UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 28, 2004
Nannaco, Inc.
(Exact name of registrant as specified in its charter)
Texas
(State or other jurisdiction of incorporation)
000-50672
(Commission File Number)
74-2891747
(IRS Employer Identification No.)
7235 North Creek Loop, Gig Harbor, WA 98335
(Address of principal executive offices)(Zip Code)
Registrant's telephone number, including area code: (253) 853-3632
--------------------------------------------------------------
(Former name or former address, if changed since last report.)
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)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
FORM 8-K
Nannaco, Inc.
Section 1 - Registrant's Business and Operations
Item 1.01 Entry into a Material Definitive Agreement
On October 28, 2004 Nannaco, Inc. ("Registrant") and NAZZ Productions,
Inc. entered into a agreement to merge a subsidiary of Registrant into NAZZ
Productions, Inc. ("NAZZ") and to rename Registrant NAZZ Productions, Inc. (the
"reverse merger"). The agreement provides that all of the shares of common stock
of NAZZ issued and outstanding at the time the merger becomes effective under
applicable state law (the "Effective Time"), will be converted into common stock
of Registrant such that the current holder of NAZZ common stock will hold 95% of
all shares of Registrant's common stock outstanding immediately after the
closing of this merger transaction, on a fully diluted basis. The obligation of
NAZZ to close is conditioned on, among other things, the satisfactory completion
of due diligence review by NAZZ and the reduction of Registrant's liabilities to
$50,000 or less. The agreement may be terminated at any time prior to the
Effective Time by written agreement; by NAZZ for breach of any of the
representations and warranties or covenants of Registrant if such breach is not
cured within thirty days of written notice; by Registrant for breach of any NAZZ
representations and warranties or covenants if the breach is not cured within
thirty days of written notice; by either party in the event the merger is not
closed by December 30, 2004.
In the event Registrant breaches the agreement with NAZZ by engaging in
efforts leading to the acquisition of Registrant by a corporation other than
NAZZ then, NAZZ shall be entitled to a $200,000 "break-up fee".
Section 2 - Financial Information
Section 3 - Securities and Trading Markets
Item 3.02 Unregistered Sales of Equity Securities
On October 29, 2004 Registrant issued shares of common stock to Steve
Careaga in the amount of 30,000,000 shares. The common stock is issued to
Careaga in his capacity as Chief Financial Officer and director as consideration
of services past and continuing and subject to substantial conditions
constituting events of forfeiture. Under conditions of the issuance, Careaga
must raise capital in excess of $5,000,000 within 90 days following this
issuance or forfeit the shares.
The stock was sold by Registrant pursuant to a board of directors'
resolution in reliance on the Securities Act of 1933 and an exemption from the
registration provisions of that law contained in section 4 (2) thereof.
Section 4 - Matters Related to Accountants and Financial Statements
Section 5 - Corporate Governance and Management
Section 6 - [Reserved]
Section 7 - Regulation FD
Section 8 - Other Events
Item 8.01 Other Events
A press release to be issued October 29, 2004 describing, among other
things the business to be acquired and summary terms of the merger is attached
hereto as Exhibit 99.
Section 9 - Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
The financial statements of NAZZ and pro forma financial statements of the
combined entities will be filed by amendment or by inclusion in the Form 10KSB
due to be filed with the SEC by December 30, 2004 in which case the required
financial information will be incorporated by reference in an amendment to this
Form 8-K.
EXHIBIT NUMBER DESCRIPTION LOCATION
2 Agreement and Plan of Merger Filed
Herewith
10.8 Consulting Agreement with Steve Filed
Careaga, October 29, 2004 Herewith
99 Press Release re Merger dated Filed
October 28, 2004 Herewith
SIGNATURES
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.
NANNACO, INC.
(Registrant)
Date :
/s/ Steve Careaga
- --------------------------------------
Steve Careaga, Chief Executive Officer
Exhibit 2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement") is entered into as of
October 28, 2004 (the "Execution Date"), by and among Nannaco, Inc., a Texas
corporation ("NNCO"), Nannaco Acquisitions, Inc., a Delaware corporation
("Acquisition Sub"), and NAZZ Productions, Inc., a Pennsylvania corporation
("NAZZ"). This Agreement supersedes the Agreement and Plan of Merger between the
parties executed and dated October 25, 2004.
RECITALS
A. NNCO wishes to issue to NAZZ shareholders (the "NAZZ Shareholders"), on the
terms and conditions set forth in this Agreement, the number of shares of NNCO
common stock necessary such that, subsequent to the Closing (defined below in
Section 2.1), the shareholders of NAZZ shall own approximately Ninety-five
Percent (95%) of the issued and outstanding shares of NNCO, on a fully diluted
basis immediately following the Closing.
B. Upon consummation of the Merger (defined in Section 1.2 below), Acquisition
Sub shall merge with and into NAZZ, and NAZZ shall become a wholly-owned
subsidiary of NNCO.
C. NAZZ Shareholders are the owners of 1,462 shares of common stock (the "NAZZ
Shares"), which amount represents all issued and outstanding capital stock of
NAZZ.
D. Each NAZZ share (other than shares to be canceled in accordance with Section
1.1(b)) shall be converted into the right to receive fully paid and
nonassessable shares of common stock, par value $0.001 per share, of NNCO
representing 95% of the fully diluted number of shares of common stock of NNCO
to be issued and outstanding immediately after Closing (the "NNCO Shares"). As
of the Effective Time, all the NAZZ 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 NAZZ 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)(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 shares of NAZZ 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 NAZZ.
(b) Cancellation of Treasury Stock of NAZZ Owned by NAZZ. Each share of NAZZ
that is owned by NAZZ shall automatically be cancelled and shall cease to exist,
and no consideration shall be delivered or deliverable in exchange therefor.
(c) Conversion of the NAZZ Shares. Each of the NAZZ Shares (other than shares to
be canceled in accordance with Section 1.1(b)) shall be converted into the right
to receive fully paid and nonassessable shares of common stock, par value $0.001
per share, of the NNCO Shares necessary to give effect to the relative ownership
of NNCO Shares by NAZZ shareholders expressed above in Recital A. As of the
Effective Time, all the NAZZ 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 NAZZ Shares shall cease to have any
rights with respect thereto, except the right to receive the 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, Pennsylvania 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 Pennsylvania.
1.3 Procedure. Each certificate evidencing ownership of NAZZ 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) NAZZ Shares shall cease to be outstanding and shall be converted
into and exchanged for the NNCO Shares. The NNCO Shares exchanged for NAZZ
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 such that the name "Nannaco, Inc." shall become "NAZZ
Productions, Inc.".
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."
2.2 NAZZ Closing Documents. At the Closing, NAZZ shall deliver the following
documents to NNCO (collectively, the "NAZZ Closing Documents"):
2.2.1 NAZZ Share Certificates. Certificates representing all of NAZZ
Shares;
2.2.2 Articles of Merger. The Articles of Merger to be filed with
the state of Pennsylvania and Delaware, executed by NAZZ;
2.2.3 Good Standing Certificate. A certificate issued by the
Secretary of State of Pennsylvania indicating that NAZZ is qualified to do
business and is in good standing within such jurisdiction;
2.2.4 NAZZ Officer's Certificate. A certificate dated as of the
Closing Date executed by a duly authorized officer of NAZZ certifying that all
necessary actions have been taken by NAZZ 's shareholders and directors to
authorize the transactions contemplated by this Agreement and that all
representations and warranties made by NAZZ 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 NAZZ approving the Merger with NNCO and the
Acquisition Sub and the execution by NAZZ of this Agreement;
2.2.6 Appraisal Rights.In the event that shareholders of NAZZ are
entitled to "appraisal rights" pursuant to Pennsylvania law, copies of all
written appraisal notices and forms sent by NAZZ to the shareholders of NAZZ as
required by Pennsylvania law, including any waiver of "appraisal rights" by NAZZ
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 NAZZ 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 Pennsylvania 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 NAZZ Shareholders representing such NAZZ
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 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 NAZZ 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. NAZZ 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 NAZZ 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 NAZZ's counsel may deem to be necessary or advisable to effect
the transactions contemplated by this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF NAZZ.
NAZZ 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 NAZZ. NAZZ is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Pennsylvania. NAZZ
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. NAZZ 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, NAZZ has full
power and authority (including full corporate power and authority) to execute
and deliver this Agreement and NAZZ Closing Documents and to perform its
obligations hereunder and thereunder. This Agreement constitutes, and NAZZ
Closing Documents will constitute, valid and legally binding obligations of
NAZZ, enforceable in accordance with their respective terms and conditions.
3.3 Noncontravention. Neither the execution and the delivery of this Agreement
or NAZZ Closing Documents, nor the consummation of the transactions contemplated
hereby or thereby by NAZZ, 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 NAZZ 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 NAZZ is a party or by which it is
bound or to which any of its assets is subject. NAZZ 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 NAZZ consists of 2,000
shares of common stock, of which 1,462 shares are issued and outstanding, and no
shares of preferred stock. All issued and outstanding shares of NAZZ 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 NAZZ 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 NAZZ, and there are no dividends which have accrued or been
declared but are unpaid on the capital stock of NAZZ. There are no outstanding
or authorized stock appreciation, phantom stock or similar rights with respect
to NAZZ. NAZZ Shares are duly authorized and validly issued, fully paid and
nonassessable. NAZZ Shares are not subject to any preemptive rights or other
similar restrictions.
3.6 Tax Treatment. As of the date of this Agreement, NAZZ 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 NAZZ Closing Documents, nor the consummation of the transactions
contemplated hereby or thereby, by NAZZ 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
NAZZ 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
NAZZ is a party or by which NAZZ is bound or to which NAZZ is subject. NAZZ 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 NAZZ, 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 NAZZ, 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 NAZZ
as stated in the Financial Statements that would result in a Material Adverse
Effect on NAZZ.
3.10 Litigation. Except as provided in the Reports and Financial Statements, or
otherwise disclosed to NNCO 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 NAZZ which would
reasonably be expected to result in any liabilities, including defense costs, in
excess of $10,000 U.S. in the aggregate. NAZZ 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.
3.11 Taxes and Tax Returns. Except as provided in the Reports and Financial
Statements, or otherwise disclosed to NNCO prior to the Execution Date, NAZZ 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 NAZZ do not exceed $5,000
U.S. in the aggregate.
3.12 PURPOSELY LEFT BLANK.
3.13 Compliance with Applicable Law.
3.13.1 NAZZ 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 NAZZ
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 NAZZ.
3.13.2 NAZZ 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 NAZZ.
3.14 Contracts and Agreements. NAZZ is not a party to or bound by any
commitment, contract, agreement or other instrument which involves or could
involve aggregate future payments by NAZZ of more than $10,000 U.S., (ii) NAZZ
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 NAZZ, and (iii) no commitment, contract, agreement or
other instrument, other than charter documents, to which NAZZ is a party or by
which NAZZ is bound, limits the freedom of NAZZ to compete in any line of
business or with any person. NAZZ is not in default on any contract, agreement
or other instruments.
3.15 Affiliate Transactions.
3.15.1 NAZZ 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 NAZZ of $10,000
U.S. or more.
3.15.2 For purposes of this Section 3.14, "Affiliated Person" means:
(a) a director, executive officer or Controlling Person (as defined
below) of NAZZ;
(b) a spouse of a director, executive officer or Controlling Person
of NAZZ;
(c) a member of the immediate family of a director, executive
officer, or Controlling Person of NAZZ who has the same home as such person;
(d) any corporation or organization (other than NAZZ) of which a
director, executive officer or Controlling Person of NAZZ 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 NAZZ 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.
3.16 Limited Representations and Warranties. Except for the representations and
warranties of NNCO expressly set forth in Section 4, NAZZ 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.
3.17 Disclosure. No representation or warranty made by a NAZZ contained in this
Agreement, and no statement contained in the Schedules delivered by NAZZ
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.
3.18 Title to Property.
3.18.1 Environmental Matters. NAZZ does not have any financial
liability under any environmental laws.
3.19 Appraisal Rights. NAZZ has complied and is in full compliance with any and
all provisions of Pennsylvania law relating to "appraisal rights".
4. REPRESENTATIONS AND WARRANTIES OF NNCO
NNCO hereby represents and warrants to NAZZ 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 approximately 4,742,533 shares
are issued and outstanding, and 100,000,000 shares of preferred stock, $.001 par
value, of which 10,000,000 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 NAZZ, 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.
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 NAZZ 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 NAZZ 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
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 NAZZ expressly set forth in Section 3, NNCO has not relied upon
any representation and warranty made by or on behalf of NAZZ 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.
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 NAZZ, 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
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 NAZZ, 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
NAZZ 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);
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 NAZZ 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 NAZZ 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 NAZZ 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 NAZZ by reason of
such breach and the terms of this Agreement. NNCO and NAZZ agree that actual
damages would be difficult to ascertain and that $200,000 U.S. is a fair and
equitable amount to reimburse NAZZ for such damages and the termination of this
Agreement.
5.3 Access to Properties and Records; Confidentiality.
5.3.1 NNCO shall permit NAZZ and its representatives reasonable
access to its properties and shall disclose and make available to NAZZ 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 NAZZ 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.
5.3.2 All information furnished by NNCO to NAZZ or the
representatives or affiliates of NAZZ 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 NAZZ 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) NAZZ 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 NAZZ or by the
directors, officers, employees, agents or representatives of NAZZ; or (z) was
disclosed to NAZZ, or to the directors, officers, employees or representatives
of NAZZ, 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 NAZZ's shareholders. NNCO and NAZZ shall each have the right to
review reasonably in advance all information relating to NNCO or NAZZ, 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 NAZZ will promptly furnish each other with copies of
written communications received by NNCO or NAZZ 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.
5.7 Appraisal and Dissenters' Rights. Notwithstanding any other provision in
this Agreement to the contrary, NAZZ 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 NAZZ'S OBLIGATIONS.
The obligations of NAZZ 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 NAZZ:
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 liabilities not to exceed
$50,000 as reflected in the most recent 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. NAZZ 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 NAZZ 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.
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 NAZZ.
6.11 Due Diligence. NAZZ shall be satisfied with its due diligence review of
NNCO and all of NNCO's affiliated entities including, but not limited to, any
subsidiaries, parents or brother or sister corporations of NNCO.
6.12 Closing Schedules. NNCO shall, along with and as part of the requisite
Closing Documents, submit a schedule of outstanding liabilities to be satisfied
in accordance with NAZZ's expectations as set forth in this Agreement prior to,
and as a condition of, the closing.
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 NAZZ's Covenants, Representations and Warranties. All the covenants, terms
and conditions of this Agreement to be complied with or performed by NAZZ on or
before the Closing Date shall have been complied with and performed in all
respects. The representations and warranties made by NAZZ 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 NAZZ. NAZZ shall have duly executed and delivered,
or caused to be executed and delivered, to NNCO, or at its direction, this
Agreement, NAZZ Shares and NAZZ 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 NAZZ Shareholder Approval. This Agreement shall have been approved and
adopted by the affirmative votes of that amount of NAZZ'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 NAZZ
and all of NAZZ's affiliated entities including, but not limited to, any
subsidiaries, parents or brother or sister corporations of NAZZ.
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 NAZZ, 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 NAZZ;
(c) by NNCO in the event of any of the representations or warranties
made by NAZZ in this Agreement that has not been cured within 30 days after
notice of such breach as delivered to NAZZ by NNCO; or
(d) by either NNCO or NAZZ if the Closing shall have not occurred by
December 30, 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 NAZZ:
Nick Stagliano, President
NAZZ Productions Inc.
1931 Berkley Road
Norristown, PA 19403
Phone: (212) 475-6270
E-mail: nazzfilm@aol.com
Greenberg Traurig, LLP
With a copy (which shall not Met Life Building
constitute notice) to: 200 Park Avenue
New York, NY 10166
Marc Jacobson, Esq.
Lead Counsel
Main: (212) 801-6516
Fax: (212) 805-5516
E-mail: jacbsonm@gtlaw.com
If to NNCO: Mr. Steve Careaga
C.E.O.
NANNACO, Inc.
7235 North Creek Loop
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 Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
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.
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 NAZZ 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
NAZZ and NNCO or chosen in accordance with the AAA Rules, to be held in New
York, NY, 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.
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
NAZZ:
NAZZ PRODUCTIONS, INC.
By:
------------------------------------------
Name: Nick Stagliano
Title: President and Chief Executive Officer
ACQUISITION SUB:
NANNACO ACQUISITION, INC.
By:
------------------------------------------
Name: David Otto
Title: President and Secretary
Schedule 1.1
NAZZ SHAREHOLDERS
Nick Stagliano
Bartholomew International Investments Ltd., Inc.
Cambridge Partners, LLC
Schedule 4.5
NANNACO, INC. SHAREHOLDERS
Schedule 4.22
BANK ACCOUNTS