Exhibit 10.1
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ACQUISITION AGREEMENT
By and Between
T&G2, INC.
and
HOLTERMANN & TEAM GMBH
Dated as of March 29, 2004
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ACQUISITION AGREEMENT
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THIS
ACQUISITION
AGREEMENT is made and entered into this 15th day of
March, 2004 (the "Agreement") by and between
T&G2, Inc. a
Nevada corporation
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("Buyer"), and Holtermann & Team, GmbH,
a German company ("Seller").
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WHEREAS, Seller
operates a marketing an distribution company located at
Kranichsteiner Strasse 21, Frankfurt am Main,
Germany 60598 (the
"Business");
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and
WHEREAS, the
purchase price for all of the assets of Buyer by Seller,
together with 100% (one hundred
percent) of all equity
interest of Seller
(the
"Purchased A&E") is Ten Million Shares of Buyer's restricted Class A Common
Stock (the "Acquisition Shares"); and
WHEREAS, subject
to the foregoing, Seller desires to sell and Buyer
desires to purchase the Purchased A&E
in accordance with the terms, conditions,
and agreements hereinafter contained.
NOW
THEREFORE, in
consideration of the mutual premises and the covenants
and promises hereinafter contained,
and other good and
valuable
consideration,
the receipt and sufficiency of which are
hereby acknowledged, the parties hereto
intending to be legally bound hereby agree
as follows:
Section 1. Sale and Purchase of
Assets and Equity.
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1.1
Sale of
Purchased Assets.
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On
the terms and subject to the conditions set forth in this Agreement,
at the Closing, Seller will sell, convey, transfer and assign to Buyer, and
Buyer will purchase and accept from Seller
all right, title and
interest in and
to all assets of Seller (other than the
Excluded Assets, as hereinafter defined)
used in the operation of the Business,
(collectively,
the "Purchased
Assets"),
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including, without limitation, the
following:
(a)
Personal Property.
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The tangible
and intangible personal property set forth on
Schedule 1.1(a) (the "Personal
Property").
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(b)
Leases.
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The rights of Seller under the real and personal property leases
and subleases set forth on Schedule
1.1(b).
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(c)
Contracts.
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The rights and benefits of Seller under all contracts,
agreements,
license agreements, vendor agreements, purchase orders, commitments, sales
orders and supply agreements set forth on
Schedule 1.1(c).
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(d)
Permits.
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The certificates,
permits, license rights, consents, grants,
ordinances, leaseholds, and all rights to construct,
maintain and operate
the
Business and every right of every
character whatever in connection
therewith,
and the obligations thereof, and all renewals, extensions, additions or
modifications of any of the foregoing;
as identified in
Schedule 1.1(d),
but
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only to the extent that Seller's rights to
the foregoing are transferable under
applicable federal, state, local, foreign or other laws, rules,
regulations,
orders, injunctions, building and other codes,
ordinances, permits,
licenses,
decrees of federal, state, local, foreign or other authorities
(collectively,
"Laws"), (collectively, the "Permits");
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(e)
Customer List.
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The customer list of
the Business and all books, files, papers,
supplier lists (identified in Schedule 1.1(e) and other databases, licensee
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lists, distributor lists, bid information
and customer
correspondence relating
exclusively to the Business.
(f)
Goodwill.
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The goodwill associated exclusively with the Business.
1.2
Excluded
Assets.
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Notwithstanding
Section 1.1 of this
Agreement and its subparts, the
Purchased A&E shall specifically exclude the Excluded Assets (as hereinafter
defined), which Excluded Assets shall remain
the sole and exclusive property of
Seller. The Excluded Assets shall include:
(a) those Excluded
Assets, if any,
specifically identified in Schedule
1.2.
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1.3
Method of
Conveyance.
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(a) Upon
delivery of the Acquisition Shares, the sale,
transfer, conveyance, assignment and delivery by Seller
of the Purchased A&E to
Buyer in accordance with Section 1.1 shall be effected on
the Closing Date by
Seller's execution and delivery of one or
more bills of sale,
assignments, and
other instruments of conveyance and
transfer.
(b) At the
Closing, Seller shall sell, transfer, convey, assign
and deliver to Buyer title to: (i) the
Personal Property
specifically set forth
on Schedule 1.1(a) hereto by a separate Bill
of Sale and Assignment in the form
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attached hereto as Exhibit 5.5(a), free and
clear of any and all liens, security
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interests and rights of Seller (collectively, "Liens"), except for Liens,
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encumbrances and other encroachments
specifically
identified in Schedule 1.3(b)
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(collectively, the "Permitted Liens") and Liens, if any, created
by Buyer, and
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subject to the Assumed Obligations
(c) At the
Closing, except as
expressly set forth in Section
1.3(b) with respect to the Personal
Property, Seller shall
remise, release
and
quitclaim to Buyer all Seller's right, title and interest in and to the
Purchased A&E, without warranties or covenants of title or otherwise, and
subject to the Assumed Obligations.
The form of such
quitclaim conveyance shall
be in a form reasonably acceptable to
counsel for Seller and Buyer giving effect
to the terms of this Agreement.
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1.4 Assumed
Obligations.
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At
the Closing,
Buyer shall assume and shall agree to satisfy and
discharge, as the same shall become due, (a) all of the liabilities,
obligations, contracts and commitments
arising under the
Purchased A&E or from
the operation of the Business, including,
without limitation, those set forth on
Schedule 1.1(b) and Schedule 1.1(c);
and (b) all
liabilities,
obligations and
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commitments set forth on Schedule 1.4(b) (collectively, the "Assumed
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Obligations").
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1.5
Excluded
Obligations.
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Buyer is not assuming, and Seller shall remain fully responsible
for, all
indebtedness, liabilities, obligations,
contracts and commitments of Seller that
are not Assumed Obligations (the "Excluded
Obligations").
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1.6
Closing
Date.
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The
closing of the
transactions
contemplated by this
Agreement shall
occur on or about April 1, 2004 (the
"Closing" or "Closing Date") or at such
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other date, time and place as may be agreed
upon by the parties.
Section 2. Purchase Price.
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2.1
Purchase
Price.
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At
the Closing, Seller
shall convey, transfer, assign and deliver to
Buyer the Purchased A&E in exchange for (a)
Buyer's assumption of
the Assumed
Obligations; and (b) issuance of the Acquisition Shares, fully paid, non
assessable and duly issued (collectively,
the "Purchase Price").
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2.2
Payment
Terms.
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(a)
Payment.
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The Purchase Price shall be payable to Seller as follows:
(i) On the
Closing Date, Buyer shall cause the delivery,
as appropriate, of the Purchase Price to Seller by hand delivery or
internationally recognized overnight
delivery service, or as otherwise agreed to
by the parties.
2.3
Restrictive Legend
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Seller and
Buyer agree that the Acquisition Shares have not been
registered in any jurisdiction and will
bear the restrictive legend as set forth
on Schedule 2.3.
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Section 3. Representations and
Warranties.
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3.1
Seller.
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Seller hereby represents and warrants to Buyer, all of which
representations and warranties are true,
complete, and correct in all material
respects as of the date hereof and as of
the Closing Date, as follows:
(a)
Brokers.
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Seller has not dealt with any broker, salesman, finder or similar
person in connection with any part of the transactions contemplated by this
Agreement, and, to Seller's actual knowledge, without inquiry, no broker,
salesman, finder or similar person is entitled to any
commission
or fee with
respect to such transactions as a result of
Seller's actions.
(b) Title
to Purchased Assets.
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As of the Closing Date, to the extent of Seller's interest
therein, Seller shall have good and valid title to the Personal Property
specifically set forth on Schedule 1.1(a) hereto, free and clear of any Liens
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except Permitted Liens, and except for Liens, if any,
created by Buyer,
and
subject to the Assumed Obligations.
(c)
Restrictions on Transfer.
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Seller acknowledges
that the Acquisition
Shares are being issued
in accordance with Regulation S and will bear a
restrictive legend as
required
by Law. Seller represents that it will take no action contrary to the
restrictions on transfer set forth in
Regulation S and will take all reasonable
efforts to ensure compliance with same.
3.2
Buyer.
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Buyer hereby
represents
and warrants to Seller, all of which
representations and warranties are true,
complete, and correct in all material
respects as of the date hereof and as of
the Closing Date, as follows:
(a)
Brokers.
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Buyer has not dealt with any broker, salesman, finder or similar
person in connection with any part of the transactions contemplated by this
Agreement, and, to Buyer's actual knowledge without inquiry, no broker,
salesman, finder or similar person is entitled to any
commission
or fee with
respect to such transactions as a result of
Buyer's actions.
(b)
Restrictions on Transfer.
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Buyer acknowledges that the Acquisition Shares are being issued
in
accordance with Regulation S and will bear a
restrictive legend as
required by
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<PAGE>
Law. Buyer represents that it will take no
action contrary to the
restrictions
on transfer set forth in Regulation S and will take all
reasonable
efforts to
ensure compliance with same.
Section 4. Covenants Prior to
Closing.
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4.1
Seller's
Covenants.
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Seller covenants
that, except as otherwise consented to in writing by
Buyer, from and after the date hereof until the Closing or the earlier
termination of this Agreement, the Business will be conducted only in the
ordinary course and in substantially the same manner as heretofore
conducted
except as required by this Agreement; and Seller will use reasonable efforts
consistent with past practice to preserve the
organization of the
Business and
continuing business relationships with
suppliers, customers,
clients and others
having business relations with Seller with
respect to the Business.
4.2
Access.
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From
and after the date hereof and until the Closing or the termination
of this Agreement, Seller shall, upon
reasonable prior notice, give to Buyer and
to Buyer's counsel, accountants, consultants and other representatives and
designees, reasonable access during normal
business hours as Seller may approve,
to the properties, agreements, and records
with respect to the Business and will
furnish to Buyer, at Buyer's expense, copies, at a cost of no more than
$0.10
per page, of all documents and all such
information
concerning
the properties
and affairs of the Business as Buyer may
reasonably request.
4.3
Cooperation.
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Buyer and Seller agree
(a) to cooperate with
each other in
determining
whether any filings are required to be made
or consents required
to be obtained
in any jurisdiction in connection with the
consummation
of the transactions
contemplated hereby and in making or causing to be made any such filings
promptly and in seeking to obtain in a
timely manner any such consents; and (b)
to use all reasonable efforts to obtain promptly the satisfaction of the
conditions to the Closing of the
transactions
contemplated
herein. Buyer and
Seller shall furnish to each other and to each other's counsel all such
information as may be reasonably required
in order to effectuate the foregoing.
Section 5. Closing.
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5.1
Conditions
to Buyer's Obligations.
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The
obligations
of Buyer under this Agreement, including, without
limitation, the obligation to consummate and effect the purchase of the
Purchased Assets, shall be subject to
satisfaction of the following conditions,
unless waived by Buyer:
(a) Buyer
shall have a period of ten (10) days from the
execution of this Agreement in which to complete its
due diligence
including,
but not limited to, verification of income and
expenses. In the event
Buyer is
not completely satisfied, Buyer may
terminate this Agreement.
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(b) Seller shall have
performed in all material respects all
agreements, and satisfied in all material
respects all conditions on its part to
be performed or satisfied hereunder at or
prior to the Closing Date.
(c) All
representations
and warranties of
Seller herein shall
have been true and correct in all material respects when made, shall have
continued to have been true and correct in
all material
respects at all
times
subsequent thereto, and shall be true and correct in
all material respects
on
and as of the Closing Date as though made on, as of and
with reference to
such
date.
(d) Seller
shall have executed and delivered to Buyer all
documents contemplated by Section 5.5 of
this Agreement.
(e) Prior
to the Closing
Date, Buyer and Seller shall have
obtained all necessary authorizations,
consents, approvals
and permits required
by Law for the consummation of the
transactions
contemplated by this
Agreement
(collectively, "Regulatory Approvals").
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5.2
Conditions
to Seller's Obligations.
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The
obligations
of Seller under this Agreement, including, without
limitation, the obligation to consummate
and effect the sale of
the Purchased
A&E shall be subject to satisfaction of
the following conditions, unless waived
by Seller:
(a) Buyer
shall have performed
in all material respects all
agreements, and satisfied in all material
respects all conditions on its part to
be performed or satisfied hereunder at or
prior to the Closing Date.
(b) All of
the representations
and warranties of
Buyer herein
shall have been true and correct in all
material respects when
made, shall have
continued to have been true and correct in
all material
respects at all
times
subsequent thereto, and shall be true and correct in
all material respects
on
and as of the Closing Date as though made
on, as of, and with
reference to such
date.
(c) Buyer
shall have executed and delivered to Seller all
documents contemplated by Section 5.4 of
this Agreement.
(d) Prior
to the Closing
Date, Buyer and Seller shall have
obtained all necessary Regulatory
Approvals.
5.3
Conditions
to Seller's and Buyer's Obligations.
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The
obligations of Seller
and Buyer to consummate and effect the sale of
the Purchased A&E pursuant to this
Agreement shall be subject to the
following
additional condition, unless waived by
Seller and Buyer:
(a) No
injunction
or temporary
restraining
order shall have
been granted restraining or prohibiting the
consummation
of the transactions
contemplated by this Agreement, and no action, suit or other proceeding
instituted by any federal, state, or local governmental
authority seeking
such
an injunction or order shall be pending or
threatened.
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5.4
Buyer's
Closing Documents.
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At
the Closing,
Buyer will
deliver to
Seller, in form and substance
consistent with this Agreement:
(a) The
Purchase Price as provided in Section 2.1.
(b) An
instrument
of assumption assuming the Assumed
Obligations, which instrument shall have
terms and conditions conforming to this
Agreement.
(c) Such
other documents as
Seller may reasonably
request to
effectuate the transactions contemplated by
this Agreement.
5.5
Seller's
Closing Documents.
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At
the Closing,
Seller will deliver to Buyer, in form and substance
consistent with this Agreement:
(a) A Bill
of Sale in the
form attached hereto as Exhibit
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5.5(a).
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(b)
Assignment of the real property lease, if any.
(c) Copies
of company resolutions authorizing the execution and
delivery of, and performance of Seller's
obligations under, this Agreement.
(d) A
certificate of Seller, certifying and warranting that the
representations, warranties and agreements
of Seller contained in this Agreement
are true and accurate in all material respects as of the Closing Date
and that
Seller has satisfied and performed all of
its respective obligations hereunder.
(e) Such
other documents as Buyer shall reasonably request to
effectuate the transactions contemplated by
this Agreement.
5.6
Closing
Apportionments.
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(a) The
following items shall be apportioned as of the close of
business on the day immediately prior to the Closing Date (with such meter
readings as shall be appropriate) and paid by Seller or Buyer to the
other, as
the case may be, or credited against the Purchase Price, in respect of all
peri
