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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Date:

2006

Size:

Preview shows 27KB of 93KB total

Price:

$41

ID:

#937343

► Plans ► Agreements ► Agreements & Plans of Merger

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AGREEMENT AND PLAN OF MERGER

among

Omni U.S.A., Inc.,

Omni Merger Sub, Inc.,

Edward Daniel

Jeffrey Daniel

and

Brendan Technologies, Inc.

Dated as of December 29, 2005

AGREEMENT AND PLAN OF MERGER, dated as of December 29, 2005 (the Agreement), among Omni U.S.A., Inc., a Nevada corporation (Omni), Omni Merger Sub, Inc., a Michigan corporation and wholly owned subsidiary of Omni (Merger Sub), and Jeffrey Daniel and Edward Daniel, on the one hand, and Brendan Technologies, Inc., a Michigan corporation (the Company), on the other hand. Omni, Merger Sub, and the Company are collectively referred to herein as the Parties. Omni, Jeffrey Daniel, Edward Daniel and Merger Sub are sometimes referred to herein collectively as the Omni Parties.

RECITALS:

WHEREAS, the respective boards of directors of each of Omni, Merger Sub and the Company have approved the merger of Merger Sub with and into the Company (the Merger) upon the terms and subject to the conditions set forth in this Agreement;

WHEREAS, the Merger was approved by a majority of the Companys Shareholders at a meeting duly noticed and held on February 12, 2004.

WHEREAS, it is intended that, for federal income tax purposes, the Merger shall qualify as a reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the Code); and

WHEREAS, the Company, Omni and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.

NOW, THEREFORE, in consideration of the premises and mutual promises herein made, and in consideration of the representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the Parties agree as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Definitions. The following terms shall, when used in this Agreement, have the following meanings:

Acquisition means the acquisition by a Person of any businesses, assets or property other than in the ordinary course, whether by way of the purchase of assets or stock, by merger, consolidation or otherwise.

Affiliate means, with respect to any Person: (i) any Person directly or indirectly owning, controlling, or holding with power to vote 10% or more of the outstanding voting securities of such other Person (other than passive or institutional investors); (ii) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other Person; (iii) any Person directly or indirectly controlling, controlled by, or under common control with such other Person; and (iv) any officer, director or partner of such other Person. Control for the foregoing purposes shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or voting interests, by contract or otherwise.

Assets of any Party mean all properties, assets, privileges, powers, rights, interests and claims of every type and description that are owned, leased, held, used or useful in the Business of such Party and in which such Party has any right, title or interest or in which such Party acquires any right, title or interest on or before the Closing Date, wherever located, whether known or unknown, and whether or not now or on the Closing Date on the books and records of such Party, but excluding any of the foregoing, if any, transferred prior to the Closing pursuant to this Agreement or any Collateral Documents.

Business of any Party means the business of such Party as then being conducted.

Business Day means any day other than Saturday, Sunday or a day on which banking institutions in Los Angeles, California, are required or authorized to be closed.

Code means the United States Internal Revenue Code of 1986, as amended.

Collateral Documents mean the Exhibits and any other documents, instruments and certificates to be executed and delivered by the Parties hereunder or thereunder.

Commission means the Securities and Exchange Commission or any Regulatory Authority that succeeds to its functions.

Company Common Stock means the common shares of the Company.

Company Shareholders means, as of any particular date, the holders of Company Common Stock on that date.

Encumbrance means any material mortgage, pledge, lien, encumbrance, charge, security interest, security agreement, conditional sale or other title retention agreement, limitation, option, assessment, restrictive agreement, restriction, adverse interest, restriction on transfer or exception to or material defect in title or other ownership interest (including restrictive covenants, leases and licenses).

ERISA means the Employee Retirement Income Security Act of 1974, as amended.

Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

GAAP means United States generally accepted accounting principles as in effect from time to time.

Legal Requirement means any statute, ordinance, law, rule, regulation, code, injunction, judgment, order, decree, ruling, or other requirement enacted, adopted or applied by any Regulatory Authority, including judicial decisions applying common law or interpreting any other Legal Requirement.

Losses shall mean all damages, awards, judgments, assessments, fines, sanctions, penalties, charges, costs, expenses, payments, diminutions in value and other losses, however suffered or characterized, all interest thereon, all costs and expenses of investigating any claim, lawsuit or arbitration and any appeal therefrom, all actual attorneys, accountants investment bankers and expert witness fees incurred in connection therewith, whether or not such claim, lawsuit or arbitration is ultimately defeated and, subject to Section 10.4, all amounts paid incident to any compromise or settlement of any such claim, lawsuit or arbitration.

Liability means any liability or obligation (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

Material Adverse Effect means a material adverse effect on (i) the assets, Liabilities, properties or business of the Parties, (ii) the validity, binding effect or enforceability of this Agreement or the Collateral Documents or (iii) the ability of any Party to perform its obligations under this Agreement and the Collateral Documents; provided, however, that none of the following shall constitute a Material Adverse Effect on the Company: (a) occurrences due to a disruption of a Partys business as a result of the announcement of the execution of this Agreement or changes caused by the taking of action required by this Agreement, (b) general economic conditions, or (c) any changes generally affecting the industries in which a Party operates.

Merger Shares means the shares of Omni Common Stock deliverable by Omni for Company Common Stock pursuant to Section 2.5.

Omni Common Stock means the common shares of Omni.

Omni Securities Filings means Omnis Annual Report on Form 10-KSB and its quarterly reports on Form 10-QSB, and all other reports filed and to be filed with the Commission prior to the Effective Time.

Permit means any license, permit, consent, approval, registration, authorization, qualification or similar right granted by a Regulatory Authority.

Permitted Liens means (i) liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings; (ii) rights reserved to any Regulatory Authority to regulate the affected property; (iii) statutory liens of banks and rights of set off; (iv) as to leased assets, interests of the lessors and sublessors thereof and liens affecting the interests of the lessors and sublessors thereof; (v) inchoate materialmens, mechanics, workmens, repairmens or other like liens arising in the ordinary course of business; (vi) liens incurred or deposits made in the ordinary course in connection with workers compensation and other types of social security; (vii) licenses of trademarks or other intellectual property rights granted by the Company or Omni, as the case may be, in the ordinary course and not interfering in any material respect with the ordinary course of the business of the Company or Omni, as the case may be; and (viii) as to real property, any encumbrance, adverse interest, constructive or other trust, claim, attachment, exception to or defect in title or other ownership interest (including, but not limited to, reservations, rights of entry, rights of first refusal, possibilities of reverter, encroachments, easement, rights of way, restrictive covenants, leases, and licenses) of any kind, which otherwise constitutes an interest in or claim against property, whether arising pursuant to any Legal Requirement, under any contract or otherwise, that do not, individually or in the aggregate, materially and adversely affect or impair the value or use thereof as it is currently being used in the ordinary course.

Person means any natural person, corporation, partnership, trust, unincorporated organization, association, limited liability company, Regulatory Authority or other entity.

Proposed Acquisition means any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than 50% of the aggregate equity interests in the surviving or resulting entity of such transaction, (ii) a sale or other disposition by the Company of assets representing in excess of 50% of the aggregate fair market value of the Company Business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of 50% of the voting power of the then outstanding shares of capital stock of the Company.

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