EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") dated as
of July 8, 2004, is entered into by and between AMERIKAL INTERNATIONAL HOLDING,
INC., a Nevada corporation ("AIH"); RG GLOBAL LIFESTYLES, INC., a California
corporation ("Buyer" or "RGGL"); Horst Geicke, an individual and resident of
Hong Kong SAR; and certain individuals and companies as owners of all of the
issued and outstanding shares of AIH (hereinafter "Sellers") represented by
Bruce E. Thomsen as signatory to this Agreement on their behalf as a group. The
use of the term "Party" or "Parties" shall include one or collectively all
herein.
This Agreement is being entered into for the purpose of implementing
the foregoing purposes and sets forth the terms and conditions set forth herein
pursuant to which Sellers are selling to Buyer and Buyer is purchasing from the
Sellers all of the issued and outstanding common voting shares of AIH solely in
exchange for voting common stock of Buyer in a tax-free exchange of shares under
the applicable sections of the Internal Revenue Service Code.
In consideration of the mutual covenants, agreements, representations
and warranties contained herein, the parties agree as follows:
I. SALE OF THE SHARES
1.01 SHARES BEING EXCHANGED. Subject to the terms and conditions of this
Agreement, at the Closing provided for in Section 2.01 hereof (the "Closing"),
Sellers are selling, assigning and delivering to Buyer all issued and
outstanding shares as authorized by AIH and Buyer is acquiring such shares from
Sellers free and clear of all liens, claims, options, charges and encumbrances
whatsoever.
1.02 CONSIDERATION. Subject to the terms and conditions of this Agreement, in
reliance on the representations, warranties and agreements of Sellers contained
herein and in consideration of the aforesaid sale, assignment and delivery of
the Sellers' Shares, Buyer will deliver to Sellers Certificates representing a
total of One Million Nine Hundred Thousand (1,900,000) shares of common stock of
the Buyer on the date of Closing ("Buyer's Shares"). These shares upon issuance
shall be fully paid and non-assessable. The Buyer's Shares shall be distributed
to the Sellers as set forth on Schedule 1 hereto.
1.03 TRANSFER OF SHARES. Subject to the terms and conditions of this Agreement,
in reliance on the representations, warranties and agreements of Sellers
contained herein and to facilitate the aforesaid sale, assignment and delivery
of the Sellers' Shares, and in consideration of the payment of Ten (10) U.S.
dollars, Horst Geicke is selling, assigning and delivering to Sellers
representing a total of Sixteen Million Six Hundred Thirty Thousand Six Hundred
Seven (16,630,607) shares of common stock of the Buyer (the "Geicke Shares") and
Sellers are acquiring the Geicke Shares from Horst Geicke free and clear of all
liens, claims, options, charges and encumbrances whatsoever. Horst Geicke will
deliver to Sellers Certificates representing the Geicke Shares on the date of
the Closing. The Geicke Shares shall be distributed to the Sellers as set forth
on Schedule 1 hereto.
II. CLOSING
2.01 TIME AND PLACE. The Closing of the transactions contemplated by this
Agreement shall take place at the offices of AIH on July 28, 2004 or at such
other place and time as the parties shall mutually select.
2.02 DELIVERIES BY SELLERS. At the Closing, Sellers shall deliver to Buyer
(unless previously delivered):
(a) Certificates representing the Sellers' shares duly endorsed or
accompanied by Stock Powers duly executed in blank (with signatures
guaranteed by any national bank, NASD Brokerage Firm or Trust
corporation) and otherwise in form acceptable for transfer on the
books of AIH.
2.03 DELIVERIES BY AIH. At the Closing, AIH shall deliver to Buyer (unless
previously delivered):
(a) The stock books, stock ledgers, minute books and corporate seal of
AIH (all other books and records of Seller being located in AIH's
corporate premises);
(b) Certificates from appropriate authorities as to the good standing of
AIH in the State of Nevada dated as of the most recent practicable
date;
(c) Resignations of the Directors and Officers of AIH referred to in
Section 3.01 hereof; and
(d) All other previously undelivered items required to be delivered by
AIH to Buyer at or prior to the Closing.
2.04 DELIVERIES BY BUYER. At the Closing, Buyer shall deliver (unless
previously delivered) the following:
(a) Certificates representing Buyer's Shares and/or instructions to
Buyer's transfer agent instructing Buyer's transfer agent to issue
certificates representing Buyer's Shares to Sellers;
(b) Certificates from appropriate authorities as to the good standing of
Buyer in the State of California dated as of the most recent
practicable date;
(c) The stockholder list of the Buyer dated as of January 1, 2004 and as
of May 15, 2004 certified by the transfer company;
(d) Resignations of the Directors and Officers of Buyer referred to in
Section 3.01 hereof; and
(e) All other previously undelivered items required to be delivered by
Buyer to AIH at or prior to Closing.
III. RELATED TRANSACTIONS
3.01 RESIGNATIONS. At Closing, all directors and officers of AIH (except Herrie
Tantano and Grant King) shall submit their resignations from their respective
directorships and offices. At Closing, all directors (except Horst Geicke) and
officers of Buyer shall submit their resignations from their respective
directorships and offices, such resignations to be effective, in the case of
directors, as of the next annual or special shareholders meeting of Buyer at
which directors of Buyer are elected, and in the case of officers, as of the
next general or special meeting of the board of directors of Buyer at which
officers of Buyer are appointed and/or elected.
IV. REPRESENTATIONS AND WARRANTIES OF AIH
AIH and the Sellers hereby represent and warrant to the Buyer as follows:
4.01 TITLE TO SELLERS' SHARES. Sellers own, and are transferring to Buyer at
the Closing, good, valid and marketable title to the Sellers' shares, free and
clear of all liens, claims, options, charges and encumbrances whatsoever. AIH is
informed that, and to Sellers' knowledge, there are no outstanding options,
warrants or rights to purchase or acquire any of the Sellers' shares.
2
AIH hereby represents and warrants to the Buyer as follows:
4.02 VALID AND BINDING AGREEMENT. This Agreement constitutes the valid and
binding agreement of AIH, enforceable in accordance with its terms and as to
AIH, neither the execution and delivery of this Agreement nor the consummation
by AIH of the transactions contemplated hereby (a) violates or will violate any
statute or law or any rule, regulation or order of any court or governmental
authority; or (b) violates or will violate, conflict with or will conflict with
or constitutes default under or will constitute default under any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which AIH or ANC is a party or by which AIH or Amerikal Nutraceutical Corp., a
California corporation and a wholly-owned subsidiary of AIH ("ANC") is bound.
4.03 ORGANIZATION OF AIH.
(a) AIH is a corporation duly organized validly existing and in good
standing under the laws of the State of Nevada and has the corporate
power and authority to carry on its business as presently conducted.
ANC is a corporation duly organized validly existing and in good
standing under the laws of the State of California and has the
corporate power and authority to carry on its business as presently
conducted.
(b) The copies of the Articles of Incorporation and all amendments
thereto of AIH as Certified by the Secretary of the State of Nevada
and of the by-laws as amended to date of AIH as Certified by the
Secretary of AIH have heretofore been delivered to the Buyer and are
complete and correct copies of the Articles of Incorporation and the
By-laws of the corporation as amended and in effect on the date
hereof. All minutes of the Board of Directors and Shareholders of
AIH are contained in the minute book of the corporation delivered
heretofore to the Buyer for examination and being delivered to Buyer
at the Closing and no minutes have been included in such minute
books since such examination by the Buyer that have not also been
furnished to the Buyer.
(c) Each of AIH and ANC is duly qualified and in good standing to do
business in each jurisdiction in which the nature of the business
conducted by it or the ownership or leasing of its properties makes
such qualification necessary, other than where the failure to be so
duly qualified and in good standing would not reasonably be expected
to have a material adverse effect on or result in any material
liability to AIH or ANC.
4.04 CAPITALIZATION OF AIH.
(a) The authorized Capital Stock of AIH consists of 25,500,000 shares of
common stock of which 19,562,000 shares are issued and outstanding
as of the date hereof. All issued shares are duly authorized validly
issued and outstanding, fully paid and non-assessable.
(b) Except for the Sellers' shares there are no shares of capital stock
or other securities of AIH outstanding; there are no options,
warrants or rights to purchase or acquire any securities of AIH and
no securities of AIH are reserved for issuance for any purpose.
There are no contracts, commitments or agreements or understandings
that have not been fully performed nor any arrangements or
restrictions to which AIH is a party or by which AIH is bound
relating to any shares of capital stock or other securities of AIH.
4.05 SUBSIDIARIES AND AFFILIATES. ANC is the wholly-owned subsidiary of AIH.
Other than ANC, AIH does not own any capital stock or other securities of any
corporation and has no direct or indirect interest, and since its incorporation
has had no such interest, in any business.
3
4.06 NO VIOLATIONS OF AGREEMENTS. Neither the execution nor delivery of this
Agreement nor the consummation of the transactions contemplated hereby (a)
violates or will violate, conflict with or will conflict with or constitute a
default under the Articles of Incorporation or By-laws of AIH or ANC or any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which AIH or ANC is a party or by which it is bound; or (b) will
cause or give any person grounds to cause (with or without notice, the passage
of time, or both), the maturity of any liability or obligation of AIH or ANC to
be accelerated or will increase any such liability or obligation.
V. REPRESENTATIONS AND WARRANTIES OF BUYER AND HORST GEICKE
Buyer hereby represents and warrants to AIH and the Sellers as follows:
5.01 ORGANIZATION OF BUYER.
(a) Buyer is duly organized validly existing and in good standing under
the laws of the State of California and has the power and authority
to carry on its business as presently conducted.
(b) The copies of the Articles of Incorporation and the By-Laws of the
Buyer and all amendments thereto of the Buyer as Certified by the
Secretary of Buyer have heretofore been delivered to AIH and are
complete and correct copies of the Articles of Incorporation and the
By-Laws of the Buyer as amended and in effect on the date hereof.
(c) The Buyer is not licensed nor qualified to do business as a foreign
corporation in any jurisdiction and does not require to be so
licensed or, if required, the failure to be so licensed or qualified
will not have a material adverse effect on or result in any material
liability to the Buyer.
(d) To the Buyer's knowledge, all legal, accounting and share transfer
company invoices are paid to date and there are no outstanding
bankruptcy expenses which have not been paid or satisfied.
5.02 AUTHORIZATION. The execution and delivery of this Agreement by Buyer and
the consummation by Buyer of the transactions contemplated hereby have been duly
authorized by Buyer's Board of Directors or Executive Committee, and Buyer shall
deliver at the Closing a complete and correct copy, certified by its Secretary,
of the relevant resolutions adopted at the meeting or meetings at which such
authorization took place.
5.03 VALID AND BINDING AGREEMENT. This Agreement constitutes the valid and
binding agreement of Buyer, enforceable in accordance with its terms.
5.04 NO VIOLATION OF AGREEMENT. Neither the execution nor delivery of this
Agreement nor the consummation of the transactions contemplated hereby (a)
violates or will violate, conflict with or will conflict with or constitute a
default under the Articles of Incorporation or By-laws of Buyer or any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which Buyer is a party or by which it is bound; or (b) will cause or give any
person grounds to cause (with or without notice, the passage of time, or both),
the maturity of any liability or obligation of Buyer to be accelerated or will
increase any such liability or obligation.
5.05 VALIDITY OF BUYER'S SHARES. The Buyer's Shares to be delivered at Closing
will be, when issued, duly authorized, validly issued and outstanding and fully
paid and non-assessable.
Horst Geicke hereby represents and warrants to AIH and the Sellers as follows:
4
5.06 TITLE TO GEICKE SHARES. Horst Geicke owns (through Pacific Century
Investments Ltd.), and is transferring to Sellers at the Closing, good, valid
and marketable title to the Geicke Shares, free and clear of all liens, claims,
options, charges and encumbrances whatsoever.
VI. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION; SET-OFF
6.01 SURVIVAL OF REPRESENTATIONS. All representations, warranties, and
agreements made by any party in this Agreement or pursuant hereto shall survive
the Closing hereunder.
6.02 STATEMENTS AS REPRESENTATIONS. All statements contained in any
certificate, schedule, list, document or other writing delivered pursuant hereto
or in connection with the transactions contemplated hereby shall be deemed
representations and warranties within the meaning of Section 6.01 hereof.
6.03 AGREEMENT TO INDEMNIFY. Subject to the terms and conditions of this
Article VI, AIH hereby agrees to indemnify, defend and hold harmless Buyer and
any parent, subsidiary, (including the Corporation) and affiliate of Buyer
(collectively, the "Buyer Group") from and against all demands, claims, actions
or causes of action, assessments, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties and reasonable
attorney's fees, asserted against, resulting to, imposed upon or incurred by any
of the Buyer Group resulting from (a) a breach of any agreement, representation
or warranty of AIH contained in or made pursuant to this Agreement or any facts
or circumstances constituting such a breach; (b) any tax or related claim
(including, without limitation, claims for interest and penalties) asserted
against any of the Buyer Group with respect to any tax or related claim relating
to operations of AIH through the date hereof to the extent that a reserve for
any such tax or related claim relating to operations of AIH through the date
hereof in an amount at least equal thereto was not provided for in the books of
AIH at such date and specifically brought to the attention of the Buyer in
writing prior to the Closing; or (c) any claims related to the lease of the
premises presently occupied by Seller and the failure to pay rent or satisfy any
of the obligations of AIH thereunder (collectively "Claims").
6.04 CONDITIONS OF INDEMNIFICATION. The obligations and liabilities of AIH
under Section 7.03 with respect to Claims resulting from the assertion of
liability by third parties shall be subject to the following terms and
conditions:
(a) Buyer shall give AIH prompt notice of any such Claim and AIH will
undertake the defence thereof by representatives of its own
choosing;
(b) In the event AIH, within a reasonable time after notice of any
Claim, fails to defend Buyer or any member of the Buyer Group
against which such Claim has been asserted, Buyer or any member of
the Buyer Group will (upon further notice to AIH) have the right to
undertake the defence, compromise or settlement of such Claim on
behalf of and for the account and risk of AIH, subject to the right
of AIH to assume such defence as any time prior to settlement,
compromise or final determination thereof;
(c) Anything in this Section 6.04 to the contrary notwithstanding, if
there is a reasonable probability that a Claim may materially and
adversely affect Buyer or any other member of the Buyer Group other
than as a result of money damages or other money payments, Buyer or
such member shall have the right, at its own cost and expense to
defend, compromise any Claim or consent to entry of any judgement
that does not include as an unconditional term thereof the giving by
the claimant or the plaintiff to the Buyer or such member or both,
as the case may be, a release from all liability in respect of such
claim.
5
6.05 REMEDIES CUMULATIVE. Except as herein expressly provided, the remedies
provided for herein shall be cumulative and shall not preclude the assertion by
any party hereto of any other rights or the seeking of any other remedies
against the other party hereto.
6.06 MINIMUM CLAIM. The provision for indemnity contained in Section 6.03
hereof shall only be effective with respect to a Claim (or, if two or more
Claims are asserted together, with respect to the group of claims) if the amount
(or aggregate amount, in the case of a group of Claims) thereof is US$5,000 or
more, provided that if the amount of any Claim (or group of Claims) is US$5,000
or more, the provisions for indemnity contained in Section 6.03 hereof shall be
effective with respect to the entire amount of such Claim (or group of Claims).
VII. PROVISIONS REGARDING BUYER'S SHARES AND GEICKE SHARES
7.01 REPRESENTATION BY SELLERS. Sellers represent and warrant to Buyer and to
Horst Geicke that it is their present intention to acquire the Buyer's Shares
and the Geicke Shares for investment and not with a view to the distribution or
resale thereof and have confirmed such intention to Buyer by letter
simultaneously with the execution hereof.
7.02 AGREEMENTS OF SELLERS. Sellers agree that they will not offer, sell,
transfer, assign, mortgage, pledge or otherwise dispose of or encumber any of
Buyer's Shares or the Geicke Shares delivered to them pursuant to this Agreement
unless (i) in the opinion of counsel to Buyer, registration of such shares under
the Securities Act of 1933, as amended (the "Act") and the rules and regulations
of the Securities and Exchange Commission (the "Commission") thereunder, as then
in effect, is not required in connection with such transaction; (ii) sale of
such shares is permissible under Rule 144 of the Commission under the Act; (iii)
a registration statement under the Act is then in effect with respect to such
shares and the purchaser or transferee has been furnished with a prospectus
meeting the requirements of Section 10 of the Act.
7.03 LEGEND, ETC. Sellers agree that Buyer may endorse on any certificate for
Buyer's Shares or the Geicke Shares to be delivered to or on behalf of Sellers
pursuant to this Agreement an appropriate legend referring to the provisions of
Sections 7.01 and 7.02 hereof and that Buyer may instruct its transfer agent not
to transfer any such shares unless advised by Buyer that such provisions have
been complied with.
VIII. MISCELLANEOUS
8.01 COMMISSIONS. Each of the parties hereto represents and warrants that there
are no claims for brokerage commissions or finders' fees in connection with the
transactions contemplated by this Agreement. Each of the parties hereto will pay
or discharge, and will indemnify and hold harmless the others from and against
any and all claims for brokerage commissions or finders' fees incurred by reason
of any action taken by such indemnifying party.
8.02 EXPENSES. All fees and expenses incurred by AIH in connection with this
Agreement will be borne by AIH and all fees and expenses incurred by Buyer in
connection with this Agreement will be borne by Buyer.
8.03 FURTHER ASSURANCES. From time to time, at Buyer's request and without
further consideration, AIH will execute and deliver to Buyer such documents and
take such action as Buyer may reasonably request in order to consummate more
effectively the transactions contemplated hereby and to vest in Buyer good,
valid and marketable title to the Shares.
6
8.04 PARTIES IN INTEREST. Except as otherwise expressly provided herein, all
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of, and shall be enforceable by the respective successors and
assigns of the parties hereto.
8.05 ENTIRE AGREEMENT; AMENDMENTS. This Agreement including the exhibits,
schedules, lists, other documents and writing referred to herein or delivered
pursuant hereto which form a part hereof, contains the entire understanding of
the Parties with respect to this subject matter. There are no restrictions,
agreements, promises, warranties, covenants or undertakings other than those
expressly set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the Parties with respect to its subject
matter. This Agreement may be amended only by a written instrument duly executed
by the Parties or their respective successors or assigns. Any condition to a
Party's obligations hereunder may be waived by such Party in writing.
8.06 HEADINGS, ETC. The Section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
8.07 NOTICES. All notices, requests, demands, and other communications
hereunder ("Notices") shall be in writing and shall be deemed to have been duly
given if personally delivered or mailed (registered or certified mail, air mail
postage prepaid, return receipt requested, or via air courier) as follows:
If to the Buyer:
RG Global Lifestyles, Inc.
c/o: Pacific Alliance Group LTD.
16th Floor St. John's Building
33 Garden Road
Central, Hong Kong SAR
If to AIH:
Amerikal International Holding, Inc.
17551 Mitchell Avenue
Irvine, CA
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that Notices of change of address shall
only be effective upon receipt. All Notices shall be deemed received on the date
of delivery or, if mailed, on the date appearing on the return receipt therefor.
8.08 LAW GOVERNING. This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of California without regard
to its conflict-of-laws rules.
8.09 COUNTERPARTS. This Agreement may be executed simultaneously in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
7
[remainder of page intentionally left blank]
8
IN WITNESS WHEREOF this Agreement has been duly executed and delivered
by the Parties hereto on the date first above written.
RG GLOBAL LIFESTYLES, INC. HORST GEICKE
/s/ David Koontz /s/ Horst Geicke
- ------------------------------------ --------------------------------
By: David Koontz Horst Geicke
Title: Chief Financial Officer
AMERIKAL INTERNATIONAL HOLDING, INC.
/s/ Grant King
- ------------------------------------
By: Grant King
Title: President
RATIFIED ON BEHALF OF THE SELLERS
/s/ Bruce Thomsen
- ------------------------------------
By: Bruce E. Thomsen
9
SCHEDULE 1
Distribution of Buyer's and Geicke Shares to Sellers
BUYER'S GEICKE
SHAREHOLDER AIH SHARES SHARES SHARES
- -------------------------------------- ---------- ------- ---------
Red Spring Enterprises Ltd 1,000,000 97,127 850,149
Good Vale Equities Ltd 1,000,000 97,127 850,149
Omeco Investment Group Ltd 1,000,000 97,127 850,149
Handajati Widjaja 1,000,000 97,127 850,149
Serialam Pasaribu 1,000,000 97,127 850,149
Lindiani Poerwaningsih 1,000,000 97,127 850,149
Tan Wie Ling 1,000,000 97,127 850,149
Fitri Dafiyanti Kasidik 1,000,000 97,127 850,148
Nasimun 1,000,000 97,127 850,148
Linda Margarita Halim 1,000,000 97,127 850,148
Louis L. Knickerbocker 4,640,500 450,719 3,945,115
PT Berkat Jaya Makmur 2,921,500 283,757 2,483,709
(Buyer's Shares and Geicke Shares
to be issued in name of Budy Hartono)
Mastertime Worldwide, Ltd 1,000,000 97,127 850,148
Winterpark Offshore Ltd 1,000,000 97,127 850,148