Red Alert: Dr. Timothy Holly
Chairman, C.E.O., President
Red Alert Group, Inc.
4279 Roswell Road
Suite 102-251
Atlanta, GA. 30342
18
With a copy (which shall not The Otto Law Group
constitute notice) to: 900 Fourth Ave., Suite 3140
Seattle, WA 98164
Attention: David M. Otto
If to NNCO: Mr. Steve Careaga
C.E.O.
NANNACO, Inc.
4423 Point Fosdick Dr. NW, Suite 208
Gig Harbor, WA 98335
With a copy (which shall not The Otto Law Group
constitute notice) to: 900 Fourth Ave., Suite 3140
Seattle, WA 98164
Attention: David M. Otto
9.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Georgia without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Georgia or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Georgia.
9.6 Amendments and Waivers. This Agreement may be amended or waived only in a
writing signed by the party against which enforcement of the amendment or waiver
is sought.
9.7 Survival of Representations and Warranties. The representations and
warranties set forth in Sections 3 and 4 of this Agreement shall survive the
Closing and continue in full force and effect for a period of two years after
the Closing.
9.8 Severability. Any term or provision of this Agreement that is found to be
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of its remaining terms and provisions or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
9.9 Headings. The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
9.10 Construction. The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation.
19
9.11 Incorporation of Schedules. The Schedules referred to in and/or attached to
this Agreement are incorporated in this Agreement by this reference.
9.12 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together will
constitute one and the same document. This Agreement may be executed by
facsimile.
9.13 Entire Agreement. This Agreement (including the Schedules referred to in
and/or attached to this Agreement), which constitutes the entire agreement among
the parties, supersedes any prior understandings, agreements, or representations
by or among the parties, written or oral to the extent they relate in any way to
the subject matter of this Agreement, and may only be changed by a writing
signed by both parties.
9.14. No Finders and Brokers. No agent, broker, person or firm acting on behalf
of NNCO or Red Alert under its authority is or will be entitled to any
commission, broker, finder, or financial advisory fees from any of the parties
hereto in connection with any of the transactions contemplated herein.
9.15 Arbitration. Any controversies or claims arising out of or relating to this
Agreement shall be fully and finally settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (the
"AAA Rules"), conducted by a single arbitrator either mutually agreed upon by
Red Alert and NNCO or chosen in accordance with the AAA Rules, to be held in
Atlanta, Georgia, except that the parties shall have any right to discovery as
would be permitted by the Federal Rules of Civil Procedure for a period of 90
days following the commencement of such arbitration, and the arbitrator shall
resolve any dispute which arises in connection with such discovery. The
prevailing party or parties shall be entitled to costs, expenses and attorneys'
fees from the non-prevailing party or parties, and judgment upon the award
rendered by the arbitrator shall be final and may be entered in any court of
competent jurisdiction.
20
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the date first listed above.
NNCO
NANNACO, INC.:
By:
------------------------------
Name: Steve Careaga
Title: Chief Executive Officer
RED ALERT:
RED ALERT GROUP, INC.
By:
------------------------------
Name: Dr. Timothy Holly
Title: President and Chief Executive Officer
ACQUISITION SUB:
NANNACO ACQUISITION, INC.
By:
------------------------------
Name: David Otto
Title: President and Secretary
21
Schedule 1.1
RED ALERT SHAREHOLDERS
22
Schedule 4.5
NANNACO, INC. SHAREHOLDERS
Registration Shares
- ------------ ------
JOHNNY ALEXANDER 2000
DONALD P ANDERSON 13516
ROBERT D AXELROD 150000
LAVON DAN BAKER 4500
WENDELL L BAKER 33804
VINH BAO PHONG 2000
TERRENCE BYRNE 15000000
EDWARD CANAHUATI 10000
CAMERON CAPPLEMAN 1000
CARLIEVEGEN ENTERPRISES 500000
SANDRA GAIL CARTER 300000
KURT CASPER 10000
CEDE & CO 281236642
LINDA CONLEY 5500
TERRY CONNER & CAROL CONNER JT TEN 300000
CUSTOM MANUFACTURED HOMES INC 5000000
ANDREW DEVRIES III 75000000
ANDREW DEVRIES III 18175000
DREAM MAKERS ENTERPRISES 22526
ROBERT DUCH 1964137
SETH A FARBMAN 250000
JOSEPH E FOSTER 56330
PAUL H FRAZELL 30418
MICHAEL E GARVER 3386
GMR DAVIS INC 28165
BONNEY GOLDSTEIN REV TR 180000
GRAY DOG WALKING MINISTRIES 22526
JAMES GRAY JR 1134
KATHERINE K GUSTKE 16902
ARTHUR W HUGHES 6000
SCOTT HUGHES & ROBIN HUGHES JT TEN 240000
REAL TIME INTERESTS INC 5000
CASSANDRA BOLTON JACKSON 100000
W M JACKSON 70000
NEIL JONES 240000
JSTP ENTERPRISE 11263
KOM ENTERPRISES 22526
KEVIN KRIMMEL 42063
GENE R LE GRAND 22526
TODD LEWIS 2500
ROBERT MARTIN 1200
EDWARD FRANCIS MORAN III 400000
ALLEN J MULLINS 220582
YVONNE MURREN 3386
DWAYNE MUZNY 1000
LONG H NGUYEN 5000
RONALD M OAKLEY 45067
TROY OTILLIO & JENNIFER OTILLIO JT TEN 600000
MICHAEL PARK 1500000
TOM PARSONS 72097
23
STEPHEN P PAYNE 50000
PENSON FINANCIAL SERVICES INC 5000000
PEOPLE SMART RESOURCES 16902
CHRIS PETRILLA 20000
PROFESSIONAL TRUST MANAGEMENT 237836
THE ROYAL BLOODLINE OF DAVID 11263
RUBIN INVESTMENT GROUP 2000000
MARK SARLO 64700
JEFF SERGENT 2600
RICHARD L SNYDER 28165
SOUTHERN INDIANA SPEECH SERVICES LLC 22562
BRAD STAPP 1000
JOHN STARNES 15000
SHAI STERN 3000000
TERRAPIN STATION MINISTRIES 109288
T&L ENTERPRISES 11263
KENNETH TRIESCH 40000
MARK TRIESCH 29000
BRETT VALLERY 1000
NICOLE LEIGH VAN COLLER 5000000
WEST FACE INVESTMENTS 604725
CAROL EPPS WHITE 22526
GEORGE WILLIAMS 19714
JUANITA WILTBANK & BENJAMIN WILTBANK JTWROS 1500
NANCY ZITO 14649
24
Schedule 4.22
BANK ACCOUNTS
Frost National Bank Account #75 0008877
25