AGREEMENT AND PLAN OF REORGANIZATION
AMONG
COMMODORE MINERALS, INC.,
INTAC HOLDCO CORP.
INTAC INTERNATIONAL HOLDINGS LIMITED,
XXX XXXX
AND
YIP XXX XXXX
October 13, 2001
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................. 1
ARTICLE II THE TRANSACTIONS............................. 2
2.1 The Exchange................................. 2
2.2 Securities Law Matters....................... 3
ARTICLE IIIREPRESENTATIONS AND WARRANTIES................. 3
3.1 Representation and Warranties of Purchasers.. 3
3.1.1 Organization of Intac................ 3
3.1.2 Capitalization....................... 3
3.1.3 Authority Relative to the Closing
Documents; Enforceability.......... 3
3.1.4 Title to Assets; Sufficiency of
Assets............................. 4
3.1.5 Compliance with Other Instruments;
Consents........................... 4
3.1.6 Financial Statements................. 4
3.1.7 Taxes................................ 4
3.1.8 Litigation........................... 4
3.1.9 Brokerage............................ 4
3.1.10 Investor Representations............. 4
3.2 Representations and Warranties of Commodore.. 5
3.2.1 Organization of Commodore; Foreign
Qualification...................... 5
3.2.2 Capitalization; Ownership of
Transferred Shares................. 5
3.2.3 Subsidiaries......................... 6
3.2.4 Real Estate.......................... 6
3.2.5 Authority Relative to the Closing
Documents; Enforceability.......... 6
3.2.6 Title to Assets...................... 6
3.2.7 Material Contracts................... 6
3.2.8 Labor Matters........................ 6
3.2.9 Compliance with Other Instruments;
Consents........................... 6
3.2.10 Financial Statements................. 6
3.2.11 Litigation........................... 7
3.2.12 Brokerage............................ 7
3.2.13 Permits.............................. 7
3.2.14 SEC Documents........................ 7
3.2.15 Absence of Certain Changes or Events. 7
3.2.16 Taxes................................ 8
3.2.17 Compliance with Law and Government
Regulations........................ 8
3.2.18 Trade Names and Rights............... 8
3.2.19 No Disqualifying Orders.............. 8
3.2.20 Stock Price Manipulation............. 8
3.2.21 Investment Company Act............... 8
3.2.22 Integration.......................... 8
3.2.23 Full Disclosure...................... 8
ARTICLE IV ADDITIONAL COVENANTS AND AGREEMENTS OF
THE PARTIES................................ 8
4.1 Filing with Securities and Exchange
Commission................................. 8
4.2 Brokers or Finders........................... 9
ARTICLE V CLOSING DELIVERIES........................... 9
5.1 The Closing.................................. 9
5.2 Deliveries by Commodore...................... 9
5.2.1 Certified Resolutions................ 9
5.2.2 Charter Documents.................... 9
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5.3 Deliveries by Purchasers..................... 9
5.3.1 Zhou Intac Shares.................... 9
5.3.2 Xxxx Intac Shares.................... 9
ARTICLE VI SURVIVAL OF REPRESENTATIONS AND
INDEMNIFICATION............................ 9
6.1 Representations to Survive Closing........... 9
6.2 Indemnification.............................. 9
6.3 Enforcement of Indemnification Rights........ 10
6.3.1 Notification......................... 10
6.3.2 Disputes............................. 10
6.3.3 Time Limit........................... 10
6.3.4 Litigation Procedure................. 10
6.4 Remedies Cumulative.......................... 10
ARTICLE VII MISCELLANEOUS................................ 10
7.1 Notices...................................... 10
7.2 Assignability and Parties in Interest........ 11
7.3 Expenses..................................... 11
7.4 Governing Law................................ 11
7.5 Counterparts................................. 11
7.6 Headings..................................... 11
7.7 Pronouns, Etc................................ 11
7.8 Complete Agreement........................... 11
7.9 Modifications, Amendments and Waivers........ 11
7.10 Severability................................. 11
7.11 English Language; Separate Counsel........... 12
SCHEDULES
Description
Schedule 3.1.6 Intac Financial Statements
Schedule 3.2.14 Commodore SEC Documents and
Correspondence
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") has
been made and entered into as of this 13th day of October, 2001,
among COMMODORE MINERALS, INC., a Nevada corporation
("Commodore"), INTAC HOLDCO CORP., a Delaware corporation and
wholly owned subsidiary of Commodore ("Holdings"), INTAC
INTERNATIONAL HOLDINGS LIMITED., a Hong Kong corporation
("Intac"), XXX XXXX, an individual resident of Hong Kong
("Zhou"), and YIP XXX XXXX, an individual resident of Hong Kong,
(the "Xxxx").
R E C I T A L S:
X. Xxxx and Xxxx are the sole shareholders of Intac.
B. Holdings is a wholly owned subsidiary of Commodore.
C. The parties hereto desire to effect a reorganization
(the "Reorganization") pursuant to which (i) Zhou will transfer
to Commodore all of his equity interest in Intac in exchange for
4,950,000 shares of common stock of Commodore, par value $.001
per share (the "Commodore Stock"); (ii) Xxxx will transfer to
Holdings all of her equity interest in Intac in exchange for
50,000 shares of Commodore Stock; and (iii) following the
transfers by Zhou and Xxxx, Intact will become an indirect wholly
owned subsidiary of Commodore.
D. The Board of Directors of Commodore has determined that
it is in the best interests of Commodore and its stockholders
that the Reorganization be consummated in the manner and on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements
and covenants contained herein, the parties hereto agree as
follows and do thereby adopt this Agreement and Plan of
Reorganization.
ARTICLE I.
DEFINITIONS
The terms defined in this Article (except as otherwise
expressly provided in this Agreement) for all purposes of this
Agreement shall have the respective meanings specified in this
Article.
"Affiliate" shall mean any entity controlling or controlled
by another person, under common control with another person, or
controlled by any entity which controls such person.
"Agreement" shall mean this Agreement, and all the exhibits,
schedules and other documents attached to or referred to in the
Agreement, and all amendments and supplements, if any, to this
Agreement.
"Business" shall mean the business currently conducted by
Intac, and its direct and indirect wholly owned subsidiaries,
which is primarily comprised of the purchase and sale of wireless
telephones in various countries throughout Asia and Europe.
"Closing" shall mean the meeting of, or exchange of
documents by, the parties as of the date hereof.
"Closing Date" shall mean the date of the Agreement.
"Closing Documents" shall mean the papers, instruments and
documents required to be executed and delivered at the Closing
pursuant to this Agreement.
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"Code" shall mean the Internal Revenue of 1986, or any
successor law, and regulations issued by the Internal Revenue
Service pursuant to the Internal Revenue Code or any successor
law.
"Commodore Exchange Shares" shall mean the 5,000,000 shares
of Commodore Stock to be issued to Zhou and Xxxx, collectively,
pursuant to Section 2.1.
"Encumbrance" shall mean any charge, claim, encumbrance,
community property interest, condition, equitable interest, lien,
option, pledge, security interest, right of first refusal, or
restriction of any kind, including any restriction on use, voting
(in the case of any security), transfer, receipt of income, or
exercise of any other attribute of ownership other than (a) liens
for taxes not yet due and payable, or (b) liens that secure the
ownership interests of lessors of equipment.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"GAAP" shall mean United States generally accepted
accounting principles applied in a manner consistent with prior
periods.
"Intac Shares" means, collectively, the Zhou Intac Shares
and the Xxxx Intac Shares.
"Xxxx Intac Shares" means the shares of capital stock of
Intac owned by Xxxx.
"Material Adverse Effect" means any change (individually or
in the aggregate) in the general affairs, management, business,
goodwill, results of operations, condition (financial or
otherwise), assets, liabilities or prospects (whether or not the
result thereof would be covered by insurance) that would be
material and adverse to the designated party.
"Ordinary Course of Business" shall mean actions consistent
with the past practices of the designated party which are similar
in nature and style to actions customarily taken by the
designated party and which do not require, and in the past have
not received, specific authorization by the Board of Directors of
the designated party.
"Permits" shall mean any permit, license, exemption, order
or approval of any federal, state or local governmental entity
necessary for the conduct of the designated party's respective
business as currently conducted.
"Purchaser" or "Purchasers" shall mean, as applicable, Xxxx
or Zhou.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Taxes" shall include federal, state and local income taxes,
capital gains tax, value-added taxes, franchise, personal
property and real property taxes, levies, assessments, tariffs,
duties (including any customs duty), business license or other
fees, sales, use and any other taxes relating to the assets of
the designated party or the business of the designated party for
all periods up to and including the Closing Date, together with
any related charge or amount, including interest, fines,
penalties and additions to tax, if any, arising out of tax
assessments.
"Transactions" shall mean the share exchanges contemplated
by this Agreement, together with each of the other transactions
contemplated by the Closing Documents.
"Zhou Intac Shares" shall mean the shares of capital stock
of Intac owned by Zhou.
Terms are defined elsewhere in this Agreement shall have the
meanings assigned to them herein.
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ARTICLE II.
THE TRANSACTIONS
2.1. The Exchange. Subject to the terms and conditions of
the Closing Documents, (a) Zhou hereby sells, transfers and
delivers to Commodore, and Commodore hereby purchases and
accepts, the Zhou Intac Shares, in consideration for the issuance
by Commodore to Zhou of four million nine hundred fifty thousand
(4,950,000) shares of Commodore Stock; and (b) Xxxx hereby sells,
transfers and delivers to Holdings, and Holdings hereby purchases
and accepts, the Xxxx Intac Shares, in consideration for the
issuance by Commodore to Xxxx of fifty thousand (50,000) shares
of Commodore Stock.
2.2. Securities Law Matters. Each Purchaser
understands that the Commodore Exchange Shares to be issued and
delivered to them pursuant to terms of this Agreement will not be
registered under the Securities Act but will be issued in
reliance upon the exemption afforded by Section 4(2) of the
Securities Act and/or Regulation D promulgated by the SEC
thereunder ("Regulation D"), and that Commodore is relying upon
the truth and accuracy of the representations set forth herein in
issuing such shares. Each certificate of Commodore Exchange
Shares issued to each Purchaser pursuant to terms of this
Agreement or the Exchange shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE TRANSFERRED UNLESS
THEY ARE SO REGISTERED OR, IN THE OPINION OF
COUNSEL ACCEPTABLE TO THIS CORPORATION, SUCH
TRANSFER IS EXEMPT FROM REGISTRATION.
Commodore shall give instructions to its transfer agent
consistent with the foregoing legend.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of Purchasers. Zhou, on
his own behalf and on behalf of Intac, and Xxxx, on her own
behalf, represent and warrant, severally but not jointly, to
Commodore as follows:
3.1.1. Organization of Intac. Intac is a business
corporation, duly organized, validly existing, and in good
standing under the laws of Hong Kong, and has all requisite
corporate power, franchises and licenses to own its property and
conduct the business in which it is engaged.
3.1.2. Capitalization.
3.1.2.1. Intac has an authorized capital stock
consisting of 10,000 shares of capital stock, of which 10,000
shares are issued and outstanding. All of the outstanding shares
of capital stock of Intac have been validly issued, fully paid
and are non-assessable.
3.1.2.2. Intac does not have outstanding
subscriptions, options, rights, warrants, convertible
securities or other agreements or commitments to issue,
or contracts or any other agreements obligating Intac
to issue, or to transfer from treasury, any shares of
its capital stock of any class or kind, or securities
convertible into such stock.
3.1.2.3. Zhou is the sole beneficial and
record owner of the Zhou Intac Shares. Xxxx is the
sole beneficial and record owner of the Xxxx Intac
Shares. Each Purchaser holds his or her Intac Shares
free and clear of any Encumbrance of any kind
whatsoever. The Intac shares collectively represent
all of the outstanding shares of capital stock of
Intac.
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3.1.3. Authority Relative to the Closing Documents;
Enforceability. Each Purchaser has the requisite power to
execute and deliver the Closing Documents and to consummate the
Transactions. The Closing Documents executed by each Purchaser
are the legal, valid and binding obligations of Intac,
enforceable against each Purchaser in accordance with their
respective terms, except insofar as its enforcement may be
limited by (a) bankruptcy, insolvency, moratorium or similar laws
affecting the enforcement of creditors, rights generally and (b)
equitable principles limiting the availability of equitable
remedies (collectively, the "Insolvency/Equity Exceptions").
3.1.4. Title to Assets; Sufficiency of Assets.
Intac has good and marketable title in and to all of its
properties and assets free and clear of any Encumbrance. The
assets and contract rights held by Intac are sufficient for Intac
to conduct the Business.
3.1.5. Compliance with Other Instruments;
Consents. Neither the execution of any Closing Document, nor the
consummation of the Transactions, will conflict with, violate or
result in a breach or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default), or result in the termination of, or accelerate the
performance required by, or result in the creation of any
Encumbrance upon any of the assets of Intac under any provision
of any provision of the Articles of Incorporation, Bylaw,
indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, decree, statute, ordinance,
regulation or any other restriction of any kind or character to
which Intac is subject or by which Intac is bound, or require the
consent of any third party or governmental agency.
3.1.6. Financial Statements. Intac has
delivered to Commodore the financial statements attached as
Schedule 3.1.6 hereto (the "Intac Financial Statements"). The
Intac Financial Statements fairly present, in all material
respects, the properties, assets and results of operations of
Intac as of the dates and for the periods indicated.
3.1.7. Taxes.
3.1.7.1. Intac either (a) has timely filed with
the appropriate taxing authority all Tax and information returns
required to have been filed by Intac or (b) has timely filed for
any required extensions with regard to such returns. All Taxes
of Intac have been paid (or estimated Taxes have been deposited)
to the extent such payments are required prior to the date hereof
or accrued on the books of Intac. The returns were correct when
filed.
3.1.7.2. Intac has not received any notice
of any pending investigations of Intac concerning any
Tax returns by any federal, state or local taxing
authority. There are no federal, state, local or
foreign Tax liens upon any of Intac's assets.
3.1.8. Litigation. There are no legal,
administrative, arbitration or other proceedings or
claims pending against Intac nor is Intac subject to
any existing judgment which might affect the financial
condition, business, property or prospects of Intac;
nor has Intac received any inquiry from an agency of
the federal or of any state or local government about
the Transactions, or about any violation or possible
violation of any law, regulation or ordinance affecting
its business or assets.
3.1.9. Brokerage. No broker or finder has
rendered services to either Purchaser in connection with the
Transactions.
3.1.10. Investor Representations.
3.1.10.1. Each Purchaser is acquiring the
Commodore Exchange Shares for investment solely for his or her
own account and not with a present view due to any distribution,
transfer or resale to others, including any "distribution" within
the meaning of the Securities Act. Each
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Purchaser understands that the Commodore Exchange Shares to
be issued to each Purchaser have not and will not be registered
under the Securities Act by reason of a specific exemption from
the registration provisions of the Securities Act, the
availability of which depends on, among other things, the bona
fide nature of the investment intent and accuracy of the
representations set forth herein.
3.1.10.2. Each Purchaser is financially able to
bear the economic risks of an investment in Commodore
and has no need for liquidity in the investment. The
financial capacity of each Purchaser is of such a
proportion that the total cost of such Purchaser's
investment is not material when compared to his or her
net worth. Each Purchaser is financially able to
suffer a complete loss of an investment in the
Commodore Exchange Shares.
3.1.10.3. Each Purchaser has such knowledge
and experience in financial and business matters in
general and with respect to investments of a nature
similar to that evidenced by the Commodore Exchange
Shares so as to be capable, by reason of such knowledge
and experience, of evaluating the merits and risks of,
and making an informed business decision with regard
to, and protecting his or her own interest in
connection with, the acquisition of such shares.
3.1.10.4. Each Purchaser has been provided
with and had the opportunity to review the Commodore
SEC Reports.
3.1.10.5. Each Purchaser understands that a
limited public market now exists for the Commodore
Common Stock and that Commodore has made no assurances
that an active public market will ever exist for its
securities.
3.1.10.6. Each Purchaser understands that
the investment in Commodore Stock is particularly risky
and that he or she is not assured of any return on this
investment.
3.2. Representations and Warranties of
Commodore. Commodore hereby represents and warrants to
Purchasers that:
3.2.1. Organization of Commodore; Foreign
Qualification. Commodore is duly organized, validly existing,
and in good standing under the laws of the state of Nevada and
has all requisite corporate power, franchises, and licenses to
own its property and conduct the business in which it is engaged.
Commodore has the full power and authority (corporate or
otherwise) to execute, deliver and perform their respective
obligations under this Agreement and the Closing Agreements to
which it is a party. Complete copies of Commodore's Certificate
of Incorporation, Bylaws, minutes, transfer records and
agreements, if any, among some or all of the stockholders of
Commodore have been delivered or made available to each
Purchaser. Commodore is duly qualified and in good standing as a
foreign corporation in every jurisdiction in which such
qualification is necessary, except to the extent the failure to
be so qualified is not reasonably expected to result in a
Material Adverse Effect.
3.2.2. Capitalization; Ownership of Transferred
Shares.
3.2.2.1 Commodore has an authorized capital
stock consisting of 100,000,000 shares of common stock, par value
$0.001 per share, of which 13,544,000 shares are issued and
outstanding. All of the shares of Commodore Stock have been
validly issued, fully paid, are non-assessable, and were issued
in compliance with any preemptive or similar rights and in
compliance with applicable federal and state securities laws.
3.2.2.2. Commodore does not have any
outstanding subscriptions, options, rights, warrants,
convertible securities or other agreements or
commitments to issue, or contracts or any other
agreements obligating Commodore to issue, or to
transfer from treasury, any shares of its
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capital stock or membership interests, as applicable, of any
class or kind, or securities convertible into such stock or
interests. No persons who are now holders of Commodore Stock,
and no persons who previously were holders of Commodore Stock,
are or ever were entitled to preemptive rights other than persons
who exercised or waived those rights.
3.2.2.3. There is no outstanding vote, plan,
pending proposal or right of any person to cause any
redemption of Commodore Stock. Neither Commodore nor
any of its Affiliates, is under any obligation,
contract or other arrangement to register (or maintain
the registration of) any of its or their securities
under federal or state securities laws.
3.2.2.4. There are no agreements, voting
trusts, proxies or other agreements or understanding of
any character, whether written or oral, among
stockholders of Commodore with respect to or concerning
the purchase, sale or transfer or voting of the
Commodore Stock or any other security of Commodore.
3.2.3. Subsidiaries. Commodore does not
have any subsidiaries (whether held directly or
indirectly) or any equity investment in any
corporation, partnership, joint venture or other
business.
3.2.4. Real Estate. Commodore does not own any
real estate or any interest in any real estate.
3.2.5. Authority Relative to the Closing
Documents, Enforceability. Commodore has the requisite corporate
power and authority to execute and deliver the Closing Documents
and to consummate the Transactions. The execution and delivery of
the Closing Documents by Commodore, and the consummation by
Commodore of the Transactions, have been duly authorized by its
Board of Directors and no other corporate or other action on the
part of Commodore is necessary to authorize the execution and
delivery by Commodore of the Closing Documents and the
consummation by them of the Transactions. The Closing Documents
executed by Commodore are the legal, valid and binding
obligations of Commodore, enforceable against it in accordance
with their respective terms, except insofar as the enforcement
thereof may be limited by the Insolvency/Equity Exceptions. All
persons who execute the Closing Documents on behalf of Commodore
have been duly authorized to do so.
3.2.6. Title to Assets. Commodore has good and
marketable title in and to all of the assets and properties
reflected in the most recent Commodore Financial Statements, plus
all assets and properties purchased or acquired by Commodore
since the date of that Commodore Financial Statement, less all
assets and properties which Commodore has disposed of in the
Ordinary Course of Business, which assets and properties are free
and clear of any Encumbrance.
3.2.7. Material Contracts. Except as disclosed
in the Commodore SEC Documents, Commodore is not a party to or
bound by any agreement or contract.
3.2.8. Labor Matters. Except as disclosed in
the Commodore SEC Documents, there are presently no employment or
consulting contracts with, or covenants against competition by,
any present or former employees of Commodore. Commodore has no
employees.
3.2.9. Compliance with Other Instruments;
Consents. Neither the execution of any Closing Document nor the
consummation of the Transactions will conflict with, violate or
result in a breach or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default), or result in a termination of, or accelerate the
performance required by, or result in the creation of any
Encumbrance upon any assets of Commodore under any provision of
the Certificate of Incorporation or Organization, Bylaws,
indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, decree, statute, ordinance,
regulation or any other restriction of any kind or character to
which Commodore is bound.
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3.2.10. Financial Statements.
3.2.10.1. Commodore's audited financial statements
(the "Commodore Financial Statements") for the year
ended November 30, 2000 and unaudited quarterly
financial statements for the three month periods ended
February 28, 2001, May 31, 2001, and August 31, 2001
copies of which have been delivered to each Purchaser,
are true and complete in all material respects, and
have been prepared in accordance with GAAP for the
period covered by such statements, and fairly present,
in accordance with GAAP, the properties, assets and
financial condition of Commodore, and results of its
operations as of the dates and for the periods covered
thereby. Commodore maintains a system of internal
accounting controls sufficient to provide reasonable
assurance that (a) transactions are executed with
management's authorizations, (b) transactions are
recorded as necessary to permit preparation of
financial statements in accordance with GAAP and to
maintain accountability for assets, (c) access to
assets is permitted only in accordance with
management's authorizations and (d) the recorded
accountability for assets if compared with existing
assets at reasonable intervals and appropriate action
is taken with respect to any difference. Commodore has
not engaged in any transaction, maintained any bank
account or used any corporate funds except for
transactions, bank accounts or funds which have been
and are reflected in the normally maintained books and
records. There has been no material adverse change in
the business operations, assets, properties, prospects
or condition (financial or otherwise) of Commodore,
taken as a whole, from that reflected in the Commodore
Financial Statements.
3.2.10.2. As of the date hereof, Commodore does
not have any debts, liabilities or obligations of any
nature, whether accrued, absolute, unmatured,
contingent, or otherwise, whether due or to become due,
that are not fully reflected in the Commodore Financial
Statements.
3.2.11. Litigation. There are no legal,
administrative, arbitration or other proceedings or
claims pending against Commodore, nor is Commodore
subject to any existing judgment which might affect the
financial condition, business, property or prospects of
Commodore; nor has Commodore received any inquiry from
an agency of the federal or of any state or local
government about the Transactions, or about any
violation or possible violation of any law, regulation
or ordinance affecting its business or assets.
3.2.12. Brokerage. No broker or finder has
rendered services to Commodore in connection with the
Transactions.
3.2.13. Permits. Commodore does not have any
Permits nor is it required to maintain any Permits.
3.2.14. SEC Documents. Commodore has furnished
or made available to Purchasers a true and complete copy of each
report, schedule, registration statement and proxy statement
filed by Commodore with the SEC, since the inception of Commodore
(as such documents have since the time of their filing been
amended, the "Commodore SEC Documents"), a list of which is
attached as Schedule 3.2.14. Commodore has timely filed with the
SEC all documents required to have been filed pursuant to the
Securities Act and Section 12(g) of the Exchange Act. As of
their respective dates, the Commodore SEC Documents complied in
all material respects with the requirements of the Securities
Act, or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Commodore
SEC Documents, and none of the Commodore SEC Documents contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of
Commodore included in the Commodore SEC Documents comply as to
form in all material respects with applicable accounting
requirements and with the published rules and regulations of the
SEC with respect thereto; are accurate, complete and in
accordance with the books and records of Commodore; have
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been prepared in accordance with GAAP (except as may be
indicated in the notes thereto or, in the case of the unaudited
statements, as permitted by Form 10-Q of the SEC) and fairly
present (subject, in the case of the unaudited statements, to
normal, recurring audit adjustments) the financial position of
Commodore as and at the dates thereof and the results of its
operations and cash flows for the periods then ended.
3.2.15. Absence of Certain Changes or Events. Except as
disclosed in the Commodore SEC Documents, since the date of the
latest Commodore Financial Statements, Commodore has not (a)
issued or sold any promissory note, stock, bond, option or other
security of which it was an issuer or other obligor, (b)
discharged or satisfied any Encumbrance or paid any obligation or
liability, whether absolute or contingent, direct or indirect,
(c) incurred or suffered to be incurred any liability or
obligation whatsoever, (d) caused or permitted any Encumbrance to
be created or arise on or in any of its properties or assets, (e)
declared or made any dividend, payment or distribution to
stockholders or purchased or redeemed or agreed to purchase or
redeem any shares of its capital stock, (f) reclassified its
shares of capital stock, (g) acquired any equity interest in any
other entity, or (h) entered into any agreement or transaction
except in connection with the execution and performance of this
Agreement. Commodore has not entered into any agreement to do any
of the foregoing action described in this Section 3.2.15.
3.2.16. Taxes.
3.2.16.1 Commodore either (a) has timely filed
with the appropriate taxing authority all Tax and information
returns required to have been filed by Commodore or (b) has
timely filed for any required extensions with regard to such
returns. All Taxes of Commodore have been paid (or estimated
Taxes have been deposited) to the extent such payments are
required prior to the date hereof or accrued on the books of
Commodore. The returns were correct when filed.
3.2.16.2. There are no pending
investigations of Commodore concerning any Tax returns
by any federal, state or local Taxing authority, and
there are no federal, state, local or foreign Tax liens
upon any of Commodore's assets.
3.2.17. Compliance with Law and Government
Regulations. Commodore is in compliance with, and are
not in violation of, applicable federal, state, local
or foreign statutes, laws and regulations (including
without limitation, any applicable environmental,
building, zoning or other law, ordinance or regulation)
affecting Commodore or its properties or the operation
of its business. Commodore is not subject to any order,
decree, judgment or other sanction of any court,
administrative agency or other tribunal.
3.2.18. Trade Names and Rights. Commodore does
not use any trade xxxx, service xxxx, trade name, or copyright in
its business, nor does it own any trade marks, trade xxxx
registrations or applications, trade names, service marks,
copyrights, copyright registrations or applications. No person
owns any trade xxxx, trade xxxx registration or application,
service xxxx, trade name, copyright or copyright registration or
application, the use of which is necessary or contemplated in
connection with the operation of Commodore business.
3.2.19. No Disqualifying Orders. Neither
Commodore, nor any of its affiliates, directors, officers or
principals is subject to any disqualifying order under the "Bad
Boy" provisions of the federal or any state's securities law. As
used herein, "Bad Boy" provisions include Rule 262 of
Regulation A, Rule 507 of Regulation D and other similar
disqualifying provisions of federal and state securities laws.
3.2.20. Stock Price Manipulation. Commodore has
not taken (and none will take), directly or indirectly, any
action designed to or that would reasonably be expected to cause
or result in stabilization or manipulation of the price of the
Commodore Stock.
3.2.21. Investment Company Act. Commodore is
not, and upon completion of the Transactions will not be, subject
to registration as an investment company under the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder.
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3.2.22. Integration. Commodore has not offered, sold or
issued any shares of Commodore Stock during the six-month period
preceding the Closing Date.
3.2.23. Full Disclosure. None of the
representations and warranties made by Commodore herein, or in
any Closing Document furnished or to be furnished by them
hereunder contains or will contain any untrue statement of
material fact, or omits any material fact, the omission of which
would be misleading.
ARTICLE IV.
ADDITIONAL COVENANTS AND AGREEMENTS OF THE PARTIES
4.1. Filing with Securities and Exchange Commission. The
parties recognize that Commodore will be required to report the
Transactions to the SEC on Form 8-K, and agree to cooperate in
the preparation and filing of such report or any other filings to
be filed with the SEC.
4.2. Brokers or Finders. Each party agrees to hold the
others harmless and to indemnify them against the claims of any
persons or entities claiming to be entitled to any brokerage
commission, finder's fee, advisory fee or like payment from such
other party based upon actions of the indemnifying party in
connection with the Transactions.
ARTICLE V
CLOSING DELIVERIES
5.1. The Closing. The Closing shall take place upon the
execution of this Agreement by all parties and the delivery of
the items to be delivered at Closing by each party hereto (unless
such delivery has been waived by the party(ies) to have received
such closing item), at the offices of Xxxxx & Xxxxxx, LLP in
Dallas, Texas or at such other place as the parties may mutually
agree.
5.2. Deliveries by Commodore. Commodore hereby
delivers to Purchasers, as applicable, the following items:
5.2.1. Certified Resolutions. Copies of the
resolutions, certified by the Secretary or an Assistant Secretary
of Commodore, dated on or before the date hereof of the Board of
Directors of Commodore authorizing the execution of this
Agreement and the consummation of the transactions and other acts
contemplated by this Agreement.
5.2.2. Charter Documents. Copies of (a) the
Certificate of Incorporation of Commodore, certified by the
Secretary of State of Nevada, (b) the Bylaws of Commodore in as
adopted by the Board of Directors of Commodore, certified by the
Secretary or an Assistant Secretary of Commodore, and (c) good
standing certificates and certificates of existence from the
Secretary of State of Nevada, evidencing that Commodore is in
existence and in good standing under the laws of the State of
Nevada.
5.2.3. To Zhou, certificates representing
4,950,000 shares of Commodore Stock; and to Xxxx, certificates
representing 50,000 shares of Commodore Stock.
5.3. Deliveries by Purchasers. Purchasers hereby
deliver to Holdings and Commodore, as applicable, the following
items:
5.3.1. Zhou Intac Shares. To Commodore,
certificates representing the Zhou Intac Shares, with stock
powers duly endorsed in blank.
5.3.2. Xxxx Intac Shares. To Holdings,
certificates representing the Xxxx Intac Shares, with stock
powers duly endorsed in blank.
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ARTICLE VI.
SURVIVAL OF REPRESENTATIONS AND INDEMNIFICATION
6.1. Representations to Survive Closing. The
representations and warranties of Commodore and each Purchaser
contained herein or in any document furnished pursuant hereto
shall survive the Closing of the Transaction. Each party
acknowledges and agrees that, except as expressly set forth in
this Agreement or any Closing Document, no party has made (and no
party is relying on) any representation or warranties of any
nature, express or implied, regarding any or relating to any of
the transactions contemplated by this Agreement.
6.2. Indemnification. Commodore hereby agrees to
indemnify, defend and hold each Purchaser harmless against any
claims, actions, suits, proceedings, investigations, losses,
expenses, damages, obligations, liabilities, judgments, fines,
fees, costs and expenses (including costs and reasonable
attorneys' fees) and amounts paid in settlement of any pending,
threatened or completed claim, action, suit, proceeding or
investigation (collectively "Loss" or "Losses") which arise or
result from or are related to (i) any breach or failure of
Commodore to perform any of their covenants or agreements set
forth herein or in the Closing Documents or (ii) the inaccuracy
of any representation or warranty made by the Commodore contained
herein or in the Closing Documents. Each Purchaser, severally
but not jointly, hereby agrees to indemnify, defend and hold
Commodore harmless against any Loss which arises or results from
or is related to (i) any breach or failure of such Purchaser to
perform any of his or her covenants or agreements set forth
herein or in the closing documents or (ii) the inaccuracy of any
representation or warranty made by such Purchaser contained
herein or in the Closing Documents.
6.3. Enforcement of Indemnification Rights.
6.3.1. Notification. Any person or entity seeking
enforcement of indemnification rights hereunder shall notify each
potentially liable person or entity of (a) any payment made in
respect of any liability, obligation or claim to which the
foregoing indemnity applies, (b) any Loss which such person or
entity may sustain or incur, to which the foregoing indemnity
relates, and (c) any claim made or suit filed against such person
or entity or this Agreement. Such notification shall include a
specific demand for indemnification and defense if such person or
entity wishes to assert his or its indemnification rights
hereunder.
6.3.2. Disputes. If there is any dispute as to
the right to indemnification and defense hereunder, the disputing
party shall give the other party written notice of such dispute,
specifying in detail the basis of the dispute, not later than 20
days after receipt of demand for indemnification.
6.3.3. Time Limit. If there is no dispute as
to the right to indemnification with respect to any such demand
within such 20 day period, or upon resolution of any such dispute
by the parties or by a court, the person or entity entitled to
indemnification shall be promptly paid the amount of such demand,
the amount agreed to by the parties or the amount ordered by a
court.
6.3.4. Litigation Procedure. If a party
entitled to be indemnified pursuant to this Article VI notifies
the other party of the commencement of an action against it, the
party obligated to provide indemnification will be entitled, at
his or its own expense, to (a) participate in, and (b) except in
the case of a claim that relates to a tax liability, assume the
defense of the action. If the indemnifying party wishes to
assume the defense of that action, counsel selected by the
indemnifying party shall be reasonably satisfactory to the
indemnified party, and the indemnified party shall cooperate in
all reasonable respects, at its cost and expense, with the
indemnifying party and such counsel in the investigation and
defense of such action and any appeal arising therefrom. After
the indemnifying party shall notify the indemnified party of its
election to assume the defense of any such action, the
indemnifying party will not be liable to the indemnified party
under this Article VI for any legal fees or other expense
subsequently incurred by the indemnified party in connection with
the defense thereof. Even if the indemnifying party should
assume the defense of any such actions, the indemnified party
shall have the right at its expense to participate in the defense
thereof. If the indemnifying party assumes the defense of any
such actions, it shall not settle or otherwise compromise any
such action without the prior written consent of the indemnified
party.
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If the indemnifying party should fail or refuse to assume
the defense of any such action, the indemnifying party shall
jointly and severally reimburse the indemnified party for the
fees and expenses of counsel engaged by it to defend that action.
6.4. Remedies Cumulative. Persons or entities entitled to
indemnification hereunder shall be entitled to such
indemnification from time to time and shall be entitled to rely
upon one or more provisions of this Agreement without waiving its
right to rely upon any other provisions at the same time or any
other time.
ARTICLE VII
MISCELLANEOUS
7.1. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
delivered if delivered by hand, by telecopier, by courier or
mailed by certified or registered mail, postage prepaid,
addressed as follows:
If to Commodore or Holdings:
x/x XXXXX Xxxxxxxxxxxxx
Xxxx 0000, 18/F., Modern Warehouse,
0 Xxxxx Xxx Xxxxxx, Xxxx Xxxx,
Xxxxxxx, Xxxx Xxxx
If to Xxxx:
to her home address as
reflected on the books and
records of Holdings
If to Zhou:
to his home address as
reflected on the books and
records of Holdings
7.2. Assignability and Parties in Interest. This
Agreement shall not be assignable by any of the parties
hereto without the consent of all other parties hereto.
This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective
successors. Nothing in this Agreement is intended to
confer, expressly or by implication, upon any other
person any rights or remedies under or by reason of
this Agreement.
7.3. Expenses. Each party shall, except as otherwise
specifically provided, bear its own expenses and costs, including
the fees of any attorney retained by it, incurred in connection
with the preparation of the Closing Documents and consummation of
the Transactions.
7.4. Governing Law. This Agreement shall be governed
by, and construed and enforced in accordance with, the laws of
the State of Texas. Each of the parties hereto consents to the
personal jurisdiction of the federal and state courts in the
State of Texas in connection with any action arising under or
brought with respect to this Agreement.
7.5. Counterparts. This Agreement may be executed as
of the same effective date in one or more counterparts, each of
which shall be deemed an original.
-11-
7.6. Headings. The headings and subheadings contained in
this Agreement are included solely for ease of reference, and are
not intended to give a full description of the contents of any
particular Section and shall not be given any weight whatever in
interpreting any provision of this Agreement.
7.7. Pronouns, Etc. Use of male, female and neuter
pronouns in the singular or plural shall be understood to include
each of the other pronouns as the context requires. The word
"and" includes the word "or". The word "or" is disjunctive but
not necessarily exclusive.
7.8. Complete Agreement. This Agreement, the
Appendices hereto, and the documents delivered pursuant hereto or
referred to herein or therein contain the entire agreement
between the parties with respect to the Transaction and, except
as provided herein, supersede all previous negotiations,
commitments and writings.
7.9. Modifications, Amendments and Waivers. This
Agreement shall not be modified or amended except by a writing
signed by each of the parties hereto.
7.10. Severability. If any term or other provision
of this Agreement is invalid, illegal, or incapable of being
enforced by any rule of law or public policy, all other terms and
provisions of this Agreement will nevertheless remain in full
force and effect so long as the economic or legal substance of
the Transactions is not affected in any manner adverse to any
party hereto. Upon any such determination that any term or other
provision is invalid, illegal, or incapable of being enforced,
the parties hereto will negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as
closely as possible in any acceptable manner to the end that the
Transactions are consummated to the extent possible.
7.11. English Language; Separate Counsel. Each of
the parties hereto agrees to the use of the English language for
this Agreement. (German translation of prior sentence: Jeder
Teilnehmer dieses Vertrages ist zur Benutzung der englischen
Sprache fuer diesen Vertrag vereinbart.) Further, the individual
parties acknowledge that each had the opportunity to obtain
separate counsel of their choosing and, to the extent separate
counsel was not obtained, such party confirms that it has waived
his, her or its rights with respect thereto.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
Commodore:
---------
COMMODORE MINERALS, INC.
By: /s/ XXXX XXXXXX
----------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
Holdings:
--------
INTAC HOLDCO CORP.
By: /s/ XXX XXXX
---------------------------
Name: Xxx Xxxx
Title: President
Intac:
-----
INTAC INTERNATIONAL HOLDINGS, LIMITED
By: /s/ XXX XXXX
---------------------------
Name: Xxx Xxxx
Title: Managing Director
/s/ XXX XXXX
------------------------------
XXX XXXX
/s/ YIP XXX XXXX
------------------------------
YIP XXX XXXX
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